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EXHIBIT 4.1
Indenture, dated August 22, 1996, between Printpack, Inc. and Fleet National
Bank relating to the 9-7/8% Senior Notes due 2004.
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EXECUTION COPY
________________
PRINTPACK, INC.
the Company
_________________
SERIES A AND SERIES B
9-7/8% SENIOR NOTES DUE 2004
_________________
INDENTURE
Dated as of August 22, 1996
_________________
FLEET NATIONAL BANK
________________________
As Trustee
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CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
310 (a)(1) 7.10
(a)(2) 7.10
(a)(3) N.A.
(a)(4) N.A.
(a)(5) 7.10
(b) 7.10
(c) N.A.
311 (a) 7.11
(b) 7.11
(c) N.A.
312 (a) 2.05
(b) 10.03
(c) 10.03
313 (a) 7.06
(b)(1) N.A.
(b)(2) 7.06;7.07
(c) 7.06;10.02
(d) 7.06
314 (a) 4.03;4.04
(b) N.A.
(c)(1) 10.04
(c)(2) 10.04
(c)(3) N.A.
(d) N.A.
(e) 10.05
(f) N.A.
315 (a) N.A.
(b) N.A.
(c) N.A.
(d) N.A.
(e) 6.11
316 (a)(last sentence) 2.09
(a)(1)(A) 6.05
(a)(1)(B) N.A.
(a)(2) N.A.
(b) 6.07
(c) N.A.
317 (a)(1) 6.08
(a)(2) 6.09
(b) 2.04
318 (a) N.A.
(b) N.A.
(c) 10.01
N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
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INDENTURE dated as of August 22, 1996 between PRINTPACK, INC.,
a Georgia corporation (the "Company") and Fleet National Bank, as trustee (the
"Trustee").
The Company and the Trustee agree as follows for the benefit of
each other and for the equal and ratable benefit of the holders (the "Holders")
of the 9-7/8% Series A Senior Notes due 2004 of the Company (the "Series A
Notes") and the 9-7/8% Series B Senior Notes due 2004 of the Company (the
"Series B Notes" and, together with the Series A Notes, the "Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01. DEFINITIONS.
"Acquired Debt" means, with respect to any specified Person,
(i) Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Subsidiary of such specified Person, including,
without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Subsidiary of such specified Person, and (ii) Indebtedness secured by a Lien
encumbering any asset acquired by such specified Person.
"Acquisition" means the acquisition of assets of JR Flexible by
the Company pursuant to an Asset Purchase Agreement, dated as of April 10,
1996, between the Company and Xxxxx River, as amended.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such Person,
whether through the ownership of voting securities, by agreement or otherwise;
provided that beneficial ownership of 10% or more of the voting securities of a
Person shall be deemed to be control.
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"Agent" means any Registrar, Paying Agent or co-registrar or
any successor thereto.
"Asset Sale" means (i) the sale, lease, conveyance or other
disposition of any assets (including, without limitation, by way of a sale and
leaseback) other than sales of inventory or obsolete or excess equipment or
equipment that is no longer useable, in each case, in the ordinary course of
business consistent with past practices (provided that the sale, lease,
conveyance or other disposition of all or substantially all of the assets of
the Company and its Subsidiaries taken as a whole shall be governed by the
provisions of Section 4.16 and/or Section 5.01 hereof and not by the provisions
of Section 4.10 hereof), and (ii) the issue or sale by the Company or any of
its Subsidiaries of Equity Interests of any of the Company's Subsidiaries, in
the case of either clause (i) or (ii), whether in a single transaction or a
series of related transactions (a) that have a fair market value in excess of
$1.0 million or (b) for net proceeds in excess of $1.0 million. Notwithstanding
the foregoing: (i) a transfer of assets by the Company to a Controlled
Subsidiary or by a Controlled Subsidiary to the Company or to another
Controlled Subsidiary, (ii) an issuance of Equity Interests by a Wholly Owned
Subsidiary to the Company or to another Wholly Owned Subsidiary, (iii) sales of
Target Assets, (iv) a sale of Receivables to or by the Receivables Subsidiary
and (v) a Permitted Investment or Restricted Payment that is permitted by the
provisions of Section 4.07 hereof shall not be deemed to be Asset Sales.
"Attributable Debt" in respect of a sale and leaseback
transaction means, at the time of determination, the present value (discounted
at the rate of interest implicit in such transaction, determined in accordance
with GAAP) of the obligation of the lessee for net rental payments during the
remaining term of the lease included in such sale and leaseback transaction
(including any period for which such lease has been extended or may, at the
option of the lessor, be extended).
"Bankruptcy Law" means Title 11, U.S. Code or any similar
federal or state law for the relief of debtors.
"Beneficial Owner" (including, with correlative meanings,
"Beneficially Owned" and "Beneficial Ownership") means, with respect to any
Capital Stock, a "person," as such term is used in Section 13(d)(3) of the
Exchange Act, that is a "beneficial owner," as such term is defined in Rule
13d-3 and Rule 13d-5 under the Exchange Act, of such Capital Stock.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital
lease that would at such time be required to be capitalized on a balance sheet
in accordance with GAAP.
"Capital Stock" means (i) in the case of a corporation,
corporate stock, (ii) in the case of an association or business entity, any and
all shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership, partnership
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interests (whether general or limited) and (iv) any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person.
"Cash Equivalents" means (i) United States dollars, (ii)
securities issued or directly and fully guaranteed or insured by the United
States government or any agency or instrumentality thereof having maturities of
not more than six months from the date of acquisition, (iii) certificates of
deposit and eurodollar time deposits with maturities of twelve months or less
from the date of acquisition, bankers' acceptances with maturities not
exceeding twelve months and overnight bank deposits, in each case with any
domestic commercial bank having capital and surplus in excess of $500.0 million
and a Xxxxxxxx Bank Watch Rating of "B" or better, (iv) repurchase obligations
with a term of not more than seven days for underlying securities of the types
described in clauses (ii) and (iii) above without regard to the maturities of
such underlying securities entered into with any financial institution meeting
the qualifications specified in clause (iii) above, (v) commercial paper having
the highest rating obtainable from Xxxxx'x Investors Service, Inc. or Standard
& Poor's Corporation and in each case maturing within six months after the date
of acquisition, and (vi) deposit accounts with domestic commercial banks.
"Certificated Securities" means Notes that are in the form of
the Notes attached hereto as Exhibit A, that do not include the information
called for by footnotes 1 and 3 thereof.
"Change of Control" means the occurrence of any of the
following: (i) the sale, lease, transfer, conveyance or other disposition
(other than by way of merger or consolidation), in one or a series of related
transactions, of all or substantially all of the assets of the Company and its
Subsidiaries taken as a whole to any "person" (as such term is used in Section
13(d)(3) of the Exchange Act) other than the Principals or their Related
Parties (as defined below), (ii) the adoption of a plan relating to the
liquidation or dissolution of the Company, (iii) the consummation of any
transaction (including, without limitation, any merger or consolidation) the
result of which is that any "person" (as defined above), other than the
Principals and their Related Parties, becomes the "beneficial owner" (as such
term is defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act), directly
or indirectly, of more than 35% of the voting stock of the Company or (iv) the
first day on which a majority of the members of the Board of Directors of the
Company are not Continuing Directors.
"Commission" means the Securities and Exchange Commission.
"Consolidated Cash Flow" means, with respect to any Person for
any period, the Consolidated Net Income of such Person for such period plus (i)
an amount equal to any extraordinary loss plus any net loss realized in
connection with an Asset Sale of such Person or any of its Subsidiaries (to the
extent such losses were deducted in computing such Consolidated Net Income),
plus (ii) provision for taxes based on income or profits of such Person and its
Subsidiaries for such period, to the extent that such provision for taxes was
included in computing such Consolidated Net Income, plus (iii) consolidated
interest expense of such Person and its Subsidiaries for such period, whether
paid or accrued and whether or not capitalized (including,
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without limitation, amortization of original issue discount, non-cash interest
payments, the interest component of any deferred payment obligations, the
interest component of all payments associated with Capital Lease Obligations,
imputed interest with respect to Attributable Debt, commissions, discounts and
other fees and charges incurred in respect of letter of credit or bankers'
acceptance financings or any Receivables Facility, and net payments (if any)
pursuant to Hedging Obligations), to the extent that any such expense was
deducted in computing such Consolidated Net Income, plus (iv) depreciation,
amortization (including amortization of goodwill and other intangibles and
transaction fees and expenses incurred by the Company in connection with the
Acquisition, the New Credit Agreement, any Receivables Facility and the Notes
and in connection with subsequent acquisitions and financings) and other
non-cash charges (excluding any such non-cash charge to the extent that it
represents an accrual of or reserve for cash charges in any future period or
amortization of a prepaid cash expense that was paid in a prior period) of such
Person and its Subsidiaries for such period, to the extent that such
depreciation, amortization and other non-cash charges were deducted in
computing such Consolidated Net Income, plus (v) charges and expenses related
to the termination or modification of JR Flexible employee benefit plans in
effect on the date of this Indenture, to the extent that such charges and
expenses were deducted in computing such Consolidated Net Income, in each case,
on a consolidated basis and determined in accordance with GAAP. Notwithstanding
the foregoing, the provision for taxes on the income or profits of, and the
depreciation and amortization and other non-cash charges of, a Subsidiary of
the referent Person shall be added to Consolidated Net Income to compute
Consolidated Cash Flow only to the extent (and in same proportion) that the Net
Income of such Subsidiary was included in calculating the Consolidated Net
Income of such Person and only if a corresponding amount would be permitted at
the date of determination to be dividended to the Company by such Subsidiary
without prior governmental approval (that has not been obtained), and without
direct or indirect restriction pursuant to the terms of its charter and all
agreements, instruments, judgments, decrees, orders, statutes, rules and
governmental regulations applicable to that Subsidiary or its stockholders.
"Consolidated Net Income" means, with respect to any Person for
any period, the aggregate of the Net Income of such Person and its Subsidiaries
for such period, on a consolidated basis, determined in accordance with GAAP;
provided that (i) the Net Income (but not loss) of any Person that is not a
Subsidiary or that is accounted for by the equity method of accounting shall be
included only to the extent of the amount of dividends or distributions paid in
cash to the referent Person or a Wholly Owned Subsidiary thereof, (ii) the Net
Income of any Subsidiary shall be excluded to the extent that the declaration
or payment of dividends or similar distributions by that Subsidiary of that Net
Income is not at the date of determination permitted without any prior
governmental approval (that has not been obtained) or, directly or indirectly,
by operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation applicable to
that Subsidiary or its stockholders, (iii) the Net Income of any Person
acquired in a pooling of interests transaction for any period prior to the date
of such acquisition shall be excluded, (iv) the cumulative effect of a change
in accounting principles shall be excluded, (v) any extraordinary items and any
gains or losses in connection with Asset Sales or reserves related thereto
shall be excluded, (vi) any charges or reserves taken for severance, plant
closings, equipment relocations and other charges related to the consolidation
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and rationalization of JR Flexible initiated within 18 months of the date of
this Indenture shall be excluded and (vii) any charge taken for severance
relating to the early retirement program implemented in fiscal year 1996 shall
be excluded.
"Continuing Directors" means, as of any date of determination,
any member of the board of directors of the Company who (i) was a member of
such board of directors on the date of this Indenture or (ii) was nominated for
election or elected to such board of directors with the approval of a majority
of the Continuing Directors who were members of such board of directors at the
time of such nomination or election.
"Controlled Subsidiary" of any Person means a Subsidiary of
such Person (which may include the Receivables Subsidiary) (i) 90% or more of
the total Equity Interests or other ownership interests of which (other than
directors qualifying shares) shall at the time be owned by such Person or by
one or more Controlled Subsidiaries of such Person and (ii) of which such
Person possesses, directly or indirectly, the power to direct or cause the
direction of the management or policies, whether through the ownership of
voting securities, by agreement or otherwise.
"Corporate Trust Office of the Trustee" shall be at the address
of the Trustee specified in Section 10.02 of this Indenture or such other
address as to which the Trustee gives notice to the Company.
"Default" means any event that is or with the passage of time
or the giving of notice or both would be an Event of Default.
"Depositary" means, with respect to the Notes issuable or
issued in whole or in part in global form, the Person specified in Section 2.03
hereof as the Depositary with respect to the Notes, until a successor shall
have been appointed and become such pursuant to the applicable provision of
this Indenture and, thereafter, "Depositary" shall mean or include such
successor.
"Designated Senior Debt" means (i) so long as any Senior Bank
Debt is outstanding, the Senior Bank Debt, (ii) thereafter, any other Senior
Debt permitted under the Senior Subordinated Note Indenture, the principal
amount of which is $25.0 million or more and that has been designated by the
Company as "Designated Senior Debt" and (iii) holders of at least 25% of the
then outstanding Notes.
"Disqualified Stock" means any Capital Stock that, by its terms
(or by the terms of any security into which it is convertible or for which it
is exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable
at the option of the Holder thereof, in whole or in part, on or prior to the
date that is 91 days after the date on which the Notes mature.
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"Equity Interests" means Capital Stock and all warrants,
options or other rights to acquire Capital Stock (but excluding any debt
security that is convertible into, or exchangeable for, Capital Stock).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Offer" means the offer that may be made by the
Company pursuant to the Registration Rights Agreement to issue Series B Notes
in exchange for Series A Notes.
"Existing Employment Agreements" means (a) the Deferred Income
Agreements, dated as of December 17, 1984, with each of Xxxxxx X. Xxxxxx,
Xxxxxx X. Xxxxxxx, Xx. and a Deferred Income Agreement dated as of July 11,
1996 with Xxxx Xxxxxxxx, (b) the Deferred Compensation Agreement, dated as of
July 1, 1985, with Xxxxxx X. Xxxxx, (c) the Family Security Agreements with
each of Xxxxxx X. Love, R. Xxxxxxx Xxxxxxx, Xxxxxx X. Xxxx and Xxxxxxx X.
Xxxxxx and (d) the Amended and Restated Employment Agreement, dated June 23,
1983, by and between the Company and X. Xxxxxxx Love, Jr.
"Existing Indebtedness" means up to $18.0 million in aggregate
principal amount of Indebtedness of the Company and its Subsidiaries (other
than Indebtedness under the New Credit Agreement) in existence on the date of
this Indenture, until such amounts are repaid.
"Fixed Charges" means, with respect to any Person for any
period, the sum of (i) the consolidated interest expense of such Person and its
Subsidiaries for such period, whether paid or accrued (including, without
limitation, amortization of original issue discount, non-cash interest
payments, the interest component of any deferred payment obligations, the
interest component of all payments associated with Capital Lease Obligations,
imputed interest with respect to Attributable Debt, commissions, discounts and
other fees and charges incurred in respect of letter of credit or bankers'
acceptance financings or any Receivables Facility, and net payments (if any)
pursuant to Hedging Obligations) and (ii) the consolidated interest expense of
such Person and its Subsidiaries that was capitalized during such period, and
(iii) any interest expense on Indebtedness of another Person that is Guaranteed
by such Person or one of its Subsidiaries or secured by a Lien on assets of
such Person or one of its Subsidiaries (whether or not such Guarantee or Lien
is called upon) and (iv) the product of (a) all cash dividend payments (and
non-cash dividend payments in the case of a Person that is a Subsidiary) on any
series of preferred stock of such Person, times (b) a fraction, the numerator
of which is one and the denominator of which is one minus the then current
combined federal, state and local statutory tax rate of such Person, expressed
as a decimal, in each case, on a consolidated basis and in accordance with
GAAP.
"Fixed Charge Coverage Ratio" means with respect to any Person
for any period, the ratio of the Consolidated Cash Flow of such Person for such
period to the Fixed Charges of such Person for such period. In the event that
the Company or any of its Subsidiaries incurs, assumes, Guarantees or redeems
any Indebtedness (other than revolving credit borrowings) or issues preferred
stock subsequent to the commencement of the period for which the Fixed Charge
Coverage Ratio is being calculated but prior to the date on which the event for
which the
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calculation of the Fixed Charge Coverage Ratio is made (the "Calculation
Date"), then the Fixed Charge Coverage Ratio shall be calculated giving pro
forma effect to such incurrence, assumption, Guarantee or redemption of
Indebtedness, or such issuance or redemption of preferred stock, as if the same
had occurred at the beginning of the applicable four-quarter reference period.
In addition, for purposes of making the computation referred to above, (i)
acquisitions that have been made by the Company or any of its Subsidiaries,
including through mergers or consolidations and including any related financing
transactions, during the four-quarter reference period or subsequent to such
reference period and on or prior to the Calculation Date shall be deemed to
have occurred on the first day of the four-quarter reference period and
Consolidated Cash Flow for such reference period shall be calculated without
giving effect to clause (iii) of the proviso set forth in the definition of
Consolidated Net Income, and (ii) the Consolidated Cash Flow attributable to
discontinued operations, as determined in accordance with GAAP, and operations
or businesses disposed of prior to the Calculation Date, shall be excluded, and
(iii) the Fixed Charges attributable to discontinued operations, as determined
in accordance with GAAP, and operations or businesses disposed of prior to the
Calculation Date, shall be excluded, but only to the extent that the
obligations giving rise to such Fixed Charges shall not be obligations of the
referent Person or any of its Subsidiaries following the Calculation Date.
"GAAP" means generally accepted accounting principles set forth
in the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession, which are in effect from time to time.
"Global Note" means a Note that contains the paragraph referred
to in footnote 1 and the additional schedule referred to in footnote 3 to the
form of the Note attached hereto as Exhibit A.
"Government Securities" means direct obligations of, or
obligations guaranteed by, the United States of America for the payment of
which guarantee or obligations the full faith and credit of the United States
is pledged.
"Guarantee" means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, letters of
credit and reimbursement agreements in respect thereof), of all or any part of
any Indebtedness.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under (i) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements and (ii) other
agreements or arrangements designed to protect such Person against fluctuations
in interest rates or currency exchange rates.
"Holder" means a Person in whose name a Note is registered.
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"Indebtedness" means, for purposes of the Indenture, with
respect to any Person, any indebtedness of such Person, whether or not
contingent, in respect of borrowed money, including without limitation
certificates of participation in Receivables or any similar instruments and
certificates (or other than any interests in the Receivables held by the
Receivables Subsidiary), or evidenced by bonds, notes, debentures or similar
instruments or letters of credit (or reimbursement agreements in respect
thereof) or banker's acceptances or representing Capital Lease Obligations or
the balance deferred and unpaid of the purchase price of any property or
representing any Hedging Obligations, except any such balance that constitutes
an accrued expense or trade payable, if and to the extent any of the foregoing
indebtedness (other than letters of credit and Hedging Obligations) would
appear as a liability upon a balance sheet of such Person prepared in
accordance with GAAP, as well as all such indebtedness of others secured by a
Lien on any asset of such Person (whether or not such indebtedness is assumed
by such Person) and, to the extent not otherwise included, the Guarantee by
such Person of any such indebtedness of any other Person; provided, however,
that Indebtedness shall not include any servicing or guarantee of servicing
obligations with respect to Receivables or any payments pursuant to a Tax
Incentive Program. The amount of Indebtedness evidenced by a certificate of
participation or other interests in Receivables and similar instruments or
certificates will be deemed to be the outstanding amount of such certificate of
participation or other interests.
"Indenture" means this Indenture, as amended, modified or
supplemented from time to time.
"Initial Public Offering" means an underwritten public offering
of common Capital Stock of the Company registered under Securities Act (other
than a public offering registered on Form S-8 under the Securities Act).
"Investments" means, with respect to any Person, all
investments by such Person in other Persons (including Affiliates) in the forms
of direct or indirect loans (including guarantees of Indebtedness or other
obligations), advances or capital contributions (excluding commission, travel
and similar advances to officers and employees made in the ordinary course of
business), purchases or other acquisitions for consideration of Indebtedness,
Equity Interests or other securities, together with all items that are or would
be classified as investments on a balance sheet prepared in accordance with
GAAP; provided that an acquisition of assets, Equity Interests or other
securities by the Company for consideration consisting of common equity
securities of the Company shall not be deemed to be an Investment. If the
Company or any Subsidiary of the Company sells or otherwise disposes of any
Equity Interests of any direct or indirect Subsidiary of the Company such that,
after giving effect to any such sale or disposition, such Person is no longer a
Subsidiary of the Company, the Company shall be deemed to have made an
Investment on the date of any such sale or disposition equal to the fair market
value of the Equity Interests of such Subsidiary not sold or disposed of.
"Issue Date" means August 22, 1996.
"Xxxxx River" means Xxxxx River Corporation of Virginia, a
Virginia corporation.
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"JR Flexible" means the Flexible Packaging Group of Xxxxx River.
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions in the City of New York or in the city in which the
principal corporate trust office of the Trustee or at a place of payment are
authorized by law, regulation or executive order to remain closed. If a payment
date is a Legal Holiday at a place of payment, payment may be made at that
place on the next succeeding day that is not a Legal Holiday, and no interest
shall accrue for the intervening period.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under applicable
law (including any conditional sale or other title retention agreement, any
lease in the nature thereof, any option or other agreement to sell or give a
security interest in and any filing of or agreement to give any financing
statement under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction), other than liens and setoff rights with respect to deposit
accounts.
"Liquidated Damages" means all liquidated damages owed pursuant
to Section 5 of the Registration Rights Agreement.
