EXHIBIT 4.1
EXECUTION COPY
______________________________________________________________
$85,000,000
10% Senior Subordinated Notes due 2004
______________________
INDENTURE
Dated as of January 24, 1997
______________________
Among
Xxxxxx, Fargo & Co.,
as Issuer
and
Xxxxxx Holding Corporation,
Xxxxxx Armored Inc.,
Xxxxx Fargo Armored Service Corporation of Texas,
and
Xxxxx Fargo Armored Service Corporation of Puerto Rico,
as Guarantors,
and
Marine Midland Bank,
as Trustee
______________________________________________________________
CROSS REFERENCE TABLE*
Indenture
Trust Indenture Act Section Section
--------------------------- -----------
310 (a)(1)......................................................... 7.10
(a)(2)......................................................... 7.10
(a)(3)......................................................... N.A.
(a)(4)......................................................... N.A.
(a)(5)......................................................... 7.10
(b)............................................................ 7.3
7.8
7.10
(c)............................................................ N.A.
311(a)......................................................... 7.11
(b)............................................................ 7.11
(c)............................................................ N.A.
312(a)......................................................... 2.5
(b)............................................................ 12.3
(c)............................................................ 12.3
313(a)......................................................... 7.6
(b)(1)......................................................... N.A.
(b)(2)......................................................... 7.6
(c)............................................................ 7.6
12.2
314(a)......................................................... 4.3
4.4
(b)............................................................ N.A.
(c)(1)......................................................... 12.4
(c)(2)......................................................... 12.4
(c)(3)......................................................... 12.4
(d)............................................................ N.A.
(e)............................................................ 12.5
(f)............................................................ N.A.
315(a)......................................................... 7.2
(b)............................................................ 7.5
12.2
(c)............................................................ 7.1
(d)............................................................ 7.1
(e)............................................................ 6.12
316(a)(last sentence).......................................... 2.9
(a)(1)(A)...................................................... 6.5
(a)(1)(B)...................................................... 6.4
(a)(2)......................................................... N.A.
(b)............................................................ 6.7
(c)............................................................ N.A.
317(a)(1)...................................................... 6.8
(a)(2)......................................................... 6.10
(b)............................................................ 2.4
_____________________
* This Cross Reference Table shall not, for any purpose, be deemed a part of
the Indenture.
318(a)......................................................... 12.1
318(b)......................................................... N.A.
318(c)......................................................... 12.1
N.A. means not applicable.
TABLE OF CONTENTS**
-----------------
Page
----
ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE.................... 1
Section 1.1. Definitions.............................................. 1
Section 1.2. Other Definitions........................................ 22
Section 1.3. Incorporation by Reference of Trust Indenture Act........ 23
Section 1.4. Rules of Construction.................................... 23
Section 1.5. Acts of Holders.......................................... 23
ARTICLE II. THE NOTES................................................... 24
Section 2.1. Form and Dating.......................................... 24
Section 2.2. Execution and Authentication............................. 26
Section 2.3. Registrar and Paying Agent; Depositary................... 27
Section 2.4. Paying Agents To Hold Money in Trust..................... 27
Section 2.5. Holder Lists............................................. 28
Section 2.6. Transfer and Exchange.................................... 28
Section 2.7. Replacement Notes........................................ 37
Section 2.8. Outstanding Notes........................................ 38
Section 2.9. Treasury Notes........................................... 38
Section 2.10. Temporary Notes.......................................... 38
Section 2.11. Cancellation............................................. 39
Section 2.12. Defaulted Interest....................................... 39
Section 2.13. Persons Deemed Owners.................................... 39
Section 2.14. CUSIP Numbers............................................ 39
ARTICLE III. REDEMPTION AND REPURCHASE................................... 40
Section 3.1. Notices to Trustee....................................... 40
Section 3.2. Selection of Notes....................................... 40
Section 3.3. Notice of Optional Redemption............................ 41
Section 3.4. Effect of Notice of Redemption........................... 42
Section 3.5. Deposit of Redemption Price or Purchase Price............ 42
Section 3.6. Notes Redeemed or Repurchased in Part.................... 42
Section 3.7. Optional Redemption...................................... 42
Section 3.8. Repurchase upon Change of Control Offer.................. 43
Section 3.9. Repurchase upon Application of Excess Proceeds........... 45
ARTICLE IV. COVENANTS.................................................... 47
Section 4.1. Payment of Principal and Interest........................ 47
Section 4.2. Maintenance of Office or Agency.......................... 47
Section 4.3. Reports.................................................. 48
Section 4.4. Compliance Certificate................................... 48
Section 4.5. Taxes.................................................... 49
Section 4.6. Stay, Extension and Usury Laws........................... 49
_____________________
** This Table on Contents shall not, for any purpose, be deemed a part of the
Indenture.
-i-
Section 4.7. Restricted Payments...................................... 49
Section 4.8. Dividend and Other Payment Restrictions Affecting
Subsidiaries......................................... 52
Section 4.9. Incurrence of Indebtedness and Issuance of Preferred
Stock................................................ 53
Section 4.10. Asset Sales.............................................. 56
Section 4.11. Transactions with Affiliates............................. 57
Section 4.12. Liens.................................................... 58
Section 4.13. Continued Existence...................................... 58
Section 4.14. Insurance Matters........................................ 58
Section 4.15. Offer to Repurchase upon Change of Control............... 58
Section 4.16. Limitation on Future Subordinated Indebtedness........... 59
Section 4.17. Payments for Consent.................................... 59
Section 4.18. Restrictions under Senior Debt.......................... 59
Section 4.19. Xxxx and Leaseback Transactions......................... 59
Section 4.20. Subsidiary Guarantees................................... 60
ARTICLE V. SUCCESSORS.................................................... 61
Section 5.1. Merger, Consolidation, or Sale of Assets................. 61
Section 5.2. Successor Corporation Substituted........................ 62
ARTICLE VI. DEFAULTS AND REMEDIES........................................ 62
Section 6.1. Events of Default........................................ 62
Section 6.2. Acceleration............................................. 64
Section 6.3. Other Remedies........................................... 64
Section 6.4. Waiver of Past Defaults; Recission of Acceleration....... 65
Section 6.5. Control by Majority...................................... 65
Section 6.6. Limitation on Suits...................................... 66
Section 6.7. Rights of Holders of Notes to Receive Payment............ 66
Section 6.8. Collection Suit by Trustee............................... 66
Section 6.9. Event of Default to Avoid Premium........................ 67
Section 6.10. Trustee May File Proofs of Claim........................ 67
Section 6.11. Priorities.............................................. 67
Section 6.12. Undertaking for Costs................................... 68
ARTICLE VII. TRUSTEE..................................................... 68
Section 7.1. Duties of Trustee........................................ 68
Section 7.2. Rights of Trustee........................................ 69
Section 7.3. Individual Rights Of Trustee............................. 70
Section 7.4. Trustee's Disclaimer..................................... 70
Section 7.5. Notice of Defaults....................................... 70
Section 7.6. Reports by Trustee to Holders of the Notes............... 71
Section 7.7. Compensation, Reimbursement and Indemnity................ 71
Section 7.8. Replacement Of Trustee................................... 72
Section 7.9. Successor Trustee by Xxxxxx, Etc......................... 73
Section 7.10. Eligibility; Disqualification........................... 73
Section 7.11. Preferential Collection of Claims against Company....... 73
ARTICLE VIII. LEGAL DEFEASANCE AND COVENANT DEFEASANCE................... 73
Section 8.1. Option to Effect Legal Defeasance or Covenant
Defeasance........................................... 73
Section 8.2. Legal Defeasance and Discharge........................... 74
Section 8.3. Covenant Defeasance...................................... 74
Section 8.4. Conditions to Legal or Covenant Defeasance............... 75
-ii-
Section 8.5. Deposited Money and U.S. Government Securities to Be
Held in Trust; Other Miscellaneous Provisions............ 76
Section 8.6. Repayment to the Company................................. 77
Section 8.7. Reinstatement............................................ 77
ARTICLE IX. AMENDMENT, SUPPLEMENT AND WAIVER............................. 77
Section 9.1. Without Consent of Holders of Notes...................... 77
Section 9.2. With Consent of Holders of Notes......................... 78
Section 9.3. Compliance with Trust Indenture Act...................... 80
Section 9.4. Revocation And Effect Of Consents........................ 80
Section 9.5. Notation on or Exchange of Notes......................... 80
Section 9.6. Trustee to Sign Amendments, Etc.......................... 80
ARTICLE X. SUBORDINATION................................................. 81
Section 10.1. Notes Subordinated to Senior Debt........................ 81
Section 10.2. Priority and Payment Over of Proceeds in Certain
Events............................................ 81
Section 10.3. Payments May Be Made Prior to Dissolution................ 83
Section 10.4. Rights of Holders of Senior Debt Not to Be Impaired...... 84
Section 10.5. Authorization to Trustee to Take Action to Effectuate
Subordination..................................... 84
Section 10.6. Subrogation.............................................. 84
Section 10.7. Obligations of Company Unconditional..................... 85
Section 10.8. The Trustee Entitled to Assume Payments Not Prohibited
in Absence of Notice.............................. 85
Section 10.9. Right of Trustee to Hold Senior Debt..................... 86
Section 00.00.Xx Implied Covenants by or Obligations of the
Trustee........................................... 86
ARTICLE XI. SUBSIDIARY GUARANTEES........................................ 86
Section 11.1. Subsidiary Guarantees................................... 86
Section 11.2. Subordination of Guarantees............................. 87
Section 11.3. Execution and Delivery of Supplemental Indentures....... 88
Section 11.4. Guarantors May Consolidate, etc., on Certain Terms...... 88
Section 11.5. Effect of Defeasance.................................... 89
Section 11.6. Limitation on Guarantor Liability....................... 89
Section 11.7. Stay, Extension and Usury Laws.......................... 89
ARTICLE XII. MISCELLANEOUS............................................... 90
Section 12.1. Trust Indenture Act Controls............................ 90
Section 12.2. Notices................................................. 90
Section 12.3. Communication by Holders of Notes with Other Holders
of Notes.......................................... 91
Section 12.4. Certificate and Opinion as to Conditions Precedent...... 91
Section 12.5. Statements Required in Certificate or Opinion........... 92
Section 12.6. Rules by Trustee and Agents............................. 92
Section 12.7. No Personal Liability of Directors, Officers,
Employees and Stockholders........................ 92
Section 12.8. Governing Law; Submission to Jurisdiction; Waiver of
Jury Trial........................................ 92
Section 12.9. No Adverse Interpretation of Other Agreements........... 93
Section 12.10. Successors.............................................. 93
Section 12.11. Severability............................................ 93
Section 12.12. Counterpart Originals................................... 93
Section 12.13. Table of Contents, Headings, Etc........................ 93
Section 12.14. Qualification of Indenture.............................. 94
Section 12.15. Additional Rights of Transfer Restricted Securities..... 94
-iii-
EXHIBITS
--------
Exhibit A-1 Form of Note
Exhibit A-2 Form of Regulation S Temporary Global Notes
Exhibit A-3 Form of New Senior Subordinated Note
Exhibit B-1 Form of Certificate For Registration of
Transfer From Restricted Global Note to
Regulation S Global Note
Exhibit B-2 Form of Certificate For Registration of
Transfer From Regulation S Global Note to
Restricted Global Note
Exhibit B-3 Form of Certificate For Exchange or
Registration of Transfer of Certificated Notes
Exhibit B-4 Form of Certificate For Exchange of
Restricted Global Note or Regulation S
Permanent Global Note to Certificated Note
Exhibit B-5 Form of Certificate For Registration of
Transfer From Accredited Restricted Note to QIB
Restricted Note
Exhibit B-6 Form of Certificate For Registration of
Transfer From QIB Restricted Note to Accredited
Restricted Note
Exhibit C Form of Supplemental Indenture
-iv-
INDENTURE
INDENTURE, dated as of January 24, 1997, among Xxxxxx, Fargo & Co., a
Delaware corporation (the "Company"), Loomis Holding Corporation ("LFC"), a
Delaware corporation (to be renamed LFC Holding Corporation), Xxxxxx Armored
Inc. (the "Operating Subsidiary"), a Texas corporation (to be renamed Xxxxxx,
Fargo & Co.), Xxxxx Fargo Armored Service Corporation of Texas ("Xxxxx Fargo of
Texas"), a Texas corporation (to be renamed LFC Armored of Texas Inc.), Xxxxx
Fargo Armored Service Corporation of Puerto Rico ("Xxxxx Fargo of Puerto Rico"),
a Tennessee corporation (to be renamed Xxxxxx, Fargo & Co. of Puerto Rico), and
Marine Midland Bank, trustee (the "Trustee").
Each party agrees as follows for the benefit of the other parties and for
the equal and ratable benefit of the Holders (as defined below) of the Company's
10% Senior Subordinated Notes due 2004:
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. DEFINITIONS.
"Accredited Restricted Note" means a Note initially bearing the CUSIP
number 543462 AB 1 through which Accredited Investors hold a beneficial
interest in the Restricted Global Note, or any replacement Note issued
therefor.
"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 becomes a Subsidiary of such specified Person or
assumed in connection with the acquisition of assets from such other
Person, including, without limitation, Indebtedness incurred in connection
with, or in contemplation of, such other Person's merging with or into or
becoming a Subsidiary of such specified Person or such acquisition of
assets, and (ii) Indebtedness secured by a Lien encumbering any asset
acquired by such specified Person.
"Affiliate" means, with respect to any specified Person, 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 presumed to be
control, which presumption may be rebutted by evidence to the contrary.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Agent Member" means a member of, or a participant in, the Depositary.
"Applicable Procedures" means, with respect to any transfer or
exchange of beneficial interests in a Global Note, the rules and procedures
of the Depositary, Euroclear and Cedel that are applicable to such transfer
or exchange.
"Asset Sale" means (A) the sale, lease, conveyance or other
disposition of any assets (including, without limitation, by way of a sale
and leaseback) other than 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 will be governed by the provisions of
Section 4.15 or Section 5.1 hereof, and not by Section 4.10 hereof), or (B)
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 (A) or (B), whether in a single transaction or a series of related
transactions (a) that have a fair market value in excess of $500,000 or (b)
for net proceeds in excess of $500,000. Notwithstanding the foregoing: (i)
a transfer of assets by the Company to a Wholly Owned Subsidiary of the
Company or by a Subsidiary of the Company to the Company or to a Wholly
Owned Subsidiary of the Company, (ii) an issuance or sale of Equity
Interests by a Subsidiary of the Company to the Company or to a Wholly
Owned Subsidiary of the Company, (iii) a Restricted Payment that is
permitted by Section 4.7 hereof, (iv) a disposition of inventory in the
ordinary course of business, and (v) a sale or other disposition or
abandonment of damaged, worn out or obsolete property that is no longer
useful in the conduct of business of the Company and its Subsidiaries in
the ordinary course of business, will not be deemed to be Asset Sales.
"Attributable Debt" means, in respect of a sale and leaseback
transaction, 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).
"Bankruptcy Law" means Title 11 of the U.S. Code or any similar
Federal or state law for the relief of debtors.
"Board" means the Board of Directors of the Company or any duly
authorized committee of the Board of Directors.
"Xxxx-Xxxxxx Principals" means Xxxx-Xxxxxx Security Corporation and
the Management Group.
"Business Day" means any day other than a Saturday, a Sunday or a day
on which banking institutions in the City of New York or at a place of
payment are authorized by law, regulation or executive order to remain
closed. If a payment
2
date is not a Business Day at a place of payment, payment may be made at
that place on the next succeeding day that is a Business Day, and no
interest shall accrue for the intervening period.
"Business Trust" means the Xxxxxx Stockholders Trust, a Delaware
business trust.
"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 any other business entity, any
and all shares, interests, participations, rights or other equivalents
(however designated) in the equity of such association or entity, (iii) in
the case of a partnership, partnership 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) 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, (ii) demand and time deposits, certificates of
deposit and eurodollar time deposits with maturities of six months or less
from the date of acquisition, bankers' acceptances with maturities not
exceeding six months and overnight bank deposits, in each case with any
lender party to the New Credit Facility or 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, (iii) repurchase obligations with a
term of not more than seven days for underlying securities of the types
described in clauses (i) and (ii) above entered into with any financial
institution meeting the qualifications specified in clause (ii) above and
(iv) commercial paper rated at least P-1 by Xxxxx'x Investors Service, Inc.
or at least A-1 by Standard & Poor's Rating Group and in each case maturing
within six months after the date of acquisition.
"Cedel" shall mean Cedel Bank, societe anonyme.
"Certificated Notes" means Notes that are in the form of the Notes
attached hereto as Exhibit A-1, but 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
3
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,
(ii) the approval by the requisite vote of the stockholders of
the Company of a plan of 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 Xxxxxxx Principals,
the Xxxx-Xxxxxx 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
40% of the total outstanding Voting Stock of the Company and at such
time neither the Xxxxxxx Principals and their Related Parties nor the
Xxxx-Xxxxxx Principals and their Related Parties beneficially own,
directly or indirectly (including through the Business Trust) more
Voting Stock of the Company than such person,
(iv) the first day on which a majority of the members of the
Board are not Continuing Directors, or
(v) the first day on which the Company ceases for any reason
to own, beneficially and legally, 100% of the outstanding Capital
Stock of the Operating Subsidiary.
"Commission" means the United States Securities and Exchange
Commission.
"Common Stock" means, with respect to any Person, Capital Stock of
such Person that does not rank prior, as to the payment of dividends or as to
the distribution of assets upon any voluntary or involuntary liquidation,
dissolution or winding up of such Person, to shares of Capital Stock of any
other class of such Person.
"Company" means Xxxxxx, Fargo & Co., a Delaware corporation, until a
successor Person shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter means such successor Person.
"Consolidated Cash Flow" means, without duplication, with respect to
any Person for any period, the Consolidated Net Income of such Person for such
period plus, to the extent deducted in computing Consolidated Net Income:
4
(i) an amount equal to any net loss realized in connection with any
Asset Sale, plus
(ii) provision for taxes based on income or profits of such Person
and its Subsidiaries for such period, plus
(iii) consolidated interest expense of such Person and its
Subsidiaries for such period, whether paid or accrued and whether or not
capitalized (including, without limitation, amortization of 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 financing,
and net payments (if any) pursuant to Hedging Obligations, but excluding
any expenses related to Insurance Letters of Credit), plus
(iv) depreciation, amortization (including amortization of goodwill
and other intangibles, but excluding amortization of prepaid cash expenses
that were paid in a prior period) 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,
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 paid as a dividend 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 there shall be excluded therefrom, without duplication:
5
(i) all items classified as extraordinary, unusual or nonrecurring
gains or losses;
(ii) any net loss or net income of any other Person (other than a
Subsidiary of such Person), except to the extent of the amount of dividends
or other distributions actually paid to such Person or its Subsidiaries by
such other Person during such period;
(iii) the net income of any Person acquired by such Person or a
Subsidiary thereof in a pooling-of-interests transaction for any period
prior to the date of such acquisition;
(iv) gains (but not losses) in respect of Asset Sales by such Person
or its Subsidiaries;
(v) the net income (but not net loss) of any Subsidiary of such
Person to the extent that the declaration or payment of dividends or
distributions to such Person is restricted by the terms of its constituent
documents or any agreement, instrument, contract, judgment, order, decree,
statute, rule, governmental regulation or otherwise, except for any
dividends or distributions actually paid by such Subsidiary to such Person
or another Subsidiary of such Person;
(vi) with regard to a Subsidiary of such Person (other than a Wholly
Owned Subsidiary of such Person), any aggregate net income (or loss) in
excess of such Person's pro rata share of such Subsidiary's net income (or
loss) ; and
(vii) the cumulative effect of any change in accounting principles.
"Consolidated Net Worth" means, with respect to any Person as of any date,
the consolidated stockholders' equity of such Person and its consolidated
Subsidiaries, as determined in accordance with GAAP, less, to the extent
included therein, all amounts, if any, attributable to Disqualified Stock.
"Continuing Directors" means, as of any date of determination, any member
of the Board who (i) (x) was a member of the Board on the date of this Indenture
or (y) was identified to become a Director on Exhibit B to the Contribution
Agreement or (ii) was nominated for election or elected to the Board with the
approval of a majority of the Continuing Directors who were members of the Board
at the time of such nomination or election.
"Contribution Agreement" means that certain Contribution Agreement, dated
as of November 28, 1996, by and among Xxxx-Xxxxxx Security
6
Corporation, Xxxxx Fargo Armored Service Corporation, the Company, LFC, the
Operating Subsidiary and the Business Trust.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 12.2 hereof or such other address as to which the
Trustee may give notice to the Company.
"Default" means any event, occurrence or condition that, with the passage
of time, the giving of notice or both, would constitute an Event of Default.
"Depositary" means, with respect to the Notes issuable in whole or in part
in global form, the Person specified in Section 2.3 hereof as the Depositary
with respect to the Notes, until a successor shall have been appointed and
become such pursuant to the applicable provisions of this Indenture, and,
thereafter, "Depositary" shall mean or include such successor.
"Designated Senior Debt" means (i) Indebtedness of the Company under the
New Credit Facility and (ii) any other Senior Debt permitted under the Indenture
which, at the date of creation thereof or determination, has an aggregate
principal amount outstanding of, or under which at the date of creation thereof
or determination, the holders thereof are committed to lend, at least $20.0
million and is specifically designated by the Company in the instrument
evidencing or governing such Senior Debt as "Designated Senior Debt" for
purposes of this Indenture.
"disposition" or "sale" or "transfer" or other words of similar meaning do
not include the granting or suffering of a Permitted Lien in order to secure
Indebtedness permitted by the Indenture, provided that no steps or actions have
been taken by the holder of such Permitted Lien to realize upon or dispose of
the assets subject thereto.
"Disqualified Stock" means any Capital Stock of any Person which, 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 or with the passage of
time, matures or is redeemable, pursuant to a sinking fund obligation or
otherwise (excluding any redemption at the option of the issuer of such Capital
Stock on a date that is at least 91 days after the date on which the Notes
mature), or is 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.
"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).
"Euroclear" means Xxxxxx Guaranty Trust Company of New York, Brussels
Office, as operator of the Euroclear System.
7
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Offer" means the offer that shall be made by the Company pursuant
to the Registration Rights Agreement to exchange New Senior Subordinated Notes
for Senior Subordinated Notes.
"Existing Indebtedness" means all Indebtedness of the Company and its
Subsidiaries (other than under the New Credit Facility) in existence on the
Issue Date, until such amounts are repaid.
"Fixed Charge Coverage Ratio" means with respect to any specified 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 repayments of revolving
credit borrowings) or issues or redeems Preferred Stock subsequent to the
commencement of the period for which the Fixed Charge Coverage Ratio is being
calculated but prior to the date on which the event for which the calculation of
the Fixed Charge Coverage Ratio is made (the "Calculation Date"), then the Fixed
Charge Coverage Ratio shall be calculated giving pro forma effect to such
incurrence, assumption, Guarantee or redemption of Indebtedness or such issuance
or redemption of Preferred Stock, and the use of the proceeds therefrom, 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
8
rise to such Fixed Charges will not be obligations of the referent Person
or any of its Subsidiaries following the Calculation Date.
"Fixed Charges" means, with respect to any Person for any period, the sum,
without duplication, 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 financing, and net payments (if
any) pursuant to Hedging Obligations, but excluding fees and expenses
related to Insurance Letters of Credit), plus
(ii) the consolidated interest expense of such Person and its
Subsidiaries that was capitalized during such period, plus
(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), plus
(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.
"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 may be approved by a significant segment of the accounting
profession of the United States, as in effect from time to time.
"Global Notes" means, individually and collectively, the Regulation S
Temporary Global Note, the Regulation S Permanent Global Note and the Restricted
Global Note.
9
"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, of all or any part of any Indebtedness.
"Guarantors" means each of (i) LFC, (ii) the Operating Subsidiary, (iii)
Xxxxx Fargo of Texas, (iv) Xxxxx Fargo of Puerto Rico, and (v) any other
Subsidiary of the Company that executes a Subsidiary Guarantee by signing a
Supplemental Indenture in accordance with the provisions of Section 4.20 and
Article XI hereof, and their respective successors and assigns.
"Hedging Obligations" means, with respect to any Person, the obligations of
such Person under (i) interest rate swap agreements, interest rate cap
agreements, interest rate collar agreements and (ii) other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates.
"Holder" means a Person in whose name a Note is registered.
"Indebtedness" means, with respect to any Person, without duplication,
(i) any liability of such Person (a) for borrowed money, or under
any reimbursement obligation relating to a letter of credit, bankers'
acceptance or note purchase facility; (b) evidenced by a bond, note,
debenture or similar instrument; (c) for the balance deferred and unpaid of
the purchase price for any property or service or any obligation upon which
interest charges are customarily paid (except for accrued expenses or trade
payables arising in the ordinary course of business); (d) for the payment
of money relating to a lease that is required to be classified as a Capital
Lease Obligation in accordance with GAAP; or (e) for the maximum fixed
repurchase price of any Disqualified Stock of such Person plus accrued and
unpaid dividends thereon;
(ii) any obligation of others secured by a Lien on any asset of such
Person, whether or not any obligation secured thereby has been assumed, by
such Person;
(iii) any obligations of such Person under any Hedging Obligation; and
(iv) any Guarantee of such Person or any obligation of such Person
which in economic effect is a guarantee with respect to any Indebtedness of
another Person.
For purposes of this definition, "maximum fixed repurchase price" of any
Disqualified Stock which does not have a fixed repurchase price shall be
calculated in accordance with the terms of such Disqualified Stock as if such
Disqualified Stock were purchased on any date on which Indebtedness shall be
required to be
10
determined pursuant to the Indenture, and if such price is based upon, or
measured by, the fair market value of such Disqualified Stock, such fair market
value shall be determined in good faith by the board of directors of the Person
issuing such Disqualified Stock.
"Indenture" means this Indenture, as amended or supplemented from time to
time.
"Insurance Letters of Credit" means letters of credit issued for the
account of the Company or any Wholly Owned Subsidiary of the Company for
purposes of (i) securing certain deductible amounts payable by the Company or a
Wholly Owned Subsidiary of the Company under cargo, automobile or general
liability insurance policies or (ii) complying with workers' compensation
requirements under applicable law.
"Interest Payment Date" means the stated maturity of an installment of
interest on the Notes.
"Investment" by any Person means any direct or indirect loan, advance (or
other extension of credit) or capital contribution (by means of any transfer of
cash or other Property) to another Person or any other payments for Property or
services for the account or use of another Person, including without limitation
the following:
(i) the purchase or acquisition of any Capital Stock or other
evidence of beneficial ownership in another Person;
(ii) the purchase, acquisition or Guarantee of the Indebtedness of
another Person or the issuance of a "keep well" with respect thereto; and
(iii) the purchase or acquisition of the business or assets of another
Person;
but shall exclude:
(a) accounts receivable and other extensions of trade credit on
commercially reasonable terms in accordance with normal trade practices;
(b) the acquisition of property and assets from equipment suppliers
and other vendors in the ordinary course of business, provided that such
property and assets do not represent all or substantially all of the
production capacity of the supplier or other vendor; and
11
(c) the acquisition of assets, Capital Stock or other securities by
the Company for consideration consisting solely of the Capital Stock of the
Company other than Disqualified Stock.
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 the date on which the Notes are first authenticated and
delivered under this Indenture.
"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).
"Liquidated Damages" means all liquidated damages then owing pursuant to
Section 5 of the Registration Rights Agreement.
"Management Group" means the following persons: Xxxxx X. Xxxxxx, Xxxxx X.
Xxxxxxxx, Xx., Xxxxxx X. Xxxxxxx, Xxxxx X. XxXxxx, Xxxxx X. XxXxxxx, Xxxxxxx
Xxxxxx, Xxxxx X. Xxxxxx, Xxxxxxx X. Xxxx, Xxxxx X. Xxxxxxxx, Xxxxx X. Xxxxxx,
Xxxxx X. Xxxxxxx, Xxxxxx X. Xxxxx, Xxxxxxx X. Xxxxxxx, Xxxx X. Xxxxx and X. Xxxx
Xxxxxxx.
"NOL Note" means the note having a principal amount of $6.0 million issued
by the Company to the Business Trust pursuant to the terms of the Contribution
Agreement.
"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 in connection with the sale or other disposition
of any non-cash consideration received in any such Asset Sale), net of (i) the
direct costs relating to such Asset Sale (including, without limitation, legal,
accounting and investment banking fees, and sales commissions) and any
relocation expenses incurred as a result thereof, (ii) taxes paid or payable as
a result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements), (iii) amounts required to be
applied to the repayment of Indebtedness that is (a) secured by a Lien on the
asset or assets that were the subject of such Asset Sale, or (b) Senior Debt,
the repayment of which is required
12
either pursuant to the terms thereof, by applicable law, or in order to obtain a
necessary consent to such transaction, and (iv) any reserves established in
accordance with GAAP for adjustment in respect of the sale price of such asset
or assets or for any liabilities associated with such Asset Sale; provided that
any reversal of any such reserve shall be added back in the determination of Net
Proceeds.
"New Credit Facility" means that certain credit facility, dated as of the
Issue Date, by and among the Company and the banks party thereto, providing for
up to $115.0 million of revolving credit borrowings and letters of credit,
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 from time to time.
"New Senior Subordinated Notes" means notes issued by the Company hereunder
containing terms identical to the Senior Subordinated Notes (except that (i)
interest thereon shall accrue from the last date on which interest was paid on
the Senior Subordinated Notes or, if no such interest has been paid, from the
date of original issuance, (ii) the legend or legends relating to
transferability and other related matters set forth on the Senior Subordinated
Notes, including the text referred to in footnote 2 of Exhibit A-1 hereto, shall
be removed or appropriately altered, and (iii) as otherwise set forth herein),
to be offered to Holders of Senior Subordinated Notes in exchange for Senior
Subordinated Notes pursuant to the Exchange Offer, substantially in the form of
Exhibit A-3 attached hereto.
"Note Custodian" means the Trustee, as custodian with respect to the Notes
in global form, or any successor entity thereto.
"Notes" means the Senior Subordinated Notes and the New Senior Subordinated
Notes, if any, that are issued under this Indenture, as amended or supplemented
from time to time.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Officer" means, (a) with respect to any Person that is a corporation, the
Chairman of the Board, the Chief Executive Officer, the President, the Chief
Operating Officer, the Chief Financial Officer, the Treasurer, the Controller,
the Secretary or any Vice-President or Assistant Secretary of such Person and
(b) with respect to any other Person, the individuals selected by such Person to
perform functions similar to those of the officers listed in clause (a).
"Officers' Certificate" means a certificate signed on behalf of any Person
by two Officers of such Person, one of whom must be the Chief Executive Officer,
13
the Chief Financial Officer, the Treasurer or the principal accounting officer
of such Person, that meets the requirements of Sections 12.4 and 12.5 hereof.
"Opinion of Counsel" means an opinion from legal counsel who is reasonably
acceptable to the Trustee, that meets the requirements of Sections 12.4 and 12.5
hereof. The counsel may be an employee of or counsel to the Company, any
Subsidiary of the Company or the Trustee.
"Permitted Investments" means:
(a) any Investment in the Company or in a Subsidiary of the Company
that is a Guarantor;
(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
Subsidiary of the Company and a Guarantor or (ii) such Person is merged,
consolidated or amalgamated with or into, or transfers or conveys
substantially all of its assets to, or is liquidated into, the Company or a
Subsidiary of the Company that is a Guarantor;
(d) any Investment made as a result of the receipt of non-cash
consideration from an Asset Sale that was made pursuant to and in
compliance with Section 4.10 hereof;
(e) any obligations or shares of Capital Stock received in connection
with or as a result of a bankruptcy, workout or reorganization of the
issuer of such obligations or shares of Capital Stock;
(f) any Investment received involuntarily;
(g) any Investment existing on the date of this Indenture; and
(h) Investments having an aggregate fair market value (together with
all other Investments made pursuant to this clause (h) and outstanding) at
any time not to exceed $1.0 million.
"Permitted Liens" means:
(i) Liens on assets of the Company securing the New Credit Facility
and other Senior Debt that was permitted by the terms of this Indenture to
be incurred;
14
(ii) Liens on assets of Subsidiaries securing Senior Guarantees;
(iii) Liens in favor of the Company;
(iv) Liens on property of a Person existing at the time such Person
is merged into or consolidated with the Company or any Subsidiary of the
Company; provided that such Liens were in existence prior to such merger or
consolidation and were not incurred in contemplation thereof and do not
extend to any assets other than those of the Person merged into or
consolidated with the Company or any Subsidiary of the Company;
(v) Liens on property existing at the time of acquisition thereof
by the Company or any Subsidiary of the Company, provided that such Liens
were in existence prior to such acquisition and were not incurred in
contemplation thereof and do not extend to any assets other than those so
acquired by the Company or any Subsidiary of the Company;
(vi) 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 (or to secure
reimbursement obligations in respect of letters of credit issued in
connection with any of the foregoing obligations);
(vii) Liens existing on the date hereof;
(viii) Liens to secure Indebtedness (including Capital Lease
Obligations) permitted to be incurred by clause (iv) of the second
paragraph of Section 4.9 hereof covering only the assets acquired with such
Indebtedness;
(ix) 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 concluded,
provided that any reserve or other appropriate provision as shall be
required in conformity with GAAP shall have been made therefor;
(x) covenants, easements, rights-of-way, restrictions,
encroachments or other similar encumbrances not materially impairing the
marketability of the property encumbered thereby and not interfering in any
material respect with the use of such property
15
or with the ordinary conduct of the business of the Company or any
Subsidiary;
(xi) Liens to secure any Indebtedness which is pari passu with or
subordinate in right of payment to the Notes, where (a) in the case of any
Lien securing Indebtedness that is pari passu in right of payment with the
Notes, all obligations with respect to the Notes are secured on an equal
and ratable basis with the Indebtedness so secured and (b) in the case of
any Lien securing Indebtedness that is subordinated in right of payment to
the Notes, all obligations with respect to the Notes are secured on a
senior basis reflecting the subordination of the Indebtedness so secured on
terms substantially similar to, or more favorable to senior creditors than,
those contained herein, in each case, until such time as such pari passu or
subordinated Indebtedness is no longer secured by such Lien, at which time
such Lien securing the Notes shall be automatically released;
(xii) Liens to secure obligations of the Company or its Subsidiaries
under Insurance Letters of Credit;
(xiii) Liens with respect to judgments which have been stayed or for
which a bond having a value equal to the judgment amount has been posted,
but only for so long as such judgment has been stayed or such xxxx remains
posted and outstanding;
(xiv) Liens securing the IRB or the property which is subject to the
IRB; and
(xv) Liens incurred in the ordinary course of business of the
Company or any Subsidiary of the Company with respect to obligations that
do not exceed $1.0 million at any one time outstanding and that (a) are not
incurred in connection with the borrowing of money or the obtaining of
advances or credit (other than trade credit in the ordinary course of
business) and (b) do not in the aggregate materially detract from the value
of the property or materially impair the use thereof in the operation of
business by the Company or such Subsidiary.
"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, renew, replace, defease or refund other Indebtedness
of the Company or any of its Subsidiaries, provided that:
(i) the principal amount (or accreted value, if applicable), of such
Permitted Refinancing Debt does not exceed the principal
16
amount (or accreted value, if applicable), of the Indebtedness so extended,
refinanced, renewed, replaced, defeased or refunded (plus the amount of
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 Notes as those
contained in the documentation 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, limited or general partnership,
limited liability company, joint venture, association, joint stock company,
trust, entity, unincorporated organization or government or any agency or
political subdivision thereof.
"PORTAL Market" means the Private Offerings, Resales and Trading through
Automated Linkages Market operated by the National Association of Securities
Dealers, Inc. or any successor thereto.
"Preferred Stock" means, with respect to any Person, all Capital Stock of
such Person of any class or classes (however designated, whether voting or non-
voting) that ranks prior, as to distribution in profit or liquidation, to shares
of Common Stock of such Person.
"Principals" means either the Xxxx-Xxxxxx Principals or the Xxxxxxx
Principals, as the case may be.
"Purchase Date" means each date on which the Company is obligated to
repurchase Notes pursuant to the terms of this Indenture.
"Purchase Price" means the amount payable for the repurchase of any Note on
a Purchase Date, exclusive of accrued and unpaid interest and Liquidated
17
Damages (if any) thereon to the Purchase Date, unless otherwise specifically
provided.
"QIB" means a qualified institutional buyer as defined in Rule 144A under
the Securities Act.
"QIB Restricted Note" means a Note initially bearing CUSIP number 543462 AA
3 through which QIBs hold a beneficial interest in the Restricted Global Note,
or any replacement Note issued therefor.
"Redemption Date" means, with respect to any Note to be redeemed, the date
fixed for such redemption by or pursuant to Section 3.7 of this Indenture.
"Redemption Price" means the amount payable for the redemption of any Note
on a Redemption Date, exclusive of accrued and unpaid interest and Liquidated
Damages (if any) thereon to the Redemption Date, unless otherwise specifically
provided.
"Registration Rights Agreement" means the Registration Rights Agreement,
dated as of the Issue Date, among the Company, LFC, the Operating Subsidiary,
Xxxxx Fargo of Texas, Xxxxx Fargo of Puerto Rico., Xxxxxx Brothers Inc., and
NationsBanc Capital Markets, Inc., as such agreement may be amended, modified or
supplemented from time to time.
"Regulation S" means Regulation S as promulgated under the Securities Act,
as such Regulation is in effect on the date hereof and, to the extent applicable
to the Notes, as such Regulation is amended or supplemented from time to time.
"Regulation S Global Note" means a Regulation S Temporary Global Note or
Regulation S Permanent Global Note, as appropriate.
"Regulation S Permanent Global Note" means a permanent global 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 as Exhibit A-1, and
that is deposited with and registered in the name of the Depositary,
representing a series of Notes sold in reliance on Regulation S.
"Regulation S Temporary Global Note" means a single temporary global note
in the form of the Note attached hereto as Exhibit A-2 that is deposited with
and registered in the name of the Depositary, representing a series of Notes
sold in reliance on Regulation S.
"Related Party" means, with respect to either the Xxxxxxx Principals or the
Xxxx-Xxxxxx Principals, (A) any controlling stockholder, 80% (or more) owned
Subsidiary, or spouse or immediate family member or estate thereof (in the case
of an individual) of such Principals or (B) any trust, corporation, partnership
or other entity, the beneficiaries, stockholders, partners, owners or Persons
beneficially
18
holding an 80% or more controlling interest of which consist of the Xxxx-Xxxxxx
Principals, the Xxxxxxx Principals and/or such other Persons referred to in the
immediately preceding clause (A).
"Responsible Officer" means, when used with respect to the Trustee, any
officer of the Trustee assigned by the Trustee to administer this Indenture and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Restricted Global Note" means an Accredited Restricted Note or a QIB
Restricted Note, which is a permanent global 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-1, and that is deposited
with and registered in the name of the Depositary.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Period" means the 40-day restricted period as defined in
Regulation S.
"Rule 144A" means Rule 144A promulgated under the Securities Act as such
Rule is in effect on the date hereof, and, to the extent applicable to the
Notes, as such Regulation is amended or supplemented from time to time.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Debt" means Indebtedness of the Company, whether outstanding on the
date hereof or thereafter created, incurred or assumed, unless the instrument
under which such Indebtedness is incurred expressly provides that such
Indebtedness shall not be senior in right of payment to the Notes.
Notwithstanding the foregoing, "Senior Debt" shall not include:
(i) Indebtedness evidenced by the Notes;
(ii) Indebtedness that is by its terms subordinate or junior in right
of payment to any other Indebtedness of the Company;
(iii) any liability for federal, state, local or other taxes owed or
owing by the Company;
(iv) Indebtedness of the Company to any of its Subsidiaries;
(v) Indebtedness for the purchase of goods or materials in the
ordinary course of business except purchase money
19
Indebtedness secured by a security interest in or a Lien upon the goods or
materials purchased;
(vi) that portion of any Indebtedness that is incurred in violation
of this Indenture;
(vii) Indebtedness which is represented by Disqualified Stock;
(viii) Indebtedness of or amounts owing by the Company for
compensation to employees for services;
(ix) amounts owing under leases (other than Capital Lease
Obligations); and
(x) the NOL Note.
"Senior Guarantees" means Guarantees by a Guarantor with respect to Senior
Debt of the Company.
"Senior Representative" means any trustee, agent or representative (if any)
for the holders of any Designated Senior Debt.
"Senior Subordinated Notes" means the Company's 10% Senior Subordinated
Notes due 2004 issued pursuant to this Indenture, but excludes the New Senior
Subordinated Notes.
"Significant Subsidiary" means any Subsidiary that would be a "significant
subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated
pursuant to the Securities Act, as such Regulation is in effect on the 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, 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 in a
combination thereof) and (ii) any partnership or limited liability company (a)
the sole general partner or member or the managing general partner or member of
which is such Person or a Subsidiary of such Person or (b) the only general
partners or members of which are such Person or of one or more Subsidiaries of
such Person (or any combination thereof).
"Subsidiary Guarantee" means the Guarantee by the Guarantors of the
Obligations under this Indenture, any Supplemental Indenture and the Notes.
20
"Supplemental Indenture" means a supplemental indenture executed
substantially in the form of Exhibit C attached hereto.
"Transactions" means the formation of the Company and related transactions
contemplated by the Contribution Agreement.
"Transfer Restricted Security" means a Note that is a restricted security
as defined in Rule 144(a)(3) under the Securities Act.
"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.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. (S)(S) 77aaa-77bbbb)
as in effect on the date on which this Indenture is qualified under the TIA;
provided that in the event the Trust Indenture Act of 1939 is amended after such
date, "TIA" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"U.S. Government Securities" shall mean securities which are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such U.S. Government Securities or a specific payment of interest
on or principal of any such U.S. Government Securities held by such custodian
for the account of the holder of a depository receipt; provided that (except as
required by law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any amount received
by the custodian in respect of the U.S. Government Securities or the specific
payment of interest on or principal of the U.S. Government Securities evidenced
by such depository receipt.
"U.S. Persons" means any U.S. Person as defined in Regulation S.
"Voting Stock" means, with respect to any Person, securities of any class
or classes of Capital Stock in such Person entitling the holders thereof
(whether at all times or at the times that such class of Capital Stock has
voting power by reason of the happening of any contingency) to vote in the
election of members of the board of directors or other governing body of such
Person.
"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
21
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) is at the time owned by (i) such
Person or (ii) such Person and one or more Wholly Owned Subsidiaries of such
Person.
"Xxxxxxx Principals" means Xxxxxxx Partners, L.P., Xxxxxxx Affiliates, L.P.
and the Management Group.
SECTION 1.2. OTHER DEFINITIONS.