"Net Income" means, with respect to any Person, the net income
(loss) of such Person, determined in accordance with GAAP and before any
reduction in respect of preferred stock dividends, excluding, however, (i) any
gain (but not loss), together with any related provision for taxes on such gain
(but not loss), realized in connection with (a) any Asset Sale (including,
without limitation, dispositions pursuant to sale and leaseback transactions)
or (b) the disposition of any securities by such Person or any of its
Subsidiaries or the extinguishment of any Indebtedness of such Person or any of
its Subsidiaries and (ii) any extraordinary or nonrecurring gain (but not
loss), together with any related provision for taxes on such extraordinary or
nonrecurring gain (but not loss).
"Net Proceeds" means the aggregate cash proceeds received by
the Company or any of its Subsidiaries in respect of any Asset Sale (including,
without limitation, any cash received upon the sale or other disposition of any
non-cash consideration received in any Asset Sale), net of the direct costs
relating to such Asset Sale (including, without limitation, legal, accounting
and investment banking fees, and sales commissions) and any other expenses
incurred or to be incurred as a result thereof (including, without limitation,
severance, relocation, lease termination and other similar expenses), taxes
paid or payable as a result thereof (after taking into account any available
tax credits or deductions and any tax sharing arrangements), amounts required
to be applied to the repayment of Indebtedness (other than term Indebtedness or
revolving Indebtedness under the New Credit Agreement or any one or more
successor or additional bank facilities) secured by a Lien on the asset or
assets that were the subject of such Asset Sale and any reserve for adjustment
in respect of the sale price of such asset or assets established in accordance
with GAAP.
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"New Credit Agreement" means that certain Credit Agreement,
dated as of August 22, 1996, by and among the Company, the Lenders named
therein and The First National Bank of Chicago, as Agent, providing for term
loans, revolving credit borrowings and other financial accommodations,
including any related notes, guarantees, collateral documents, instruments and
agreements executed in connection therewith, and in each case as amended,
modified, renewed, refunded, replaced or refinanced, in whole or in part, from
time to time.
"Non-Recourse Debt" means Indebtedness (i) as to which neither
the Company nor any of its Subsidiaries (other than the Receivables Subsidiary)
(a) provides any credit support that would constitute Indebtedness or (b) is
directly or indirectly liable (as a guarantor or otherwise); and (ii) as to
which the lenders have agreed or been notified in writing that they will not
have any recourse to the stock or assets of the Company or any of its
Subsidiaries (other than the Receivables Subsidiary); provided that,
notwithstanding the foregoing, the Company and any of its other Subsidiaries
that sell Receivables to the Receivables Subsidiary shall be allowed to provide
such representations, warranties, covenants and indemnities as are customarily
required in such transactions so long as no such representations, warranties,
covenants or indemnities constitute a Guarantee of payment or recourse against
credit losses.
"Note Custodian" means the Trustee, as custodian with respect
to the Notes in global form, or any successor entity thereto.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Officer" means, with respect to any Person, the Chief
Executive Officer, the President, the Vice President * Finance and
Administration, the Vice President * Business Development, the Treasurer, any
Assistant Treasurer, the Controller or the Secretary.
"Officers' Certificate" means a certificate signed on behalf of
a Person by two Officers of such Person, one of whom must be the principal
executive officer, the principal financial officer or the principal accounting
officer of such Person, that meets the requirements of Section 10.05 hereof.
"Opinion of Counsel" means a written opinion in form and
substance satisfactory to, and from legal counsel who is reasonably acceptable
to the Trustee that meets the requirements of Section 10.05 hereof. Such
counsel may be an employee of or counsel to the Company, any Subsidiary of the
Company or the Trustee.
"Pari Passu Debt" means Indebtedness that ranks pari passu in
right of payment with the Notes or the Senior Subordinated Notes, as the case
may be.
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"Permitted Investments" means (a) any Investment in the Company
or in a Controlled Subsidiary of the Company; (b) any Investment in Cash
Equivalents; (c) any Investment by the Company or any Subsidiary of the Company
in a Person, if as a result of such Investment (i) such Person becomes a
Controlled Subsidiary of the Company or (ii) such Person is merged,
consolidated or amalgamated with or into, or transfers or conveys substantially
all of its assets to, or is liquidated into, the Company or a Controlled
Subsidiary of the Company; provided, however, that if the Person in either of
subclauses (i) and (ii) of this clause (c) owns Equity Interests of the Company
at the time of such Investment by the Company or a Subsidiary, such Investment
shall not be a Permitted Investment; (d) any Restricted Investment made as a
result of the receipt of non-cash consideration from an Asset Sale that was
made pursuant to and in compliance with the provisions of Section 4.10 hereof;
(e) any Investment in trade receivables or interests therein in the ordinary
course of business; (f) Investments received in settlement of trade receivables
created in the ordinary course of business and owing to the Company or any
Subsidiary or in satisfaction of any judgment with respect to any such trade
receivable; and (g) other Investments in any Person (other than a Person that
is an Affiliate of the Company on the Issue Date) having an aggregate fair
market value (measured on the date each such Investment was made and without
giving effect to subsequent changes in value), when taken together with all
other Investments made pursuant to this clause (g) that are at the time
outstanding, not to exceed $25.0 million.
"Permitted Liens" means (i), Liens on assets of the Company and
its Subsidiaries, whether owned on the date of this Indenture or thereafter
acquired, securing all Indebtedness and other Obligations under the New Credit
Agreement or any one or more successor or additional bank facilities that are
permitted by the terms of this Indenture to be incurred; provided, however,
that in the case of Liens granted by Subsidiaries, each such Subsidiary shall
execute a Guarantee in compliance with Section 4.14 hereof; (ii) Liens in favor
of the Company or a Subsidiary; (iii) Liens to secure the performance of
statutory obligations, surety or appeal bonds, performance bonds or other
obligations of a like nature incurred in the ordinary course of business; (iv)
Liens on assets of Subsidiaries to secure Indebtedness of Subsidiaries that is
permitted by the terms of this Indenture to be incurred; (v) Liens existing on
the date of this Indenture; (vi) Liens for taxes, assessments or governmental
charges or claims that are not yet delinquent or that are being contested in
good faith by appropriate proceedings promptly instituted and diligently
conducted, provided that any reserve or other appropriate provision as shall be
required in conformity with GAAP shall have been made therefor; (vii) Liens to
secure Indebtedness permitted to be incurred pursuant to clauses (vi) or (vii)
of the second paragraph of 4.09 hereof; (viii) Liens to secure Attributable
Debt in respect of sale and leaseback transactions that were permitted by the
terms of this Indenture to be entered into; (ix) Liens on assets of the Company
to secure Hedging Obligations that were permitted to be incurred pursuant to
the provisions of Section 4.09 hereof; (x) Liens on Receivables to reflect
sales of Receivables to and by the Receivables Subsidiary pursuant to the
Receivables Facility; (xi) Liens on assets of the Receivables Subsidiary; and
(xii) in addition to the foregoing, Liens on assets of the Company or any
Subsidiary of the Company with respect to Obligations that do not exceed $25.0
million at any one time outstanding.
"Permitted Refinancing Debt" means any Indebtedness of the
Company or any of its Subsidiaries issued in exchange for, or the net proceeds
of which are used to extend, refinance,
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renew, replace, defease or refund other Indebtedness of the Company or any of
its Subsidiaries (other than Indebtedness permitted to be incurred pursuant to
clauses (i) or (ii) of the second paragraph of Section 4.09; provided that: (i)
the principal amount (or accreted value, if applicable) of such Permitted
Refinancing Debt does not exceed the principal amount (or accreted value, if
applicable) of the Indebtedness so extended, refinanced, renewed, replaced,
defeased or refunded (plus the amount of accrued interest and premium thereon,
if any, reasonable expenses incurred in connection therewith); (ii) such
Permitted Refinancing Debt has a final maturity date later than the final
maturity date of, and has a Weighted Average Life to Maturity equal to or
greater than the Weighted Average Life to Maturity of, the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded; (iii) if the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded is subordinated in right of payment to the Notes, such Permitted
Refinancing Debt has a final maturity date later than the final maturity date
of, and is subordinated in right of payment to, the Notes on terms at least as
favorable to the Holders of the Notes as those contained in the subordination
provisions governing the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; and (iv) such Indebtedness is incurred either
by the Company or by the Subsidiary who is the obligor on the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, limited liability company,
unincorporated organization or government or agency or political subdivision
thereof (including any subdivision or ongoing business of any such entity or
substantially all of the assets of any such entity, subdivision or business).
"Principals" means Xxxxxx X. Love, Xxxxx X. Love, III, Xxxxx
Xxxx Love Xxxxxxxx, Xxxxxxx X. Love, Xxxxxxx Xxxxx Love, Xxxxx X. Love and Gay
Love.
"Receivables" means, collectively, (a) the Indebtedness and
other obligations owed to the Company or any of its Subsidiaries (before giving
effect to any sale or transfer thereof pursuant to a Receivables Facility),
whether constituting an account, chattel paper, an instrument, a document or
general intangible, arising in connection with the sale of goods, insurance
and/or services by the Company or such Subsidiary, including, without
limitation, the obligation to pay any late fees, interest or other finance
charges with respect thereto (each of the foregoing, collectively, an "Account
Receivable"), (b) all of the Company's or such Subsidiary's interest in the
goods (including returned goods), if any, the sale of which gave rise to any
Account Receivable, and all insurance contracts with respect thereto, (c) all
other security interests or Liens and property subject thereto from time to
time, if any, purporting to secure payment of any Account Receivable, together
with all financing statements and security agreements describing any collateral
securing such Account Receivable, (d) all Guarantees, insurance and other
agreements or arrangements of whatever character from time to time supporting
or securing payment of any Account Receivable, (e) all contracts, invoices,
books and records of any kind related to any Account Receivable, (f) all cash
collections in respect of, and cash proceeds of, any of the foregoing and any
and all lockboxes, lockbox accounts, collection accounts, concentration
accounts and similar accounts in or into which such collections and cash
proceeds are now or hereafter deposited, collected or concentrated, and (g) all
proceeds of any of the foregoing.
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"Receivables Facility" means, with respect to any Person, any
Receivables securitization program pursuant to which such Person receives
proceeds pursuant to a pledge, sale or other encumbrance of its Receivables.
"Receivables Subsidiary" means Flexible Funding Corp., created
primarily to purchase or finance the receivables of the Company and/or its
Subsidiaries pursuant to a Receivables Facility, so long as it: (a) has no
Indebtedness other than Non-Recourse Debt; (b) is not party to any agreement,
contract, arrangement or understanding with the Company or any other Subsidiary
of the Company unless the terms of any such agreement, contract, arrangement or
understanding are no less favorable to the Company or such Subsidiary than
those that might be obtained at the time from Persons who are not Affiliates of
the Company; (c) is a Person with respect to which neither the Company nor any
of its other Subsidiaries has any direct obligation to maintain or preserve
such Person's financial condition or to cause such Person to achieve any
specified levels of operating results other than to act as servicer of
Receivables; (d) has not Guaranteed or otherwise directly provided credit
support for any Indebtedness of the Company or any of its other Subsidiaries;
and (e) has at least one director on its board of directors that is not a
director or executive officer of the Company or any of its other Subsidiaries.
Notwithstanding the foregoing and without otherwise limiting Permitted
Investments, the Company may make capital contributions in the form of
Receivables transferred to the Receivables Subsidiary for non-cash
consideration to the extent necessary or desirable to prevent a disruption of
purchases of Receivables or to avoid a default under the Receivables Facility.
If, at any time, such Receivables Subsidiary would fail to meet the foregoing
requirements as a Receivables Subsidiary (other than a failure to meet the
requirements set forth in clause (e) above as a result of the death or
resignation of a director, provided that such director is promptly replaced),
it shall thereafter cease to be a Receivables Subsidiary for purposes of the
Indentures and any Indebtedness of such Receivables Subsidiary shall be deemed
to be incurred by a Subsidiary of the Company as of such date (and, if such
Indebtedness is not permitted to be incurred as of such date under Section 4.09
hereof, the Company shall be in default of such covenant).
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of August 22, 1996, by and among the Company and the other
parties named on the signature pages thereto, as such agreement may be amended,
modified or supplemented from time to time.
"Related Party" with respect to any Principal means (A) any
controlling stockholder, 80% (or more) owned Subsidiary, or spouse or immediate
family member (in the case of an individual) of such Principal or (B) any
trust, corporation, partnership or other entity, the beneficiaries,
stockholders, partners, owners or Persons beneficially holding an 80% or more
controlling interest of which consist of such Principal and/or such other
Persons referred to in the immediately preceding clause (A).
"Representative" means the indenture trustee or other trustee,
agent or representative for any Senior Debt.
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"Responsible Officer," when used with respect to the Trustee,
means any officer within the corporate trust administration department of the
Trustee (or any successor group of the Trustee) 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 employee to whom such matter is referred
because of his knowledge of, and familiarity with, the particular subject.
"Restricted Investment" means an Investment other than a
Permitted Investment.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Bank Debt" means the Indebtedness outstanding under the
New Credit Agreement (including, without limitation, Hedging Obligations owing
to lenders that are parties to the New Credit Agreement or to Affiliates of
such lenders), as such agreement may be restated, further amended, supplemented
or otherwise modified or replaced from time to time hereafter, together with
any refunding or replacement, in whole or in part, of such Indebtedness, to the
extent that any such Indebtedness was permitted by this Indenture to be
incurred.
"Senior Debt" means (a) the Notes, (b) the Senior Bank Debt,
(c) all additional Indebtedness and Attributable Debt that is permitted under
the Senior Subordinated Note Indenture that is not by its terms pari passu with
or subordinated to the Senior Subordinated Notes, (d) all Obligations of the
Company and its Subsidiaries with respect to the foregoing clauses (a), (b) and
(c), including post-petition interest and (e) all (including all subsequent)
renewals, extensions, amendments, refinancings, repurchases or redemptions,
modifications, replacements or refundings thereto (whether or not coincident
therewith), in whole or in part, that are permitted by this Indenture.
Notwithstanding anything to the contrary in the foregoing, Senior Debt shall
not include (i) any Indebtedness of the Company to any of its Subsidiaries,
(ii) any trade payables or (iii) any Indebtedness incurred in violation of the
Senior Subordinated Note Indenture.
"Senior Subordinated Note" means 10-5/8% Series A Senior
Subordinated Notes due 2006 and 10-5/8% Series B Senior Subordinated Notes due
2006 issued pursuant to the Senior Subordinated Note Indenture.
"Senior Subordinated Note Indenture" means the Senior
Subordinated Note Indenture, dated August 22, 1996, between the Company and the
Trustee.
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Act, as such Regulation is in effect on the date
hereof.
"Subsidiary" means, with respect to any Person, (i) any
corporation, association or other business entity of which more than 50% of the
total voting power of shares of Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors,
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managers or trustees thereof is at the time owned or controlled, directly or
indirectly, by such Person or one or more of the other Subsidiaries of that
Person (or a combination thereof) and (ii) any partnership (a) the sole general
partner or the managing general partner of which is such Person or a Subsidiary
of such Person or (b) the only general partners of which are such Person or of
one or more Subsidiaries of such Person (or any combination thereof).
"Target Assets" means any assets acquired from JR Flexible that
are sold or otherwise disposed of (other than pursuant to a Restricted Payment)
for aggregate consideration not to exceed $25.0 million.
"Tax Allocation Agreement" means that certain Tax Allocation
Agreement, dated as of the first day of the fiscal year of the parties thereto
that began after June 29, 1996, allocating tax liabilities and payments among
the Company and its Affiliates.
"Tax Incentive Program" means (i) the Payment in Lieu of Taxes
Program sponsored by the Industrial Development Board ("IDB") of the City of
Jackson, Tennessee pursuant to which JR Flexible (and after the Acquisition if
approval is granted by the IDB, the Company) (a) transfers to the IDB real
property and equipment associated with the Jackson, Tennessee operations in
return for a non-interest bearing promissory note from the IDB, which
promissory note represents the fair market value of the real property and
equipment so transferred, (b) JR Flexible or the Company, as applicable, pays a
fee in lieu of taxes to the IDB that is less than the taxes that it would
otherwise pay if it were not participating in such Payment in Lieu of Taxes
Program and (c) the IDB leases such real property and equipment back to JR
Flexible or the Company, as applicable, pursuant to a lease that has no
interest component and (ii) any other program sponsored by state or local
governments, authorities or political subdivisions that is materially similar
to the Payment in Lieu of Taxes Program and is equally beneficial from the
Holders' perspective.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. xx.xx.
77aaa-77bbbb), as in effect on the date on which this Indenture is qualified
under the TIA, except as provided by Section 9.03 hereof.
"Total Assets" means, with respect to any Person as of any
date, the total consolidated assets of such Person and its Subsidiaries as of
such date, as reflected on the most recently available internal consolidated
financial statements of such Person prepared in accordance with GAAP.
"Transfer Restricted Securities" means securities that bear or
are required to bear the legend set forth in Section 2.06 hereof.
"Trustee" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor serving hereunder.
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"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment, by (ii) the then outstanding
principal amount of such Indebtedness.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of
such Person all of the outstanding Capital Stock or other ownership interests
of which (other than directors' qualifying shares) shall at the time be owned
by such Person or by one or more Wholly Owned Subsidiaries of such Person and
one or more Wholly Owned Subsidiaries of such Person.
SECTION 1.02. OTHER DEFINITIONS.
Defined in
Term Section
"Affiliate Transaction"............................ 4.11
"Asset Sale Offer"................................. 3.09
"Asset Sale Offer Purchase Date.................... 4.10
"Asset Sale Offer Trigger Date..................... 4.10
"Calculation Date"................................. 1.01
"Change of Control Offer".......................... 4.16
"Change of Control Payment"........................ 4.16
"Change of Control Payment Date"................... 4.16
"Covenant Defeasance".............................. 8.03
"DTC".............................................. 2.03
"Event of Default"................................. 6.01
"Excess Proceeds".................................. 4.10
"incur"............................................ 4.09
"Legal Defeasance"................................. 8.02
"Offer Amount"..................................... 3.09
"Offer Period"..................................... 3.09
"Paying Agent"..................................... 2.03
"Payment Default".................................. 6.01
"Purchase Date".................................... 3.09
"Registrar"........................................ 2.03
"Restricted Payments".............................. 4.07
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
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The following TIA terms used in this Indenture have the
following meanings:
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee;
"obligors" on the Notes means the Company and any successor
obligors upon the Notes.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission rule
under the TIA have the meanings so assigned to them.
SECTION 1.04. RULES OF CONSTRUCTION
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular;
(5) provisions apply to successive events and transactions; and
(6) references to sections of or rules under the Securities Act
shall be deemed to include substitute, replacement or successor sections or
rules adopted by the Commission from time to time.
ARTICLE 2
THE NOTES
SECTION 2.01. FORM AND DATING.
The Notes and the Trustee's certificate of authentication shall
be substantially in the form of Exhibit A hereto, the terms of which are
incorporated in and made part of this Indenture. The
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Notes may have notations, legends or endorsements required by law, stock
exchange rule, agreements to which the Company is subject or usage. Each Note
shall be dated the date of its authentication. The Notes shall be issued
initially in denominations of $1,000 and integral multiples thereof.
Notes issued in global form shall be substantially in the form
of Exhibit A attached hereto (including the text referred to in footnote 1 and
the additional schedule referred to in footnote 3 thereto). Notes issued in
definitive form shall be substantially in the form of Exhibit A attached hereto
(but without including the text referred to in footnote 1 and the additional
schedule referred to in footnote 3 thereto). Each Global Note shall represent
such of the outstanding Notes as shall be specified therein and each shall
provide that it shall represent the aggregate amount of outstanding Notes from
time to time endorsed thereon and that the aggregate amount of outstanding
Notes represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any endorsement of a Global
Note to reflect the amount of any increase or decrease in the amount of
outstanding Notes represented thereby shall be made by the Trustee or the Note
Custodian, at the direction of the Trustee, in accordance with instructions
given by the Holder thereof as required by Section 2.06 hereof.
SECTION 2.02. EXECUTION AND AUTHENTICATION.
Two Officers of the Company shall sign the Notes by manual or
facsimile signature. The seal of the Company, if any, shall be reproduced on
the Notes and may be in facsimile form.
If an Officer whose signature is on a Note no longer holds that
office at the time a Note is authenticated, the Note shall nevertheless be
valid.
A Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Note has been authenticated under this Indenture. The form of the Trustee's
certificate of authentication to be borne by the Notes shall be substantially
as set forth in Exhibit A attached hereto.
The Trustee shall, upon a written order of the Company signed
by two Officers of the Company directing the Trustee to authenticate the Notes
and certifying that all conditions precedent to the issuance of the Notes
contained herein have bee complied with, authenticate Notes for original issue
up to the aggregate principal amount stated in paragraph 4 of the Notes. The
aggregate principal amount of Notes outstanding at any time may not exceed such
amount except as provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Notes. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Notes whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company or Affiliates of the Company.
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SECTION 2.03. REGISTRAR AND PAYING AGENT.