Defined in
Term Section
---- ----------
"Accredited Investors"..................................... 2.1
"Act"...................................................... 1.5
"Affiliate Transaction".................................... 4.11
"Asset Sale Offer"......................................... 4.10
"Asset Sale Offer Period".................................. 3.9
"Calculation Date"......................................... 1.1
"Change of Control Offer".................................. 4.15
"Change of Control Offer Period"........................... 3.8
"Covenant Defeasance"...................................... 8.3
"Event of Default"......................................... 6.1
"Excess Proceeds".......................................... 4.10
"incur".................................................... 4.9
"IRB"...................................................... 4.7
"IRB Payment Event"........................................ 4.7
"Legal Defeasance"......................................... 8.2
"Offer Amount"............................................. 3.9
"Paying Agent"............................................. 2.3
"Payment Blockage Notice".................................. 10.2
"Payment Blockage Period".................................. 10.2
"Payment Default".......................................... 6.1
"Private Placement Legend"................................. 2.6
"Registrar"................................................ 2.3
"Restricted Payments"...................................... 4.7
"Senior Covenant Default".................................. 10.2
"Senior Payment Default"................................... 10.2
"Surviving Entity"......................................... 5.1
22
SECTION 1.3.INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Notes;
"indenture security holder" means a Holder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
"obligor" on the Notes means the Company and any successor obligor
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 1.4.RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(a) term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and in the plural
include the singular;
(e) provisions apply to successive events and transactions; and
(f) references to sections of or rules under the Securities Act, the
Exchange Act and the TIA shall be deemed to include substitute, replacement
and successor sections or rules adopted by the Commission from time to
time.
SECTION 1.5. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders
may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent
duly appointed in writing; and, except as herein otherwise expressly
23
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 7.1) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him or her the execution thereof.
Where such execution is by an officer of a corporation or a member of a
partnership or a limited liability company, on behalf of such corporation,
partnership or limited liability company, such certificate or affidavit shall
also constitute sufficient proof of his or her authority.
(c) The ownership of Notes shall be proved by the register maintained by
the Registrar.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Note shall bind every future Holder of the
same Note and the holder of every Note issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof in respect of anything done
or suffered to be done by the Trustee or the Company in reliance thereon,
whether or not notation of such action is made upon such Note.
ARTICLE II.
THE NOTES
SECTION 2.1. FORM AND DATING.
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibits A-1, A-2 and A-3 hereto. The Notes may
have notations, legends or endorsements required by law, stock exchange rule or
usage in addition to those set forth in Exhibits A-1, A-2 and A-3 hereto. Each
Note shall be dated the date of its authentication. The Notes shall be in
denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes shall constitute, and are
hereby expressly made, a part of this Indenture and the Company and the Trustee,
by their execution and delivery of this Indenture, expressly agree to such terms
and provisions and to be bound thereby.
(a) Global Notes. Notes offered and sold to QIBs in reliance on Rule 144A
------ -----
and accredited institutional investors as defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act ("Accredited Investors") who are not QIBs,
otherwise than in reliance on Regulation S shall be evidenced by one or more
Restricted Global Notes, deposited with the Trustee, as custodian for the
Depositary and registered in the name of the Depositary or a nominee of the
Depositary, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The
24
aggregate principal amount of the Restricted Global Notes may from time to time
be increased or decreased by adjustments made on the records of the Trustee, as
custodian for the Depositary or its nominee, as hereinafter provided.
Notes offered and sold in offshore transactions in reliance on Regulation S
shall be issued initially in the form of a Regulation S Temporary Global Note,
deposited with the Trustee, as custodian for the Depositary and registered in
the name of the Depositary or the nominee of the Depositary for the accounts of
designated agents holding on behalf of Euroclear or Cedel, duly executed by the
Company and authenticated by the Trustee as hereinafter provided. The Restricted
Period shall be terminated upon the receipt by the Trustee of an Officers'
Certificate from the Company. Following the termination of the Restricted
Period, beneficial interests in the Regulation S Temporary Global Note shall be
exchanged for beneficial interests in Regulation S Permanent Global Notes
pursuant to the Applicable Procedures. Simultaneously with the authentication of
Regulation S Permanent Global Notes, the Trustee shall cancel the Regulation S
Temporary Global Note. The aggregate principal amount of the Regulation S
Temporary Global Note and the Regulation S Permanent Global Notes may from time
to time be increased or decreased by adjustments made on the records of the
Trustee and the Depositary or its nominee, as the case may be, in connection
with transfers of interest as hereinafter provided.
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
2.6 hereof.
The provisions of the "Operating Procedures of the Euroclear System" and
"Terms and Conditions Governing Use of Euroclear" and the "Management
Regulations" and "Instructions to Participants" of Cedel shall be applicable to
interests in the Regulation S Temporary Global Note and the Regulation S
Permanent Global Note that are held by the Agent Members through Euroclear or
Cedel.
Except as set forth in Section 2.6 hereof, the Global Notes may be
transferred, in whole and not in part, only to another nominee of the Depositary
or to a successor of the Depositary or its nominee.
(b) Book-Entry Provisions. This Section 2.1(b) shall apply only to the
---- ----- ----------
Global Notes deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance with Section
2.2, authenticate and deliver the Global Notes that (i) shall be registered in
the name of the Depositary or the nominee of the Depositary and (ii) shall be
delivered by the Trustee to the Depositary or pursuant to the Depositary's
instructions or held by the Trustee as custodian for the Depositary.
25
Agent Members shall have no rights either under this Indenture with respect
to any Global Note held on their behalf by the Depositary or by the Trustee as
custodian for the Depositary or under such Global Note, and the Depositary may
be treated by the Company, the Trustee and any agent of the Company or the
Trustee as the absolute owner of such Global Note for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or impair, as between the Depositary and its Agent Members, the operation of
customary practices of such Depositary governing the exercise of the rights of
an owner of a beneficial interest in any Global Note.
(c) Certificated Notes. Notes issued in certificated form shall be
------------ -----
substantially in the form of Exhibit A-1 attached hereto (but without including
the text referred to in footnotes 1 and 3 thereto).
SECTION 2.2. EXECUTION AND AUTHENTICATION.
Two Officers of the Company shall sign the Notes for the Company by manual
or facsimile signature. The seal of the Company 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 Trustee, upon a written order of the Company signed by two Officers of
the Company shall authenticate Senior Subordinated Notes for original issue up
to the aggregate principal amount stated in paragraph 3 of the Notes. The
Trustee, upon written order of the Company signed by two Officers of the Company
shall authenticate New Senior Subordinated Notes for original issue up to the
aggregate principal amount stated in paragraph 3 of the Notes; provided that
such New Senior Subordinated Notes shall be issuable only upon the valid
surrender for cancellation of Senior Subordinated Notes of a like aggregate
principal amount in accordance with the Exchange Offer. Such written order of
the Company shall specify the amount of Notes to be authenticated and the date
on which the original issue of Notes is to be authenticated. The aggregate
principal amount of Notes outstanding at any time may not exceed such amount
except as provided in Section 2.7 hereof.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Notes. An authenticating agent may authenticate Notes whenever
the Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company or an Affiliate of the Company.
26
SECTION 2.3. REGISTRAR AND PAYING AGENT; DEPOSITARY.
The Company shall maintain an office or agency where Notes may be presented
for registration of transfer or for exchange ("Registrar") and 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. At the
option of the Company, payment of interest and Liquidated Damages 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, Redemption Price and Purchase Price
of, and interest and Liquidated Damages (if any) on, all Global Notes and all
other Notes the Holders of which shall have provided wire transfer instructions
to the Trustee or the Paying Agent. 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 or Registrar without
notice to any Holder. The Company shall notify the Trustee in writing of the
name and address of any Paying 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 may act as Paying Agent or
Registrar. The Depositary shall, by acceptance of a Global Note, agree that
transfers of beneficial interests in such Global Note may be effected only
through a book-entry system maintained by the Depositary (or its agent), and
that ownership of a beneficial interest in the Note shall be required to be
reflected in a book entry.
The Company initially appoints The Depository Trust Company to act as
Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Note Custodian with respect to the Global Notes.
SECTION 2.4. PAYING AGENTS TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the Trustee to agree
in writing that the Paying Agent will hold in trust for the benefit of Holders
or the Trustee all money held by the Paying Agent for the payment of principal
of, Redemption Price and Purchase Price of, and interest and Liquidated Damages,
if any, on the Notes, and will 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. Upon payment over to the Trustee, the Paying Agent (if other than the
Company) shall have no further liability for the money. If the Company acts as
Paying Agent, it shall segregate and hold in a separate trust fund for the
benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy
or reorganization proceedings relating to the Company, the Trustee shall serve
as Paying Agent for the Notes.
27
SECTION 2.5. 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 (S) 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 of
Notes, and the Company shall otherwise comply with TIA (S) 312(a).
SECTION 2.6. TRANSFER AND EXCHANGE.
(a) 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 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. Beneficial
interests in a Global Note may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in the same Global Note in
accordance with the transfer restrictions set forth in the legend in subsection
(g) of this Section 2.6. Transfers of beneficial interests in the Global Notes
to Persons required to take delivery thereof in the form of an interest in
another Global Note shall be permitted as follows:
(i) Restricted Global Note to Regulation S Global Note. If, at any
---------- ------ ---- -- ---------- - ------ ----
time, an owner of a beneficial interest in a Restricted Global Note
deposited with the Depositary (or the Trustee as custodian for the
Depositary) wishes to transfer its interest in such Restricted Global Note
to a Person who is required or permitted to take delivery thereof in the
form of an interest in a Regulation S Global Note, such owner shall,
subject to the Applicable Procedures, exchange or cause the exchange of
such interest for an equivalent beneficial interest in a Regulation S
Global Note as provided in this Section 2.6(a)(i). Upon receipt by the
Trustee of (1) instructions given in accordance with the Applicable
Procedures from an Agent Member directing the Trustee to credit or cause to
be credited a beneficial interest in the Regulation S Global Note in an
amount equal to the beneficial interest in the Restricted Global Note to be
exchanged, (2) a written order given in accordance with the Applicable
Procedures containing information regarding the participant account of the
Depositary and, if applicable, the Euroclear or Cedel account to be
credited with such increase, and (3) a certificate in the form of Exhibit
B-1 hereto given by the owner of such beneficial interest stating that the
transfer of such interest has been made in compliance with the transfer
restrictions applicable to the Global Notes and pursuant to and in
accordance with Rule 903 or Rule 904 of Regulation S, then the Trustee, as
Registrar, shall instruct the Depositary to reduce or cause to be reduced
the aggregate principal amount at maturity of the applicable Restricted
Global Note and to increase or cause to be increased the aggregate
principal amount at maturity of the applicable Regulation S Global Note by
the principal amount at maturity of the beneficial interest in the
Restricted Global Note to be exchanged, to credit or cause to be credited
to the account of the Person
28
specified in such instructions a beneficial interest in the Regulation S
Global Note equal to the reduction in the aggregate principal amount at
maturity of the Restricted Global Note, and to debit, or cause to be
debited, from the account of the Person making such exchange or transfer
the beneficial interest in the Restricted Global Note that is being
exchanged or transferred.
(ii) Regulation S Global Note to Restricted Global Note. If, at any
---------- - ------ ---- -- ---------- ------ ----
time, an owner of a beneficial interest in a Regulation S Global Note
deposited with the Depositary or with the Trustee as custodian for the
Depositary wishes to transfer its interest in such Regulation S Global Note
to a Person who is required or permitted to take delivery thereof in the
form of an interest in a Restricted Global Note, such owner shall, subject
to the Applicable Procedures, exchange or cause the exchange of such
interest for an equivalent beneficial interest in a Restricted Global Note
as provided in this Section 2.6(a)(ii). Upon receipt by the Trustee of (1)
instructions from Euroclear or Cedel, if applicable, and the Depositary,
directing the Trustee, as Registrar, to credit or cause to be credited a
beneficial interest in the Restricted Global Note equal to the beneficial
interest in the Regulation S Global Note to be exchanged, such instructions
to contain information regarding the participant account with the
Depositary to be credited with such increase, (2) a written order given in
accordance with the Applicable Procedures containing information regarding
the participant account of the Depositary and (3) a certificate in the form
of Exhibit B-2 attached hereto given by the owner of such beneficial
interest stating (A) if the transfer is pursuant to Rule 144A, that the
Person transferring such interest in a Regulatin S Global Note reasonably
believes that the Person acquiring such interest in a Restricted Global
Note is a QIB and is obtaining such beneficial interest in a transaction
meeting the requirements of Rule 144A and any applicable blue sky or
securities laws of any state of the United States, (B) that the transfer
complies with the requirements of Rule 144 under the Securities Act and any
applicable blue sky or securities laws of any state of the United States or
(C) if the transfer is pursuant to any other exemption from the
registration requirements of the Securities Act, that the transfer of such
interest has been made in compliance with the transfer restrictions
applicable to the Global Notes and pursuant to and in accordance with the
requirements of the exemption claimed, such statement to be supported by an
Opinion of Counsel from the transferee or the transferor in form and
substance reasonably acceptable to the Company, then the Trustee, as
Registrar, shall instruct the Depositary to reduce or cause to be reduced
the aggregate principal amount at maturity of the applicable Regulation S
Global Note and to increase or cause to be increased the aggregate
principal amount at maturity of the applicable Restricted Global Note by
the principal amount at maturity of the beneficial interest in the
Regulation S Global Note to be exchanged, and the Trustee, as Registrar,
shall instruct the Depositary, concurrently with such reduction, to credit
or cause to be credited to the account of the Person specified in such
instructions a beneficial interest in the applicable Restricted Global Note
equal to the reduction in the aggregate principal amount at maturity of
such Regulation S Global Note and
29
to debit or cause to be debited from the account of the Person making such
transfer the beneficial interest in the Regulation S Global Note that is
being transferred.
(iii) Accredited Restricted Note to QIB Restricted Note. If, at any
time, an owner of a beneficial interest in an Accredited Restricted Note
deposited with the Depositary or with the Trustee as custodian for the
Depositary wishes to transfer its interest in such Accredited Restricted
Note to a Person who is required or permitted to take delivery thereof in
the form of an interest in a QIB Restricted Note, such owner shall, subject
to the Applicable Procedures, exchange or cause the exchange of such
interest for an equivalent beneficial interest in a QIB Restricted Note as
provided in this Section 2.6(a)(iii). Upon receipt by the Trustee of (1)
instructions from the Depositary, directing the Trustee, as Registrar, to
credit or cause to be credited a beneficial interest in the QIB Restricted
Note equal to the beneficial interest in the Accredited Restricted Note to
be transferred, such instructions to contain information regarding the
participant account with the Depositary to be credited with such increase,
(2) a written order given in accordance with the Applicable Procedures
containing information regarding the participant account of the Depositary
and (3) a certificate in the form of Exhibit B-5 attached hereto given by
the owner of such beneficial interest stating that the Person transferring
such interest in an Accredited Restricted Note reasonably believes that the
Person acquiring such interest in a QIB Restricted Note is a QIB and is
obtaining such beneficial interest in a transaction meeting the
requirements of Rule 144A and any applicable blue sky or securities laws of
any state of the United States, then the Trustee, as Registrar, shall
instruct the Depositary to reduce or cause to be reduced the aggregate
principal amount at maturity of the applicable Accredited Restricted Note
and to increase or cause to be increased the aggregate principal amount at
maturity of the applicable QIB Restricted Note by the principal amount at
maturity of the beneficial interest in the Accredited Restricted Note to be
exchanged, and the Trustee, as Registrar, shall instruct the Depositary,
concurrently with such reduction, to credit or cause to be credited to the
account of the Person specified in such instructions a beneficial interest
in the applicable QIB Restricted Note equal to the reduction in the
aggregate principal amount at maturity of such Accredited Restricted Global
Note and to debit or cause to be debited from the account of the Person
making such transfer the beneficial interest in the Accredited Restricted
Note that is being transferred.
(iv) QIB Restricted Note to Accredited Restricted Note. If, at any
time, an owner of a beneficial interest in a QIB Restricted Note deposited
with the Depositary or with the Trustee as custodian for the Depositary
wishes to transfer its interest in such QIB Restricted Note to a Person who
is required or permitted to take delivery thereof in the form of an
interest in an Accredited Restricted Note, such owner shall, subject to the
Applicable Procedures, exchange or cause the exchange of such interest for
an equivalent beneficial interest in Accredited Restricted Note as provided
in this Section 2.6(a)(iv). Upon receipt by the Trustee of (1) instructions
from the Depositary, directing the Trustee, as Registrar, to
30
credit or cause to be credited a beneficial interest in the Accredited
Restricted Note equal to the beneficial interest in the QIB Restricted Note
to be transferred, such instructions to contain information regarding the
participant account with the Depositary to be credited with such increase,
(2) a written order given in accordance with the Applicable Procedures
containing information regarding the participant account of the Depositary
and (3) a certificate in the form of Exhibit B-6 attached hereto given by
the owner of such beneficial interest stating, that the transfer of such
interest has been made in compliance with the transfer restrictions
applicable to the Global Notes and pursuant to and in accordance with the
requirements of the exemption claimed, such statement to be supported by an
Opinion of Counsel from the transferee or the transferor in form and
substance reasonably acceptable to the Company, then the Trustee, as
Registrar, shall instruct the Depositary to reduce or cause to be reduced
the aggregate principal amount at maturity of the applicable QIB Restricted
Note and to increase or cause to be increased the aggregate principal
amount at maturity of the applicable Accredited Restricted Note by the
principal amount at maturity of the beneficial interest in the QIB
Restricted Note to be exchanged, and the Trustee, as Registrar, shall
instruct the Depositary, concurrently with such reduction, to credit or
cause to be credited to the account of the Person specified in such
instructions a beneficial interest in the applicable Accredited Restricted
Note equal to the reduction in the aggregate principal amount at maturity
of such QIB Restricted Note and to debit or cause to be debited from the
account of the Person making such transfer the beneficial interest in the
QIB Restricted Note that is being transferred.
(b) Transfer and Exchange of Certificated Notes. When Certificated Notes
-------- --- -------- -- ------------ -----
are presented by a Holder to the Registrar with a request:
(x) to register the transfer of the Certificated Notes; or
(y) to exchange such Certificated Notes for an equal principal amount
of Certificated Notes of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested;
provided, however, that the Certificated Notes 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 Xxxxxx
or by his attorney, duly authorized in writing; and
(ii) in the case of a Certificated Note that contains the Private
Placement Legend, such request shall be accompanied by the following
additional information and documents, as applicable:
(A) if such Note is being delivered to the Registrar by a Holder
for registration in the name of such Holder, without
31
transfer, or such Note is being transferred to the Company, a
certification to that effect from such Holder (in substantially the
form of Exhibit B-3 hereto);
(B) if such Note is being transferred to a QIB in accordance
with Rule 144A under the Securities Act or pursuant to an exemption
from registration in accordance with Rule 144 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-3 hereto); or
(C) if such Note is being transferred in reliance on any other
exemption from the registration requirements of the Securities Act, a
certification to that effect from such Holder (in substantially the
form of Exhibit B-3 hereto) and an Opinion of Counsel from such Holder
or the transferee reasonably acceptable to the Company to the effect
that such transfer is in compliance with the Securities Act.
(c) Exchange of a Beneficial Interest in a Restricted Global Note or
-------- -- - ---------- -------- -- - ---------- ------ ---- --
Regulation S Permanent Global Note for a Certificated Note.
---------- - --------- ------ ---- --- - ------------ ----
(i) Any Person having a beneficial interest in a Restricted Global
Note or a Regulation S Permanent Global Note may upon request, subject to
the Applicable Procedures, exchange such beneficial interest for a
Certificated Note. Upon receipt by the Trustee of written instructions or
such other form of instructions as is customary for the Depositary (or
Euroclear or Cedel, if applicable), from the Depositary or its nominee on
behalf of any Person having a beneficial interest in a Restricted Global
Note or Regulation S Permanent Global Note, and a certification (which may
be submitted by facsimile) to the effect that such beneficial interest is
being transferred to the same Person designated by the Depositary as having
the beneficial interest in the portion of the Restricted Global Note being
exchanged (in substantially the form of Exhibit B-4 hereto); 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 Restricted Global Notes or Regulation S Permanent
Global Notes, as applicable, to be reduced accordingly and, following such
reduction, the Company shall execute and the Trustee shall authenticate and
deliver to the Person requesting such exchange a Certificated Note in the
appropriate principal amount.
(ii) Certificated Notes issued in exchange for a beneficial interest
in a Restricted Global Note or Regulation S Permanent Global Note, as
applicable, pursuant to this Section 2.6(c) 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
32
shall deliver such Certificated Notes to the Persons in whose names such
Notes are so registered. Following any such issuance of Certificated Notes,
the Trustee, as Registrar, shall instruct the Depositary to reduce or cause
to be reduced the aggregate principal amount at maturity of the applicable
Global Note to reflect the transfer.
(d) Restrictions on Transfer and Exchange of Global Notes. Notwithstanding
------------ -- -------- --- -------- -- ------ -----
any other provision of this Indenture (other than the provisions set forth in
this Section 2.6(d)), 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.
(e) Transfer and Exchange of a Certificated Note for a Beneficial
-------- --- -------- -- - ------------ ---- --- - ----------
Interest in a Global Note. A Certificated Note may not be transferred or
-------- -- - ------ ----
exchanged for a beneficial interest in a Global Note.
(f) Authentication of Certificated Notes 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 that it elects to cause the issuance of Certificated Notes under
this Indenture, then the Company shall execute, and the Trustee shall, upon
receipt of an authentication order in accordance with Section 2.2 hereof,
authenticate and deliver, Certificated Notes registered in such names and
principal amounts as specified by the Depositary 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), (iii), and
(iv), each Note certificate evidencing Global Notes (and all Notes issued
in exchange therefor or substitution thereof) shall (x) be subject to the
restrictions on transfer set forth in this Section 2.6 (including those set
forth in the legend below) unless such restrictions on transfer shall be
waived by written consent of the Company, and the Holder of each Transfer
Restricted Security, by such Holder's acceptance thereof, agrees to be
bound by all such restrictions on transfer and (y) bear the legend set
forth below (the "Private Placement Legend"):
"THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS AND NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED
33
IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.
EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER MAY BE
RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES
ACT IN CONNECTION WITH THE SALE HEREOF, AND SUCH PURCHASER REPRESENTS,
ACKNOWLEDGES AND AGREES FOR THE BENEFIT OF THE COMPANY THAT: (I) IT HAS
ACQUIRED A "RESTRICTED" SECURITY WHICH HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT; (II) IT WILL NOT OFFER, SELL OR OTHERWISE TRANSFER THIS
SECURITY PRIOR TO THE LATER OF THE DATE WHICH IS THREE YEARS AFTER THE DATE
OF ORIGINAL ISSUANCE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF SUCH RESTRICTED SECURITIES (OR
ANY PREDECESSOR) EXCEPT (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C)
FOR SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A,
TO A PERSON WHO 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, (D) OUTSIDE THE UNITED
STATES IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE
SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND, IN EACH CASE, IN
ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY APPLICABLE JURISDICTION; AND (III) IT WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THIS
SECURITY OF THE RESALE RESTRICTIONS SET FORTH IN (II) ABOVE; ANY OFFER,
SALE OR OTHER DISPOSITION PURSUANT TO THE FOREGOING CLAUSES (II)(D) AND (E)
IS SUBJECT TO THE RIGHT OF THE ISSUER OF THIS SECURITY AND THE TRUSTEE FOR
SUCH SECURITIES TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATIONS OR OTHER INFORMATION ACCEPTABLE TO THEM IN FORM AND
SUBSTANCE.
A HOLDER OF THIS NOTE SHALL HAVE ALL THE RIGHTS SET FORTH IN THE
REGISTRATION RIGHTS AGREEMENT."
(ii) Upon any sale or transfer of a Note that contains the Private
Placement Legend (including any beneficial interests in a Note represented
by a Global Note) pursuant to Rule 144A or Rule 144 under the Securities
Act or pursuant to an effective registration statement under the Securities
Act:
(a) in the case of any Certificated Note, the Registrar shall
permit the Holder thereof to exchange such Note for a Certificated
Note that does not bear the legend set forth in (i) above upon receipt
of a certification from the transferring Holder substantially in the
form of Exhibit B-3 hereto; and
(b) in the case of any beneficial interest in a Note represented
by a Global Note, such Note shall continue to be subject to the
provisions of Section 2.6(a) and (c) hereof; provided, however, that
with respect to any request for an exchange of a beneficial interest
in a Note that is represented by a Global Note for a Certificated Note
that does not bear the legend set forth in (i)
34
above, which request is made in reliance upon Rule 144A or Rule 144 or
pursuant to an effective registration statement, the Holder thereof
shall certify in writing to the Registrar that such request is being
made pursuant to Rule 144A or Rule 144 or pursuant to an effective
registration statement (such certifications to be substantially in the
form of Exhibit B-2) hereto).
(iii) Upon any sale or transfer of a Note that contains the Private
Placement Legend (including any beneficial interests in a Note represented
by a Global Note) in reliance on any exemption from the registration
requirements of the Securities Act (other than exemptions pursuant to Rule
144A, Rule 144 or an effective registration statement under the Securities
Act) in which the Holder or the transferee provides an Opinion of Counsel
to the Company and the Registrar in form and substance reasonably
acceptable to the Company (which Opinion of Counsel shall also state that
the transfer restrictions contained in the Private Placement Legend are no
longer applicable):
(a) in the case of any Certificated Note, the Registrar shall
permit the Holder thereof to exchange such Transfer Restricted
Security for a Certificated Note that does not bear the legend set
forth in (i) above; and
(b) in the case of any beneficial interest in a Note
represented by a Global Note, such Note shall continue to be subject
to the provisions of Section 2.6(a) and (c) hereof but may be
exchanged for a Certificated Note that does not bear the legend set
forth in (i) above.
(iv) Notwithstanding the foregoing, upon consummation of the
Exchange Offer in accordance with the Registration Rights Agreement, the
Company shall issue and, upon receipt of an authentication order in
accordance with Section 2.2 hereof, the Trustee shall authenticate New
Senior Subordinated Notes in exchange for Senior Subordinated Notes
accepted for exchange in the Exchange Offer, which New Senior Subordinated
Notes shall not bear the legend set forth in (i) above, in each case unless
the Company has notified the Registrar in writing that the Holder of such
Senior Subordinated Notes is either (A) a broker-dealer, (B) a Person
participating in the distribution of the Senior Subordinated Notes or (C) a
Person who is an affiliate (as defined in Rule 144A) of the Company.
(v) Each Global Note, whether or not a Transfer Restricted
Security, shall also bear the following legend on the face thereof:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A
DEPOSITARY OR A SUCCESSOR DEPOSITARY. THIS NOTE IS NOT EXCHANGEABLE FOR
NOTES REGISTERED IN THE NAME OF A PERSON OTHER
35
THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A
TRANSFER OF THIS SECURITY 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) MAY BE REGISTERED EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
(vi) Any Global Note may be endorsed with or have incorporated in
the text thereof such legends or recitals or changes not inconsistent with
the provisions of this Indenture as may be required by the Note Custodian,
the Depositary or by the National Association of Securities Dealers, Inc.
in order for the Notes to be tradable on the PORTAL Market or tradable on
Euroclear or Cedel or as may be required for the Notes to be tradable on
any other market developed for trading of securities pursuant to Rule 144A
or Regulation S or required to comply with any applicable law or any
regulation thereunder or with the rules and regulations of any securities
exchange or automated quotation system upon which the Notes may be listed
or traded or to conform with any usage with respect thereto, or to indicate
any special limitations or restrictions to which any particular Notes are
subject.
(h) Cancellation or Adjustment of Global Notes. At such time as all
------------------------------------------
beneficial interests in Global Notes have been exchanged for Certificated Notes,
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 Notes, redeemed, repurchased or canceled, the
principal amount of Notes represented by such Global Notes 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 Notes 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
36
therewith (other than any such transfer taxes or similar governmental
charge payable upon exchange or transfer pursuant to Sections 3.6, 4.10,
4.15 and 9.5 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.
(iv) All Certificated Notes and Global Notes issued upon any
registration of transfer or exchange of Certificated Notes or Global Notes
shall be the valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Certificated
Notes 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 day of any selection of Notes for redemption under Section 3.2
hereof and ending at the close of business on the day of selection; 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 of 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 all payments with respect to such Notes, and
neither the Trustee, any Agent nor the Company shall be affected by notice
to the contrary.
(vii) The Trustee shall authenticate Certificated Notes and Global
Notes in accordance with the provisions of Section 2.2 hereof.
SECTION 2.7. REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Trustee or either the Company
or the Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Note, the Company shall issue and the Trustee, upon receipt of an
authentication order in accordance with Section 2.2 hereof, shall authenticate a
replacement Note if the Trustee's requirements for replacement of Notes are met.
If required by the Trustee or the Company, an indemnity bond must be supplied by
the Holder that is sufficient in the judgment of the Trustee and the Company to
protect the
37
Company, the Trustee, any Agent and any authenticating agent from any loss that
any of them may suffer if a Note is replaced. The Trustee and the Company may
charge the Holder for their expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company and shall
be entitled to all of the benefits of this Indenture equally and proportionately
with all other Notes duly issued hereunder.
SECTION 2.8. 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 or the
Note Custodian in accordance with the provisions hereof, and those described in
this Section as not outstanding. Except as set forth in Section 2.9 hereof, a
Note does not cease to be outstanding because the Company or an Affiliate of the
Company holds the Note.
If a Note is replaced pursuant to Section 2.7 hereof, it shall cease to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser for value.
If the principal amount of any Note is considered paid under Section 4.1
hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an Affiliate
of any 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 2.9. 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 of consent, only
Notes that a Responsible Officer of the Trustee knows are so owned shall be so
disregarded. The Company agrees to notify the Trustee of the existence of any
such treasury Notes or Notes owned by an Affiliate thereof.
SECTION 2.10. TEMPORARY NOTES.
Until Certificated Notes are ready for delivery, the Company may prepare
and the Trustee, upon receipt of an authentication order in accordance with
Section 2.2 hereof, shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form of Certificated Notes, but may have such variations as
the Company considers 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 Notes in exchange for temporary
Notes.
38
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 destroy all
canceled Notes in accordance with the Trustee's usual procedures. The Trustee
shall maintain a record of the destruction of all canceled Notes. Certification
of the destruction of all canceled Notes shall be delivered to the Company. The
Company may not issue new Notes to replace Notes that have been paid or that
have been delivered to the Trustee for cancellation.
SECTION 2.12. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Notes, the Company
shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date, in each case at the rate provided
in the Notes and in Section 4.1 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 fix or cause to be fixed
each such special record date and payment date, provided that no such special
record date shall be less than 10 days prior to the related payment date for
such defaulted interest. 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 Holders a
notice that states the special record date, the related payment date and the
amount of such interest to be paid.
SECTION 2.13. PERSONS DEEMED OWNERS.
Prior to due presentment of a Note for registration of transfer and subject
to Section 2.12 hereof, the Company, the Trustee, any Paying Agent, any co-
registrar and any Registrar may deem and treat the person in whose name any Note
shall be registered upon the register of Notes kept by the Registrar as the
absolute owner of such Note (whether or not such Note shall be overdue and
notwithstanding any notation of the ownership or other writing thereon made by
anyone other than the Company, any co-registrar or any Registrar) for the
purpose of receiving all payments with respect to such Note and for all other
purposes, and none of the Company, the Trustee, any Paying Agent, any co-
registrar or any Registrar shall be affected by any notice to the contrary.
SECTION 2.14. CUSIP NUMBERS.
The Company in issuing the Notes may use a "CUSIP" number, and if so, the
Trustee shall use the CUSIP number in notices of redemption or exchange as a
convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Notes, and that reliance may be placed only on
the other identification numbers printed on the Notes.
39
ARTICLE III.
REDEMPTION AND REPURCHASE
SECTION 3.1 NOTICES TO TRUSTEE.
If the Company elects to redeem Notes pursuant to the provisions of Section
3.7 hereof, it shall furnish to the Trustee, at least 30 days but not more than
60 days before the Redemption Date, an Officers' Certificate of the Company
setting forth the Section of this Indenture pursuant to which the redemption
shall occur, the Redemption Date, the principal amount of Notes to be redeemed
and the Redemption Price.
If the Company is required to offer to repurchase Notes pursuant to the
provisions of Section 4.10 or 4.15 hereof, it shall notify the Trustee in
writing, at least 30 days but not more than 60 days before the Purchase Date, of
the Section of this Indenture pursuant to which the repurchase shall occur, the
Purchase Date, the principal amount of Notes required to be repurchased and the
Purchase Price and shall furnish to the Trustee an Officers' Certificate of the
Company to the effect that (a) the Company is required to make or has made an
Asset Sale Offer or a Change of Control Offer, as the case may be, and (b) the
conditions set forth in Section 4.10 or 4.15 hereof, as the case may be, have
been satisfied.
If the Registrar is not the Trustee, the Company shall, concurrently with
each notice of redemption or repurchase, cause the Registrar to deliver to the
Trustee a certificate (upon which the Trustee may rely) setting forth the
principal amounts of Notes held by each Holder.
SECTION 3.2 SELECTION OF NOTES.
If less than all of the Notes are to be redeemed, the Trustee shall select
the Notes or portions thereof to be redeemed by lot, pro rata or by such other
method as the Trustee shall deem fair and appropriate. In the event of partial
redemption by lot, the particular Notes or portions thereof 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.
If less than all of the Notes tendered are to be repurchased pursuant to
the provisions of Section 4.10 hereof, the Trustee shall select the Notes or
portions thereof to be repurchased on a pro rata basis (with such adjustments as
may be deemed appropriate by the Trustee so that only Notes in denominations of
$1,000, or integral multiples thereof, shall be repurchased).
The Trustee shall promptly notify the Company in writing of the Notes or
portions thereof selected for redemption or repurchase and, in the case of any
Note selected for partial redemption or repurchase, the principal amount thereof
to be redeemed or repurchased. Notes and portions thereof selected shall be in
amounts of $1,000 or integral multiples of $1,000; except that if all of the
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.
40
SECTION 3.3 NOTICE OF OPTIONAL REDEMPTION.
In the event Notes are to be redeemed pursuant to Section 3.7 hereof, at
least 30 days but not more than 60 days before the Redemption Date, the Company
shall mail a notice of redemption to each Holder whose Notes are to be redeemed
in whole or in part at its registered address, with a copy to the Trustee.
The notice shall identify the Notes or portions thereof to be redeemed and
shall state :
(a) the Redemption Date;
(b) the Redemption Price;
(c) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the Redemption
Date, upon surrender of such Note, a new Note or Notes in principal amount
equal to the unredeemed portion will be issued;
(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, Liquidated Damages, if any,
and, unless the Redemption Date is after a record date and on or before the
succeeding Interest Payment Date, accrued interest thereon to the
Redemption Date;
(f) that, unless the Company defaults in making the redemption
payment, interest and any Liquidated Damages on Notes called for redemption
will cease to accrue on and after the Redemption Date, and the only
remaining right of the Holders of such Notes is to receive payment of the
Redemption Price, any Liquidated Damages and, unless the Redemption Date is
after a record date and on or before the succeeding Interest Payment Date,
accrued interest thereon to the Redemption Date upon surrender to the
Paying Agent of the Notes redeemed;
(g) if fewer than all the Notes are to be redeemed, the
identification of the particular Notes (or portions thereof) to be
redeemed, as well as the aggregate principal amount of the Notes to be
redeemed and the aggregate principal amount of Notes to be outstanding
after such partial redemption; and
(h) the paragraph of the Notes pursuant to which the Notes called for
redemption are being redeemed.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at its expense; provided that the Company shall
deliver to the Trustee, at least 40 days prior to the Redemption Date, an
Officers' Certificate of the Company requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as provided
in the preceding paragraph.
41
SECTION 3.4. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed, Notes or portions thereof called for
redemption become due and payable on the Redemption Date at the Redemption
Price. Upon surrender to any Paying Agent, such Notes or portions thereof shall
be paid at the Redemption Price, plus Liquidated Damages, if any, and accrued
interest to the Redemption Date; provided, however, that installments of
interest which are due and payable on or prior to the Redemption Date shall be
payable to the Holders of such Notes, registered as such, at the close of
business on the relevant record date for the payment of such installment of
interest.
SECTION 3.5. DEPOSIT OF REDEMPTION PRICE OR PURCHASE PRICE.
On or before each Redemption Date or Purchase Date, the Company shall
irrevocably deposit with the Trustee or with the Paying Agent money sufficient
to pay the aggregate amount due on all Notes to be redeemed or repurchased on
that date, including without limitation any accrued and unpaid interest and
Liquidated Damages, if any, to the Redemption Date or the Purchase Date. Upon
written request by the Company, the Trustee or the Paying Agent shall promptly
return to the Company any money not required for that purpose.
Unless the Company defaults in making such payment, interest and any
Liquidated Damages on the Notes to be redeemed or repurchased will cease to
accrue on the applicable Redemption Date or Purchase Date, whether or not such
Notes are presented for payment. If any Note called for redemption or required
to be accepted for repurchase shall not be so paid upon surrender because of the
failure of the Company to comply with the preceding paragraph, interest will be
paid on the unpaid Redemption Price or Purchase Price, from the applicable
Redemption Date or Purchase Date until such amount is paid, and on any interest
and Liquidated Damages not paid on such amount, in each case at the rate
provided in the Notes and in Section 4.1 hereof.
SECTION 3.6. NOTES REDEEMED OR REPURCHASED IN PART.
Upon surrender of a Note that is redeemed or repurchased in part, the
Company shall issue and the Trustee shall authenticate for the Holder at the
expense of the Company a new Note equal in principal amount to portion of the
Note surrendered that is not to be redeemed or repurchased.
SECTION 3.7. OPTIONAL REDEMPTION.
(a) The Notes will not be redeemable at the Company's option prior to
January 15, 2001. Thereafter, the Notes will be subject to redemption at the
option of the Company, in whole or in part, upon not less than 30 nor more than
60 days' 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 January 15 of the years indicated below:
42
REDEMPTION REDEMPTION
DATE PRICE
2001 105.000%
2002 102.500%
2003 and thereafter 100.000%
Notwithstanding the foregoing, prior to January 15, 2000, the Company may
in its discretion redeem up to an aggregate of $25.0 million in principal amount
of the Notes at a Redemption Price of 110% of the principal amount thereof, in
each case plus accrued and unpaid interest and Liquidated Damages, if any,
thereon to the Redemption Date, with the net proceeds of one or more public
offerings of Common Stock of the Company; provided, that at least $60.0 million
in aggregate principal amount of the Notes remain outstanding immediately after
the occurrence of such redemption; and provided, further, that such redemption
shall occur within 90 days of the date of the closing of such public offering of
Common Stock of the Company.
(b) Any redemption pursuant to this Section 3.7 shall be made pursuant to
the provisions of Sections 3.1 through 3.6 hereof.
SECTION 3.8. REPURCHASE UPON CHANGE OF CONTROL OFFER.
In the event that, pursuant to Section 4.15 hereof, the Company shall be
required to commence a Change of Control Offer, it shall follow the procedures
specified below.
The Change of Control Offer shall remain open for a period from the date of
the mailing of the notice of the Change of Control Offer described in the next
paragraph until a date determined by the Company which is at least 30 but no
more 60 days after the date of mailing of such notice and no longer, except to
the extent that a longer period is required by applicable law (the "Change of
Control Offer Period"). On the Purchase Date, which shall be no later than the
last day of the Change of Control Offer Period, the Company shall purchase the
principal amount of Notes properly tendered in response to the Change of Control
Offer. Payment for any Notes so purchased shall be made in the same manner as
interest payments are made.
Within 30 days following any Change of Control, the Company shall send, by
first class mail, a notice to the Trustee and each of the Holders. The notice
shall contain all instructions and materials necessary to enable such Holders to
tender Notes pursuant to the Change of Control Offer. The Change of Control
shall be made to all Holders. The notice, which shall govern the terms of the
Change of Control Offer, shall state:
(a) the transaction or transactions that constitute the Change of
Control, providing information, to the extent publicly available, regarding
the Person or Persons acquiring control, and stating that the Change of
Control Offer is being made pursuant to this Section 3.8 and Section 4.15
hereof and that, to the extent lawful, all Notes tendered will be accepted
for payment;
43
(b) the Purchase Price, the last day of the Change of Control Offer
Period, and the Purchase Date;
(c) that any Note not properly tendered will continue to accrue
interest and Liquidated Damages, if any;
(d) that, unless the Company defaults in the payment of the amount
due on the Purchase Date, all Notes or portions thereof accepted for
repurchase pursuant to the Change of Control Offer shall cease to accrue
interest and Liquidated Damages, if any, on the Purchase Date;
(e) that Holders electing to have any Notes purchased pursuant to the
Change of Control Offer will be required to tender the Notes, with the form
entitled "Option of Holder To Elect Purchase" on the reverse of the Notes
completed, or transfer by book-entry transfer, to the Company, a
Depositary, if appointed by the Company, or a Paying Agent at the address
specified in the notice not later than the third Business Day preceding the
Purchase Date;
(f) that Holders will be entitled to withdraw their election if the
Company, the Depositary or the Paying Agent, as the case may be, receives,
not later than the close of business on the Business Day immediately
preceding the Purchase Date, a telegram, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of Notes
delivered for repurchase, and a statement that such Xxxxxx is withdrawing
his election to have the Notes redeemed in whole or in part; and
(g) that Holders whose Notes are being repurchased only in part will
be issued new Notes equal in principal amount to the portion of the Notes
tendered (or transferred by book-entry transfer) that is not to be
repurchased, which portion must be equal to $1,000 in principal amount or
an integral multiple thereof.
On the Purchase 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 Purchase Price, together with accrued and unpaid interest and Liquidated
Damages, if any, thereon to the Purchase Date in respect of all Notes or
portions thereof so tendered and accepted for repurchase and (iii) deliver or
cause to be delivered to the Trustee the Notes so accepted together with an
Officers' Certificate of the Company stating the aggregate principal amount of
Notes or portions thereof being repurchased by the Company. The Paying Agent
shall promptly mail to each Holder of Notes so repurchased the amount due in
connection with such Notes, and the Company shall promptly issue a new Note, and
the Trustee, upon written request from the Company in the form of an Officers'
Certificate of the Company shall authenticate and mail or deliver (or cause to
transfer by book entry) to each relevant Holder a new Note, in a principal
amount equal to any unpurchased portion of the Notes surrendered, if any, to the
Holder thereof; 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 Purchase Date.
44
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 and
Liquidated Damages, if any, in each case to the Purchase Date, 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 or Liquidated Damages shall be payable
to Holders pursuant to the Change of Control Offer.
SECTION 3.9. REPURCHASE UPON APPLICATION OF EXCESS PROCEEDS.
In the event that, pursuant to Section 4.10 hereof, the Company shall be
required to commence an Asset Sale Offer, it shall follow the procedures
specified below.