The Company shall maintain (i) an office or agency where Notes
may be presented for registration of transfer or for exchange ("Registrar") and
(ii) an office or agency where Notes may be presented for payment ("Paying
Agent"). The Registrar shall keep a register of the Notes and of their transfer
and exchange. The Company may appoint one or more co-registrars and one or more
additional paying agents. The term "Registrar" includes any co-registrar and
the term "Paying Agent" includes any additional paying agent. The Company may
change any Paying Agent, Registrar or co-registrar without prior notice to any
Holder. The Company shall notify the Trustee in writing and the Trustee shall
notify the Holders of the name and address of any Agent not a party to this
Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any of
its Subsidiaries may act as Paying Agent, Registrar or co-registrar. The
Company shall enter into an appropriate agency agreement with any Agent not a
party to this Indenture, which shall incorporate the provisions of the TIA.
Such agreement shall implement the provisions of this Indenture that relate to
such Agent. The Company shall notify the Trustee of the name and address of any
such Agent. If the Company fail to maintain a Registrar or Paying Agent, or
fail to give the foregoing notice, the Trustee shall act as such, and shall be
entitled to appropriate compensation in accordance with Section 7.07 hereof.
The Company initially appoints The Depository Trust Company
("DTC") to act as Depositary with respect to the Global Notes.
The Company initially appoint the Trustee to act as the
Registrar and Paying Agent and to act as Note Custodian with respect to the
Global Notes.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company will require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent shall hold in trust for the
benefit of the Holders or the Trustee all money held by the Paying Agent for
the payment of principal of, premium, if any, interest and Liquidated Damages,
if any, on the Notes, and will promptly notify the Trustee of any Default by
the Company in making any such payment. While any such Default continues, the
Trustee may require a Paying Agent to pay all money held by it to the Trustee.
The Company at any time may require a Paying Agent to pay all money held by it
to the Trustee and to account for any funds disbursed by it prior to such time.
Upon payment over to the Trustee, the Paying Agent (if other than the Company
or a Subsidiary) shall have no further liability for the money delivered to the
Trustee. If the Company or a Subsidiary acts as Paying Agent, such Person shall
segregate and hold in a separate trust fund for the benefit of the Holders all
money held by such Person as Paying Agent. Upon any bankruptcy or
reorganization proceedings relating to the Company, the Trustee shall serve as
Paying Agent.
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SECTION 2.05. HOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA ss. 312(a). If the Trustee is
not the Registrar, the Company shall furnish to the Trustee, at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders,
including the aggregate principal amount of Notes held by each thereof, and the
Company shall otherwise comply with TIA ss. 312(a).
SECTION 2.06. TRANSFER AND EXCHANGE.
(a) Transfer and Exchange of Certificated Securities. When
Certificated Securities are presented by a Holder to the Registrar or a
co-registrar with a request:
(x) to register the transfer of the Certificated Securities;
or
(y) to exchange such Certificated Securities for an equal
principal amount of Certificated Securities of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if
its requirements for such transactions are met; provided, however, that the
Certificated Securities presented or surrendered for register of transfer or
exchange:
(i) shall be duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the Registrar duly executed by
such Holder or by his attorney, duly authorized in writing; and
(ii) in the case of a Certificated Security that is a
Transfer Restricted Security, such request shall be accompanied by the
following additional information and documents, as applicable:
(A) if such Transfer Restricted Security is being
delivered to the Registrar by a Holder for
registration in the name of such Holder,
without transfer, a certification to that
effect from such Holder (in substantially the
form of Exhibit B attached hereto); or
(B) if such Transfer Restricted Security is being
transferred to a "qualified institutional
buyer" (as defined in Rule 144A under the
Securities Act) in accordance with Rule 144A
under the Securities Act or to an "Accredited
Investor" (as defined in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act) in
accordance with Regulation D under the
Securities Act, or pursuant to an exemption
from registration in
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accordance with Rule 144 or Rule 904 under the
Securities Act or pursuant to an effective
registration statement under the Securities
Act, a certification to that effect from such
Holder (in substantially the form of Exhibit B
attached hereto); or
(C) if such Transfer Restricted Security is being
transferred in reliance on another
exemption from the registration requirements of
the Securities Act, a certificate to that
effect from such Holder (in substantially the
form of Exhibit B attached hereto) and an
Opinion of Counsel from such Holder or the
transferee reasonably acceptable to the Company
and to the Registrar to the effect that such
transfer is in compliance with the Securities
Act.
(b) Transfer of a Certificated Security for a Beneficial Interest in a
Global Note. A Certificated Security may not be exchanged for a beneficial
interest in a Global Note except upon satisfaction of the requirements set
forth below. Upon receipt by the Trustee of a Certificated Security, duly
endorsed or accompanied by appropriate instruments of transfer, in form
satisfactory to the Trustee, together with:
(i) if such Certificated Security is a Transfer Restricted
Security, a certification from the Holder thereof (in substantially
the form of Exhibit B hereto) to the effect that such Certificated
Security is being transferred by such Holder either (x) to a
"qualified institutional buyer" (as defined in Rule 144A under the
Securities Act) in accordance with Rule 144A under the Securities
Act or (y) based upon an Opinion of Counsel from such Holder or the
transferee reasonably acceptable to the Company, the Trustee and to
the Registrar, pursuant to another exemption from the registration
requirements of the Securities Act; and
(ii) whether or not such Certificated Security is a Transfer Restricted
Security, written instructions from the Holder thereof
directing the Trustee to make, or to direct the Note Custodian to
make, an endorsement on the Global Note to reflect an increase in
the aggregate principal amount of the Notes represented by the
Global Note,in which case the Trustee shall cancel such
Certificated Security in accordance with Section 2.11 hereof and
cause, or direct the Note Custodian to cause, in accordance with
the standing instructions and procedures existing between the
Depositary and the Note Custodian, the aggregate principal amount
of Notes represented by the Global Note to be increased
accordingly. If no Global Notes are then outstanding, the Company
shall issue and, upon receipt of an authentication order in
accordance with Section 2.02 hereof, the Trustee shall
authenticate, a new Global Note in the appropriate principal
amount.
(c) Transfer and Exchange of Global Notes. The transfer and
exchange of Global Notes or beneficial interests therein shall be effected
through the Depositary, in accordance with
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this Indenture and the procedures of the Depositary therefor, which shall
include restrictions on transfer comparable to those set forth herein to the
extent required by the Securities Act.
(d) Transfer of a Beneficial Interest in a Global Note for a
Certificated Security.
(i) Any Person having a beneficial interest in a Global Note
may upon request exchange such beneficial interest for a
Certificated Security. Upon receipt by the Trustee of written
instructions or such other form of instructions as is
customary for the Depositary, from the Depositary or its
nominee on behalf of any Person having a beneficial interest
in a Global Note, and, in the case of a Transfer Restricted
Security, the following additional information and documents
(all of which may be submitted by facsimile):
(A) if such beneficial interest is being transferred to
the Person designatedby the Depositary as being the
beneficial owner, a certification to that effect from
such Person (in substantially the form of Exhibit B
attached hereto); or
(B) if such beneficial interest is being transferred to
(1) a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act) in
accordance with Rule 144A under the Securities Act or
(2) to an "Accredited Investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act)
in accordance with Regulation D under the Securities
Act, or pursuant to an exemption from registration in
accordance with Rule 144 or Rule 904 under the
Securities Act or pursuant to an effective
registration statement under the Securities Act, a
certification to that effect from the transferor (in
substantially the form of Exhibit B attached hereto);
or
(C) if such beneficial interest is being transferred in
reliance on another exemption from the registration
requirements of the Securities Act, a certification to
that effect from the transferor (in substantially the
form of Exhibit B attached hereto) and an Opinion of
Counsel from the transferee or transferor reasonably
acceptable to the Company, the Trustee and to the
Registrar to the effect that such transfer is in
compliance with the Securities Act.
in which case the Trustee or the Note Custodian, at the
direction of the Trustee, shall, in accordance with the
standing instructions and procedures existing between the
Depositary and the Note Custodian, cause the aggregate
principal amount of Global Notes to be reduced accordingly
and, following such reduction, the Company shall execute and
the Trustee shall authenticate and deliver to the transferee,
a Certificated Security in the appropriate principal amount.
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(ii) Certificated Securities issued in exchange for a beneficial
interest in a Global Note pursuant to this Section 2.06(d)
shall be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions
from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such
Certificated Securities to the Persons in whose names such
Notes are so registered.
(e) Restrictions on Transfer and Exchange of Global Notes.
Notwithstanding any other provision of this Indenture (other than the
provisions set forth in subsection (f) of this Section 2.06), a Global Note may
not be transferred as a whole except by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
(f) Authentication of Certificated Securities in Absence of Depositary.
If at any time:
(i) the Depositary for the Notes notifies the Company that the
Depositary is unwilling or unable to continue as Depositary
for the Global Notes and a successor Depositary for the
Global Notes is not appointed by the Company within 90 days
after delivery of such notice; or
(ii) the Company, at its sole discretion, notifies the Trustee in
writing it elects to cause the issuance of Certificated
Securities under this Indenture, then the Company shall
execute, and the Trustee shall, upon receipt of an
authentication order in accordance with Section 2.02
hereof, authenticate and deliver, Certificated Securities in
an aggregate principal amount equal to the principal amount
of the Global Notes in exchange for such Global Notes.
(g) Legends.
(i) Except as permitted by the following paragraphs (ii) and
(iii), each Note certificate evidencing Global Notes and
Certificated Securities (and all Notes issued in exchange the
refor or substitution thereof) shall bear legends in
substantially the following form:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER SECTION 5 OF THE U.S. SECURITIES ACT OF 1933, AS
AMENDED, (THE "SECURITIES ACT"), AND THE SECURITY EVIDENCED
HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS
HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE
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EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES
ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE
SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE
COMPANY THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED, ONLY (1) (a) INSIDE THE U.S. TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS (i) A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A UNDER THE SECURITIES ACT or (ii) AN ACCREDITED
INVESTOR (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER
THE SECURITIES ACT) IN ACCORDANCE WITH REGULATION D UNDER THE
SECURITIES ACT, (b) IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 144, (c) OUTSIDE THE UNITED STATES TO A FOREIGN
PERSON MEETING THE REQUIREMENTS OF RULE 904 UNDER THE
SECURITIES ACT OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND
BASED UPON AN OPINION OF COUNSEL IF THE COMPANY OR ITS
TRANSFER AGENT OR REGISTRAR SO REQUESTS), (2) TO THE COMPANY
OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND,
IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE U.S. OR ANY OTHER APPLICABLE
JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE
SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET
FORTH IN (A) ABOVE."
(ii) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security
represented by a Global Note) pursuant to Rule 144 under the
Securities Act or pursuant to an effective registration
statement under the Securities Act:
(A) in the case of any Transfer Restricted Security that is
a Certificated Security, the Registrar shall permit
the Holder thereof to exchange such Transfer Restricted
Security for a Certificated Security that does not bear
the legend set forth in (i) above and rescind any
restriction on the transfer of such Transfer Restricted
Security; and
(B) in the case of any Transfer Restricted Security
represented by a Global Note, such Transfer Restricted
Security shall not be required to bear the legend set
forth in (i) above, but shall continue to be subject to
the provisions of Section 2.06(c) hereof; provided,
however, that with respect to any request for an exchange
of a Transfer Restricted Security that is
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represented by a Global Note for a Certificated Security
that does not bear the legend set forth in (i) above,
which request is made in reliance upon Rule 144, the
Holder thereof shall certify in writing to the Registrar
that such request is being made pursuant to Rule 144
(such certification to be substantially in the form of
Exhibit B attached hereto).
(iii) Notwithstanding the foregoing, upon consummation of the
Exchange Offer, the Company shall issue and, upon receipt
of an authentication order in accordance with Section 2.02
hereof, the Trustee shall authenticate, Series B Notes in
exchange for Series A Notes accepted for exchange in the
Exchange Offer, which Series B Notes shall not bear the
legend set forth in (i) above, and the Registrar shall
rescind any restriction on the transfer of such Notes, in
each case unless the Holder of such Series A Notes is either
(A) a broker-dealer who purchased such Series A Notes
directly from the Company to resell pursuant to Rule 144A or
any other available exemption under the Securities Act, (B) a
Person participating in the distribution of the Series A
Notes or (C) a Person who is an affiliate (as defined in Rule
144) of the Company.
(h) Cancellation and/or Adjustment of Global Notes. At such
time as all beneficial interests in Global Notes have been exchanged for
Certificated Securities, or are redeemed, repurchased or canceled, all Global
Notes shall be returned to or retained and canceled by the Trustee in
accordance with Section 2.11 hereof. At any time prior to such cancellation, if
any beneficial interest in a Global Note is exchanged for Certificated
Securities, or are redeemed, repurchased or canceled, the principal amount of
Notes represented by such Global Note shall be reduced accordingly and an
endorsement shall be made on such Global Note, by the Trustee or the Note
Custodian, at the direction of the Trustee, to reflect such reduction.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and
exchanges, the Company shall execute
and the Trustee shall authenticate Certificated
Securities and Global Notes at the Registrar's
request.
(ii) No service charge shall be made to a
Holder for any registration of transfer or
exchange, 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 similar governmental charge
payable upon exchange or transfer pursuant to
Sections 3.07, 4.10, 4.16 and 9.05 hereof).
(iii) The Registrar shall not be required to
register the transfer of or exchange any
Note selected for redemption in whole or in
part, except the unredeemed portion of any Note
being redeemed in part.
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(iv) All Certificated Securities and Global Notes
issued upon any registration of transfer or
exchange of Certificated Securities or Global
Notes shall be the valid obligations of the
Company, evidencing the same debt, and entitled
to the same benefits under this Indenture, as
the Certificated Security or Global Notes
surrendered upon such registration of transfer
or exchange.
(v) The Company shall not be required:
(A) to issue, to register the transfer of
or to exchange Notes during a period
beginning at the opening of business 15
days before the date on which a notice of
redemption is mailed under Section 3.03
hereof and ending at the close of business
on the date on which such notice is
mailed; or
(B) to register the transfer of or to exchange
any Note so selected for redemption in
whole or in part, except the unredeemed
portion of any Note being redeemed in
part; or
(C) to register the transfer of or to exchange
a Note between a record date and the next
succeeding interest payment date.
(vi) Prior to due presentment for the registration
of a transfer of any Note, the Trustee,
any Agent and the Company may deem and treat
the Person in whose name any Note is registered
as the absolute owner of such Note for the
purpose of receiving payment of principal of,
premium, if any, interest and Liquidated
Damages, if any, on such Note, and neither the
Trustee, any Agent nor the Company shall be
affected by notice to the contrary.
(vii) The Trustee shall authenticate Certificated
Securities and Global Notes in accordance with
the provisions of Section 2.02 hereof.
(viii) Each Holder of a Note agrees to indemnify the
Trustee against any liability that may
result from the transfer, exchange or
assignment of such Holder's Note in violation
of any provision of this Indenture and/or
applicable United States federal or state
securities law.
SECTION 2.07. REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Trustee, the Note
custodian, the Depositary or the Company and the Trustee receives evidence to
its satisfaction of the destruction, loss or theft of any Note, the Company
shall issue and the Trustee, upon the written order of the Company signed by
two Officers of the Company directing the Trustee to authenticate the Notes and
certifying that all conditions precedent to the issuance of the Notes contained
herein have been complied with, shall authenticate a replacement Note if the
Trustee's requirements for
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replacements of Notes are met. An indemnity bond must be supplied by the Holder
that is sufficient in the judgment of the Trustee and the Company to protect
the Company, the Trustee, any Agent and any authenticating agent from any loss
that any of them may suffer if a Note is replaced. The Company and the Trustee
may charge for their expenses in replacing a Note.
Every replacement Note is an additional obligation of the
Company and shall be entitled to all of the benefits of this Indenture equally
and proportionately with all other Notes duly issued hereunder.
SECTION 2.08. OUTSTANDING NOTES.
The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those canceled by it, those delivered
to it for cancellation, those reductions in the interest in a Global Note
effected by the Trustee in accordance with the provisions hereof, and those
described in this Section as not outstanding.
If a Note is replaced pursuant to Section 2.07 hereof, it
ceases to be outstanding unless the Trustee receives proof satisfactory to it
that the replaced Note is held by a bona fide purchaser; provided that the
aggregate principal amount of the Notes shall not increase by reason of this
Section 2.08 or Section 2.07 hereof.
If the principal amount of any Note is considered paid under
Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
Subject to Section 2.09 hereof, a Note does not cease to be
outstanding because the Company or an Affiliate of the Company holds the Note.
If the Paying Agent (other than the Company, a Subsidiary or
any Affiliate thereof) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest.
SECTION 2.09. TREASURY NOTES.
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver or consent, Notes owned
by the Company or by any Affiliate thereof shall be considered as though not
outstanding, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Notes that a Responsible Officer actually knows to be so owned shall be so
considered.
SECTION 2.10. TEMPORARY NOTES.
Until Certificated Securities are ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary Notes upon a
written order of the Company signed by two
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Officers of the Company directing the Trustee to authenticate the Notes and
certifying that all conditions precedent to the issuance of the Notes contained
herein have been complied with. Temporary Notes shall be substantially in the
form of Certificated Securities but may have variations that the Company and
the Trustee consider appropriate for temporary Notes and as shall be reasonably
acceptable to the Trustee. Without unreasonable delay, the Company shall
prepare and the Trustee shall authenticate Certificated Securities in exchange
for temporary Notes. Holders of temporary Notes shall be entitled to all of the
benefits of this Indenture.
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment.
The Trustee and no one else shall cancel all Notes surrendered for registration
of transfer, exchange, payment, replacement or cancellation and shall return
canceled Notes to the Company. The Company may not issue new Notes to replace
Notes that the Company has redeemed or paid or that have been delivered to the
Trustee for cancellation.
SECTION 2.12. RECORD DATE.
The record date for purposes of determining the identity of
Holders of the Notes entitled to vote or consent to any action by vote or
consent authorized or permitted under this Indenture shall be determined as
provided for in TIA ss. 316 (c).
SECTION 2.13. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Notes,
it shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date, which date shall be at the
earliest practicable date but in all events at least five Business Days prior
to the payment date, in each case at the rate provided in the Notes and in
Section 4.01 hereof. The Company shall notify the Trustee in writing of the
amount of defaulted interest proposed to be paid on each Note and the date of
the proposed payment. The Company shall, with the consent of the Trustee, fix
or cause to be fixed each such special record date and payment date. At least
15 days before the special record date, the Company (or, upon the written
request of the Company, the Trustee in the name and at the expense of the
Company) shall mail or cause to be mailed to the Holders a notice that states
the special record date, the related payment date and the amount of such
interest to be paid.
SECTION 2.14. CUSIP NUMBERS.
The Company in issuing the Notes may use CUSIP numbers (if then
generally in use), and, if so, the Trustee shall use CUSIP numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the
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correctness of such numbers either as printed on the Notes or as contained in
any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Notes, and any such redemption shall not
be affected by any defect in or omission of such numbers. The Company shall
promptly notify the Trustee of any change in the CUSIP numbers.
ARTICLE 3
REDEMPTION AND PREPAYMENT
SECTION 3.01. NOTICES TO TRUSTEE.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof and paragraph 5 of the Notes, it
shall furnish to the Trustee, at least 30 days but not more than 60 days before
a redemption date, an Officers' Certificate setting forth (i) the Section of
this Indenture pursuant to which the redemption shall occur, (ii) the
redemption date, (iii) the principal amount of Notes to be redeemed and (iv)
the redemption price.
If the Company is required to make an offer to redeem Notes
pursuant to the provisions of Section 3.09 or 4.16 hereof, it shall furnish to
the Trustee at least 30 days but not more than 60 days before a redemption
date, an Officers' Certificate setting forth (i) the Section of this Indenture
pursuant to which the redemption shall occur, (ii) the redemption date, (iii)
the maximum principal amount of Notes to be redeemed, (iv) the redemption price
and (v) further setting forth a statement to the effect that (a) the Company or
one of its Subsidiaries has effected an Asset Sale and the conditions set forth
in Section 4.10 have been satisfied or (b) a Change of Control has occurred and
the conditions set forth in Section 4.16 have been satisfied.
The Company shall also provide the Trustee with any additional
information that the Trustee reasonably requests in connection with any
redemption.
.SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED.
If less than all of the Notes are to be redeemed at any time,
the Trustee shall select the Notes to be redeemed among the Holders in
compliance with the requirements of the principal national securities exchange,
if any, on which the Notes are listed or, if the Notes are not so listed, on a
pro rata basis, by lot or in accordance with any other method the Trustee deems
fair and appropriate; provided that no Notes of $1,000 or less shall be
redeemed in part. In the event of partial redemption by lot, the particular
Notes to be redeemed shall be selected, unless otherwise provided herein, not
less than 30 nor more than 60 days prior to the redemption date by the Trustee
from the outstanding Notes not previously called for redemption. The Company
shall promptly notify the Trustee in writing of the listing of the Notes on any
national securities exchange.
The Trustee shall promptly notify the Company in writing of the
Notes selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed. Notes and portions of
them selected shall be in amounts of $1,000 or
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whole multiples of $1,000; except that if all Notes of a Holder are to be
redeemed, the entire outstanding amount of Notes held by such Holder, even if
not a multiple of $1,000, shall be redeemed. Except as provided in the
preceding sentence, provisions of this Indenture that apply to Notes called for
redemption also apply to portions of Notes called for redemption.
In the event the Company is required to make an offer to redeem
Notes pursuant to Sections 3.09 and 4.10 hereof and the amount of the Excess
Proceeds from the Asset Sale are not evenly divisible by $1,000, the Trustee
shall promptly refund to the Company any remaining Excess Proceeds.