The Asset Sale Offer shall remain open for a period from the date of the
mailing of the notice of the Asset Sale Offer described in the next paragraph
until a date determined by the Company which is at least 30 but no more 60 days
after the date of mailing of such notice and no longer, except to the extent
that a longer period is required by applicable law (the "Asset Sale Offer
Period"). On the Purchase Date, which shall be no later than the last day of the
Asset Sale Offer Period, the Company shall purchase the principal amount of
Notes required to be purchased pursuant to Section 4.10 hereof (the "Offer
Amount") or, if less than the Offer Amount has been properly tendered, all Notes
properly 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.
Within 30 days following the accumulation of sufficient Excess Proceeds to
obligate the Company to commence an Asset Sale Offer, the Company shall send, by
first class mail, a notice to the Trustee and each of the Holders. The notice
shall contain all instructions and materials necessary to enable such Holders to
tender Notes pursuant to the Asset Sale Offer. The Asset Sale Offer shall be
made to all Holders. The notice, which shall govern the terms of the Asset Sale
Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this Section
3.9 and Section 4.10 hereof;
(b) the Offer Amount, the Purchase Price, the last day of the Asset
Sale Offer Period, and the Purchase Date;
(c) that any Note not properly tendered or otherwise not accepted for
repurchase shall continue to accrue interest and Liquidated Damages, if
any;
(d) that, unless the Company defaults in the payment of the amount
due on the Purchase Date, all Notes or portions thereof accepted for
repurchase pursuant to the Asset Sale Offer shall cease to accrue interest
and Liquidated Damages, if any, on the Purchase Date;
(e) that Holders electing to have any Notes repurchased pursuant to
any Asset Sale Offer shall be required to tender the Notes, with the form
entitled "Option of Holder To Elect Purchase" on the reverse of the Notes
completed, or transfer by book-entry transfer, to the Company, a
Depositary, if appointed by the
45
Company, or a Paying Agent at the address specified in the notice prior to
the close of business on the third Business Day preceding the Purchase
Date;
(f) that Holders will be entitled to withdraw their election if the
Company, the Depositary or the Paying Agent, as the case may be, receives,
not later than the close of business on the Business Day immediately
preceding the Purchase Date, a telegram, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the Notes
delivered for repurchase and a statement that such Xxxxxx is withdrawing
his election to have such Notes repurchased in whole or in part;
(g) that, if the aggregate principal amount of Notes tendered for
repurchase by Holders exceeds the Offer Amount, the Trustee shall select
the Notes or portions thereof to be purchased on a pro rata basis (with
such adjustments as may be deemed appropriate by the Trustee so that only
Notes in denominations of $1,000, or integral multiples thereof, shall be
purchased); and
(h) that Holders whose Notes are being repurchased only in part will
be issued new Notes equal in principal amount to the portion of the Notes
tendered (or transferred by book-entry transfer) that is not to be
repurchased, which portion must be equal to $1,000 in principal amount or
an integral multiple thereof.
On the Purchase Date, the Company shall, to the extent lawful, (i) accept
for payment, on a pro rata basis in accordance with this Indenture to the extent
necessary, the Offer Amount of Notes or portions thereof properly tendered
pursuant to the Asset Sale Offer, or if less than the Offer Amount has been
tendered, all Notes properly tendered, (ii) deposit with the Paying Agent an
amount equal to the Purchase Price, plus accrued and unpaid interest and
Liquidated Damages, if any, thereon to the Purchase Date in respect of all Notes
or portions thereof so tendered and accepted for repurchase and (iii) deliver or
cause to be delivered to the Trustee the Notes so accepted together with an
Officers' Certificate of the Company stating the aggregate principal amount of
Notes or portions thereof being repurchased by the Company. The Paying Agent
shall promptly mail to each Holder of Notes so tendered the amount due in
connection with such Notes, and the Company shall promptly issue a new Note, and
the Trustee, upon written request from the Company in the form of an Officers'
Certificate of the Company shall authenticate and mail or deliver (or cause to
be transferred by book entry) such new Note to such Holder, in a principal
amount equal 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 Asset Sale Offer on or as soon as practicable after the Purchase Date.
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 and
Liquidated Damages, if any, in each case to the Purchase Date, 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 or Liquidated Damages shall be payable
to Holders to the Asset Sale Offer.
46
ARTICLE IV.
COVENANTS
SECTION 4.1. PAYMENT OF PRINCIPAL AND INTEREST.
The Company shall pay or cause to be paid the principal, Redemption Price
and Purchase Price of, and interest on the Notes on the dates, in the amounts
and in the manner provided herein and in the Notes. Principal, Redemption Price,
Purchase Price and interest shall be considered paid on the date due if the
Paying Agent, if other than the Company, holds as of 12:00 noon Eastern Time on
the due date money deposited by the Company in immediately available funds and
designated for and sufficient to pay the aggregate amount then due. The Company
shall pay all Liquidated Damages, if any, on the dates, in the amounts and in
the manner set forth in the Registration Rights Agreement.
The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal, Redemption Price and
Purchase Price at the rate equal to 1% per annum in excess of the then
applicable interest rate on the Notes to the extent lawful; it shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Liquidated Damages
(without regard to any applicable grace period) at the same rate to the extent
lawful.
SECTION 4.2. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in the Borough of Manhattan, the City 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 for 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
or its obligations to maintain an office or agency in the Borough of Manhattan,
the City 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 as
one such office or agency of the Company in accordance with Section 2.3. The
Trustee may resign such agency at any time by giving written notice to the
Company no later than 30 days prior to the effective date of such resignation.
47
SECTION 4.3. REPORTS.
Whether or not required by the rules and regulations of the Commission, so
long as any of the Notes are outstanding, the Company shall, and, if the Company
is required to file financial statements for any Guarantor, shall cause such
Guarantor to, furnish to the Holders of the Notes, within 15 days after they are
or would have been required to file such with the Commission, (i) all quarterly
and annual financial information that would be required to be contained in
filings with the Commission on Forms 10-Q and 10-K if the Company and/or any
Guarantor were required to file such forms, including "Management's Discussion
and Analysis of Financial Condition and Results of Operations" and, with respect
to annual consolidated financial statements and schedules only, a report thereon
by the certified independent accountants of the Company and/or any Guarantor,
and (ii) all information that would be required to be contained in filings with
the Commission on Form 8-K if the Company and/or any Guarantor were required to
file such form. In addition, whether or not required by the rules and
regulations of the Commission, the Company and/or any Guarantor shall file a
copy of all such information and reports with the Commission for public
availability (unless the Commission will not accept such a filing) and make such
information available to securities analysts and prospective investors upon
request. Upon qualification of this Indenture under the TIA, the Company shall,
and shall cause each Guarantor to, at all times comply with TIA (S) 314(a). In
addition, the Company shall, and shall cause any Guarantor, for so long as any
Notes remain outstanding, to 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.
SECTION 4.4. COMPLIANCE CERTIFICATE.
(a) The Company shall deliver to the Trustee, within 105 days after the
end of each fiscal year, an Officers' Certificate of the Company 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 the Company has kept, observed,
performed and fulfilled its obligations under this Indenture in all material
respects, and further stating, as to each such Officer signing such certificate,
that to the best of his or her knowledge the Company has kept, observed,
performed and fulfilled each and every covenant contained in the Indenture in
all material respects and is not in Default in the performance or observance of
any of the terms, provisions and conditions of this Indenture (and, 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 that to the best of his
or her knowledge no event has occurred and remains in existence by reason of
which payments on account of the principal of or interest, if any, on the Notes
is prohibited or if such event has occurred, a description of the event.
(b) Each of the Guarantors shall deliver to the Trustee, within 105 days
after the end of each fiscal year, an Officers' Certificate of each such
Guarantor stating that a review of the activities of such Guarantor and its
Subsidiaries during the preceding fiscal year has been made under the
supervision of the signing Officers with a view to determining whether the
Guarantor has kept, observed, performed and fulfilled its obligations under this
Indenture in all material respects, and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge the Guarantor
has kept, observed, performed and fulfilled each and every
48
covenant contained in the Indenture in all material respects and is not in
Default in the performance or observance of any of the terms, provisions and
conditions of this Indenture (and, 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.
(c) 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 4.3 above shall be accompanied by a
written statement of the independent public accountants (who shall be a firm of
established national reputation) of the Company or the Guarantor, as applicable,
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 or Guarantor, as the case may be, has violated any provisions
of Article IV or Article V hereof, in the case of the Company, and Article IV or
XI hereof, in the case of the Guarantor, 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.
(d) The Company and each Guarantor shall, so long as any of the Notes are
outstanding, deliver to the Trustee, forthwith (and in any event within five
days) upon any of its Officers becoming aware of any Default or Event of Default
an Officers' Certificate of the Company or such Guarantor, as applicable,
specifying such Default or Event of Default.
SECTION 4.5. TAXES.
The Company shall pay or discharge, and shall cause each of its
Subsidiaries to pay or discharge, prior to delinquency, all material taxes,
assessments, and governmental levies except such as are contested in good faith
and by appropriate proceedings or where the failure to effect such payment is
not adverse in any material respect to the Holders of the Notes.
SECTION 4.6. 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 shall 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 such law has not
been enacted.
SECTION 4.7. 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 in respect 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
49
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 or dividends or distributions payable to the Company or any Wholly Owned
Subsidiary 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 or other Affiliate of the Company (other than a Wholly Owned
Subsidiary of the Company); (iii) make any principal payment on, or purchase,
redeem, defease or otherwise acquire or retire for value, prior to any scheduled
maturity, scheduled repayment or scheduled sinking fund payment date, any
Indebtedness that is subordinated to the Notes; 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;
(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
Section 4.9 hereof; and
(c) such Restricted Payment, together with the aggregate of all other
Restricted Payments made by the Company and its Subsidiaries after the date
hereof (excluding Restricted Payments permitted by clauses (2) and (3) 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 date hereof 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 date hereof of Equity
Interests of the Company or of debt securities of the Company that
have been converted into or exchanged for 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 date hereof is sold for cash or otherwise liquidated or
repaid for cash, the lesser of (A) the cash return of capital with
50
respect to such Restricted Investment (less the cost of disposition,
if any) and (B) the initial amount of such Restricted Investment, plus
(iv) $500,000.
The foregoing provisions shall not prohibit:
(1) 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;
(2) 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 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;
(3) the defeasance, redemption, repurchase or payment of principal of
Indebtedness that is subordinated to the Notes 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;
(4) (A) the acquisition or assumption of the indebtedness evidenced
by the Bond Agreement by and among New Jersey Economic Development
Authority, Xxxxx Fargo Armored Service Corporation, the purchasers
thereunder, and Mellon Bank, N.A., as trustee, dated June 1, 1984, in the
original principal amount of $1.0 million (the "IRB"), (B) the payment of
principal, interest, or premiums, if any, in connection with the
redemption, repurchase or maturity of the IRB, (C) the payment or
reimbursement of costs, expenses and taxes as may be incurred by Xxxxx
Fargo Armored Service Corporation after the Issue Date with respect to
maintaining the property to which the IRB relates, (D) the payment to the
original holders under the IRB or their assignees of any amount required to
cancel or retire the IRB and the indebtedness evidenced thereby and (E) the
reimbursement of costs and expenses incurred by Xxxxx Fargo Armored Service
Corporation in redeeming or repurchasing the IRB at the request or
direction of the Company;
(5) 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
51
as of the date hereof; provided that (i) the aggregate price paid for all
such repurchased, redeemed, acquired or retired Equity Interests shall not
exceed $250,000 in any twelve-month period plus the aggregate cash proceeds
received by the Company during such twelve-month period from any reissuance
of Equity Interests by the Company to members of management of the Company
and its Subsidiaries; (ii) the cash proceeds from any such reissuance shall
be excluded from clause (c)(ii) of the preceding paragraph; and (iii) no
Default or Event of Default shall have occurred and be continuing
immediately after such transaction.
Notwithstanding anything contained in this Indenture to contrary, the
events described in clause (4) of the preceding paragraph (each, an "IRB
Payment Event") shall be excluded from the definition of Restricted
Payments.
The amount of all Restricted Payments (other than cash) shall be the fair market
value (evidenced by a resolution of the Board set forth in an Officers'
Certificate of the Company 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 of the Company stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by this Section 4.7 were computed, which calculations may
be based upon the Company's latest available financial statements.
SECTION 4.8. 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 such 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 date hereof,
(b) the New Credit Facility as in effect on the date hereof and any
amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings thereof, provided that such
amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings are no more restrictive with
respect to such dividend
52
and other payment restrictions than those contained in the New Credit
Facility as in effect on the date hereof,
(c) this Indenture and the Notes,
(d) applicable law,
(e) any instrument or agreement governing Acquired Debt of the
Company or any of its Subsidiaries or Capital Stock of a Person acquired by
the Company or any of its Subsidiaries as in effect at the time of such
acquisition (except to the extent such Acquired Debt was incurred or such
Capital Stock was issued in connection with or in contemplation of such
acquisition), which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other than the Person,
or the property or assets of the Person, so acquired, provided that in the
case of Indebtedness, such Indebtedness was permitted by the terms of this
Indenture to be incurred and provided, further, that the Consolidated Cash
Flow of such Person is not taken into account in determining whether such
Indebtedness is permitted,
(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, or
(h) Permitted Refinancing Debt, provided that the restrictions
contained in the agreements governing such Permitted Refinancing Debt are
no more restrictive than those contained in the agreements governing the
Indebtedness being refinanced.
SECTION 4.9. 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, guarantee or otherwise
become directly or indirectly liable, contingently or otherwise, with respect to
(collectively, "incur") any Indebtedness (including Acquired Debt) and the
Company shall not issue any Disqualified Stock and shall not permit any of its
Subsidiaries to issue any shares of Disqualified Stock or Preferred Stock (other
than to the Company or a Wholly Owned Subsidiary of the Company); provided,
however, that the Company and its Subsidiaries may incur Indebtedness (including
Acquired Debt) and the Company (but not any of its Subsidiaries) may 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 2.0 to 1.0, determined on a pro forma basis (including a pro
forma application of the net proceeds therefrom), as if the
53
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 the incurrence of the following
Indebtedness:
(i) the incurrence by the Company of Senior Debt under the New
Credit Facility and letters of credit thereunder in an aggregate principal
amount at any time outstanding (with letters of credit (other than
Insurance Letters of Credit) being deemed to have a principal amount equal
to the maximum potential liability of the Company and its Subsidiaries
thereunder) not to exceed an amount equal to $100.0 million under the New
Credit Facility less the aggregate amount of all Net Proceeds of Asset
Sales applied to permanently reduce the commitments with respect to such
Indebtedness pursuant to Section 4.10 hereof;
(ii) the incurrence by the Company and its Subsidiaries of Existing
Indebtedness;
(iii) the incurrence by the Company of Indebtedness represented by
the Notes;
(iv) the incurrence by the Company or any of its Subsidiaries of
additional Indebtedness represented by Capital Lease Obligations, mortgage
financings, purchase money obligations or Acquired Debt, in each case
incurred for the purpose of financing or refinancing 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 or such Subsidiary, in an
aggregate principal amount not to exceed $5.0 million at any time
outstanding;
(v) the incurrence in the ordinary course of business by the
Company or any of its Subsidiaries of Indebtedness in respect of Insurance
Letters of Credit;
(vi) the incurrence by any Subsidiary of the Company of Indebtedness
under a Guarantee of any Indebtedness permitted under this Indenture to be
incurred by the Company; provided that (a) in the case such Guarantee is of
Indebtedness that is pari passu in right of payment with the Notes, all
obligations with respect to the Notes are Guaranteed on an equal and
ratable basis with the Indebtedness so Guaranteed, and (b) in the case such
Guarantee is of Indebtedness that is subordinated in right of payment to
the Notes, all obligations with respect to the Notes are Guaranteed on a
senior basis reflecting the subordination of the Indebtedness so Guaranteed
on terms substantially similar to, or more favorable to senior creditors
than, those contained in this Indenture;
(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;
54
(viii) the incurrence by the Company or any of its Subsidiaries of
intercompany Indebtedness between or among the Company and any of its
Wholly Owned Subsidiaries; provided, however, that (x) if the Company is
the obligor of such Indebtedness, such Indebtedness is evidenced by a note
and expressly subordinate to the payment in full of all Obligations with
respect to the Notes and (y)(I) any subsequent issuance, transfer or other
disposition of Equity Interests that results in any such Indebtedness being
held by a Person other than the Company or a Wholly Owned Subsidiary and
(II) any sale, transfer or other disposition of any such Indebtedness to a
Person that is not either the Company or a Wholly Owned Subsidiary shall be
deemed, in each case, to constitute an incurrence of such Indebtedness by
the Company or such Subsidiary, as the case may be;
(ix) the incurrence by the Company or any of its Subsidiaries of
Hedging Obligations that are incurred for the purpose of fixing or hedging
interest rate risk with respect to any floating rate Indebtedness that is
permitted by the terms of this Indenture to be outstanding;
(x) the incurrence by the Company or any of its Subsidiaries of
Indebtedness in respect of bid, performance or advance payment bonds, and
appeal and surety bonds;
(xi) the incurrence by the Company of Indebtedness as part of the
IRB Payment Even t;
(xii) 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 $10.0 million; and
(xiii) the incurrence by the Company or any of its Subsidiaries of
interest, fees or other expenses on Indebtedness otherwise permitted under
this covenant, provided that such interest, fees or other expenses are
payable on a current basis no less frequently than semi-annually and are
paid when due or within any applicable customary grace period thereafter,
not to exceed thirty days.
For purposes of determining compliance with this covenant, (i) in the event that
an item of Indebtedness meets the criteria of more than one of the types of
Indebtedness permitted by this covenant, the Company in its sole discretion will
classify such item of Indebtedness and will only be required to include the
amount and type of each class of Indebtedness in the test specified in the first
paragraph of this covenant or in one of the clauses of the second paragraph of
this covenant; (ii) the amount of Indebtedness issued at a price which is less
than the principal amount thereof shall be equal to the amount of liability in
respect thereof determined in accordance with GAAP, unless the Company shall
elect upon written notice to the Trustee at the time of issuance of such
Indebtedness, to qualify the extended principal amount or final accreted value
thereof as permitted under the terms of this Section 4.9; and (iii) the amount
of Indebtedness represented by a Guarantee of a primary obligation of another
Person shall be deemed to be the lower of (x) an
55
amount equal to the maximum amount of the primary obligation (including without
limitation all principal, premiums (if any), interest, fees and all other
amounts in respect thereof) in respect of which such Guarantee is made and (y)
the maximum amount for which such guaranteeing Person may be liable pursuant to
the terms of the applicable Guarantee, which, in any case in which such
Guarantee consists solely of the granting of a Lien on any asset of such
guaranteeing Person, shall be limited to the fair market value of such asset.
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 (evidenced by a resolution of the Board set forth in an
Officers' Certificate of the Company delivered to the Trustee) of the assets or
Equity Interests issued or sold or otherwise disposed of and (ii) at least 75%
of the consideration therefor received by the Company or such Subsidiary is in
the form of Cash Equivalents; 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 of its Subsidiaries (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 securities received by the Company or any such Subsidiary from such
transferee that are immediately converted by the Company or such Subsidiary into
cash or Cash Equivalents (to the extent of the cash or Cash Equivalents
received), shall be deemed to be cash or Cash Equivalents for purposes of this
provision.
Within 360 days after the receipt of any Net Proceeds from an Asset Sale,
the Company or the applicable Subsidiary may apply such Net Proceeds, at its
option, (a) to permanently reduce outstanding Senior Debt, including without
limitation Indebtedness under the New Credit Facility (and to correspondingly
reduce commitments with respect thereto) or (b) 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 the Asset
Sale. Pending the final application of any such Net Proceeds, the Company or the
applicable Subsidiary may temporarily reduce Senior Debt, including without
limitation Indebtedness under the New Credit Facility 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 will be deemed to constitute "Excess Proceeds."
Within 30 days after the aggregate amount of Excess Proceeds exceeds $5.0
million, the Company shall make an offer to all Holders of Notes (an "Asset Sale
Offer") to purchase an aggregate principal amount of Notes equal to such Excess
Proceeds, at a Purchase Price in cash in an amount equal to 100% of the
principal amount thereof, plus accrued and unpaid interest and Liquidated
Damages, if any, thereon to the Purchase Date. The Asset Sale Offer shall be
made in compliance with all applicable laws, including, without limitation, 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 an Asset
56
Sale, and the applicable procedures set forth in Article III hereof and shall
include all instructions and materials necessary to enable Holders to tender
their Notes.
To the extent that the aggregate amount of Notes tendered pursuant to an
Asset Sale Offer is less than the Excess Proceeds, the Company or the applicable
Subsidiary may use any remaining Excess Proceeds for any purpose not prohibited
by this Indenture. If the aggregate principal amount of Notes surrendered by
Holders thereof exceeds the Offer Amount, the Trustee shall select the
particular Notes or portions thereof to be purchased in accordance with Article
III hereof. Upon completion of such Asset Sale Offer, the amount of Excess
Proceeds shall be reset at zero.
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 could
have been reasonably 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 set forth in an Officers' Certificate of the Company 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 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 Company of
such Affiliate Transaction from a financial point of view issued by an
accounting, appraisal or investment banking firm of national standing;
provided that (u) the Contribution Agreement and the transactions contemplated
thereunder, (v) the stockholders agreement, entered into on the Issue Date,
among the Company and Xxxxx Fargo Armored Service Corporation, the Business
Trust and Xxxxxxx Partners, L.P., including without limitation the issuance of
the NOL Note, (w) the indemnification of officers and directors of the Company
or its Subsidiaries in accordance with the charters and by-laws of the Company
and its Subsidiaries or pursuant to director indemnification agreements, (x) 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, (y) transactions between or among the Company or its
Wholly Owned Subsidiaries and (z) Restricted Payments, Permitted
57
Investments and IRB Payment Events that are permitted by the provisions of
Section 4.7 of this Indenture in each case, shall not be deemed Affiliate
Transactions.
Notwithstanding the foregoing, clause (ii) in the preceding paragraph shall
not apply to any agreement for the provision of security services and related
goods in connection therewith between the Company or any of its Subsidiaries and
an Affiliate that (x) provides for rates that are at least as favorable as
standard published rates then offered by the Affiliate in question or (y) is
entered into pursuant to a commercially bid arrangement in which at least two
Persons that are not Affiliates have been asked to participate.
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 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. CONTINUED EXISTENCE.
Subject to Article V hereof, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect (i) its corporate
existence in accordance with the organizational documents (as the same may be
amended from time to time) of the Company and (ii) the material rights (charter
and statutory), licenses and franchises of the Company, except to the extent
that the Board determines in good faith that the preservation of such right,
license or franchise is no longer necessary or desirable in the conduct of the
business of the Company and its Subsidiaries taken as a whole and that the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 4.14. INSURANCE MATTERS.
The Company shall provide or cause to be provided, for itself and each of
its Subsidiaries, insurance (including appropriate self-insurance) against loss
or damage of the kinds that, in the reasonable, good faith opinion of the
Company, are adequate and appropriate for the conduct of the business of the
Company and its Subsidiaries in a prudent manner, with reputable insurers or
with the government of the United States of America or an agency or
instrumentality thereof, in such amounts, with such deductibles, and by such
methods as shall be either (i) consistent with past practices of the Company or
the applicable Subsidiary or (ii) customary, in the reasonable, good faith
opinion of the Company, for corporations similarly situated in the industry,
unless the failure to provide such insurance (together with all other such
failures) would not have a material adverse effect on the financial condition or
results of operations of the Company and its Subsidiaries, taken as a whole.
SECTION 4.15. OFFER TO REPURCHASE UPON 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 (a "Change of Control
Offer") at a Purchase Price in cash equal to 101%
58
of the aggregate principal amount thereof, together with accrued and unpaid
interest and Liquidated Damages, if any, thereon to the Purchase Date. The
Change of Control Offer shall be made in compliance with all applicable laws,
including, without limitation, 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, and the applicable procedures set forth in
Article III hereof and shall include all instructions and materials necessary to
enable Holders to tender their Notes.
SECTION 4.16. LIMITATION ON FUTURE SUBORDINATED INDEBTEDNESS.
The Company shall not incur, create, issue, assume, Guarantee or otherwise
become liable for any Indebtedness that is subordinate or junior in right of
payment to any Senior Debt and senior in right of payment to the Notes.
SECTION 4.17. PAYMENTS FOR CONSENT.
The Company shall not, and shall not permit any of its Subsidiaries to,
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.
SECTION 4.18. RESTRICTIONS UNDER SENIOR DEBT.
Prior to giving notice to Holders of Notes relating to a Change of Control
Offer or an Asset Sale Offer, but in any event within 90 days following a Change
of Control or the accumulation of Excess Proceeds in excess of $5.0 million, the
Company shall (i) repay, or otherwise make arrangements satisfactory to the
holders of all Senior Debt for the repayment of, all Senior Debt in full or
offer to repay all such Senior Debt in full and have repaid, or otherwise made
arrangements satisfactory to the holders of all Senior Debt for the repayment
of, all Senior Debt in full of any lender who accepts such offer; or (ii) obtain
the requisite consents under the New Credit Facility or under agreements
relating to other Senior Debt to purchase Notes as required by this Indenture.
SECTION 4.19. SALE AND LEASEBACK TRANSACTIONS.
The Company shall not, nor shall it permit any of its Subsidiaries to,
enter into any sale and leaseback transaction; provided that the Company may
enter into a sale and leaseback transaction if (i) the Company could have (a)
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 Section 4.9 hereof and (b) incurred a Lien to secure such
Indebtedness pursuant to Section 4.12 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 and set forth in an Officers'
Certificate of the Company delivered to the Trustee) of the property that is the
subject of such sale and leaseback transaction and (iii) the transfer of assets
in
59
such sale and leaseback transaction is permitted by, and the Company applies the
proceeds of such transaction in compliance with, Section 4.10 hereof.
SECTION 4.20. SUBSIDIARY GUARANTEES.
(a) The Company shall cause each of LFC, the Operating Subsidiary, Xxxxx
Fargo of Texas and Xxxxx Fargo of Puerto Rico to deliver a Subsidiary Guarantee
by executing this Indenture on the Issue Date. In addition, the Company shall
cause each Subsidiary of the Company created or acquired after the date hereof
that either (i) Guarantees any Senior Debt of the Company or any Indebtedness of
the Company that is pari passu in right of payment with the Notes or (ii) is or
becomes a Significant Subsidiary (whether as a result of creation, acquisition,
additional investment, internal growth or otherwise), not later than fifteen
(15) days after such execution, creation or acquisition to (A) execute a
Supplemental Indenture and deliver such Supplemental Indenture and an Opinion of
Counsel in form acceptable to the Trustee (as set forth in paragraph (b) below)
to the Trustee and (B) execute a written agreement (the "Letter Agreement") to
be bound by the terms of the Registration Rights Agreement with the same force
and effect as if such Subsidiary had been a Guarantor and an original party to
the Registration Rights Agreement and deliver such agreement and an Opinion of
Counsel in form acceptable to the Trustee (as set forth in paragraph (b) below)
to the Trustee.
(b) The Opinion of Counsel required by clause (a) above shall state that
the Supplemental Indenture and the Letter Agreement have been duly authorized,
executed and delivered by such Subsidiary, that the obligations of such
Subsidiary under such Supplemental Indenture and such Letter Agreement are
enforceable against such Subsidiary in accordance with their terms and that
delivery by such Subsidiary of each of the Supplemental Indenture and the Letter
Agreement will not (i) result in any violation of the provisions of the charter
or bylaws of such Subsidiary, (ii) to the best knowledge of such counsel,
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan or credit agreement or other agreement or instrument known to such
counsel to which such Subsidiary is a party, or (iii) to the best knowledge of
such counsel, result in any violation of the provisions of any federal or state
statute, or any order, rule or regulation of any federal or state court or
governmental agency or body having jurisdiction over such Subsidiary or any of
its properties or assets.
(c) In the event of a sale or other disposition of all or substantially
all of the assets of any Guarantor, by way of merger, consolidation or
otherwise, or a sale or other disposition (including, without limitation, by
foreclosure) of all of the Capital Stock of any Guarantor to any Person other
than the Company or a Wholly Owned Subsidiary thereof, then such Guarantor shall
be automatically released and relieved of any obligations under its Subsidiary
Guarantee; provided that the Net Proceeds of such sale or other disposition are
applied in accordance with Sections 3.9 and 4.10 hereof. Upon delivery by the
Company to the Trustee of an Officers' Certificate of the Company and an Opinion
of Counsel to the effect that such sale or other disposition was made by the
Company in accordance with the provisions of this Indenture, including without
limitation Sections 3.9
60
and 4.10 hereof, the Trustee shall execute any documents reasonably required in
order to evidence the release of any Guarantor from its obligations under
Article XI hereof or pursuant to any Supplemental Indenture.
(d) Any Guarantor not released from its obligations under its Subsidiary
Guarantee shall remain liable for the full amount of principal, Redemption
Price, and Purchase Price of and Liquidated Damages, if any, and interest on the
Notes and for the other obligations of any Guarantor under this Indenture as
provided in this Article XI. The provisions of this Section 4.20 shall not
affect any of the Company's obligations under Section 4.9(vi) hereof.
ARTICLE V.
SUCCESSORS
SECTION 5.1. MERGER, CONSOLIDATION, OR SALE OF ASSETS.
The Company shall not consolidate or merge with or into any other Person
(whether or not the Company is the surviving corporation), or permit any other
Person to consolidate or merge with or into the Company, nor will the Company
sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its assets in one or more related transactions to another
corporation, Person or entity unless:
(i) the Company shall be 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 (the "Surviving
Entity"), is a corporation organized and existing under the laws of the
United States, any state thereof, or the District of Columbia;
(ii) the Surviving Entity assumes by supplemental indenture in a
form reasonably satisfactory to the Trustee all of the obligations of the
Company under the Notes and this Indenture;
(iii) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing;
(iv) immediately after giving effect to such transaction, the
Consolidated Net Worth of the Company or the Surviving Entity, as the case
may be, would be at least equal to the Consolidated Net Worth of the
Company immediately prior to such transaction; and
(v) immediately after giving effect to such transaction and after
giving pro forma effect thereto as if such transaction had occurred at the
beginning of the applicable four quarter period, the Company or the
Surviving Entity, as the case may be, would be permitted to incur at least
$1.00 of additional Indebtedness pursuant to the first paragraph of Section
4.9 hereof.
61
The Company shall deliver to the Trustee prior to the consummation of the
proposed transaction an Officers' Certificate of the Company to the foregoing
effect and an Opinion of Counsel stating that the proposed transaction and such
supplemental indenture comply with this Indenture.
SECTION 5.2. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, lease, conveyance or other
disposition of all or substantially all of the assets of the Company in
accordance with Section 5.1 hereof, the Surviving Entity shall succeed to and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such Surviving Entity had been named
as the Company herein; provided, however, that the predecessor Company shall not
be relieved from the obligation to pay the principal, Purchase Price or
Redemption Price of or interest or Liquidated Damages, if any, on the Notes
except in the case of a sale of all of the Company's assets that meets the
requirements of Section 5.1 hereof.
ARTICLE VI.
DEFAULTS AND REMEDIES
SECTION 6.1. EVENTS OF DEFAULT.
An "Event of Default" occurs if:
(a) the Company defaults in the payment when due of interest or
Liquidated Damages, if any, on the Notes and such default continues for a
period of 30 days (whether or not prohibited by Article X hereof);
(b) the Company defaults in the payment when due of principal,
Redemption Price or Purchase Price of the Notes, whether at maturity, upon
redemption or repurchase or otherwise (whether or not prohibited by Article
X hereof);
(c) the Company fails to comply with any of the provisions of Section
4.10, 4.15 or 4.18 hereof;
(d) the Company fails to comply with any of the provisions of Section
4.7 or 4.9 hereof and such failure to comply continues for a period of 30
days after notice thereof from the Trustee or the Holders of at least 25%
in aggregate principal amount of the then outstanding Notes;
(e) the Company fails to comply with any other covenant,
representation, warranty or other agreement in this Indenture or the Notes
and such failure to comply continues for a period of 60 days after notice
thereof from the Trustee or the Holders of at least 25% in aggregate
principal amount of the then outstanding Notes;
(f) a default occurs under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or
evidenced any
62
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 such
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 any such Indebtedness prior to its express
maturity and, in each case, the principal amount of 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 $7.5 million or more;
(g) a final judgment or final judgments for the payment of money are
entered by a court or courts of competent jurisdiction against the Company
or any of its Subsidiaries and such judgment or judgments are not paid,
stayed or discharged for a period of 60 days, provided that the aggregate
of all such judgments exceeds $7.5 million (excluding judgments to the
extent covered by insurance in respect of which coverage has not been
disclaimed or denied);
(h) a Subsidiary Guarantee is held in any judicial proceeding to be
unenforceable or invalid, or with respect to any Guarantor that is a
Significant Subsidiary, the Subsidiary Guarantee of such Guarantor ceases
to be in full force and effect;
(i) the Company, any Guarantor or any Subsidiary that is obligated to
become a Guarantor pursuant to Section 4.20 of this Indenture:
(i) commences a voluntary case under any Bankruptcy Law,
(ii) consents to the entry of an order for relief against it in
an involuntary case,
(iii) consents to the appointment of a custodian or receiver of
it or for all or substantially all of its property,
(iv) makes a general assignment for the benefit of its
creditors, or
(v) generally is not paying its debts as they become due; or
(j) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
63
(i) is for relief in an involuntary case against the Company,
any Guarantor or any Subsidiary that is obligated to become a
Guarantor pursuant to Section 4.20 of this Indenture ;
(ii) appoints a custodian or receiver of the Company, any
Guarantor or any Subsidiary that is obligated to become a Guarantor
pursuant to Section 4.20 of this Indenture or for all or substantially
all of the property of any of the foregoing;
(iii) orders the liquidation of the Company, any Guarantor or
any Subsidiary that is obligated to become a Guarantor pursuant to
Section 4.20 of this Indenture;
and the order or decree remains unstayed and in effect for 60 consecutive
days.
SECTION 6.2. ACCELERATION.
If any Event of Default (other than an Event of Default specified in clause
(i) or (j) of Section 6.1 hereof with respect to the Company, any Guarantor or
any Subsidiary that is obligated to become a Guarantor pursuant to Section 4.20
of this Indenture) occurs and is continuing, the Trustee or the Holders of at
least 25% in principal amount of the then outstanding Notes by written notice to
the Company (and the Trustee, if such notice is given by such Holders) may
declare all the Notes to be due and payable immediately. Upon any such
declaration, the entire principal amount of, and accrued and unpaid interest and
Liquidated Damages, if any, on the Notes shall become immediately due and
payable, unless all Events of Default specified in such acceleration notice
(other than any Event of Default in respect of non-payment of principal,
Redemption Price, Purchase Price, or interest, if any, which has become due
solely by reason of such declaration of acceleration) shall have been cured.
Notwithstanding the foregoing, if an Event of Default specified in clause
(i) or (j) of Section 6.1 hereof occurs with respect to the Company, any
Guarantor or any Subsidiary that is obligated to become a Guarantor pursuant to
Section 4.20 of this Indenture, all outstanding Notes shall be due and payable
immediately without further action or notice.
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, Redemption Price, Purchase Price, interest or
Liquidated Damages, if any) if it determines in good faith that withholding
notice is in their interest; provided, however, that the Company shall promptly
notify the holders of Senior Debt if payment of the Notes is accelerated because
of an Event of Default.
SECTION 6.3. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may pursue any
available remedy to collect the payment of principal, Redemption Price, Purchase
Price, interest or Liquidated Damages, if any, on the Notes or to enforce the
performance of any provision of the Notes or this Indenture.
64
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, and any recovery or
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Notes. A delay or omission by the
Trustee or any Holder 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 6.4. WAIVER OF PAST DEFAULTS; RECISSION OF ACCELERATION
Holders of all of the aggregate principal amount of the then outstanding
Notes by notice to the Trustee may, on behalf of the Holders of all of the
Notes, waive an existing Default or Event of Default and its consequences
hereunder with regard to a continuing Default or Event of Default in the payment
of the principal, Redemption Price or Purchase Price of, or interest or
Liquidated Damages, if any, on the Notes. Holders of not less than a majority in
aggregate principal amount of the then outstanding Notes by notice to the
Trustee may, on behalf of the Holders of all of the Notes, waive an existing
Default or Event of Default and its consequences hereunder for all Defaults or
Events of Default arising from provisions of this Indenture. Upon any such
waiver, such Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured for every purpose of this Indenture
but no such waiver shall extend to any subsequent or other Default or impair any
right consequent thereon. After a declaration of acceleration has been made, but
before a judgment or decree for payment of the money due has been obtained by
the Trustee, the Holders of not less than a majority in aggregate principal
amount of Notes outstanding, by written notice to the Company and the Trustee,
may annul such declaration if (i) the Company has paid or deposited with the
Trustee a sum sufficient to pay (a) all sums paid or advanced by the Trustee
under the Indenture and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, (b) all overdue interest and
Liquidated Damages, if any, on all Notes, and (c) to the extent that payment of
such interest is lawful, interest upon overdue interest and Liquidated Damages,
if any, at the rate borne by the Notes; and (ii) all Events of Default, other
than the non-payment of principal of the Notes which has become due solely by
such declaration of acceleration, have been cured or waived.
SECTION 6.5. 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 applicable law or this Indenture that the Trustee reasonably determines may
be unduly prejudicial to the rights of other Holders of Notes or that may
subject the Trustee to personal liability and shall be entitled to the benefit
of Section 7.1(c)(iii) and (e) hereof. Notwithstanding any provision in this
Indenture to the contrary, the Trustee shall not be obligated to take any action
with respect to the provisions of Section 6.9 hereof unless directed to do so
pursuant to this Section 6.5 by the Holders of at least 10% in principal amount
of the then outstanding Notes.
65
SECTION 6.6. 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 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 6.7. 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, or Redemption Price or
Purchase Price, interest or Liquidated Damages, if any, on the Note, on or after
the respective due dates therefor (including in connection with an offer to
repurchase), 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
written consent of such Holder.
SECTION 6.8. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.1(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, Redemption Price, interest and Liquidated Damages, if any, remaining
unpaid on the Notes and interest on overdue principal, Redemption Price and
Purchase Price and, to the extent lawful, interest and Liquidated Damages, if
any, and such further amounts as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expense,
disbursements and advances of the Trustee, its agents and counsel.
66
SECTION 6.9. EVENT OF DEFAULT TO AVOID PREMIUM.
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 hereof, an equivalent premium shall also become
and be immediately due and payable to the extent permitted by law upon the
acceleration of the Notes. If an Event of Default occurs prior to the first date
on which the Notes are subject to redemption at the option of the Company as
provided in Section 3.7 hereof 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 first date,
then the premium specified herein for an optional redemption of the Notes on
such first date shall also become immediately due and payable to the extent
permitted by law upon the acceleration of the Notes.
SECTION 6.10. 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 (including accountants,
experts or such other professionals as the Trustee deems necessary, advisable or
appropriate) and counsel and the Holders of the Notes allowed in any judicial
proceedings relative to the Company (or any other obligor upon the Notes), its
creditors or its 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 7.7 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 7.7 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 6.11. PRIORITIES.
If the Trustee collects any money pursuant to this Article, it shall pay
out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due under
Section 7.7 hereof, including payment of all compensation, expense and
liabilities
67
incurred, and all advances made, by the Trustee and the costs and expenses
of collection;
Second: to Holders of Notes for amounts due and unpaid on the Notes
for principal, Purchase Price, Redemption Price and Liquidated Damages, if
any, and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal,
Purchase Price, Redemption Price and Liquidated Damages, if any, and
interest, respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a special record date and payment date for any payment to
Holders of Notes pursuant to this Section 6.11.
SECTION 6.12. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this Indenture
or in any suit against the Trustee for any action taken or omitted by it as a
Trustee, a court in its discretion may require the filing by any party litigant
in the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section does
not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.7
hereof, or a suit by Holders of more than 10% in principal amount of the then
outstanding Notes.
ARTICLE VII.
TRUSTEE
SECTION 7.1. 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 thereof, as a prudent
person would exercise or use under the circumstances in the conduct of his own
affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture and the TIA 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 or the TIA against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, without investigation, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any statements,
certificates or opinions
68
furnished to the Trustee and conforming to the requirements of this
Indenture. However, the Trustee shall examine the certificates and opinions
to determine whether or not they conform on their face 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;
(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 6.5 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 this Section 7.1.
(e) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or incur any liability. The Trustee shall be under no
obligation to exercise any of its rights and powers under this Indenture at the
request of any Holders, pursuant to the provisions of this Indenture, including,
without limitation, Section 6.5 hereof, unless such Holder shall have offered to
the Trustee security and indemnity satisfactory to it against any loss,
liability or expense which might be incurred by it in compliance with such
request or direction.
(f) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
SECTION 7.2. RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely and shall be protected in acting or
refraining from acting upon any document believed by it to be genuine and to
have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate of the Company 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 of the Company or Opinion of
Counsel. The Trustee may consult with counsel and the written advice of such
counsel and Opinions 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.
69
(c) The Trustee may act through its attorneys, accountants, experts and
such other professionals as the Trustee deems necessary, advisable or
appropriate and shall not be responsible for the misconduct or negligence of any
attorney, accountant, expert or other such professional appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand,
request, direction or notice from the Company shall be sufficiently evidenced by
a written order signed by two Officers of the Company.
(f) The Trustee shall not be charged with knowledge of any Default or
Event of Default under Section 6.1 hereof (other than under Section 6.1(a)
(subject to the following sentence) or Section 6.1(b) hereof) unless either (i)
a Responsible Officer shall have actual knowledge thereof, or (ii) the Trustee
shall have received notice thereof in accordance with Section 12.2 hereof from
the Company or any Holder of the Notes. The Trustee shall not be charged with
knowledge of the Company's obligation to pay Liquidated Damages, or the
cessation of such obligation, unless the Trustee receives written notice thereof
from the Company or any Holder. The Trustee shall not be charged with knowledge
of any Default or Event of Default under Section 6.9 hereto unless the Trustee
shall have received notice thereof in accordance with Section 12.2 hereof from
any Holder of the Notes.
SECTION 7.3. 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 within the meaning
of the TIA it must eliminate such conflict within 90 days, apply (subject to the
consent of the Company) to the Commission for permission to continue as trustee
or resign. Any Agent may do the same with like rights and duties. The Trustee
is also subject to Sections 7.10 and 7.11 hereof.
SECTION 7.4. 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 of this
Indenture, it shall not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the Notes or
any other document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
SECTION 7.5. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing, the Trustee
shall mail to Holders of Notes a notice of the Default or Event of Default
within 90 days after it occurs. Except in the
70
case of a Default in payment on any Note (including the failure to make a
mandatory repurchase pursuant hereto), 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 7.6. REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES.