SECTION 3.03. NOTICE OF REDEMPTION.
Subject to the provisions of Section 3.09 hereof, at least 30
days but not more than 60 days before a redemption date, the Company shall mail
or cause to be mailed, by first class mail, a notice of redemption to each
Holder whose Notes are to be redeemed at its registered address.
The notice shall identify the Notes to be redeemed (including
CUSIP numbers) and shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, that, after the
redemption date, upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion shall be issued in
the name of the Holder thereof upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such redemption
payment, interest on Notes called for redemption ceases to accrue on
and after the redemption date;
(g) the paragraph of the Notes and/or Section of this
Indenture pursuant to which the Notes called for redemption are being
redeemed; and
(h) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed
on the Notes.
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At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however, that
the Company shall have delivered to the Trustee, at least 45 days prior to the
redemption date, an Officers' Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as
provided in the preceding paragraph.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section
3.03 hereof, Notes called for redemption become irrevocably due and payable on
the redemption date at the redemption price. A notice of redemption may not be
conditional.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
One Business Day prior to the redemption date, the Company
shall deposit with the Trustee or with the Paying Agent immediately available
funds sufficient to pay the redemption price of and accrued interest and
Liquidated Damages on all Notes to be redeemed on that date. The Trustee or the
Paying Agent shall promptly return to the Company any money deposited with the
Trustee or the Paying Agent by the Company in excess of the amounts necessary
to pay the redemption price of, and accrued interest and Liquidated Damages on,
all Notes to be redeemed.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue on
the Notes or the portions of Notes called for redemption. If a Note is redeemed
on or after an interest record date but on or prior to the related interest
payment date, then any accrued and unpaid interest shall be paid to the Person
in whose name such Note was registered at the close of business on such record
date. If any Note called for redemption shall not be so paid upon surrender for
redemption because of the failure of the Company to comply with the preceding
paragraph, interest shall be paid on the unpaid principal from the redemption
date until such principal is paid and, to the extent lawful, on any interest
not paid on such unpaid principal, in each case at the rate provided in the
Notes and in Section 4.01 hereof.
SECTION 3.06. NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, the Company
shall issue and, upon the Company's written request, the Trustee shall
authenticate for the Holder at the expense of the Company, a new Note equal in
principal amount to the unredeemed portion of the Note surrendered.
SECTION 3.07. OPTIONAL REDEMPTION.
(a) Except as set forth in clause (b) below of this Section
3.07, the Company shall not have the option to redeem the Notes prior to August
15, 2000. Thereafter, the Company shall have the option to redeem the Notes at
any time, in whole or in part, upon not less than 30 nor
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more than 60 days' prior written notice at the redemption prices (expressed as
percentages of principal amount) set forth below plus accrued and unpaid
interest and Liquidated Damages, if any, thereon to the applicable redemption
date, if redeemed during the twelve-month period beginning on August 15 of the
years indicated below:
Year Percentage
---- ----------
2000.......................... 104.938%
2001.......................... 103.292%
2002.......................... 101.646%
2003 and thereafter........... 100.00%
(b) Notwithstanding the provisions of clause (a) of this
Section 3.07, on or prior to August 22, 1999, the Company may redeem up to 25%
in aggregate principal amount of the Notes originally issued under this
Indenture at a redemption price of 108-7/8% of the principal amount thereof,
plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the
redemption date, with the net proceeds of an Initial Public Offering; provided
that at least $75.0 million in aggregate principal amount of the Notes remain
outstanding following such redemption; and provided further, that such
redemption shall have occurred within 60 days of the closing of any such
Initial Public Offering.
(c) Any redemption pursuant to this Section 3.07 shall be made,
to the extent applicable, pursuant to the provisions of Sections 3.01 through
3.06 hereof.
SECTION 3.08. MANDATORY REDEMPTION.
Except as set forth under Sections 4.10 and 4.16 hereof, the
Company shall not be required to make mandatory redemption or sinking fund
payments with respect to the Notes.
SECTION 3.09. OFFER TO PURCHASE BY APPLICATION OF EXCESS PROCEEDS.
In the event that, pursuant to Section 4.10 hereof, the Company
shall be required to commence an offer to all Holders (an "Asset Sale Offer"),
it shall follow the procedures specified below.
The Asset Sale Offer shall remain open for a period of 20
Business Days following its commencement and no longer, except to the extent
that a longer period is required by applicable law (the "Offer Period"). No
later than five Business Days after the termination of the Offer Period (the
"Purchase Date"), the Company shall purchase the principal amount of Notes
required to be purchased pursuant to Section 4.10 hereof (the "Offer Amount")
or, if less than the
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Offer Amount has been tendered, all Notes tendered in response to the Asset
Sale Offer. Payment for any Notes so purchased shall be made in the same manner
as interest payments are made.
If the Purchase Date is on or after an interest record date and
on or before the related interest payment date, any accrued and unpaid interest
shall be paid to the Person in whose name a Note is registered at the close of
business on such record date, and no additional interest shall be payable to
Holders who tender Notes pursuant to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Company shall
send, by first class mail, a notice to the Trustee and to each of the Holders,
with a copy to the Trustee. The notice shall contain all instructions and
materials necessary to enable such Holders to tender Notes pursuant to the
Asset Sale Offer. The Asset Sale Offer shall be made to all Holders of Notes.
The notice, which shall govern the terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made
pursuant to this Section 3.09 and Section 4.10 hereof and the
length of time the Asset Sale Offer shall remain open;
(b) the Offer Amount, the purchase price and the
Purchase Date;
(c) that any Note not tendered or accepted for
payment shall continue to accrue interest;
(d) that, unless the Company defaults in making
such payment, any Note accepted for payment pursuant to the Asset
Sale Offer shall cease to accrue interest after the Purchase Date;
(e) that Holders electing to have a Note purchased
pursuant to an Asset Sale Offer may only elect to have all of such
Note purchased and may not elect to have only a portion of such
Note purchased;
(f) that Holders electing to have a Note purchased
pursuant to any Asset Sale Offer shall be required to surrender
the Note, with the form titled "Option of Holder to Elect
Purchase" on the reverse of the Note completed, or transfer by
book-entry transfer, to the Company, a depositary, if appointed by
the Company, or a Paying Agent at the address specified in the
notice at least three days before the Purchase Date;
(g) that Holders shall be entitled to withdraw
their election if the Company, the Depositary or the Paying Agent,
as the case may be, receive, not later than the expiration of the
Offer Period, a facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Note the Holder
delivered for purchase and a statement that such Holder is
withdrawing his election to have such Note purchased;
(h) that, if the aggregate principal amount of
Notes surrendered by Holders exceeds the Offer Amount, the Company
shall select the Notes to be purchased on a pro rata basis
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(with such adjustments as may be deemed appropriate by the
Company so that only Notes in denominations of $1,000, or
integral multiples thereof, shall be purchased); and
(i) that Holders whose Notes were purchased only
in part shall be issued new Notes equal in principal amount to
the unpurchased portion of the Notes surrendered (or transferred
by book-entry transfer).
On or before the Purchase Date, the Company shall, to the
extent lawful, accept for payment, on a pro rata basis to the extent necessary,
the Offer Amount of Notes or portions thereof tendered pursuant to the Asset
Sale Offer, or if less than the Offer Amount has been tendered, all Notes
tendered, and shall deliver to the Trustee an Officers' Certificate stating
that such Notes or portions thereof were accepted for payment by the Company in
accordance with the terms of this Section 3.09. The Company, the Depositary or
the Paying Agent, as the case may be, shall promptly (but in any case not later
than three Business Days after the Purchase Date) mail or deliver to each
tendering Holder an amount equal to the purchase price of the Notes tendered by
such Holder and accepted by the Company for purchase, and the Company shall
promptly issue a new Note, and the Trustee, upon written request from the
Company, shall authenticate and mail or deliver such new Note to such Holder,
in a principal amount equal to any unpurchased portion of the Note surrendered.
Any Note not so accepted shall be promptly mailed or delivered by the Company
to the Holder thereof. The Company shall publicly announce the results of the
Asset Sale Offer on the Purchase Date.
Other than as specifically provided in this Section 3.09, any
purchase pursuant to this Section 3.09 shall be made pursuant to the provisions
of Sections 3.01 through 3.06 hereof.
ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF NOTES.
The Company shall pay or cause to be paid the principal of,
premium, if any, interest and Liquidated Damages, if any, on the Notes on the
dates and in the manner provided in the Notes. Principal of, premium, if any,
and interest and Liquidated Damages, if any, on the Notes shall be considered
paid on the date due if the Paying Agent, if other than the Company or a
Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on the due date money
deposited by the Company in immediately available funds and designated for and
sufficient to pay all principal of, premium, if any, interest and Liquidated
Damages, if any, on the Notes then due. The Paying Agent shall return to the
Company, no later than five days following the date of payment, any money
(including accrued interest) that exceeds such amount of principal of, premium,
if any, interest and Liquidated Damages, if any, paid on the Notes.
The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal at
the rate equal to 1% per annum in excess of the
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then applicable interest rate on the Notes to the extent lawful; they shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace period) at the same rate to the extent lawful.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain within the City and State of New
York an office or agency (which may be an office of the Trustee or an affiliate
of the Trustee, Registrar or co-registrar) where Notes may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Notes and this Indenture may be served. The
Company shall give prompt written notice to the Trustee of the location, and
any change in the location, of such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee.
The Company may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency within
the City and State of New York for such purposes. The Company shall 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 designates the Corporate Trust Office of the
Trustee, located at 00 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, N.Y. 10005, as one
such office or agency of the Company in accordance with Section 2.03 hereof.
SECTION 4.03. REPORTS.
(a) whether or not required by the rules and regulations of the
Securities and Exchange Commission (the "Commission"), so long as any Notes are
outstanding, beginning October 31, 1996, the Company shall furnish to the
Holders of Notes (i) all quarterly and annual financial information that would
be required to be contained in a filing with the Commission on Forms 10- Q
(such Form 10-Q shall be filed within 45 days of the end of the applicable
fiscal quarter) and 10-K (such Form 10-K shall be filed within 90 days of the
end of the applicable fiscal year) if the Company were required to file such
Forms, including a "Management's Discussion and Analysis of Financial Condition
and Results of Operations" and, with respect to the annual information only, a
report thereon by the Company's certified independent accountants and (ii) all
current reports that would be required to be filed with the Commission on Form
8-K if the Company were required to file such reports. In addition, whether or
not required by the rules and regulations of the Commission, beginning October
31, 1996, the Company shall file a copy of all such information and reports
with the Commission for public availability (unless the Commission will
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not accept such a filing) and make such information available to securities
analysts and prospective investors upon request. The Company shall at all times
comply with TIA ss. 314(a).
(b) For so long as any Notes remain outstanding, the Company
shall furnish to the Holders and to securities analysts and prospective
investors, upon their request, the information required to be delivered
pursuant to Rule 144A(d)(4) under the Securities Act.
(c) Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein
or determinable from information contained therein, including the Company's
compliance with any of the covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 4.04. COMPLIANCE CERTIFICATE.
(a) The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year, an Officers' Certificate stating that a
review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether each has kept, observed, performed
and fulfilled its obligations under this Indenture, and further stating, as to
each such Officer signing such certificate, that, to the best of his or her
knowledge, each has kept, observed, performed and fulfilled each and every
covenant contained in this Indenture and is not in default in the performance
or observance of any of the terms, provisions and conditions of this Indenture
(or, if a Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which he or she may have knowledge and what
action each is taking or proposes to take with respect thereto) and that, to
the best of his or her knowledge, no event has occurred and remains in
existence by reason of which payments on account of the principal of, premium,
if any, interest or Liquidated Damages, if any, on the Notes is prohibited or
if such event has occurred, a description of the event and what action each is
taking or proposes to take with respect thereto.
(b) So long as not contrary to the then current recommendations
of the American Institute of Certified Public Accountants, the year-end
financial statements delivered pursuant to Section 4.03(a) above shall be
accompanied by a written statement of the Company's independent public
accountants (who shall be a firm of established national reputation reasonably
satisfactory to the Trustee) that in making the examination necessary for
certification of such financial statements, nothing has come to their attention
that would lead them to believe that the Company has violated any provisions of
Article 4 or Article 5 hereof or, if any such violation has occurred,
specifying the nature and period of existence thereof, it being understood that
such accountants shall not be liable directly or indirectly to any Person for
any failure to obtain knowledge of any such violation.
(c) The Company shall, so long as any of the Notes are
outstanding, deliver to the Trustee, forthwith upon any Officer becoming aware
of any Default or Event of Default, an
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Officers' Certificate specifying such Default or Event of Default and what
action the Company is taking or propose to take with respect thereto.
SECTION 4.05. TAXES.
The Company shall, and shall cause each of its Subsidiaries to,
pay prior to delinquency all material taxes, assessments and governmental
levies, except such as are contested in good faith and by appropriate
proceedings.
SECTION 4.06. STAY, EXTENSION AND USURY LAWS.
The Company covenants (to the extent that it may lawfully do
so) that it shall not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, extension or
usury law wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of this Indenture; and the Company (to
the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it shall not, by resort to any
such law, hinder, delay or impede the execution of any power herein granted to
the Trustee, but shall suffer and permit the execution of every such power as
though no such law has been enacted.
SECTION 4.07. RESTRICTED PAYMENTS.
The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or
make any other payment or distribution on account of the Company's Equity
Interests (including, without limitation, any payment in connection with any
merger or consolidation involving the Company) or to the direct or indirect
holders of the Company's Equity Interests in their capacity as such (other than
dividends or distributions payable in Equity Interests (other than Disqualified
Stock) of the Company); (ii) purchase, redeem or otherwise acquire or retire
for value any Equity Interests of the Company or any direct or indirect parent
of the Company; (iii) make any principal payment on, or purchase, redeem,
defease or otherwise acquire or retire for value any Indebtedness that is
subordinated to the Notes, except at final maturity; or (iv) make any
Restricted Investment (all such payments and other actions set forth in clauses
(i) through (iv) above being collectively referred to as "Restricted
Payments"), unless, at the time of and after giving effect to such Restricted
Payment:
(a) no Default or Event of Default shall have occurred and
be continuing or would occur as a consequence thereof; and
(b) the Company would, at the time of such Restricted Payment
and after giving pro forma effect thereto as if such Restricted
Payment had been made at the beginning of the applicable four-quarter
period, have been permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio test set
forth in the first paragraph of the Section 4.09 hereof; and
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(c) such Restricted Payment, together with the aggregate of all
other Restricted Payments made by the Company and its Subsidiaries
after the date of this Indenture (excluding Restricted Payments
permitted by clauses (x) and (y) of the next succeeding paragraph), is
less than the sum of (i) 50% of the Consolidated Net Income of the
Company for the period (taken as one accounting period) from the
beginning of the first fiscal quarter commencing after the Issue Date
to the end of the Company's most recently ended fiscal quarter for
which internal financial statements are available at the time of such
Restricted Payment (or, if such Consolidated Net Income for such
period is a deficit, less 100% of such deficit), plus (ii) 100% of the
aggregate net cash proceeds received by the Company from the issue or
sale since the Issue Date of Equity Interests of the Company or of
debt securities of the Company that have been converted into such
Equity Interests (other than Equity Interests (or convertible debt
securities) sold to a Subsidiary of the Company and other than
Disqualified Stock or debt securities that have been converted into
Disqualified Stock), plus (iii) to the extent that any Restricted
Investment that was made after the Issue Date is sold for cash or
otherwise liquidated or repaid for cash, the lesser of (A) the cash
return of capital with respect to such Restricted Investment (less the
cost of disposition, if any) and (B) the initial amount of such
Restricted Investment, plus (iv) $10.0 million.
The foregoing provisions shall not prohibit:
(v) the payment of any dividend within 60 days after the date
of declaration thereof, if at said date of declaration such payment would have
complied with the provisions of this Indenture;
(w) the redemption, repurchase, retirement or other acquisition
of any Equity Interests of the Company in exchange for, or out of the proceeds
of, the substantially concurrent sale (other than to a Subsidiary of the
Company) of other Equity Interests of the Company (other than any Disqualified
Stock); provided that the amount of any such net cash proceeds that are
utilized for any such redemption, repurchase, retirement or other acquisition
shall be excluded from clause (c) (ii) of the preceding paragraph;
(x) the defeasance, redemption or repurchase of subordinated
Indebtedness with the net cash proceeds from an incurrence of Permitted
Refinancing Debt or the substantially concurrent sale (other than to a
Subsidiary of the Company) of Equity Interests of the Company (other than
Disqualified Stock); provided that the amount of any such net cash proceeds
that are utilized for any such redemption, repurchase, retirement or other
acquisition shall be excluded from clause (c) (ii) of the preceding paragraph;
(y) the payment of dividends to the Company's direct parent to
pay administrative expenses in an aggregate amount not to exceed $200,000 in
any 12-month period; and
(z) the repurchase, redemption or other acquisition or
retirement for value of any Equity Interests of the Company or any Subsidiary
of the Company held by any member of the Company's (or any of its
Subsidiaries') management pursuant to any management equity subscription
agreement or stock option agreement in effect as of the Issue Date or entered
into
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after the Issue Date with members of the management of any Person acquired
after the Issue Date in connection with the acquisition of such Person or the
repurchase of Equity Interests of the Company or any Subsidiary of the Company
held by employees, former employees, directors or former directors pursuant to
the terms of agreements (including employment agreements) approved by the Board
of Directors; provided that the aggregate price paid for all such repurchased,
redeemed, acquired or retired Equity Interests shall not exceed $3.0 million in
any 12-month period following the date of this Indenture or $10.0 million in
the aggregate since the date of this Indenture; and no Default or Event of
Default shall have occurred and be continuing immediately after such
transaction.
The amount of all Restricted Payments (other than cash) shall be the
fair market value (as determined by the Board of Directors in good faith, whose
determination shall be conclusive evidence thereof and shall be evidenced by a
resolution of the Board of Directors set forth in an Officers' Certificate
delivered to the Trustee) on the date of the Restricted Payment of the asset(s)
proposed to be transferred by the Company or such Subsidiary, as the case may
be, pursuant to the Restricted Payment. Not later than the date of making any
Restricted Payment, the Company shall deliver to the Trustee an Officers'
Certificate stating that such Restricted Payment is permitted and setting forth
the basis upon which the calculations required by the covenant "Restricted
Payments" were computed, which calculations may be based upon the Company's
latest available financial statements.
SECTION 4.08. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES.
The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
Subsidiary to (i)(a) pay dividends or make any other distributions to the
Company or any of its Subsidiaries (1) on its Capital Stock or (2) with respect
to any other interest or participation in, or measured by, its profits, or (b)
pay any indebtedness owed to the Company or any of its Subsidiaries, (ii) make
loans or advances to the Company or any of its Subsidiaries or (iii) transfer
any of its properties or assets to the Company or any of its Subsidiaries,
except for such encumbrances or restrictions existing under or by reason of (a)
Existing Indebtedness as in effect on the Issue Date, (b) the New Credit
Agreement as in effect as of the Issue Date and any amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or
refinancings thereof, provided that such amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or
refinancings are, taken as a whole, no more restrictive with respect to such
dividend and other payment restrictions than those contained in the New Credit
Agreement as in effect on the Issue Date, (c) this Indenture and the Notes, (d)
applicable law, (e) any instrument governing Indebtedness of a Subsidiary of
the Company that was permitted by the terms of this Indenture to be incurred,
(f) by reason of customary non-assignment provisions in leases entered into in
the ordinary course of business and consistent with past practices, (g)
purchase money obligations for property acquired in the ordinary course of
business that impose restrictions of the nature described in clause (iii) above
on the property so acquired, (h) Permitted Refinancing Debt provided that the
restrictions contained in the agreements governing such Permitted Refinancing
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Debt are, taken as a whole, no more restrictive than those contained in the
agreements governing the Indebtedness being refinanced, (i) an agreement that
has been entered into for the sale or disposition of all or substantially all
of the Equity Interests or property or assets of a Subsidiary of the Company or
(j) restrictions on the Receivables Subsidiary pursuant to the Receivables
Facility.
SECTION 4.09. INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF PREFERRED STOCK .
The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty
or otherwise become directly or indirectly liable, contingently or otherwise,
with respect to (collectively, "incur") any Indebtedness (including Acquired
Debt) and that the Company shall not issue any Disqualified Stock and shall not
permit any of its Subsidiaries to issue any shares of preferred stock;
provided, however, that the Company may incur Indebtedness (including Acquired
Debt) or issue shares of Disqualified Stock if the Fixed Charge Coverage Ratio
for the Company's most recently ended four full fiscal quarters for which
internal financial statements are available immediately preceding the date on
which such additional Indebtedness is incurred or such Disqualified Stock is
issued would have been at least 2.5 to 1, determined on a pro forma basis
(including a pro forma application of the net proceeds therefrom), as if the
additional Indebtedness had been incurred, or the Disqualified Stock had been
issued, as the case may be, at the beginning of such four-quarter period.