Within 60 days after each January 15 beginning with the January 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 (S) 313(a) (but if no
event described in TIA (S) 313(a) has occurred within the twelve months
preceding the reporting date, no report need be transmitted). The Trustee also
shall comply with TIA (S) 313(b). The Trustee shall also transmit by mail all
reports as required by XXX (S) 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 (S) 313(d). The
Company shall promptly notify the Trustee when the Notes are listed on any stock
exchange.
SECTION 7.7. COMPENSATION, REIMBURSEMENT AND INDEMNITY.
The Company shall pay to the Trustee from time to time such reasonable
compensation as the Company may negotiate with the Trustee in accordance with
industry standards for its acceptance of this Indenture and the rendering by it
of the services required hereunder. The Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee promptly upon request for all reasonable
disbursements, advances and expenses incurred or made by or on behalf of it in
addition to the compensation for its services. Such expenses shall include the
reasonable compensation, disbursements and expenses of the Trustee's attorneys,
accountants, experts and such other professionals as the Trustee deems
necessary, advisable or appropriate.
The Company shall indemnify the Trustee against any and all losses,
liabilities or expenses incurred by it arising out of or in connection with the
acceptance or administration of its duties under this Indenture (including its
duties under Section 9.6 hereof), including the costs and expenses of enforcing
this Indenture or any Subsidiary Guarantee against the Company or a Guarantor
(including this Section 7.7) and defending itself against or investigating any
claim (whether asserted by the Company, any Guarantor, 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 willful misconduct. 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 any claim or threatened
claim asserted against the Trustee, and the Trustee shall 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.
71
The obligations of the Company under this Section 7.7 shall survive the
resignation or removal of the Trustee, the satisfaction and discharge of this
Indenture and the termination of this Indenture.
To secure the Company's payment obligations in this Section 7.7, 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, Redemption
Price or Purchase Price of or Liquidated Damages, if any, or interest on,
particular Notes. Such Lien shall survive the resignation or removal of the
Trustee, the satisfaction and discharge of this Indenture and the termination of
this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1(i) or (j) 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.
SECTION 7.8. 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.
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:
(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, receiver or public officer takes charge of the
Trustee or its property for the purpose of rehabilitation, conversation or
liquidation; 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 date on which 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 Xxxxxxx does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company, or
the Holders of Notes 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.
72
If the Trustee, after written request by any Holder of a Note who has been
a bona fide holder of a Note or Notes for at least six months, fails to comply
with Section 7.10, such Holder of a Note may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Thereupon, the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The Company shall mail a notice of the Trustee's succession to each
Holder of the Notes. The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee, provided all sums owing to the
Trustee hereunder have been paid and subject to the Lien provided for in Section
7.7 hereof. Notwithstanding replacement of the Trustee pursuant to this Section
7.8, the Company's obligations under Section 7.7 hereof shall continue for the
benefit of the retiring Trustee.
SECTION 7.9. 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 that
is eligible under Section 7.10 hereof, the successor corporation without any
further act shall be the successor Trustee.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof (including the District of Columbia) that is authorized
under such laws to exercise corporate trust 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 (S) 310(a)(1), (2) and (5). The Trustee is subject to TIA (S) 310(b).
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA (S) 311(a), excluding any creditor
relationship listed in TIA (S) 311(b). A Trustee who has resigned or been
removed shall be subject to TIA (S) 311(a) to the extent indicated therein.
ARTICLE VIII.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.1. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
The Company may, at the option of its Board evidenced by a resolution set
forth in an Officers' Certificate of the Company, at any time, elect to have
either Section 8.2 or 8.3 hereof be
73
applied to all outstanding Notes upon compliance with the conditions set forth
below in this Article VIII.
SECTION 8.2. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 8.1 hereof of the option
applicable to this Section 8.2, the Company and the Guarantors shall, subject to
the satisfaction of the conditions set forth in Section 8.4 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
and the Guarantors 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 8.5 hereof and the
other Sections of this Indenture referred to in clauses (a) through (d) below,
and to have satisfied all their other obligations under such Notes and this
Indenture (and the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the
following provisions which shall survive until otherwise terminated or
discharged hereunder:
(a) the rights of Holders of outstanding Notes to receive solely from
the trust fund described in Section 8.4 hereof, and as more fully set forth
in such Section, payments in respect of the principal or Redemption Price
of, and interest and Liquidated Damages, if any, on such Notes when such
payments are due,
(b) the Company's obligations with respect to such Notes under Article
II and Section 4.2 hereof,
(c) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and the Company's obligations in connection therewith, and
(d) this Article Eight.
Subject to compliance with this Article Eight, the Company may exercise its
option under this Section 8.2, notwithstanding the prior exercise of its option
under Section 8.3 hereof.
SECTION 8.3. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.1 hereof of the option
applicable to this Section 8.3, the Company and the Guarantors shall, subject to
the satisfaction of the conditions set forth in Section 8.4 hereof, be released
from their obligations under the covenants contained in Sections 3.8, 3.9, 4.5,
4.7 through 4.12 and 4.14 through 4.20 hereof, both inclusive, and Section
5.1(iv) and (v) 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. 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
74
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 6.1 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 8.1 hereof of the option applicable to this
Section 8.3 hereof, subject to the satisfaction of the conditions set forth in
Section 8.4 hereof, Sections 6.1(c) through 6.1(h) hereof shall not constitute
Events of Default.
SECTION 8.4. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following are the conditions precedent to the application of either
Section 8.2 or 8.3 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in trust,
for the benefit of the Holders of the Notes, cash in United States dollars,
U.S. Government Securities, or a combination thereof, in such amounts as
will be sufficient (without reinvestment), in the opinion of a nationally
recognized firm of independent public accountants, to pay the principal or
Redemption Price of, and interest and Liquidated Damages, if any, on the
outstanding Notes on the stated date for payment thereof or on the
applicable Redemption Date, as the case may be, and the Company must
specify whether the Notes are being defeased to maturity or to a particular
Redemption Date;
(b) in the case of an election under Section 8.2 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United
States reasonably acceptable to the Trustee confirming that (A) the Company
has received from, or there has been published by, the Internal Revenue
Service a ruling or (B) since the date of this Indenture, 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 will not recognize income, gain or
loss for federal income tax purposes as a result of such Legal Defeasance
and will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such Legal
Defeasance had not occurred;
(c) in the case of an election under Section 8.3 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United
States reasonably acceptable to the Trustee confirming that the Holders of
the outstanding Notes will not recognize income, gain or loss for federal
income tax purposes as a result of such Covenant Defeasance and will be
subject to federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such Covenant Defeasance
had not occurred;
75
(d) 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 Section 6.1(i) or (j) hereof is concerned, at any
time in the period ending on the ninety-first day after the date of deposit
(which condition shall not be deemed satisfied until such ninety-first
day);
(e) 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 to which the Company or any of its Subsidiaries is
a party or by which the Company or any of its Subsidiaries is bound;
(f) the Company shall deliver to the Trustee an Opinion of Counsel to
the effect that after the ninety-first day following the deposit, the trust
funds will not be subject to the effect of an avoidance or other order
under any applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally;
(g) the Company shall deliver to the Trustee an Officers' Certificate
of the Company stating that the deposit was not made by the Company with
the intent of preferring the Holders of Notes over the other creditors of
the Company, with the intent of defeating, hindering, delaying or
defrauding any creditors of the Company or others; and
(h) the Company shall deliver to the Trustee an Officers' Certificate
of the Company and an Opinion of Counsel, each stating that the all
conditions precedent to the Legal Defeasance or Covenant Defeasance, as the
case may be, have been complied with.
SECTION 8.5. DEPOSITED MONEY AND U.S. GOVERNMENT SECURITIES TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.6 hereof, all money and U.S. Government Securities
(including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this Section 8.5 only, the "Trustee")
pursuant to Section 8.4 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 (other than the Company) as the Trustee may determine, to the Holders of
such Notes of all sums due and to become due thereon in respect of principal or
Redemption Price of, and Liquidated Damages, if any, interest on, the Notes, 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 U.S. Government
Securities deposited pursuant to Section 8.4 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.
76
Anything in this Article VIII 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 U.S. Government Securities held by it as provided in
Section 8.4 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
8.4(a) 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.
SECTION 8.6. 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 or Redemption Price of,
or Liquidated Damages, if any, or interest on any Note and remaining unclaimed
for two years after such amount has become due and payable shall be paid to the
Company on its 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 as a general creditor, 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, at the expense of the Company, shall cause to be published once, in
The New York Times and The Wall Street Journal (national editions), notice that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days after the date of such notification or
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
SECTION 8.7. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United States dollars
or U.S. Government Securities in accordance with Section 8.2 or 8.3 hereof, as
the case may be, by reason of any order of judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
the obligations of the Company under this Indenture, and the Notes shall be
revived and reinstated as though no deposit had occurred pursuant to Section 8.2
or 8.3 hereof until such time as the Trustee or Paying Agent is permitted to
apply all such money in accordance with Section 8.2 or 8.3 hereof, as the case
may be; provided, however, that, if the Company makes any payment with respect
to 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 IX.
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.1. WITHOUT CONSENT OF HOLDERS OF NOTES.
Notwithstanding Section 9.2 of this Indenture, the Company, the Guarantors
and the Trustee may amend or supplement this Indenture or the Notes without the
consent of any Holder of a Note:
77
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in place of
Certificated Notes;
(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
Article V hereof;
(d) 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 hereunder of any Holder of the Notes;
(e) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the TIA; or
(f) to add or release a Guarantor as provided in Section 4.20.
Upon the request of the Company, accompanied by a resolution of the Board
(evidenced by an Officers' Certificate of the Company) authorizing the execution
of any such amended or supplemental indenture, and upon receipt by the Trustee
of the documents described in Section 7.2 hereof, the Trustee shall join with
the Company and the Guarantors 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 9.2. WITH CONSENT OF HOLDERS OF NOTES.
Except as provided below in this Section 9.2, the Company, the Guarantors
and the Trustee may amend or supplement this Indenture (including Sections 3.8,
3.9, 4.10, and 4.15 and Article X and XI hereof, and including the defined terms
used therein) and the Notes may be amended or supplemented with the consent of
the Holders of at least a majority in principal amount of the Notes then
outstanding (including, without limitation, consents obtained in connection with
a purchase of, or tender offer or exchange offer for the Notes), and, subject to
Sections 6.2, 6.4 and 6.7 hereof, any existing Default or Event of Default 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 the Notes).
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;
78
(b) reduce the principal, Redemption Price or Purchase Price of or
change the fixed maturity of any Note or alter or waive any of the
provisions with respect to the redemption of the Notes (except as provided
above with respect to Sections 3.8, 3.9, 4.10 and 4.15 hereof);
(c) reduce the rate of or change the time for payment of interest or
Liquidated Damages, if any, on or with respect to any Note;
(d) waive a Default or Event of Default in the payment of principal,
Redemption Price or Purchase Price of, or 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
then outstanding 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, Redemption Price or Purchase Price of, or interest
or Liquidated Damages, if any, on the Notes;
(g) waive a redemption or repurchase payment with respect to any Note
(except as provided above with respect to Sections 3.8, 3.9, 4.10 and 4.15
hereof); or make any change in the foregoing amendment and waiver
provisions.
Upon the written request of the Company and the Guarantors accompanied by a
resolution of the Board (evidenced by an Officers' Certificate of the Company)
authorizing the execution of any such amended or supplemental indenture, and
upon the filing with the Trustee of evidence satisfactory to the Trustee of the
consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee of
the documents described in Section 7.2 hereof, the Trustee shall join with the
Company and the Guarantors 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.
It shall not be necessary for the consent of the Holders of Notes under
this Section 9.2 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 9.2 becomes
effective, the Company shall mail to the Holders of Notes affected thereby and
the Guarantors a notice briefly describing the amendment, supplement or waiver.
Any failure of the Company to mail such
79
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.
SECTION 9.3. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Notes shall be set
forth in a amended or supplemental indenture that complies with the TIA as then
in effect.
SECTION 9.4. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a consent to it
by a Holder of a Note is a continuing consent by the Holder of a Note and every
subsequent Holder of a Note or portion of a Note that evidences the same debt as
the consenting Xxxxxx's Note, even if notation of the consent is not made on any
Note. However, any such Holder of a Note or subsequent Holder of a Note may
revoke the consent as to its Note if the Trustee receives written notice of
revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
SECTION 9.5. 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 9.6. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental indenture authorized
pursuant to this Article IX if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. None of the
Company nor any of the Guarantors may sign an amendment or supplemental
Indenture until the Board or, in the case of the Guarantors, the board of
directors thereof approves such amendment or supplemental indenture. In
executing any amended or supplemental indenture, the Trustee shall be entitled
to receive, in addition to the documents required by Sections 12.4 and 12.5
hereof, and, subject to Section 7.1, shall be fully protected in relying upon,
an Officers' Certificate of the Company and an Opinion of Counsel stating that
(i) the execution of such amended or supplemental indenture is authorized or
permitted by this Indenture, (ii) no Event of Default shall occur as a result of
the execution of such Officers' Certificate of the Company or the delivery of
such Opinion of Counsel and (iii) the amended or supplemental indenture complies
with the terms of this Indenture.
SECTION 9.7. GUARANTORS' SIGNATURE NOT REQUIRED.
Notwithstanding anything to the contrary in this Article IX, if any
Guarantor shall have been released from its Obligations under Article XI of this
Indenture or any Supplemental
80
Indenture entered into by such Guarantor, the signature of such Guarantor shall
not be required in connection with any amendment of this Indenture.
ARTICLE X.
SUBORDINATION
SECTION 10.1. NOTES SUBORDINATED TO SENIOR DEBT.
Notwithstanding the provisions of this Agreement, but subject to this
Article X, the Company covenants and agrees, and the Trustee and each Holder of
the Notes by his acceptance thereof likewise covenant and agree, that all
payments on the Notes (including, without limitation, payments of the principal,
Redemption Price and Purchase Price of, and interest and Liquidated Damages (if
any) on, the Notes by the Company shall be subordinated and subject in right of
payment in accordance with the provisions of this Article X to the prior payment
in full of all amounts payable under Senior Debt of the Company whether
outstanding on the date hereof or hereafter incurred.
SECTION 10.2. PRIORITY AND PAYMENT OVER OF PROCEEDS IN CERTAIN EVENTS.
(a) Subordination on Dissolution, Liquidation or Reorganization of the
------------- -- ----------- ----------- -- -------------- -- ---
Company. In the event of any insolvency or bankruptcy case or proceeding, or any
-------
receivership, liquidation, reorganization or other similar case or proceeding in
connection therewith, relative to the Company or its assets, or any liquidation,
dissolution or other winding up of the Company, whether voluntary or
involuntary, or any assignment for the benefit of creditors or other marshaling
of assets or liabilities of the Company (except in connection with the
consolidation or merger of the Company or its liquidation or dissolution
following the sale, assignment, transfer, lease or other disposition of all or
substantially all of its assets in one or more related transactions, upon the
terms and conditions described under Article V hereof to the extent permitted
under the terms of outstanding Senior Debt), all Obligations due and owing in
respect of any Senior Debt (including interest accruing after the commencement
of any such proceeding at the rate specified in the instrument evidencing the
applicable Senior Debt, whether or not a claim therefor is allowed in such
proceeding, to the date of payment of such Senior Debt) must be paid in full
before any payment or distribution of any assets of the Company of any kind or
character is made on account of the Notes (including, without limitation, the
principal, Redemption Price and Purchase Price of, and interest and Liquidated
Damages (if any) on, the Notes). Before any payment may be made by the Company
on account of the Notes (including, without limitation, the principal,
Redemption Price and Purchase Price of, and interest and Liquidated Damages (if
any) on, the Notes), and upon any such dissolution or winding up or liquidation
or reorganization, any payment or distribution of assets or securities of the
Company of any kind or character, whether in cash, property or securities, to
which the Holders or the Trustee on their behalf would be entitled, except for
the provisions of this Article X, shall be made by the Company or by any
receiver, trustee in bankruptcy, liquidating trustee, agent or other person
making such payment or distribution, directly to the holders of the Senior Debt
of the Company to the extent necessary to pay all such Senior Debt in full after
giving effect to any concurrent payment or distribution to the holders of such
Senior Debt (except that Holders may receive securities that are subordinated at
81
least to the same extent as the Notes to the Senior Debt and any securities
issued in exchange for Senior Debt and payments made from the trust pursuant to
Article VIII hereof).
(b) Subordination on Default in Senior Debt. During the continuance of any
------------- -- ------- -- ------ ----
default in the payment of any principal of, premium, if any, or interest on, any
Designated Senior Debt (a "Senior Payment Default") beyond any applicable grace
period, no payment or distribution of any assets of the Company of any kind or
character may be made on account of the Notes (including, without limitation, on
account of the principal, Redemption Price and Purchase Price of, and interest
and Liquidated Damages (if any) on the Notes) unless and until such Senior
Payment Default has been cured, waived or has ceased to exist or such Designated
Senior Debt shall have been discharged or paid in full or the right under this
Indenture to prevent any such payment has been waived by or on behalf of the
holders of such Designated Senior Debt (except that Holders may receive
securities that are subordinated at least to the same extent as the Notes to the
Senior Debt and any securities issued in exchange for Senior Debt and payments
made from the trust pursuant to Article VIII hereof).
During the continuance of any event (other than a Senior Payment Default),
the occurrence of which entitles one or more Persons to accelerate the maturity
of any Designated Senior Debt (a "Senior Covenant Default"), and the receipt by
the Trustee from a Senior Representative for such Designated Senior Debt or the
Company of a written notice of such Senior Covenant Default (a "Payment Blockage
Notice"), no payment or distribution of any assets of the Company of any kind or
character may be made by the Company on account of Notes for the period
specified below (a "Payment Blockage Period") (except that Holders may receive
securities that are subordinated at least to the same extent as the Notes to the
Senior Debt and any securities issued in exchange for Senior Debt and payments
made from the trust pursuant to Article VIII hereof).
A Payment Blockage Period shall commence upon the receipt by the Trustee of
notice from a Senior Representative for Designated Senior Debt of a Senior
Covenant Default and shall end (subject to any blockage of payment that may be
in effect in respect of a Senior Payment Default or insolvency) on the earliest
of (i) 179 days after the receipt of a Payment Blockage Notice, provided such
Designated Senior Debt shall not theretofore have been accelerated; (ii) the
date on which such Senior Covenant Default is cured, waived or ceases to exist
or such Designated Senior Debt is discharged or paid in full; or (iii) the date
on which such Payment Blockage Period shall have been terminated by written
notice to the Company and the Trustee from the Senior Representative of the
Designated Senior Debt who had previously delivered the Payment Blockage Notice,
after which the Company shall promptly resume making any and all required
payments in respect of the Notes, including any missed payments. In no event
will a Payment Blockage Period extend beyond 179 days from the date of the
receipt by the Trustee of the Payment Blockage Notice initiating such Payment
Blockage Period. Any number of notices of a Senior Covenant Default may be
given during a Payment Blockage Period; provided, that no such notice shall
extend such Payment Blockage Period. No new period of payment blockage may be
commenced unless and until (i) 360 days have elapsed since the effectiveness of
the immediately prior Payment Blockage Notice and (ii) all scheduled payments of
principal, Redemption Price and Purchase Price of, and interest and Liquidated
Damages, if any, on the Notes that have become due have been paid in full in
cash or Cash Equivalents. No Senior
82
Covenant Default with respect to Designated Senior Debt that existed or was
continuing on the date of the commencement of any Payment Blockage Period will
be, or can be, made the basis for the commencement of a second Payment Blockage
Period. The Company shall deliver a notice to the Trustee promptly after the
date on which any Senior Covenant Default is cured or waived or ceases to exist
or on which the Designated Senior Debt related thereto is discharged or paid in
full in Cash Equivalents.
(c) Rights and Obligations of Holders of Notes and Trustee. In the event
------ --- ----------- -- ------- -- ----- --- -------
that, notwithstanding the foregoing provisions prohibiting such payment or
distribution, the Trustee or any Holder shall have received any payment on
account of the Notes (including, without limitation, the principal, Redemption
Price or Purchase Price of, or interest or Liquidated Damages (if any) on, the
Notes) (other than as permitted by subsections (a) and (b) of this Section 10.2)
at a time when such payment is prohibited by this Section 10.2 and before the
Senior Debt is paid in full, then and in such event (subject to the provisions
of Section 10.8) such payment or distribution shall be received and held in
trust for the holders of Senior Debt and shall be paid over or delivered to the
Senior Representative of Designated Senior Debt in the case of Designated Senior
Debt and to the holders of the Senior Debt in the case of Senior Debt which is
not Designated Senior Debt, in each case remaining unpaid at their written
direction to the extent necessary to pay such Senior Debt in full in accordance
with its terms after giving effect to any concurrent payment or distribution to
the holders of such Senior Debt.
Nothing contained in this Article X will limit the right of the Trustee or
the Holders of Notes to take any action to accelerate the maturity of the Notes
pursuant to Section 6.2 or to pursue any rights or remedies hereunder against
the Company; provided that, to the extent provided in this Article X, all Senior
Debt of the Company then or thereafter due or declared to be due shall first be
paid in full before the Holders or the Trustee are entitled to receive any
payment from the Company on account of the Notes (including, without limitation,
the principal, Redemption Price or Purchase Price of, or interest or Liquidated
Damages (if any) on, the Notes).