The foregoing provisions shall not apply to:
(i) the incurrence by the Company of term Indebtedness under
the New Credit Agreement or any one or more successor or additional
bank facilities and/or Attributable Debt in respect of sale and
leaseback transactions the net proceeds of which were applied to repay
any such term Indebtedness in an aggregate principal amount at any
time outstanding not to exceed an amount equal to $170.0 million less
the aggregate amount of all repayments, optional or mandatory, of the
principal of any such term Indebtedness (other than repayments that
are immediately reborrowed and other than repayments made with the
proceeds of sale and leaseback transactions pursuant to this clause
(i)) that have been made since the Issue Date;
(ii) (a) the incurrence by the Company of revolving
Indebtedness under the New Credit Agreement (or any one or more
successor or additional bank facilities) and letters of credit (with
letters of credit being deemed to have a principal amount equal to the
maximum potential liability of the Company thereunder) and (b) the
incurrence by the Receivables Subsidiary of Non-Recourse Debt under
the Receivables Facility; provided, however, that, the aggregate
principal amount at any time outstanding pursuant to subclauses (a)
and (b) of this clause (ii) (excluding intercompany Indebtedness of
the Receivables Subsidiary permitted by clause (viii) below) shall not
exceed an amount equal to $155.0 million less the aggregate amount of
all Net Proceeds of Asset Sales applied to permanently reduce the
commitments with respect to such revolving Indebtedness pursuant to
the provisions of Section 4.10 hereof;
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(iii) the incurrence by the Company and its Subsidiaries of
the Existing Indebtedness;
(iv) the incurrence by the Company of Indebtedness
represented by the Notes and the Senior Subordinated Notes;
(v) the incurrence by the Company of Indebtedness represented by
Capital Lease Obligations, mortgage financings or purchase money
obligations, in each case, incurred for the purpose of financing all or
any part of the purchase price or cost of construction or improvement of
property, plant or equipment used in the business of the Company, in an
aggregate principal amount not to exceed $25.0 million at any time
outstanding;
(vi) the incurrence by any of the Company's Subsidiaries of
Indebtedness in connection with the acquisition of assets or a new
Subsidiary; provided that (1) such Indebtedness was incurred by the
prior owner of such assets or such Subsidiary prior to such acquisition
and was not incurred in connection with, or in contemplation of, such
acquisition or is in the nature of an earnout payment or holdback
payment incurred by one of the Company's Subsidiaries in connection with
the acquisition of assets or a new Subsidiary, (2) the principal amount
(or accreted value, as applicable) of such Indebtedness, together with
any other outstanding Indebtedness incurred pursuant to this clause
(vi), does not exceed $10.0 million and (3) the Fixed Charge Coverage
Ratio for the Company's most recently ended four full fiscal quarters
for which internal financial statements are available immediately
preceding the date on which such additional Indebtedness is incurred
would have been at least 2.5 to 1, determined on a pro forma basis
(including a pro forma application of the net proceeds therefrom), as if
the additional Indebtedness had been incurred at the beginning of such
four-quarter period;
(vii) the incurrence by the Company or any of its Subsidiaries
of Permitted Refinancing Debt in exchange for, or the net proceeds of
which are used to extend, refinance, renew, replace, defease or refund,
Indebtedness that was permitted by this Indenture to be incurred;
(viii) the incurrence by the Company or any of its
Subsidiaries of intercompany Indebtedness between or among the Company
and any of its Subsidiaries, and any intercompany Indebtedness arising
in connection with a Receivables Facility; provided, however, that
(1) if the Company is the obligor on such Indebtedness, such
Indebtedness is expressly subordinate to the payment in full of all
Obligations with respect to the Notes and (2)(A) any subsequent
issuance or transfer of Equity Interests that results in any such
Indebtedness being held by a Person other than the Company or a
Subsidiary and (B) any sale or other transfer of any such Indebtedness
to a Person that is not either the Company or a Subsidiary thereof
shall be deemed, in each case, to constitute an incurrence of such
Indebtedness by the Company or such Subsidiary, as the case may be;
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(ix) the incurrence by the Company of Hedging Obligations that
are incurred for the purpose of fixing or hedging interest rate risk
with respect to any floating rate Indebtedness that is permitted by
the terms of this Indenture to be outstanding or for the purpose of
hedging against currency exchange rate fluctuations;
(x) Guarantees by the Company and its Subsidiaries of
Indebtedness of Subsidiaries, and Guarantees by Subsidiaries of
Indebtedness of the Company, which Indebtedness is, in each case,
permitted to be incurred under this covenant other than Indebtedness
permitted to be incurred pursuant to subclause (b) of clause (ii)
above; and
(xi) the incurrence by the Company or any of its Subsidiaries
of Indebtedness (in addition to Indebtedness permitted by any other
clause of this paragraph) in an aggregate principal amount (or
accreted value, as applicable) at any time outstanding not to exceed
$25.0 million.
SECTION 4.10. ASSET SALES.
The Company shall not, and shall not permit any of its
Subsidiaries to, engage in an Asset Sale unless (i) the Company (or the
Subsidiary, as the case may be) receives consideration at the time of such
Asset Sale at least equal to the fair market value (as determined by the Board
of Directors in good faith, whose determination shall be conclusive evidence
thereof and shall be evidenced by a resolution of the Board of Directors set
forth in an Officers' Certificate delivered to the Trustee) of the assets or
Equity Interests issued or sold or otherwise disposed of and (ii) at least 80%
of the consideration therefor received by the Company or such Subsidiary is in
the form of cash; provided that the amount of (x) any liabilities (as shown on
the Company's or such Subsidiary's most recent balance sheet), of the Company
or any Subsidiary (other than contingent liabilities and liabilities that are
by their terms subordinated to the Notes or any guarantee thereof) that are
assumed by the transferee of any such assets pursuant to an agreement that
releases the Company or such Subsidiary from further liability and (y) any
notes or other obligations received by the Company or any such Subsidiary from
such transferee that are immediately converted by the Company or such
Subsidiary into cash (to the extent of the cash received), shall be deemed to
be cash for purposes of this provision.
Within 360 days after the receipt of any Net Proceeds from an Asset
Sale, the Company may apply such Net Proceeds, at its option, (a) to
permanently reduce, repurchase, repay or redeem term Indebtedness under the New
Credit Agreement or any one or more successor or additional bank facilities,
(b) to permanently reduce or repay revolving Indebtedness (and to
correspondingly reduce commitments with respect thereto) under the New Credit
Agreement or any one or more successor or additional bank facilities, or (c) to
the acquisition of a controlling interest in another business, the making of a
capital expenditure or the acquisition of other long-term assets, in each case,
in the same or a similar line of business as the Company was engaged in on the
date of such Asset Sale or another line of business that is reasonably related
thereto. Pending the final application of any such Net Proceeds, the Company
may temporarily reduce
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revolving Indebtedness under the New Credit Agreement or any one or more
successor or additional bank facilities or otherwise invest such Net Proceeds
in any manner that is not prohibited by this Indenture. Any Net Proceeds from
Asset Sales that are not applied or invested as provided in the first sentence
of this paragraph shall be deemed to constitute "Excess Proceeds."
As soon as practical, but in no event later than 10 business days, in
the case of clause (i) below, and 45 business days, in the case of clause (ii)
below, after any date (each, an "Asset Sale Offer Trigger Date") that the
aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall
(i) commence an offer to purchase the maximum principal amount of Notes and
other Indebtedness of the Company that ranks pari passu in right of payment
with the Notes (to the extent required by the instrument governing such other
Indebtedness), that may be purchased out of the Excess Proceeds and (ii) to the
extent that more than $10.0 million of Excess Proceeds remain following
consummation of the offer to purchase Notes contemplated by the preceding
clause (i), commence an offer to purchase the maximum principal amount of
Senior Subordinated Notes and other Indebtedness of the Company that ranks pari
passu in right of payment with the Senior Subordinated Notes (to the extent
required by the instrument governing such other Indebtedness), that may be
purchased out of the Excess Proceeds (each, an "Asset Sale Offer"). Any Notes
and other Pari Passu Debt to be purchased pursuant to an Asset Sale Offer shall
be purchased pro rata based on the aggregate principal amount of Notes and such
other applicable Pari Passu Debt outstanding and all Notes shall be purchased
at an offer price in cash equal to 100% of the principal amount thereof, plus
accrued and unpaid interest and Liquidated Damages, if any, to the date of
purchase (or if such Asset Sale Offer is with respect to any discount or zero
coupon securities prior to the date of their full accretion, 100% of the
accreted value thereof on the date of purchase). To the extent that any Excess
Proceeds remain after completion of an Asset Sale Offer, the Company may use
the remaining amount for general corporate purposes and the amount of Excess
Proceeds shall be reset at zero.
In connection with each Asset Sale Offer, the Company shall mail to the
Trustee and each Holder of Notes at such Holder's registered address a notice
stating: (i) that an Asset Sale Trigger Date has occurred and that the Company
is offering to purchase the maximum principal amount of Notes that may be
purchased out of the Excess Proceeds, at an offer price in cash equal to 100%
of the principal amount thereof, plus accrued and unpaid interest and
Liquidated Damages, if any, to the date of purchase which date of purchase (the
"Asset Sale Offer Purchase Date") shall be a Business Day specified in such
notice that is not earlier than 30 days nor later than 60 days from the date
such notice is mailed, (ii) the amount of accrued and unpaid interest and
Liquidated Damages, if any, as of the Asset Sale Offer Purchase Date, (iii)
that any Note not tendered shall continue to accrue interest (iv) that, unless
the Company defaults in the payment of the purchase price for the Notes payable
pursuant to the Asset Sale Offer, any Notes accepted for payment pursuant to
the Asset Sale Offer shall cease to accrue interest after the Asset Sale Offer
Purchase Date, (v) the procedures, consistent with this Indenture, to be
followed by Holders of Notes in order to accept an Asset Sale Offer or to
withdraw such acceptance, and (vi) such other information as may be required by
this Indenture or applicable laws and regulations.
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On the Asset Sale Offer Purchase Date, the Company shall (i) accept for
payment the maximum principal amount of Notes or portions thereof tendered
pursuant to the Asset Sale Offer that can be purchased out of the Excess
Proceeds, (ii) deposit with the Paying Agent the aggregate purchase price of
all Notes or portions thereof accepted for payment and any accrued and unpaid
interest and Liquidated Damages, if any, on such Notes as of the Asset Sale
Offer Purchase Date, and (iii) deliver or cause to be delivered to the Trustee
all Notes tendered pursuant to the Asset Sale Offer. If less than all of the
Notes tendered pursuant to the Asset Sale Offer are accepted for payment by the
Company for any reason consistent with this Indenture, selection of the Notes
to be purchased by the Company shall be in compliance with the requirements of
the principal national securities exchange, if any, on which the Notes are
listed or, if the Notes are not so listed, among Notes of a particular series
and Pari Passu Debt on a pro rata basis; provided that Notes accepted for
payment in part shall only be purchased in integral multiples of $1,000. The
appropriate Paying Agent shall promptly mail to each Holder of Notes or
portions thereof accepted for payment an amount equal to the purchase price for
such Notes plus any accrued and unpaid interest and Liquidated Damages, if any,
thereon, and the Trustee shall promptly authenticate and mail to such Holder of
Notes accepted for payment in part a new Note equal in principal amount of any
unpurchased portion of the Notes, and any Note not accepted for payment in
whole or in part shall be promptly returned to the Holder of such Note. The
Company shall announce the results of the Asset Sale Offer to Holders of the
Notes on or as soon as practicable after the Asset Sale Purchase Date.
The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act, and any other securities
laws or regulations in connection with any Asset Sale Offer.
SECTION 4.11. TRANSACTIONS WITH AFFILIATES.
The Company shall not, and shall not permit any of its
Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into or make or amend any contract, agreement,
understanding, loan, advance or guarantee with, or for the benefit of, any
Affiliate (each of the foregoing, an "Affiliate Transaction"), unless (i) such
Affiliate Transaction is on terms that are no less favorable to the Company or
the relevant Subsidiary than those that would have been obtained in a
comparable transaction by the Company or such Subsidiary with an unrelated
Person and (ii) the Company delivers to the Trustee (a) with respect to any
Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $1.0 million, a resolution of the Board of
Directors set forth in an Officers' Certificate certifying that such Affiliate
Transaction complies with clause (i) above and that such Affiliate Transaction
has been approved by a majority of the disinterested members of the Board of
Directors and (b) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate consideration in excess of
$5.0 million, an opinion as to the fairness to the Holders of such Affiliate
Transaction from a financial point of view issued by an accounting, appraisal
or investment banking firm of national standing; provided that (v) sales of
Receivables to the Receivables Subsidiary on arm's length terms, (w) any
transaction in accordance with the terms of
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any Existing Employment Agreement as the same are in effect on the Issue Date
and any employment agreement entered into by the Company or any of its
Subsidiaries in the ordinary course of business and consistent with the past
practice of the Company or such Subsidiary, (x) transactions between or among
the Company and/or its Controlled Subsidiaries, (y) transactions pursuant to
the Tax Allocation Agreement as in effect on the date of this Indenture and (z)
Restricted Payments and Permitted Investments that are permitted by the
provisions of Section 4.07 hereof, in each case, shall not be deemed Affiliate
Transactions. In addition, the Company shall not, and shall not permit any of
its Subsidiaries to, merge with or into, or purchase all or substantially all
of the assets of, any Affiliate, unless (i) such Affiliate had positive
Consolidated Cash Flow in each of its most recently ended two full fiscal years
and (ii) the Fixed Charge Coverage Ratio for the Company's most recently ended
four full fiscal quarters for which internal financial statements are available
immediately preceding the date on which such transaction is entered into,
determined on a pro forma basis (including a pro forma application of the net
proceeds therefrom), as if the transaction had been entered into at the
beginning of such four-quarter period, would have been higher than the actual
Fixed Charge Coverage Ratio for such four-quarter period.
SECTION 4.12. LIENS.
The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Lien securing Indebtedness on any asset now owned or hereafter
acquired, or any income or profits therefrom or assign or convey any right to
receive income therefrom, except Permitted Liens.
SECTION 4.13. SALE AND LEASEBACK TRANSACTIONS.
The Company shall not, and shall not permit any of its
Subsidiaries to, enter into any sale and leaseback transaction; provided that
the Company or any of its Subsidiaries may enter into a sale and leaseback
transaction if (i) the Company could have incurred Indebtedness in an amount
equal to the Attributable Debt relating to such sale and leaseback transaction
pursuant to the Fixed Charge Coverage Ratio test set forth in the first
paragraph of Section 4.09 hereof (ii) the gross cash proceeds of such sale and
leaseback transaction are at least equal to the fair market value (as
determined in good faith by the Board of Directors and set forth in an
Officers' Certificate delivered to the Trustee) of the property that is the
subject of such sale and leaseback transaction and (iii) the transfer of assets
in such sale and leaseback transaction is permitted by, and the Company applies
the proceeds of such transaction in compliance with, the provisions of Section
4.10 hereof. Payments or arrangements pursuant to a Tax Incentive Program shall
not constitute sale and leaseback transactions.
SECTION 4.14. LIMITATIONS ON ISSUANCES OF GUARANTEES OF INDEBTEDNESS.
The Company shall not permit any of its Subsidiaries, directly
or indirectly, to Guarantee or pledge any assets to secure the payment of any
other Indebtedness of the Company unless such Subsidiary simultaneously
executes and delivers supplemental indentures to this
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Indenture providing for the Guarantee of the payment of the Notes by such
Subsidiary, which Guarantee shall be unsecured, but otherwise shall be senior
to or pari passu with such Subsidiary's Guarantee of or pledge to secure such
other Indebtedness. Notwithstanding the foregoing, any such Guarantee by a
Subsidiary of the Notes shall provide by its terms that it shall be
automatically and unconditionally released and discharged upon any sale,
exchange or transfer, to any Person not an Affiliate of the Company, of all of
the Company's stock in, or all or substantially all the assets of, such
Subsidiary, which sale, exchange or transfer is made in compliance with the
applicable provisions of this Indenture. The form of such Guarantee is attached
as an exhibit to this Indenture.
SECTION 4.15. CORPORATE EXISTENCE.
Subject to Article 5 hereof, the Company shall do or cause to
be done all things necessary to preserve and keep in full force and effect its
existence as a corporation and the corporate, partnership or other existence of
each Subsidiary, in accordance with the respective organizational documents (as
the same may be amended from time to time) of the Company or each Subsidiary
thereof and the rights (charter and statutory), licenses and franchises of the
Company and each Subsidiary; provided, however, that the Company shall not be
required to preserve any such right, license or franchise, or the corporate,
partnership or other existence of any of its Subsidiaries, if the Board of
Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company and its Subsidiaries, taken as a
whole, and that the loss thereof is not adverse in any material respect to the
Holders of the Notes.
SECTION 4.16. REPURCHASE AT THE OPTION OF HOLDERS - CHANGE OF CONTROL.
Upon the occurrence of a Change of Control, each Holder of
Notes shall have the right to require the Company to repurchase all or any part
(equal to $1,000 or an integral multiple thereof) of such Holder's Notes
pursuant to the offer described below (the "Change of Control Offer") at an
offer price in cash equal to 101% of the aggregate principal amount thereof
plus accrued and unpaid interest and Liquidated Damages thereon, if any, to the
date of purchase (the "Change of Control Payment"). Within ten days following
any Change of Control, the Company shall mail a notice to the Trustee and each
Holder stating (1) that the Change of Control Offer is being made pursuant to
this Section 4.16 and that all Notes tendered shall be accepted for payment;
(2) the purchase price and purchase date, which shall be no later than 30
business days from the date such notice is mailed (the "Change of Control
Payment Date"); (3) that any Note not tendered shall continue to accrue
interest; (4) that, unless the Company defaults in the payment of the Change of
Control Payment, all Notes accepted for payment pursuant to the Change of
Control Offer shall cease to accrue interest after the Change of Control
Payment Date; (5) that Holders electing to have any Notes purchased pursuant to
a Change of Control Offer shall be required to surrender the Notes, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of the Notes
completed, to the Paying Agent at the address specified in the notice prior to
the close of business on the third Business Day preceding the Change of Control
Payment Date; (6) that Holders shall be entitled to withdraw their election if
the Paying Agent receives, not later than the close of business on the second
Business Day preceding the Change of Control
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Payment Date, a facsimile transmission or letter setting forth the name of the
Holder, the principal amount of Notes delivered for purchase, and a statement
that such Holder is withdrawing his election to have the Notes purchased; and
(7) that Holders whose Notes are being purchased only in part shall be issued
new Notes equal in principal amount to the unpurchased portion of the Notes
surrendered, which unpurchased portion must be equal to $1,000 in principal
amount or an integral multiple thereof. The Company shall comply with the
requirements of Rule 14e-1 under the Exchange Act and any other securities laws
and regulations thereunder to the extent such laws and regulations are
applicable in connection with the repurchase of the Notes as a result of a
Change of Control.
On the Change of Control Payment Date, the Company shall, to the extent
lawful, (i) accept for payment all Notes or portions thereof properly tendered
pursuant to the Change of Control Offer, (ii) deposit with the Paying Agent an
amount equal to the Change of Control Payment in respect of all Notes or
portions thereof so tendered and (iii) deliver or cause to be delivered to the
Trustee the Notes so accepted together with an Officers' Certificate stating
the aggregate principal amount of Notes or portions thereof being purchased by
the Company. The Paying Agent shall promptly mail to each Holder of Notes so
tendered the Change of Control Payment for such Notes, and the Trustee shall
promptly authenticate and mail (or cause to be transferred by book entry) to
each Holder a new Note equal in principal amount to any unpurchased portion of
the Notes surrendered, if any; provided that each such new Note shall be in a
principal amount of $1,000 or an integral multiple thereof. The Company shall
publicly announce the results of the Change of Control Offer on or as soon as
practicable after the Change of Control Payment Date.
The Company shall not be required to make a Change of Control Offer
upon the occurrence of a Change of Control if a third party makes the Change of
Control Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Indenture applicable to a Change of Control
Offer made by the Company and purchases all Notes validly tendered and not
withdrawn under such Change of Control Offer.
The Change of Control provisions described above shall be applicable
whether or not any other provisions of this Indenture are applicable. Except as
described above with respect to a Change of Control, this Indenture does not
contain provisions that permit the Holders of the Notes to require the Company
to repurchase or redeem the Notes in the event of a takeover, recapitalization
or similar transaction.
SECTION 4.17. LIMITATION ON ISSUANCES AND SALES OF CAPITAL STOCK OF WHOLLY
OWNED SUBSIDIARIES.
The Company (i) shall not, and shall not permit any Wholly Owned
Subsidiary of the Company to, transfer, convey, sell, lease or otherwise
dispose of any Capital Stock of any Wholly Owned Subsidiary of the Company to
any Person (other than the Company or a Wholly Owned Subsidiary of the
Company), unless (a) such transfer, conveyance, sale, lease or other
disposition
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is of all the Capital Stock of such Wholly Owned Subsidiary and (b) the cash
Net Proceeds in excess of $1.0 million from such transfer, conveyance, sale,
lease or other disposition are applied in accordance with the provisions of
Section 4.10 hereof, and (ii) shall not permit any Wholly Owned Subsidiary of
the Company to issue any of its Equity Interests (other than, if necessary,
shares of its Capital Stock constituting directors' qualifying shares) to any
Person other than to the Company or a Wholly Owned Subsidiary of the Company,
unless (a) such issuance is of all the Equity Interests of such Wholly Owned
Subsidiary and (b) the cash Net Proceeds in excess of $1.0 million from such
issuance are applied in accordance with the provisions of Section 4.10 hereof.
SECTION 4.18. PAYMENTS FOR CONSENT.
Neither the Company nor any of its Subsidiaries shall, directly
or indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder of any Notes for or as an inducement
to any consent, waiver or amendment of any of the terms or provisions of this
Indenture or the Notes unless such consideration is offered to be paid or is
paid to all Holders of the Notes that consent, waive or agree to amend in the
time frame set forth in the solicitation documents relating to such consent,
waiver or agreement.
ARTICLE 5
SUCCESSORS
SECTION 5.01. MERGER, CONSOLIDATION, OR SALE OF ASSETS.
The Company may not consolidate or merge with or into (whether
or not the Company is the surviving corporation), or sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all of its
properties or assets in one or more related transactions, to another
corporation, Person or entity unless (i) the Company is the surviving
corporation or the entity or the Person formed by or surviving any such
consolidation or merger (if other than the Company) or to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made is a corporation organized or existing under the laws of the United
States, any state thereof or the District of Columbia; (ii) the entity or
Person formed by or surviving any such consolidation or merger (if other than
the Company) or the entity or Person to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have been made assumes all the
obligations of the Company under the Notes and this Indenture pursuant to
supplemental indentures in a form reasonably satisfactory to the Trustee; (iii)
immediately after such transaction no Default or Event of Default exists; and
(iv) except in the case of a merger of the Company with or into a Wholly Owned
Subsidiary of the Company, the Company or the entity or Person formed by or
surviving any such consolidation or merger (if other than the Company), or to
which such sale, assignment, transfer, lease, conveyance or other disposition
shall have been made shall, at the time of such transaction and after giving
pro forma effect thereto as if such transaction had occurred at the beginning
of the applicable four-quarter period, be permitted to incur at least
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$1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio
test set forth in the first paragraph of Section 4.09 hereof.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment,
transfer, lease, conveyance or other disposition of all or substantially all of
the assets of the Company in accordance with Section 5.01 hereof, the successor
corporation formed by such consolidation or into or with which such Company is
merged or to which such sale, assignment, transfer, lease, conveyance or other
disposition is made shall succeed to, and be substituted for (so that, in the
case of any consolidation or merger, or any sale, assignment transfer, lease,
conveyance or other disposition of all or substantially all of the assets of
the Company, from and after the date of such event, the provisions of this
Indenture referring to the Company shall refer instead to the successor
corporation and not to the Company), and may exercise every right and power of
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein; provided, however, that the
predecessor shall not be relieved from the obligation to pay the principal of
and interest on the Notes, except in the case of a sale of all of the
predecessor's assets that meets the requirements of Section 5.01 hereof.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT
An "Event of Default" occurs if:
(a) default which continues for 30 days in the payment when due
of interest on, or Liquidated Damages with respect to, the Notes ;
(b) default in payment when due of the principal of or premium,
if any, on the Notes;
(c) failure by the Company to comply with the provisions of
Section 4.10 or 4.16 hereof;
(d) failure by the Company for 60 days after notice to comply
with any of its other agreements in this Indenture or the Notes;
(e) default under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed by the Company or any of its
Subsidiaries (or the payment of which is guaranteed by the Company or
any of its Subsidiaries) whether such Indebtedness or guarantee now
exists, or is created after the date of this Indenture, which default
(i) is
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caused by a failure to pay principal of, premium, if any, or interest
on such Indebtedness prior to the expiration of the grace period
provided in such Indebtedness on the date of such default (a "Payment
Default") or (ii) results in the acceleration of such Indebtedness prior
to its express maturity and, in each case, the principal amount of any
such Indebtedness, together with the principal amount of any other such
Indebtedness under which there has been a Payment Default or the
maturity of which has been so accelerated, aggregates $10.0 million or
more;
(f) (i) failure by the Company or any of its Subsidiaries to
pay final judgments not covered by insurance aggregating in excess of
$10.0 million, which judgments are not paid, discharged, bonded or
stayed for a period of 60 days or (ii) the Company, any Significant
Subsidiary or group of Subsidiaries that, taken together, would
constitute a Significant Subsidiary generally is (or are) not paying
its (or their) debts as they become due;
(g) except as permitted by this Indenture, any Subsidiary
Guarantee shall be held invalid or shall cease to be in full force and
effect, or any Person acting on behalf of any Guarantor shall deny or
disaffirm its obligations under its Subsidiary Guarantee;
(h) the Company, any Significant Subsidiary or group of
Subsidiaries that, taken together, would constitute a Significant
Subsidiary, pursuant or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief
against it in an involuntary case;
(iii) consents to the appointment of a
custodian of it or for all or substantially all of its
property;
(iv) makes a general assignment for the benefit of
its creditors;
(v) admits in writing the failure generally to pay
debts as they become due; or
(i) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(i) is for relief against the Company, any
Significant Subsidiary or group of Subsidiaries that,
taken together, would constitute a Significant
Subsidiary, in an involuntary case;
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(ii) appoints a custodian of the Company, any
Significant Subsidiary or group of Subsidiaries that,
taken together, would constitute a Significant
Subsidiary for all or substantially all of the property
of the Company or any of its Significant Subsidiary or
group of Subsidiaries that, taken together, would
constitute a Significant Subsidiary;
(iii) orders the liquidation of the Company, any
Significant Subsidiary or group of Subsidiaries that,
taken together, would constitute a Significant
Subsidiary;
and the order or decree remains unstayed and in effect for 60
consecutive days.
SECTION 6.02. ACCELERATION.
If any Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in principal amount of the then outstanding
Notes issued under this Indenture may declare all such Notes to be due and
payable immediately; provided, however, that so long as any Designated Senior
Debt is outstanding, such declaration shall not become effective until the
earlier of (i) the day which is five Business Days after the receipt by
Representatives of Designated Senior Debt (other than the Notes) of written
notice of acceleration or (ii) the date of acceleration of any Designated
Senior Debt (other than the Notes). Notwithstanding the foregoing, in the case
of an Event of Default arising from an event specified in clause (h) or (i) of
Section 6.01 hereof with respect to the Company, any Significant Subsidiary or
any group of Subsidiaries that, taken together, would constitute a Significant
Subsidiary, all outstanding Notes shall become due and payable without further
action or notice. Holders of the Notes may not enforce this Indenture or the
Notes except as provided in this Indenture. Subject to certain limitations,
Holders of a majority in principal amount of the Notes may direct the Trustee
in its exercise of any trust or power. The Trustee may withhold from Holders of
the Notes notice of any continuing Default or Event of Default (except a
Default or Event of Default relating to the payment of principal or interest)
if it determines that withholding notice is in their interest.
In the case of any Event of Default occurring by reason of any
willful action (or inaction) taken (or not taken) by or on behalf of the
Company with the intention of avoiding payment of the premium that the Company
would have had to pay if the Company then had elected to redeem the Notes
pursuant to the optional redemption provisions of this Indenture, an equivalent
premium shall also become and be immediately due and payable to the extent
permitted by law upon the acceleration of the Notes. If an Event of Default
occurs under this Indenture prior to August 15, 2000 by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of the Company with
the intention of avoiding the prohibition on redemption of the Notes prior to
such date, then an additional premium shall also become and be immediately due
and payable to the extent permitted by law upon the acceleration of the Notes,
in an amount, for each of the years beginning on August 15 of the years set
forth below, as set forth below:
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YEAR PERCENTAGE
---- ----------
1996 109.875%
1997 108.641%
1998 107.407%
1999 106.172%
SECTION 6.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy to collect the payment of principal of,
premium, if any, interest and Liquidated Damages, if any, on, the Notes or to
enforce the performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder of a Note in exercising any
right or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default. All
remedies are cumulative to the extent permitted by law.
SECTION 6.04. WAIVER OF PAST DEFAULTS.
The Holders of a majority in aggregate principal amount of the
Notes then outstanding by notice to the Trustee may on behalf of the Holders of
all of such Notes waive any existing Default or Event of Default and its
consequences under this Indenture except a continuing Default or Event of
Default in the payment of principal of, premium, if any, interest and
Liquidated Damages, if any, of such Notes.
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SECTION 6.05. CONTROL BY MAJORITY.
Holders of a majority in principal amount of the then
outstanding Notes may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee or exercising any
trust or power conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture that the Trustee determines
may be unduly prejudicial to the rights of other Holders of Notes or that may
involve the Trustee in personal liability.
SECTION 6.06. LIMITATION ON SUITS.
A Holder of a Note may pursue a remedy with respect to this
Indenture or the Notes only if:
(a) the Holder of a Note gives to the Trustee written notice
of a continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the
then outstanding Notes make a written request to the Trustee to pursue
the remedy;
(c) such Holder of a Note or Holders of Notes offer and, if
requested, provide to the Trustee indemnity satisfactory to the Trustee
against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60
days after receipt of the request and the offer and, if requested, the
provision of indemnity; and
(e) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Notes do not give the Trustee
a direction inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the rights of
another Holder of a Note or to obtain a preference or priority over another
Holder of a Note.
SECTION 6.07. RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Note to receive payment of principal of, premium, if
any, interest and Liquidated Damages, if any, on the Note, on or after the
respective due dates expressed in the Note (including in connection with an
offer to purchase), or to bring suit for the enforcement of any such payment on
or after such respective dates, shall not be impaired or affected without the
consent of such Holder.
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SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(a) or (b)
occurs and is continuing, the Trustee is authorized to recover judgment in its
own name and as trustee of an express trust against the Company for the whole
amount of principal of, premium, if any, interest and Liquidated Damages, if
any, remaining unpaid on the Notes and interest on overdue principal and, to
the extent lawful, interest and such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
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SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel)
and the Holders of the Notes allowed in any judicial proceedings relative to
the Company (or any other obligor upon the Notes), their creditors or their
property and shall be entitled and empowered to collect, receive and distribute
any money or other property payable or deliverable on any such claims and any
custodian in any such judicial proceeding is hereby authorized by each Holder
to make such payments to the Trustee, and in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 7.07 hereof. To the extent that the
payment of any such compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof out of the estate in any such proceeding, shall be denied
for any reason, payment of the same shall be secured by a Lien on, and shall be
paid out of, any and all distributions, dividends, money, securities and other
properties that the Holders may be entitled to receive in such proceeding
whether in liquidation or under any plan of reorganization or arrangement or
otherwise. Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder, or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding.
SECTION 6.10. PRIORITIES.
If the Trustee collects any money pursuant to this Section
6.10, it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts
due under Section 7.07 hereof, including payment of all compensation, expense
and liabilities incurred, and all advances made, by the Trustee and the
reasonable costs and expenses of collection actually incurred;
Second: to Holders for amounts due and unpaid on the Notes
for principal, premium, interest and Liquidated Damages, if any, ratably,
without preference or priority of any kind, according to the amounts due and
payable on the Notes for principal, premium, interest and Liquidated Damages,
if any, respectively; and
Third: to the Company or to such party as a court of
competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any
payment to Holders of Notes pursuant to this Section 6.10.
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SECTION 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as a Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees and expenses, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section does not apply to a suit instituted by
the Trustee, any suit instituted by a Holder of a Note (whether pursuant to
Section 6.07 hereof or otherwise) or a suit instituted by Holders of more than
10% in principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture and the Trustee need perform only
those duties that are specifically set forth in this Indenture and no
others, and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture. However, in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall examine the certificates
and opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its
own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph
(b) of this Section;
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(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject
to paragraphs (a), (b), (c), (e) and (g) of this Section 7.01 and to Section
7.02.
(e) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or incur any liability.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
(g) Except with respect to Sections 4.01 and 4.04 hereof, the
Trustee shall have no duties to inquire as to the performance of the Company's
covenants in Article 4 hereof. In addition, 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 Sections 6.01(a) or 6.01(b) hereof or (ii) any
Default or Event of Default of which the Trustee shall have received written
notification or obtained actual knowledge.
SECTION 7.02. RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely upon any document
believed by it to be genuine and to have been signed or presented by the proper
Person. Subject to Section 7.01(b)(ii) hereof, the Trustee need not investigate
any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel. The Trustee may
consult with counsel of its selection and the advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection from
liability in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent
appointed with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within the
rights or powers conferred upon it by this Indenture.
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(e) Unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from the Company shall be sufficient
if signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders unless such Holders shall have offered to the Trustee
security and indemnity satisfactory to it against any loss, liability or
expense that might be incurred by it in compliance with such request or
direction.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the
Commission for permission to continue as trustee or resign. Any Agent may do
the same with like rights and duties. The Trustee is also subject to Sections
7.10 and 7.11 hereof.
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SECTION 7.04. TRUSTEE'S DISCLAIMER
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the Notes,
it shall not be accountable for the Company's use of the proceeds from the
Notes or any money paid to the Company or upon the Company's direction under
any provision hereof, it shall not be responsible for the use or application of
any money received by any Paying Agent other than the Trustee, and it shall not
be responsible for any statement or recital herein or any statement in the
Notes or any other document furnished or issued in connection with the sale of
the Notes or pursuant to this Indenture other than its certificate of
authentication.
SECTION 7.05. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and
if it is known to the Trustee, the Trustee shall mail to the Holders of the
Notes a notice of the Default or Event of Default within 90 days after it
occurs. Except in the case of a Default or Event of Default in payment of
principal of, or premium, interest or Liquidated Damages, if any, on, any Note,
the Trustee may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice is in
the interests of the Holders of the Notes.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES.
Within 60 days after each December 15 beginning with the
December 15 following the date of this Indenture, and for so long as Notes
remain outstanding, the Trustee shall mail to the Holders of the Notes a brief
report dated as of such reporting date that complies with TIA Section 313(a)
(but if no event described in TIA Section 313(a) has occurred within the
twelve months preceding the reporting date, no report need be transmitted).
The Trustee also shall comply with TIA Section 313(b)(2). The Trustee shall
also transmit by mail all reports as required by TIA Section 313(c).
A copy of each report at the time of its mailing to the Holders
of Notes shall be mailed to the Company and filed with the Commission and each
stock exchange on which the Notes are listed in accordance with TIA Section
313(d). The Company shall promptly notify the Trustee when the Notes are
listed on any stock exchange.
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time such
compensation as shall be agreed in writing between the Company and the Trustee
for its acceptance of this Indenture and for its services hereunder. To the
extent permitted by law, the Trustee's compensation shall not be limited by any
law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee promptly upon request for all reasonable disbursements,
advances, fees and expenses incurred or made by it in addition to the
compensation for its services. Such expenses
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shall include the reasonable compensation, disbursements and expenses of the
Trustee's agents and counsel.
The Company shall indemnify and hold harmless the Trustee
against any and all losses, liabilities, damages, claims or expenses including
taxes (other than taxes based on the income of the Trustee) incurred by it
arising out of or in connection with the acceptance or administration of its
duties under this Indenture, including the reasonable costs and expenses
actually incurred of enforcing this Indenture against the Company (including
this Section 7.07) and defending itself against any claim (whether asserted by
the Company or any Holder or any other person) or liability in connection with
the exercise or performance of any of its powers or duties hereunder, except to
the extent any such loss, liability or expense may be attributable to its
negligence or bad faith. The Trustee shall notify the Company promptly of any
claim for which it may seek indemnity. Failure by the Trustee to so notify the
Company shall not relieve the Company of its obligations hereunder. The Company
shall defend the claim and the Trustee shall reasonably cooperate in the
defense. The Trustee may have separate counsel and the Company shall pay the
reasonable fees and expenses of such counsel. The Company need not pay for any
settlement made without its consent, which consent shall not be unreasonably
withheld.
The obligations of the Company under this Section 7.07 shall
survive the satisfaction and discharge of this Indenture.
To secure the Company's payment obligations in this Section,
the Trustee shall have a Lien prior to the Notes on all money or property held
or collected by the Trustee, except that held in trust to pay principal of,
premium, if any, interest and Liquidated Damages, if any, on particular Notes.
Such Lien shall survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(h) or (i) hereof occurs, the
expenses and the compensation for the services (including the fees and expenses
of its agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.
The Trustee shall comply with the provisions of TIA Section
313(b)(2) to the extent applicable.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.08.
The Trustee may resign in writing at any time and be discharged
from the trust hereby created by so notifying the Company. The Holders of Notes
of a majority in principal amount of the then outstanding Notes may remove the
Trustee by so notifying the Trustee and the Company in writing. The Company may
remove the Trustee if:
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(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or
an order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(c) a custodian or public officer takes charge of the
Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office,
the Holders of a majority in principal amount of the then outstanding Notes may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company, or the Holders of at least 10% in principal amount of the then
outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee, after written request by any Holder who has
been a Holder of a Note for at least six months fails to comply with Section
7.10, such Holder may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to the Holders of the Notes. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee; provided
that all sums owing to the Trustee hereunder have been paid and subject to the
Lien provided for in Section 7.07 hereof. Notwithstanding replacement of the
Trustee pursuant to this Section 7.08, the Company's obligations under Section
7.07 hereof shall continue for the benefit of the retiring Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
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SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United States of
America or of any state thereof that is authorized under such laws to exercise
corporate trustee power, that is subject to supervision or examination by
federal or state authorities and that has a combined capital and surplus of at
least $100.0 million as set forth in its most recent published annual report of
condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 310(b).
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE COMPANY.
The Trustee is subject to TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
The Company may, at the option of the Board of Directors
evidenced by a resolution set forth in an Officers' Certificate, at any time,
elect to have either Section 8.02 or 8.03 hereof be applied to all outstanding
Notes upon compliance with the conditions set forth below in this Article 8.
SECTION 8.02. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.02, the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to
have been discharged from their obligations with respect to all outstanding
Notes on the date the conditions set forth below are satisfied (hereinafter,
"Legal Defeasance"). For this purpose, Legal Defeasance means that the Company
shall be deemed to have paid and discharged the entire Indebtedness represented
by the outstanding Notes, which shall thereafter be deemed to be "outstanding"
only for the purposes of Section 8.05 hereof and the other Sections of this
Indenture referred to in (i) and (ii) below, and to have satisfied all their
other obligations under such Notes and this Indenture (and the Trustee, on the
written demand of and at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following provisions which
shall survive until otherwise terminated or discharged hereunder: (i) the
rights of Holders of outstanding Notes to receive payments in respect of the
principal of, premium, if any, interest and Liquidated Damages, if any, on such
Notes when such
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payments are due from the trust referred to in Section 8.04 hereof, (ii) the
Company's obligations with respect to the Notes under Article 2 and Section
4.02 hereof, (iii) the rights, powers, trusts, duties and immunities of the
Trustee hereunder, and the Company's obligations in connection therewith and
(iv) this Article 8. Subject to compliance with this Article 8, the Company
may exercise its option under this Section 8.02 notwithstanding the prior
exercise of its option under Section 8.03.
SECTION 8.03. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be released from its
obligations under the covenants contained in Sections 4.07, 4.08, 4.09, 4.10,
4.11, 4.12, 4.13, 4.14, 4.16, 4.17 and 4.18 hereof with respect to the
outstanding Notes on and after the date the conditions set forth below are
satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall thereafter
be deemed not "outstanding" for the purposes of any direction, waiver, consent
or declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "outstanding"
for all other purposes hereunder (it being understood that such Notes shall not
be deemed outstanding for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes, the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or
by reason of any reference in any such covenant to any other provision herein
or in any other document and such omission to comply shall not constitute a
Default or an Event of Default under Section 6.01 hereof, but, except as
specified above, the remainder of this Indenture and such Notes shall be
unaffected thereby. In addition, upon the Company's exercise under Section
8.01 hereof of the option applicable to this Section 8.03 hereof, subject to
the satisfaction of the conditions set forth in Section 8.04 hereof, Sections
6.01(c) through 6.01(g) hereof shall no longer constitute Events of Default.
SECTION 8.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of either Section
8.02 or 8.03 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(i) the Company must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders of the Notes cash in U.S. dollars,
non-callable Government Securities, or a combination thereof, in such
amounts as shall be sufficient, in the opinion of a nationally
recognized investment bank or firm of independent public accountants,
to pay the principal of, premium, if any, interest and Liquidated
Damages, if any, on such outstanding Notes on the stated maturity or on
the applicable redemption date, as the
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case may be, and the Company must specify whether such Notes are being
defeased to maturity or to a particular redemption date;
(ii) in the case of an election under Section 8.02 hereof, the
Company shall have delivered to the applicable Trustee an Opinion of
Counsel in the United States reasonably acceptable to the Trustee
confirming that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since the
date hereof, there has been a change in the applicable federal income
tax law, in either case to the effect that, and based thereon such
Opinion of Counsel shall confirm that, the Holders of the outstanding
Notes shall not recognize income, gain or loss for federal income tax
purposes as a result of such Legal Defeasance and shall be subject to
federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such Legal Defeasance had not
occurred;
(iii) in the case of an election under Section 8.03 hereof, the
Company shall have delivered to the applicable Trustee an Opinion of
Counsel in the United States reasonably acceptable to such Trustee
confirming that the Holders of such outstanding Notes will not recognize
income, gain or loss for federal income tax purposes as a result of such
Covenant Defeasance and will be subject to federal income tax on the
same amounts, in the same manner and at the same times as would have
been the case if such Covenant Defeasance had not occurred;
(iv) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of
Default resulting from the borrowing of funds to be applied to such
deposit) or insofar as Sections 6.01(h) or 6.01(i) hereof are concerned,
at any time in the period ending on the 91st day after the date of
deposit (or greater period of time in which any such deposit of trust
funds may remain subject to bankruptcy or insolvency laws insofar as
those apply to the deposit by the Company);
(v) such Legal Defeasance or Covenant Defeasance shall not result
in a breach or violation of, or constitute a default under any material
agreement or instrument (other than this Indenture) to which the Company
or any of its Subsidiaries is a party or by which the Company or any of
its Subsidiaries is bound;
(vi) the Company must have delivered to the Trustee an Opinion of
Counsel to the effect that, as of the date of such opinion, (A) the
trust funds shall not be subject to rights of holders of Indebtedness
other than the Notes and (B) assuming no intervening bankruptcy of the
Company between the date of deposit and the 91st day following the
deposit and assuming no Holder of Notes is an insider of the Company,
after the 91st day following the deposit, the trust funds shall not be
subject to the effects of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally
under any applicable United States or state law;
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(vii) the Company must deliver to the applicable Trustee an
Officers' Certificate stating that the deposit was not made by the
Company with the intent of preferring the Holders of Notes over the
other creditors of the Company with the intent of defeating, hindering,
delaying or defrauding creditors of the Company or others; and
(viii) the Company must deliver to the applicable Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to the Legal Defeasance or
the Covenant Defeasance have been complied with.
SECTION 8.05. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.06 hereof, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 8.05, the
"Trustee") pursuant to Section 8.04 hereof in respect of the outstanding Notes
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as Paying Agent) as the
Trustee may determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal of, premium, if any, interest and
Liquidated Damages, if any, but such money need not be segregated from other
funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or non-callable Government
Securities deposited pursuant to Section 8.04 hereof or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article 8 to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon the request of the
Company any money or non-callable Government Securities held by it as provided
in Section 8.04 hereof which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section
8.04(i) hereof), are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
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SECTION 8.06. REPAYMENT TO THE COMPANY
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of, or premium, interest
or Liquidated Damages, if any, on, any Note and remaining unclaimed for two
years after such principal, premium, interest or Liquidated Damages has become
due and payable shall be paid to the Company on their request or (if then held
by the Company) shall be discharged from such trust; and the Holder of such
Note shall thereafter look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in the New York Times and The Wall Street Journal (national
edition), notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining
shall be repaid to the Company.
SECTION 8.07. REINSTATEMENT
If the Trustee or Paying Agent is unable to apply any United States
dollars or non-callable Government Securities in accordance with Section 8.02
or 8.03 hereof, as the case may be, by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's obligations under this Indenture and the
Notes shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with Section
8.02 or 8.03 hereof, as the case may be; provided, however, that, if the
Company makes any payment of principal of, or premium, interest or Liquidated
Damages, if any, on any Note following the reinstatement of its obligations,
the Company shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. WITHOUT CONSENT OF HOLDERS.
Notwithstanding Section 9.02 hereof, the Company and the Trustee may amend
or supplement this Indenture or the Notes, as applicable, without the consent
of any Holder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in place of
certificated Notes;
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(c) to provide for the assumption of the Company's obligations to the
Holders of the Notes in the case of a merger or consolidation pursuant to
Section 5.01 hereof;
(d) to make any change that would provide any additional rights or
benefits to the Holders of Notes or that does not adversely affect the legal
rights under this Indenture of any such Holder; or
(e) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act.
Upon the request of the Company accompanied by a resolution of the Board
of Directors authorizing the execution of any such amended or supplemental
Indenture, and upon receipt by the Trustee of the documents described in
Section 9.06 hereof, the Trustee shall join with the Company in the execution
of any amended or supplemental Indenture authorized or permitted by the terms
of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall not be
obligated to enter into such amended or supplemental Indenture that affects its
own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.02. WITH CONSENT OF HOLDERS OF NOTES.
Except as provided below in this Section 9.02, the Company and the Trustee
may amend or supplement this Indenture or the Notes, as applicable, with the
consent of the Holders of at least a majority in principal amount of the Notes
then outstanding (including, without limitation, consents obtained in
connection with a purchase of, or tender offer or exchange offer for, Notes),
and, subject to Sections 6.04 and 6.07 hereof, any existing Default or Event of
Default (other than a Default or Event of Default in the payment of the
principal of, or premium, interest or Liquidated Damages, if any, on, the
Notes, except a payment default resulting from an acceleration that has been
rescinded) or compliance with any provision of this Indenture or the Notes may
be waived with the consent of the Holders of a majority in principal amount of
the then outstanding Notes (including consents obtained in connection with a
tender offer or exchange offer for Notes).
Upon the request of the Company accompanied by a resolution of the Board
of Directors authorizing the execution of any such amended or supplemental
Indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders as aforesaid, and upon receipt by the
Trustee of the documents described in Section 9.06 hereof, the Trustee shall
join with the Company in the execution of such amended or supplemental
Indenture unless such amended or supplemental Indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such amended or supplemental Indenture.
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It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders of each Note affected thereby
a notice briefly describing the amendment, supplement or waiver. Any failure
of the Company to mail such notice, or any defect therein, shall not, however,
in any way impair or affect the validity of any such amended or supplemental
Indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of
a majority in aggregate principal amount of the Notes then outstanding may
waive compliance in a particular instance by the Company with any provision of
this Indenture or the Notes. However, without the consent of each Holder
affected, an amendment or waiver may not (with respect to any Notes held by a
non-consenting Holder):
(a) reduce the principal amount of Notes whose Holders must consent
to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any
Note or alter the provisions with respect to the redemption of the Notes
(other than provisions described in Sections 4.10 and 4.16 hereof);
(c) reduce the rate of or change the time for payment of interest
on any Note;
(d) waive a Default or Event of Default in the payment of principal
of, premium, if any, interest or Liquidated Damages, if any, on the
Notes (except a rescission of acceleration of the Notes by the Holders
of at least a majority in aggregate principal amount of the Notes and a
waiver of the payment default that resulted from such acceleration);
(e) make any Note payable in money other than that stated in the
Notes,
(f) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders of Notes to receive
payments of principal of or premium, if any, or interest or Liquidated
Damages, if any, on the Notes,
(g) waive a redemption payment with respect to any Note (other than
a payment required by any of the provisions of Section 4.16 hereof) or
(h) make any change in the foregoing amendment and waiver
provisions.
In addition, any amendment to the provisions of Sections 4.10 and 4.16
hereof, including the related definitions, shall require the consent of the
Holders of at least 75% in aggregate principal amount of the Notes issued
hereunder that are then outstanding if such amendment would adversely affect
the rights of Holders of any of the Notes.
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SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Notes shall be set
forth in an amended or supplemental Indenture that complies with the TIA as
then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a consent to
it by a Holder is a continuing consent by the Holder and every subsequent
Holder of a Note or portion of a Note that evidences the same debt as the
consenting Holder's Note, even if notation of the consent is not made on any
Note. However, any such Holder or subsequent Holder may revoke the consent as
to its Note if the Trustee receives written notice of revocation before the
date the waiver, supplement or amendment becomes effective. An amendment,
supplement or waiver becomes effective in accordance with its terms and
thereafter binds every Holder.
The Company may fix a record date for determining which Holders must
consent to such amendment or waiver. If the Company fixes a record date, the
record date shall be fixed at (i) the later of 30 days prior to the first
solicitation of such consent or the date of the most recent list of Holders
furnished to the Trustee prior to such solicitation pursuant to Section 2.05 or
(ii) such other date as the Company shall lawfully designate.
SECTION 9.05. NOTATION ON OR EXCHANGE OF NOTES.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee shall authenticate new Notes
that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental Indenture authorized
pursuant to this Article 9 if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. The
Company may not sign an amendment or supplemental Indenture until the Board of
Directors approves it. In executing any amended or supplemental indenture, the
Trustee shall be entitled to receive and (subject to Section 7.01) shall be
fully protected in relying upon, an Officers' Certificate and an Opinion of
Counsel stating that the execution of such amended or supplemental indenture is
authorized or permitted by this Indenture.
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ARTICLE 10
MISCELLANEOUS
SECTION 10.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by TIA Section 318(c), the imposed duties shall control.
SECTION 10.02. NOTICES
Any notice or communication by the Company or the Trustee to the others is
duly given if in writing and delivered in person or mailed by first class mail
(registered or certified, return receipt requested), telecopier or overnight
air courier guaranteeing next day delivery, to the others' address:
If to the Company:
Printpack, Inc.
0000 Xxxxxxx Xxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: R. Xxxxxxx Xxxxxxx
With a copy to:
Xxxxxx & Bird
One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxx X. XxxXxxxxx III, Esq.
If to the Trustee:
Fleet National Bank
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
__________________
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Corporate Trust Department
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The Company or the Trustee, by notice to the others, may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) shall be
deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when receipt acknowledged, if telecopied; and the next
Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first class
mail, or by overnight air courier guaranteeing next day delivery to its address
shown on the register kept by the Registrar. Any notice or communication shall
also be so mailed to any Person described in TIA Section 313(c), to the extent
required by the TIA. Failure to mail a notice or communication to a Holder or
any defect in it shall not affect its sufficiency with respect to other
Holders.
If a notice or communication is mailed in the manner provided above within
the time prescribed, it is duly given, whether or not the addressee receives
it.
If the Company mails a notice or communication to Holders, it shall mail a
copy to the Trustee and each Agent at the same time.
SECTION 10.03. COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES.
Holders may communicate pursuant to TIA Section 312(b) with other Holders
with respect to their rights under this Indenture or the Notes. The Company,
the Trustee, the Registrar and anyone else shall have the protection of TIA
Section 312(c).
SECTION 10.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 10.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably satisfactory
to the Trustee (which shall include the statements set forth in Section
10.05 hereof) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been satisfied.
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SECTION 10.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA Section 314(a)(4)) shall comply with the provisions of TIA
Section 314(e) and shall include:
(a) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she 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
satisfied; and
(d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been satisfied.
SECTION 10.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 10.07. NO PERSONAL LIABILITY OF PARTNERS, DIRECTORS, OFFICERS,
EMPLOYEES, AND STOCKHOLDERS.
No direct or indirect director, officer, employee, incorporator or
stockholder of the Company, as such, shall have any liability for any
obligations of the Company under the Notes or this Indenture or for any claim
based on, in respect of, or by reason of, such obligations or their creation.
Each Holder of Notes by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for issuance
of the Notes. Such waiver may not be effective to waive liabilities under the
federal securities laws and it is the view of the Commission that such a waiver
is against public policy.
SECTION 10.08. GOVERNING LAW.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE AND THE NOTES.
SECTION 10.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS
This Indenture may not be used to interpret any other indenture, loan or
debt agreement of the Company or its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
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SECTION 10.10. SUCCESSORS.
All agreements of the Company in this Indenture and the Notes shall bind
their successors. All agreements of the Trustee in this Indenture shall bind
its successors.
SECTION 10.11. SEVERABILITY.
In case any provision in this Indenture or in the Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 10.12. COUNTERPART 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 10.13. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of the Articles
and Sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part of this Indenture and shall in no way
modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
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SIGNATURES
Dated as of August 22, 1996 PRINTPACK, INC.
By: /s/
-----------------------------
Name:
Title:
Dated as of August 22, 1996 FLEET NATIONAL BANK
Trustee
By: /s/
------------------------------
Name:
Title:
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EXHIBIT A
(Face of Senior Note)
9-7/8% Senior Notes due 2004
CUSIP NO.:
$100,000,000
No. _-_
PRINTPACK, INC.
promises to pay to CEDE & CO.
or registered assigns,
the principal sum of One Hundred Million
Dollars ($100,000,000) on August 15, 2004.
Interest Payment Dates: February 15 and August 15.
Record Dates: February 1 and August 1.
Dated: August 22, 1996
PRINTPACK, INC.
By: /s/
---------------------------------------
Name: Xxxxxx X. Love
(SEAL) Title: President and Chief
Executive Officer
By: /s/
---------------------------------------
Name: R. Xxxxxxx Xxxxxxx
Title: Vice President -
Finance and Administration
This is one of the
Notes referred to in the
within-mentioned Indenture:
Fleet National Bank, (SEAL)
as Trustee
By: /s/
--------------------------
Authorized Signatory
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9-7/8% Senior Notes due 2004
Unless and until it is exchanged in whole or in part for Notes in
definitive form, this Note may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx) ("DTC") to the Company (as defined below) or their agent for registration
of transfer, exchange or payment, and any certificate issued is registered in
the name of Cede & Co. or such other name as may be requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or such other
entity as may be requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.1
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER
SECTION 5 OF THE U.S. SECURITIES ACT OF 1933, AS AMENDED, (THE
"SECURITIES ACT"), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER
OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE
SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT
OF THE COMPANY THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED, ONLY (1) (a) INSIDE THE U.S. (i) TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A UNDER
THE SECURITIES ACT or (ii) TO AN ACCREDITED INVESTOR (AS DEFINED
IN RULE 506(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) IN
ACCORDANCE WITH REGULATION D UNDER THE SECURITIES ACT, (b) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144, (c) OUTSIDE THE
UNITED STATES TO A FOREIGN PERSON MEETING THE REQUIREMENTS OF RULE
904 UNDER THE SECURITIES ACT OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND
----------------
(1) To be included only if the Note is issued in Global form.
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BASED UPON AN OPINION OF COUNSEL IF THE COMPANY OR ITS TRANSFER AGENT
OR REGISTRAR SO REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH
ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE U.S. OR ANY OTHER
APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY
EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.2
Capitalized terms used herein shall have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
(Back of Senior Note)
1. INTEREST. The Notes will be limited in aggregate principal amount to
$100,000,000 and will mature on August 15, 2004. Printpack. Inc., a Georgia
corporation (the "Company"), promises to pay interest on the principal amount
of this Note at the rate of 9-7/8% per annum from August 22, 1996 until
maturity (including any Liquidated Damages required to be paid pursuant to the
provisions of the Registration Rights Agreement). The Company will pay
interest semi-annually in arrears on February 15 and August 15 of each year, or
if any such day is not a Business Day, on the next succeeding Business Day
(each an "Interest Payment Date"). Interest on the Notes will accrue from the
most recent date to which interest has been paid or, if no interest has been
paid, from the date of original issuance; provided that if there is no existing
Default in the payment of interest, and if this Note is authenticated between a
record date referred to on the face hereof and the next succeeding Interest
Payment Date, interest shall accrue from such next succeeding Interest Payment
Date, and; provided, further, that the first Interest Payment Date shall be
February 15, 1997. The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal and
premium, if any, from time to time on demand at a rate that is 1% per annum in
excess of the rate then in effect to the extent lawful. The Company shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace periods) from time to time on demand at the same rate to the
extent lawful. Interest will be computed on the basis of a 360-day year
comprised of twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Notes (except
defaulted interest) to the Persons who are registered Holders of Notes at the
close of business on the February 1 or August 1 immediately preceding the
Interest Payment Date, even if such Notes are canceled after such record date
and on or before such Interest Payment Date, except as provided in Section
2.13 of the Indenture with respect to defaulted interest. The Notes will be
payable as
---------------
(2) This legend should be included on teh Series A Notes and omitted from the
Series B Notes.
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to principal, premium, interest and Liquidated Damages, if any, at the office
or agency of the Company maintained for such purpose or, at the option of the
Company, payment of interest and Liquidated Damages, if any, may be made by
check mailed to the Holders at their addresses set forth in the register of
Holders; provided that payment by wire transfer of immediately available funds
will be required with respect to principal of, and premium, interest and
Liquidated Damages (if any) on, all Global Notes and all other Notes the
Holders of which shall have provided appropriate wire transfer instructions to
the Company or the Paying Agent. Until otherwise designated by the Company,
the Company's office or agency will be the office of the Trustee maintained
for such purpose. Such payment shall be in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, Fleet National Bank, the
Trustee under the Indenture, will act as Paying Agent and Registrar. The
Company may change any Paying Agent or Registrar without notice to any Holder.
The Company or any of its Subsidiaries may act in any such capacity.
4. INDENTURE. The Company issued the Notes under an Indenture dated as
of August 22, 1996 (the "Indenture") among the Company and the Trustee. The
terms of the Notes include those stated in the Indenture and those made a part
of the Indenture by reference to the Trust Indenture Act of 1939, as amended
(15 U.S. Code Section Section 77aaa-77bbbb) (the "TIA"). The Notes are
subject to all such terms and Holders are referred to the Indenture and the TIA
for a statement of such terms. The Notes are general unsecured obligations of
the Company limited to $100,000,000 in aggregate principal amount.
5. OPTIONAL REDEMPTION.
(a) Except as set forth in subparagraph (b) below of this Paragraph 5, the
Company shall not have the option to redeem the Notes prior to August 15, 2000.
Thereafter, the Company shall have the option to redeem the Notes at any time,
in whole or in part, upon not less than 30 nor more than 60 days' prior written
notice at the redemption prices (expressed as percentages of principal amount)
set forth below plus accrued and unpaid interest and Liquidated Damages, if
any, thereon to the applicable redemption date, if redeemed during the
twelve-month period beginning on August 15 of the years indicated below:
YEAR PERCENTAGE
---- ----------
2000 ................. 104.938%
2001 ................. 103.292%
2002 ................. 101.646%
2003 and thereafter .. 100.00%
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(b) Notwithstanding the provisions of clause (a) of this Paragraph 5, on
or prior to August 22, 1999, the Company may redeem up to 25% in aggregate
principal amount of the Notes originally issued under this Indenture at a
redemption price of 108-7/8% of the principal amount thereof, plus accrued and
unpaid interest and Liquidated Damages, if any, thereon to the redemption date,
with the net proceeds of an Initial Public Offering; provided that at least
$75.0 million in aggregate principal amount of the Notes remain outstanding
following such redemption; and provided further, that such redemption shall
have occurred within 60 days of the closing of any such Initial Public
Offering.
6. MANDATORY REDEMPTION.
Subject to Section 4.10 and Section 4.16 of the Indenture, the Company
shall not be required to make mandatory redemption or sinking fund payments
with respect to the Notes.
7. REPURCHASE AT THE OPTION OF HOLDERS.
(a) If there is a Change of Control, each Holder of Notes will have the
right to require the Company to repurchase all or any part (equal to $1,000 or
an integral multiple thereof) of such Holder's Notes pursuant to the offer
described below (the "Change of Control Offer") at an offer price in cash equal
to 101% of the aggregate principal amount thereof plus accrued and unpaid
interest and Liquidated Damages thereon, if any, to the date of purchase (the
"Change of Control Payment"). Within ten days following any Change of Control,
the Company will mail a notice to each Holder describing the transaction or
transactions that constitute the Change of Control and offering to repurchase
Notes pursuant to the procedures required by the Indenture and described in
such notice. The Company shall comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with the
repurchase of the Notes as a result of a Change of Control.
(b) If the Company or a Subsidiary consummates any Asset Sales, as soon as
practical, but in no event later than 10 business days in the case of clause
(i) below, and 45 business days, in the case of clause (ii) below, after any
date that the aggregate amount of Excess Proceeds exceeds $10.0 million, the
Company shall (i) commence an Asset Sale Offer to purchase the maximum
principal amount of Notes and other Indebtedness of the Company that ranks pari
passu in right of payment with the Notes (to the extent required by the
instrument governing such other Indebtedness), that may be purchased out of the
Excess Proceeds and (ii) to the extent that more than $10.0 million of Excess
Proceeds remain following the offer to purchase Notes contemplated by the
preceding clause (i), commence an Asset Sale Offer to purchase the maximum
principal amount of Senior Subordinated Notes and other Indebtedness of the
Company that ranks pari passu in right of payment with the Senior Subordinated
Notes (to the extent required by the instrument governing such other
Indebtedness), that may be purchased out of the Excess Proceeds. Any Notes or
Senior Subordinated Notes, as applicable, and other Pari Passu Debt to be
purchased pursuant to an Asset Sale Offer shall be purchased pro rata based on
the aggregate
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principal amount of Notes, Senior Subordinated Notes and such other applicable
Pari Passu Debt outstanding and all Notes and Senior Subordinated Notes shall
be purchased at an offer price in cash equal to 100% of the principal amount
thereof, plus accrued and unpaid interest and Liquidated Damages, if any, to
the date of purchase (or if such Asset Sale Offer is with respect to any
discount or zero coupon securities prior to the date of their full accretion,
100% of the accreted value thereof on the date of purchase). To the extent
that any Excess Proceeds remain after completion of an Asset Sale Offer, the
Company may use the remaining amount for general corporate purposes and the
amount of Excess Proceeds shall be reset at zero. Holders of Notes that are
the subject of an offer to purchase will receive an Asset Sale Offer from the
Company prior to any related Asset Sale Offer Purchase Date and may elect to
have such Notes purchased by completing the form titled "Option of Holder to
Elect Purchase" on the reverse of the Notes.
8. NOTICE OF REDEMPTION.
Notice of redemption shall be mailed by first class mail at least 30 days
but not more than 60 days before the redemption date to each Holder of Notes to
be redeemed at its registered address. If any Note is to be redeemed in part
only, the notice of redemption that relates to such Note shall state the
portion of the principal amount thereof to be redeemed. Notes may be redeemed
in part but only in whole multiples of $1,000, unless all of the Notes held by
a Holder are to be redeemed. On and after the redemption date, interest ceases
to accrue on Notes or portions thereof called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE.
The Notes are in registered form without coupons in denominations of
$1,000 and integral multiples of $1,000. The transfer of Notes may be
registered and Notes may be exchanged as provided in the Indenture. The
Registrar and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and the Company may require a
Holder to pay any taxes and fees required by law or permitted by the Indenture.
The Company need not exchange or register the transfer of any Note or portion
of a Note selected for redemption, except for the unredeemed portion of any
Note being redeemed in part. Also, the Company need not exchange or register
the transfer of any Notes for a period of 15 days before the date on which a
notice of redemption is mailed or during the period between a record date and
the corresponding Interest Payment Date.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND 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 then outstanding
Notes (including, without limitation, consents obtained in connection with a
purchase of, or tender offer or exchange offer for, Notes), and any existing
Default or Event of Default (other than a Default or Event of Default in the
payment of the principal of, premium, if any, interest or Liquidated Damages,
if any, on the Notes, except a
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payment default resulting for an acceleration that has been rescinded) or
compliance with any provision of the Indenture or the Notes may be waived
with the consent of the Holders of a majority in principal amount of the then
outstanding Notes (including consent obtained in connection with a purchase of
or tender offer or exchange for Notes). Without the consent of any Holder of a
Note, the Indenture or the Notes may be amended or supplemented to cure any
ambiguity, defect or inconsistency, to provide for uncertificated Notes in
addition to or in place of Certificated Notes, to provide for the assumption of
the Company's obligations to the Holders of the Notes in the case of a merger
or consolidation, to make any change that would provide any additional rights
or benefits to the Holders of the Notes or that does not adversely affect the
legal rights under the Indenture of any such Holder, or to comply with the
requirements of the Commission in order to effect or maintain the qualification
of the Indenture under the Trust Indenture Act.
12. DEFAULTS AND REMEDIES. Events of Default include: (i) default which
continues for 30 days in the payment when due of interest on, or Liquidated
Damages with respect to, the Notes; (ii) default in payment when due of the
principal of or premium, if any, on the Notes; (iii) failure by the Company to
comply with the provisions of Section 4.10 or 4.16 of the Indenture; (iv)
failure by the Company for 60 days after notice to comply with any of its other
agreements in the Indenture or the Notes; (v) default under any mortgage,
indenture or instrument under which there may be issued or by which there may
be secured or evidenced any Indebtedness for money borrowed by the Company or
any of its Subsidiaries (or the payment of which is guaranteed by the Company
or any of its Subsidiaries) whether such Indebtedness or guarantee now exists,
or is created after the date of this Indenture, which default (A) is caused by
a failure to pay principal of or premium, if any, or interest on such
Indebtedness prior to the expiration of the grace period provided in such
Indebtedness on the date of such default (a "Payment Default") or (B) results
in the acceleration of such Indebtedness prior to its express maturity and, in
each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has been a
Payment Default or the maturity of which has been so accelerated, aggregates
$10.0 million or more; (vi) failure by the Company or any of its Subsidiaries
to pay final judgments not covered by insurance aggregating in excess of $10.0
million, which judgments are not paid, discharged, bonded or stayed for a
period of 60 days; (vii) except as permitted by the Indenture, any Subsidiary
Guarantee shall be held invalid or shall cease to be in full force and effect,
or any Person acting on behalf of any Guarantor shall deny or disaffirm its
obligations under its Subsidiary Guarantee; and (viii) certain events of
bankruptcy or insolvency with respect to the Company, any Significant
Subsidiary or group of Subsidiaries that, taken together, would constitute a
Significant Subsidiary. The Trustee must, within 90 days after the occurrence
of a Default or Event of Default, give to the Holders notice of all uncured
Defaults or Events of Default known to it; provided that, except in the case of
a Default or Event of Default in payment of any Note, the Trustee may withhold
such notice if a committee of its Responsible Officers in good faith determines
that the withholding of such notice is in the interest of the Holders. The
Company is required to furnish annually to the Trustee a certificate as to
their compliance with the terms of the Indenture.
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00. TRUSTEE DEALINGS WITH COMPANY. The Trustee in its individual or any
other capacity may become the owner or pledgee of Notes and may otherwise deal
with the Company or any Affiliate of the Company, with the same rights it would
have if it were not Trustee.
14. NO RECOURSE AGAINST OTHERS. No direct or indirect director, officer,
employee, incorporator or stockholder of the Company, as such, 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 of Notes by accepting a Note waives and releases
all such liability. The waiver and release are part of the consideration for
issuance of the Notes. Such waiver may not be effective to waive liabilities
under the federal securities laws and it is the view of the Commission that
such a waiver is against public policy.
15. AUTHENTICATION. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
16. 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).
17. ADDITIONAL RIGHTS OF HOLDERS OF TRANSFER RESTRICTED SECURITIES. In
addition to the rights provided to Holders of the Notes under the Indenture,
Holders of Transfer Restricted Securities (as defined in the Registration
Rights Agreement (as defined below)) shall have all the rights set forth in the
Registration Rights Agreement dated as of August 22, 1996 among the Company
and the parties named on the signature pages thereof (the "Registration Rights
Agreement").
18. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company have
caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP
numbers in notices of redemption as a convenience to the Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Notes or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
19. GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL
GOVERN AND BE USED TO CONSTRUE THE INDENTURE AND THE NOTES.
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The Company shall furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
Printpack, Inc.
0000 Xxxxxxx Xxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: R. Xxxxxxx Xxxxxxx
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
-------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
-------------------------------------------------------------------------------
Date:
---------------
Your Signature:
-------------------------
(Sign exactly as your name appears on the face of this Note)
Signature
Guarantee*:
--------------------
----------------------
* Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant
to Section 4.10 or 4.16 of the Indenture, check the box below:
[ ] Section 4.10 [ ] Section 4.16
Subject to Section 3.02 of the Indenture, if you want to elect to have
only part of the Note purchased by the Company pursuant to Section 4.10 or
Section 4.16 of the Indenture, state the amount you elect to have purchased:
$
-------------
Date: Your Signature:
-------------------------------
(Sign exactly as your name appears on the Note)
Tax Identification No.:
-----------------------
Signature
Guarantee*:
-------------------
-------------------------
* Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
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SCHEDULE OF EXCHANGES OF CERTIFICATED SECURITIES
The following exchanges of a part of this Global Note for Certificated
Securities have been made:(1)
Principal Amount of
this Signature of
Amount of decrease Amount of increase Global Note authorized
in in following such signatory of
Principal Amount of Principal Amount of decrease (or Trustee or Note
Date of Exchange this Global Note this Global Note increase) Custodian
----------------- ---------------- ---------------- -------------------- ---------------
-------------------
(1) To be included only if the Note is to be issued in Global form.
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EXHIBIT B
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER OF NOTES
Re: 9-7/8% Senior Notes due 2004 of Printpack, Inc.
This Certificate relates to $100,000,000 principal amount of Notes held in
* ________ book-entry or *_______ definitive form by ________________ (the
"Transferor").
The Transferor*:
[ ] has requested the Trustee by written order to deliver in exchange for its
beneficial interest in the Global Note held by the Depositary a Note or Notes
in definitive, registered form of authorized denominations in an aggregate
principal amount equal to its beneficial interest in such Global Note (or the
portion thereof indicated above); or
[ ] has requested the Trustee by written order to exchange or register the
transfer of a Note or Notes.
In connection with such request and in respect of each such Note, the
Transferor does hereby certify that Transferor is familiar with the Indenture
relating to the above captioned Notes and as provided in Section 2.06 of such
Indenture, the transfer of this Note does not require registration under the
Securities Act (as defined below) because:*
[ ] Such Note is being acquired for the Transferor's own account, without
transfer (in satisfaction of Section 2.06(a)(ii)(A) or Section 2.06(d)(i)(A) of
the Indenture).
[ ] Such Note is being transferred to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act of 1933, as amended (the
"Securities Act")) in reliance on Rule 144A or to an "Accredited Investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act) in
accordance with Regulation D under the Securities Act (in satisfaction, to the
extent applicable, of Section 2.06(a)(ii)(B), Section 2.06(b)(i)(x) or Section
2.06(d)(i)(B) of the Indenture).
-----------------
*Check applicable box.
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[ ] Such Note is being transferred in accordance with Rule 144 or Rule 904
under the Securities Act, or pursuant to an effective registration statement
under the Securities Act (in satisfaction of Section 2.06(a)(ii)(B) or Section
2.06(d)(i)(B) of the Indenture).
[ ] Such Note is being transferred in reliance on and in compliance with an
exemption from the registration requirements of the Securities Act, other than
Rule 144A, 144 or Rule 904 under the Securities Act. An Opinion of Counsel to
the effect that such transfer does not require registration under the
Securities Act accompanies this Certificate (in satisfaction of Section
2.06(a)(ii)(C), Section 2.06(b)(i)(y) or Section 2.06(d)(i)(C) of the
Indenture).
---------------------------------------
[INSERT NAME OF TRANSFEROR]
By:
------------------------------------
Date:
-----------------------------
-----------------
*Check applicable box.
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EXHIBIT C
Form of Subsidiary Guarantee
THIS GUARANTEE (as the same may be amended, modified or supplemented from
time to time, this "Guarantee"), dated as of ____________, is made by
____________________________ (hereinafter referred to as the "Guarantor") in
favor of _____________________, as trustee under the Indenture hereinafter
described (the "Trustee") for the ratable benefit of the holders from time to
time (the "Holders") of the Senior Notes (as hereinafter defined).
All terms not otherwise defined herein shall have for the purposes hereof
the meanings set forth in the Indenture (as hereinafter defined) unless the
context otherwise requires.
Recitals
A. Printpack, Inc. (the "Company") is a party to that certain Indenture
dated August 22, 1996 (as amended, supplemented or otherwise modified from time
to time, the "Indenture") among the Company and the Trustee, pursuant to which
the Company issued $100.0 million principal amount of its 9-7/8% Senior Notes
due 2004 (including all Series A and Series B Senior Notes issued from time to
time pursuant to the Indenture, collectively, the "Senior Notes"); and
B. The Guarantor is a direct or indirect Subsidiary of the Company, and
will derive both direct and indirect economic benefit from the proceeds of the
Senior Notes and other financial accommodations made to the Company under the
Indenture.
C. The Indenture requires that the Guarantor execute and deliver this
Guaranty to guarantee the payment and performance by the Company of all of its
Obligations under the Indenture and the Senior Notes, including, in each case,
all reasonable costs of collection and enforcement thereof and interest thereon
which would be owing by the Company or such Guarantor but for the effect of the
Bankruptcy Code, 11 U.S.C. Section 101 et seq. (collectively, the "Guaranteed
Obligations").
NOW, THEREFORE, for and in consideration of the foregoing and of any
financial accommodations or extensions of credit (including, without
limitation, any loan or advance by renewal, refinancing or extension of the
Indenture or otherwise) heretofore, now or hereafter made to or for the benefit
of the Company pursuant to the Indenture or any other agreement, instrument or
document executed pursuant to or in connection therewith, and for other good
and valuable consideration, the receipt and sufficiency of which are
acknowledged, the Guarantor and the Trustee agree as follows:
1. The Guarantee. The Guarantor hereby absolutely, unconditionally and
irrevocably guarantees the full and punctual payment (whether at stated
maturity, upon acceleration or otherwise) of the Guaranteed Obligations. This
Guarantee shall be unsecured, but otherwise shall
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be senior to or pari passu with all of the Guarantor's guarantees or pledges
to secure other Indebtedness of the Company. This Guarantee is a guarantee of
payment and not of collection. All payments made by the Guarantor under this
Guarantee shall be paid at the place and in the manner specified in the
Indenture and the Senior Notes.
2. Amendments, etc. with respect to the Guaranteed Obligations; Waiver of
Rights. The Guarantor shall remain obligated hereunder notwithstanding that
without any reservation of rights against the Guarantor and without notice to
or further assent by the Guarantor any demand for payment of any of the
Guaranteed Obligations made by the Trustee or the Holders may be rescinded by
them and any of the Guaranteed Obligations continued, and the Guaranteed
Obligations, or the liability of any other party upon or for any part thereof,
or guarantee therefor or right of offset with respect thereto, may, from time
to time, in whole or in part, be renewed, extended, amended, modified,
accelerated, compromised, waived, surrendered or released by the Trustee or the
Holders, and the Indenture and any other documents executed and delivered in
connection therewith may be amended, modified, supplemented or terminated, in
whole or in part, as the Trustee or the Holders may deem advisable from time to
time or as provided in the Indenture, and any guarantee or right of offset at
any time held by the Trustee for the payment of the Guaranteed Obligations may
be sold, exchanged, waived, surrendered or released.
3. Guarantee Absolute and Unconditional. The Guarantor waives any and
all notice of the creation, renewal, extension or accrual of any of the
Guaranteed Obligations and notice of or proof of reliance by the Trustee or the
Holders upon this Guarantee, the Guaranteed Obligations, and any of them shall
conclusively be deemed to have been created, contracted or incurred, or
renewed, extended, amended or waived, in reliance upon this Guarantee; and all
dealings between the Company and the Guarantor, on the one hand, and the
Trustee and the Holders, on the other hand, likewise shall be conclusively
presumed to have been had or consummated in reliance upon this Guarantee. The
Guarantor waives diligence, presentment, protest, demand for payment and notice
of default or nonpayment to or upon the Company or the Guarantor with respect
to the Guaranteed Obligations. The Guarantor understands and agrees that this
Guarantee shall be construed as a continuing, absolute and unconditional
guarantee of payment without regard to (a) the validity, regularity or
enforceability of the Indenture or any of the Senior Notes, any of the
Guaranteed Obligations or guarantee or right of offset with respect thereto at
any time or from time to time held by the Trustee or the Holders, (b) any
defense, set-off or counterclaim (other than a defense of payment or
performance) which may at any time be available to or be asserted by the
Company against the Trustee or the Holders, or (c) any other circumstances
whatsoever (with or without notice to or knowledge of the Company or such
Guarantor) which constitute, or might be construed to constitute, an equitable
or legal discharge of the Company for the Guaranteed Obligations, or of the
Guarantor under this Guarantee, in bankruptcy or in any other instance. When
pursuing its rights and remedies hereunder against the Guarantor, the Trustee
and/or the Holders may, but shall be under no obligation to, pursue such rights
and remedies as it or they may have against the Company or any other Person or
against any guarantee for the Guaranteed Obligations or any right of offset
with respect thereto, and any failure by the Trustee or the Holders to pursue
such other rights or remedies or to collect any payments from the Company or
any such other Person or to realize upon any such guarantee or to exercise any
such right of offset, or any release of the Company or any such other Person
or any such guarantee or
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right of offset, shall not relieve the Guarantor of any liability
hereunder, and shall not impair or affect the rights and remedies, whether
express, implied or available as a matter of law, of the Trustee and/or the
Holders against the Guarantor. This Guarantee shall remain in full force and
effect and be binding in accordance with and to the extent of its terms upon
the Guarantor and its successors and assigns thereof, and shall inure to the
benefit of the Trustee, and its successors, indorsees, transferees and assigns,
and the Holders from time to time of the Senior Notes until all the Guaranteed
Obligations and the obligations of the Guarantor under this Guarantee shall
have been satisfied by payment in full, notwithstanding that from time to time
during the term of the Indenture the Company may be free from any Guaranteed
Obligations.
4. Discharge Only Upon Payment In Full; Reinstatement In Certain
Circumstances. The Guarantor's obligations hereunder shall remain in full
force and effect until the Guaranteed Obligations shall have been paid in full.
If at any time any payment of any of the Guaranteed Obligations is rescinded
or must be otherwise restored or returned upon the insolvency, bankruptcy or
reorganization of the Company or otherwise, the Guarantor's obligations
hereunder with respect to such payment shall be reinstated at such time as
though such payment had been due but not made at such time.
5. Waiver by the Guarantor. The Guarantor irrevocably waives acceptance
hereof, presentment, demand, protest and any notice not provided for herein, as
well as any requirement that at any time any action be taken by any Person
against the Company or any other Person.
6. Subrogation. Notwithstanding any payments made by the Guarantor under
this Guarantee, the Guarantor shall not be entitled to be subrogated to any of
the rights of any other Guarantor, the Trustee or any Holder against the
Company until all amounts of principal of, premium, if any, and interest and
Liquidated Damages, if any, on the Senior Notes and all other amounts payable
by the Company under the Indenture and the Senior Notes and by the Guarantor
under its Guarantee have been paid in full. If any amount shall be paid to the
Guarantor on account of such subrogation rights at any time when all of the
Guaranteed Obligations shall not have been paid in full, such amount shall be
held by the Guarantor in trust for the Trustee segregated from other funds of
the Guarantor, and shall, forthwith upon receipt by the Guarantor, be turned
over to the Trustee in the exact form received by the Guarantor (duly indorsed
by the Guarantor to the Trustee, if required), to be applied against the
Guaranteed Obligations, whether matured or unmatured, at such time and in such
order as the Trustee may determine.
7. Stay of Acceleration. In the event that acceleration of the time for
payment of any of the Guaranteed Obligations is stayed upon insolvency,
bankruptcy or reorganization of the Company, all such amounts otherwise subject
to acceleration under the terms of the Indenture and the Senior Notes shall
nonetheless be payable by the Guarantor forthwith on demand by the Trustee.
8. Merger, Consolidation or Sale of Assets.
a. The Guarantor may not consolidate with or merge with or into (whether
or not the Guarantor is the surviving Person) another corporation, Person or
entity, whether or not affiliated with the Guarantor, unless (i) subject to the
provisions of Section 8(b), the Person formed by or
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surviving any such consolidation or merger (if other than the Guarantor)
assumes all the obligations of the Guarantor, pursuant to a supplemental
Guarantee in form and substance reasonably satisfactory to the Trustee, under
the Guarantee; (ii) immediately after giving effect to such transaction, no
Default or Event of Default exists; and (iii) the Company would be permitted by
virtue of the Company's pro forma Fixed Charge Coverage Ratio, immediately
after giving effect to such transaction, to incur at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in
Section 4.09 of the Indenture; provided, however, that the foregoing will not
apply to the consolidation or merger of the Guarantor with and into the Company
or another Guarantor.
b. In the event of a sale or other disposition of all of the assets of the
Guarantor, by way of merger, consolidation or otherwise, or a sale or other
disposition of all of the capital stock of the Guarantor, then the Guarantor
(in the event of a sale or other disposition, by way of such a merger,
consolidation or otherwise, of all of the capital stock of the Guarantor) or
the corporation acquiring the property (in the event of a sale or other
disposition of all of the assets of the Guarantor) will be automatically and
unconditionally released and relieved of any obligations under this Guarantee;
provided that the Net Proceeds of such sale or other disposition are applied in
accordance with Section 4.10 of the Indenture.
9. Miscellaneous.
a. Benefits of Guarantee; Successors and Assigns. Nothing in this
Guarantee, expressed or implied, shall give to any person, other than Trustee,
the Holders and their respective successors, transferees and assigns hereunder,
any benefit or any legal or equitable rights, remedy or claim under this
Guarantee. This Guarantee shall be binding upon the Guarantor, its successors
and assigns, and inure, together with the rights and remedies of Trustee
hereunder, to the benefit of Trustee, the Holders and their respective
successors, transferees and assigns. The Guarantor shall not, without the
prior written consent of Trustee, assign any rights, duties or obligations
under this Guarantee.
b. Notices. All notices, demands and other communications hereunder
shall be given and shall be effective in accordance with the Indenture, except
that notices to the Guarantor shall be given to its address set forth on the
signature page hereof, or to such other address as the Guarantor may specify in
writing from time to time to the Trustee.
c. Amendments. Neither this Guarantee nor any provision hereof may be
amended, modified, waived, discharged or terminated other than pursuant to the
provisions of the Indenture.
d. No Personal Liability of Directors, Officers, Employees, Partners and
Stockholders. No past, present or future director, officer, employee,
incorporator, partner or stockholder of the Guarantor, as such, shall have any
liability for any obligations of the Guarantor under this Guarantee or for any
claim based on, in respect of, or by reason of, this Guarantee. Each Holder by
accepting a Note has waived and released all such liability. The waiver and
release are part of the consideration for issuance of this Guarantee.
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e. Governing Law. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN
AND BE USED TO CONSTRUE THIS GUARANTEE.
f. No Adverse Interpretation of Other Agreements. This Guarantee may not
be used to interpret any other guarantee, indenture, loan or debt agreement of
the Company, the Guarantor or their respective Subsidiaries or of any other
Person. Any such guarantee, indenture, loan or debt agreement may not be used
to interpret this Guarantee.
g. Successors. All agreements of the Guarantor in this Guarantee shall
bind its successors. All agreements of the Trustee in this Guarantee shall
bind its successors.
h. Severability. In case any provision in this Guarantee shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
i. Counterpart Originals. The parties may sign any number of copies of
this Guarantee. Each signed copy shall be an original, but all of them
together represent the same agreement.
j. Headings, etc.
The headings of the sections of this Guarantee have been inserted for
convenience of reference only, are not to be considered a part of this
Guarantee and shall in no way modify or restrict any of the terms or provisions
hereof.
IN WITNESS WHEREOF, the undersigned Guarantor has caused this instrument
to be duly executed and delivered to the Trustee as of the date first above
written.
[GUARANTOR]
[Address]
By:
-----------------------------
Name:
Title:
Trustee
By:
-----------------------------
Name:
Title:
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