Upon any payment or distribution of assets or Notes referred to in this
Article X, the Trustee and the Holders shall be entitled to rely upon any order
or decree of a court of competent jurisdiction in which such dissolution,
winding up, liquidation or reorganization proceedings are pending, and upon a
certificate of the receiver, trustee in bankruptcy, liquidating trustee, agent
or other person making any such payment or distribution, delivered to the
Trustee for the purpose of ascertaining the persons entitled to participate in
such distribution, the holders of Senior Debt and other Indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article X.
SECTION 10.3. PAYMENTS MAY BE MADE PRIOR TO DISSOLUTION.
Nothing contained in this Article X or elsewhere in this Indenture shall
prevent (i) the Company, except under the conditions described in Section 10.2,
from making payments at any time for the purpose of making such payments of
principal, Redemption Price or Purchase Price of, or interest or Liquidated
Damages (if any) on, the Notes, or from depositing with the Trustee any monies
for such payments or (ii) the application by the Trustee of any monies deposited
with it for the purpose of making such payments of principal, Redemption Price
or Purchase Price of,
83
or interest or Liquidated Damages (if any) on, the Notes, to the Holders
entitled thereto unless at least three Business Days prior to the date upon
which such payment would otherwise (except for the prohibitions contained in
Section 10.2) become due and payable, the Trustee shall have received the
written notice provided for in Section 10.2(b) (or there shall have been an
acceleration of the Notes prior to such application) or in Section 10.8 or (iii)
the application by the Trustee of monies held in the trust pursuant to Article
VIII.
SECTION 10.4. RIGHTS OF HOLDERS OF SENIOR DEBT NOT TO BE IMPAIRED.
No right of any present or future holder of any Senior Debt to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act in good faith by any such holder, or by
any noncompliance by the Company, with the terms and provisions and covenants
herein regardless of any knowledge thereof any such holder may have or otherwise
be charged with.
The provisions of this Article X are tended to be for the benefit of, and
shall be enforceable directly by, the holders of Senior Debt.
SECTION 10.5. AUTHORIZATION TO TRUSTEE TO TAKE ACTION TO EFFECTUATE
SUBORDINATION.
Each Holder of Notes by his acceptance thereof authorizes and directs the
Trustee on his behalf to take such action as may be necessary or appropriate to
effectuate, as between the holders of Senior Debt and the Holders, the
subordination as provided in this Article X and appoints the Trustee his
attorney-in-fact for any and all such purposes. Whenever a distribution is to
be made or a notice given to holders of Senior Debt, the distribution or notice
may be made to the representatives and agents of such holders of Senior Debt as
such agents or representatives are identified by such holders in writing to the
Trustee.
Each Holder of Notes by his acceptance thereof authorizes and directs the
Trustee on his behalf to take such action as may be necessary or appropriate to
effectuate, as between the Holders and the holders of Indebtedness that is
subordinate to the Notes, the subordination provisions of all Indebtedness
subordinate to the Notes, and appoints the Trustee his attorney-in-fact for any
and all such purposes. Whenever a distribution is to be made or a notice given
to holders of Indebtedness that is subordinate to the Notes, the distribution or
notice may be made to the representatives and agents of such holders of
Indebtedness that is subordinate to the Notes as such agents and representatives
are identified by such holders in writing to the Trustee.
SECTION 10.6. SUBROGATION.
Subject to the payment in full of all amounts payable under or in respect
of Senior Debt, the Holders shall be subrogated to the rights of the holders of
such Senior Debt to receive payments or distributions of assets of the Company
made on such Senior Debt until the Notes shall be paid in full in cash; and for
the purposes of such subrogation, no payments or distributions to holders of
such Senior Debt of any cash, property or securities to which Holders of the
Notes would be entitled except for the provisions of this Article X, and no
payment pursuant to the
84
provisions of this Article X to holders of such Senior Debt by the Holders,
shall, as between the Company, its creditors other than holders of such Senior
Debt and the Holders, be deemed to be a payment by the Company to or on account
of such Senior Debt, it being understood that the provisions of this Article X
are solely for the purpose of defining the relative rights of the holders of
such Senior Debt, on the one hand, and the Holders, on the other hand.
If any payment or distribution to which the Holders would otherwise have
been entitled but for the provisions of this Article X shall have been applied,
pursuant to the provisions of this Article X, to the payment of all amounts
payable under the Senior Debt, then and in such case, the Holders shall be
entitled to receive from the holders of such Senior Debt at the time outstanding
any payments or distributions received by such holders of Senior Debt in excess
of the amount sufficient to pay all amounts payable under or in respect of such
Senior Debt in full.
SECTION 10.7. OBLIGATIONS OF COMPANY UNCONDITIONAL.
Nothing contained in this Article X or elsewhere in this Indenture or in
any Note is intended to or shall impair, as between the Company and the Holders,
the obligations of the Company, which are absolute and unconditional to pay to
the Holders the principal, Redemption Price or Purchase Price of, or interest or
Liquidated Damages (if any) on, the Notes as and when the same shall become due
and payable in accordance with their terms, or is intended to or shall affect
the relative rights of the Holders and creditors of the Company other than the
holders of the Senior Debt, nor shall anything herein or therein prevent the
Trustee or any Holder from exercising all remedies otherwise permitted by
applicable law upon Default under this Indenture, subject to the rights, if any,
under this Article X of the holders of such Senior Debt in respect of cash,
property or Notes of the Company received upon the exercise of any such remedy.
The failure to make a payment on account of principal, Redemption Price or
Purchase Price of, or interest or Liquidated Damages (if any) on, the Notes by
reason of any provision of this Article X shall not be construed as preventing
the occurrence of an Event of Default under Section 6.1.
SECTION 10.8. THE TRUSTEE ENTITLED TO ASSUME PAYMENTS NOT PROHIBITED IN
ABSENCE OF NOTICE.
The Trustee or Paying Agent shall not at any time be charged with the
knowledge of the existence of any facts which would prohibit the making of any
payment to or by the Trustee or Paying Agent, unless and until the Trustee or
Paying Agent shall have received written notice thereof from the Company or one
or more holders of Senior Debt or from any trustee or agent therefor; and, prior
to the receipt of any such written notice, the Trustee or Paying Agent shall be
entitled to assume conclusively that no such facts exist. Unless at least three
Business Days prior to the date on which by the terms of this Indenture any
payment is to be made by the Company for any purpose (including, without
limitation, the payment of the principal, Redemption Price or Purchase Price of,
or interest or Liquidated Damages (if any) on, any Note), the Trustee or Paying
Agent shall have full power and authority to apply all monies received to the
purpose for which they were received, and shall not be affected by any notice to
the contrary which may be received by it on or after such date, except for an
acceleration of the Notes prior to such application. The
85
foregoing shall not apply to the Paying Agent if the Company is acting as Paying
Agent. Nothing contained in this Section 10.8 shall limit the right of the
holders of Senior Debt to recover payments as contemplated by Section 10.2. The
Trustee shall be entitled to rely on the delivery to it of a written notice by a
person representing himself or itself to be a holder of such Senior Debt (or a
trustee on behalf of, or other agent of, such holder) to establish that such
notice has been given by a holder of such Senior Debt or a trustee or agent on
behalf of any such holder. Nothing in this Article X shall apply to amounts due
the Trustee pursuant to Section 7.7 herein.
SECTION 10.9. RIGHT OF TRUSTEE TO HOLD SENIOR DEBT.
The Trustee and any agent for the holders of Senior Debt shall be entitled
to all of the rights set forth in this Article X in respect of any Senior Debt
at any time held by it to the same extent as any other holder of such Senior
Debt, and nothing in this Indenture shall be construed to deprive the Trustee or
any agent for the holders of Senior Debt of any of its rights as such holder.
SECTION 10.10. NO IMPLIED COVENANTS BY OR OBLIGATIONS OF THE TRUSTEE.
With respect to the holders of Senior Debt, the Trustee undertakes to
perform or to observe only such of its covenants and obligations as are
specifically set forth in this Article X, and no implied covenants or
obligations with respect to the holders of Senior Debt shall be read into this
Article X against the Trustee. The Trustee shall not be deemed to have any
fiduciary duty to the holders of the Senior Debt.
ARTICLE XI.
SUBSIDIARY GUARANTEES
SECTION 11.1. SUBSIDIARY GUARANTEES.
Subject to this Article XI, each of the Guarantors, jointly and severally,
hereby unconditionally guarantees to each Holder of a Note authenticated and
delivered by the Trustee and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of this Indenture, the Notes or
the obligations of the Company under this Indenture or the Notes, that: (a) the
principal, Redemption Price, and Purchase Price of and Liquidated Damages, if
any, and interest on the Notes shall be promptly paid in full when due, whether
at maturity, by acceleration, redemption or otherwise, and (to the extent
permitted by law) interest on the overdue principal, Redemption Price, and
Purchase Price of and Liquidated Damages, if any, and interest on the Notes, if
any, and all other obligations of the Company to the Holders or the Trustee
under this Indenture or the Notes shall be promptly paid in full or performed,
all in accordance with the terms of this Indenture and the Notes; and (b) in
case of any extension of time of payment or renewal of any Notes or any of such
other obligations, the same shall be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. Failing payment when due of any amount
so guaranteed for whatever reason, the Guarantors shall be obligated to pay the
same immediately whether or not such failure to pay has become an Event of
Default which could cause acceleration pursuant to Article VI hereof. Each
Guarantor agrees that this is a guarantee of payment and not a guarantee of
collection.
86
The Guarantors hereby agree that their obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of the
Notes or this Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Notes with respect to any provisions
hereof or thereof, the recovery of any judgment against the Company, any action
to enforce the same or any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of a guarantor. Each Guarantor hereby
waives diligence, presentment, demand of payment, filing of claims with a court
in the event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands whatsoever
and covenants that, subject to this Article XI, this Subsidiary Guarantee shall
not be discharged except by complete performance of the obligations contained in
the Notes and this Indenture.
If any Holder of Notes or the Trustee is required by any court or otherwise
to return to the Company or the Guarantors, or any custodian, trustee,
liquidator or other similar official acting in relation to either the Company or
the Guarantors, any amount paid by either to the Trustee or such Holder, the
Subsidiary Guarantees, to the extent theretofore discharged, shall be reinstated
in full force and effect.
Each Guarantor agrees that it shall not be entitled to any right of
subrogation in relation to the Holders of Notes in respect of any Obligations
guaranteed hereby until payment in full of all Obligations guaranteed hereby.
Each Guarantor further agrees that, as between the Guarantors, on the one hand,
and the Holders and the Trustee, on the other hand, (x) the maturity of the
Obligations guaranteed hereby may be accelerated as provided in Article VI
hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
Obligations guaranteed hereby and (y) in the event of any declaration of
acceleration of such Obligations as provided in Article VI hereof, such
Obligations (whether or not due and payable) shall forthwith become due and
payable by the Guarantors for the purpose of this Subsidiary Guarantee. The
Guarantors shall have the right to seek contribution from any non-paying
Guarantor so long as the exercise of such right does not impair the rights of
the Holders under the Subsidiary Guarantees.
SECTION 11.2. SUBORDINATION OF GUARANTEES.
The Obligations of each Guarantor under the Subsidiary Guarantee pursuant
to this Article XI shall be unsecured and subordinated to the prior payment in
full of all Senior Indebtedness of the Guarantor (including the Guarantor's
guarantee of the New Credit Facility), and the amounts for which the Guarantor
will be liable under the Senior Guarantees. The Obligations of the Guarantor
under the Subsidiary Guarantee shall be junior and subordinated to the
guarantees of such Guarantor which constitute Senior Indebtedness of the
Guarantor and all other Senior Indebtedness of the Guarantor on the same terms
and in the same manner as the Notes are junior and subordinated to Senior Debt
of the Company as set forth in the Indenture; provided, however, that the
Trustee and the Holders shall have the right to receive and/or retain payments
by the Guarantor only at such times as they may receive and/or retain payments
in respect of the Notes pursuant to this Indenture.
87
No Guarantor shall incur, create, issue, assume, guarantee or otherwise
become liable for any Indebtedness that is subordinate or junior in right of
payment to the Senior Indebtedness of such Guarantor and senior in any respect
in right of payment to the Subsidiary Guarantee.
For the purposes of the foregoing "Senior Indebtedness" shall mean
Indebtedness of the Guarantor that, if incurred by the Company, would constitute
Senior Debt.
SECTION 11.3. EXECUTION AND DELIVERY OF SUPPLEMENTAL INDENTURES.
If an Officer of the Guarantor whose signature is on this Indenture or a
Supplemental Indenture no longer holds that office at the time the Trustee
authenticates the related Note, the Subsidiary Guarantee shall be valid.
The delivery of any Note by the Trustee, shall constitute due delivery of
the Subsidiary Guarantee set forth in this Indenture or a Supplemental Indenture
on behalf of the Guarantors.
In the event that the Company creates or acquires any new Subsidiaries, if
required by Section 4.20 hereof, the Company and the Trustee shall, and the
Company shall cause such new Subsidiary to, execute a Supplemental Indenture to
this Indenture in accordance with Section 4.20 hereof and this Article XI, to
the extent applicable.
SECTION 11.4. GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
(a) Except as set forth in Articles IV and V, nothing contained in
this Indenture or in any of the Notes shall prevent any consolidation or
merger of a Guarantor with or into the Company or another Guarantor or
shall prevent any sale or conveyance of the property of a Guarantor as an
entirety or substantially as an entirety to the Company or another
Guarantor.
(b) No Guarantor may consolidate with or merge into (whether or not
such Guarantor is the surviving Person), another corporation, Person or
entity (other than the Company or another Guarantor) whether or not
affiliated with such Guarantor unless,
(i) the Person formed by or surviving any such consolidation
or merger (if other than such Guarantor) assumes all the Obligations
of such Guarantor under the Subsidiary Guarantee of such Guarantor;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default exists;
(iii) immediately after giving pro forma effect to such
transaction, the Company would be permitted under its Fixed Charge
Coverage Ratio test to incur at least $1.00 of additional Indebtedness
pursuant to the first paragraph of Section 4.9 hereof; and
88
(iv) the Company shall deliver to the Trustee an Officers'
Certificate of the Company and an Opinion of Counsel which shall state
that the proposed transaction and the assumption of Obligations
specified in paragraph (b)(i) above comply with the provisions of this
Indenture and any applicable Supplemental Indenture .
Subject to Section 11.3 of this Indenture, in case of any such consolidation,
merger, sale or conveyance and upon the assumption by the successor corporation,
by Supplemental Indenture, executed and delivered to the Trustee and
satisfactory in form to the Trustee, of the due and punctual performance of all
of the covenants and conditions of this Indenture to be performed by the
Guarantor, such successor corporation shall succeed to and be substituted for
the Guarantor with the same effect as if it had been named herein as a
Guarantor.
SECTION 11.5. EFFECT OF DEFEASANCE.
All Subsidiary Guarantees, whether pursuant to this Indenture or a
Supplemental Indenture, shall be of no further force and effect upon the
occurrence of a Legal Defeasance or a Covenant Defeasance, subject to
reinstatement pursuant to Section 8.7 hereof under the circumstances described
therein.
SECTION 11.6. LIMITATION ON GUARANTOR LIABILITY.
Each Guarantor, and by its acceptance of Notes, each Holder, hereby
confirms that it is the intention of all such parties that the Subsidiary
Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance
for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state law to the
extent applicable to any Subsidiary Guarantee. To effectuate the foregoing
intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree
that the obligations of such Guarantor under the Subsidiary Guarantee, Section
4.20 and this Article XI shall be limited to the maximum amount as will, after
giving effect to such maximum amount and all other contingent and fixed
liabilities of such Guarantor that are relevant under such laws, and after
giving effect to any collections from, rights to receive contribution from or
payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under Section 4.20 or this Article XI,
result in the obligations of such Guarantor under its Subsidiary Guarantee not
constituting a fraudulent transfer or conveyance.
SECTION 11.7. STAY, EXTENSION AND USURY LAWS.
Each Guarantor covenants (to the extent that it may lawfully do so) that it
shall not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, that may affect the covenants or
the performance of the Subsidiary Guarantee, and each Guarantor (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
89
execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though such law has not been
enacted.
ARTICLE XII.
MISCELLANEOUS
SECTION 12.1. TRUST INDENTURE ACT CONTROLS.
If any provision hereof limits, qualifies or conflicts with a provision of
the TIA or another provision that would be required or deemed under such Act to
be part of and govern this Indenture if this Indenture were subject thereto, the
latter provision shall control. If any provision of this Indenture modifies or
excludes any provision of the TIA that may be so modified or excluded, the
latter provision shall be deemed to apply to this Indenture as so modified or to
be excluded, as the case may be.
SECTION 12.2. NOTICES.
Any notice or communication by the Company, the Guarantors or the Trustee
to others is duly given if in writing and delivered in Person or mailed by first
class mail (registered or certified, return receipt requested), telex,
telecopier or overnight air courier guaranteeing next day delivery, to the
others' address:
If to the Company or to the Guarantors:
Xxxxxx, Fargo & Co.
00000 Xxxx Xxx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Chief Financial Officer
Fax: (000) 000-0000
With a copy to:
Xxxx, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000-6950
Attention: Xxxx X. Xxxxx
Fax: (000) 000-0000
If to the Trustee:
Marine Midland Bank
Attention: Corporate Trust Administration
000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-1180
Fax: (000) 000-0000
90
The Company, the Guarantors or the Trustee by notice to the others may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to Holders) shall be
deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when answered back, if telexed; when receipt acknowledged,
if telecopied; and the next Business Day after timely delivery to the courier,
if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first class mail
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 (S) 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 Guarantors, the Trustee and each Agent at the same time.
SECTION 12.3. COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF
NOTES.
Holders may communicate pursuant to TIA (S) 312(b) with other Holders with
respect to their rights under this Indenture or the Notes. The Company, the
Guarantors, the Trustee, the Registrar and anyone else shall have the protection
of TIA (S) 312(c).
SECTION 12.4. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company or the Guarantors to the
Trustee to take any action under this Indenture, the Company or the Guarantors,
as applicable, shall furnish to the Trustee:
(a) an Officers' Certificate of the Company in form and substance
reasonably satisfactory to the Trustee (which shall include the statements
set forth in Section 12.5 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 12.5 hereof) stating that, in the opinion of such counsel, all
such conditions precedent and covenants have been satisfied.
91
SECTION 12.5. 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 (S) 314(a)(4)) shall comply with the provisions of TIA (S)
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 12.6. 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 12.7. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS.
No past, present or future director, officer, employee, incorporator or
stockholder of the Company or of any Guarantor, as such, shall have any
liability for any obligations of the Company under the Notes or this Indenture
or of a Guarantor under its Subsidiary Guarantee, 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.
SECTION 12.8. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY
TRIAL.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING SECTION 5-1401 OF
THE GENERAL OBLIGATION LAW, BUT OTHERWISE WITHOUT REGARD TO CONFLICT OF LAW
RULES. THE COMPANY AND THE GUARANTORS HEREBY IRREVOCABLY SUBMIT TO THE
JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR
92
PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE AND THE NOTES, AND
IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. THE COMPANY AND THE
GUARANTORS IRREVOCABLY WAIVE, TO THE FULLEST EXTENT THAT IT MAY EFFECTIVELY DO
SO UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING
HEREIN SHALL AFFECT THE RIGHT OF THE TRUSTEE OR ANY HOLDER OF THE NOTES TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST THE COMPANY OR THE GUARANTOR IN ANY OTHER
JURISDICTION.
SECTION 12.9. 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, the Guarantors or of any
other Person. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
SECTION 12.10. SUCCESSORS.
All agreements of the Company and the Guarantors in this Indenture and the
Notes shall bind their successors. All agreements of the Trustee in this
Indenture shall bind its successors.
SECTION 12.11. 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 12.12. 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 12.13. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of the Articles
and Sections of this Indenture, which 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.
93
SECTION 12.14. QUALIFICATION OF INDENTURE.
The Company shall qualify this Indenture under the TIA in accordance with
the terms and conditions of the Registration Rights Agreement and shall pay all
reasonable costs and expenses (including attorneys' fees for the Company, the
Trustee and the Holders of the Notes) incurred in connection therewith,
including, but not limited to, costs and expenses of qualification of the
Indenture and the Notes and printing this Indenture and the Notes. The Trustee
shall be entitled to receive from the Company any such Officers' Certificates of
the Company, Opinions of Counsel or other documentation as it may reasonably
request in connection with any such qualification of this Indenture under the
TIA.
SECTION 12.15. ADDITIONAL RIGHTS OF TRANSFER RESTRICTED SECURITIES.
In addition to the rights provided to Holders of Securities under this
Indenture, Holders of Transfer Restricted Securities shall have all the rights
set forth in the Registration Rights Agreement.
[Signatures on following page]
94
SIGNATURES
XXXXXX, FARGO & CO.
By: /s/ Xxxxx X. Xxxxxxxx, Xx.
--------------------------------
Name: XXXXX X. XXXXXXXX, XX.
---------------------------
Title: EXECUTIVE VICE PRESIDENT
--------------------------
LOOMIS HOLDING CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx, Xx.
--------------------------------
Name: XXXXX X. XXXXXXXX, XX.
---------------------------
Title: EXECUTIVE VICE PRESIDENT
--------------------------
XXXXXX ARMORED INC.
By: /s/ Xxxxx X. Xxxxxxxx, Xx.
--------------------------------
Name: XXXXX X. XXXXXXXX, XX.
---------------------------
Title: VICE PRESIDENT
--------------------------
XXXXX FARGO ARMORED SERVICE
CORPORATION OF TEXAS
By: /s/ Xxxxxxx X. Xxxx
--------------------------------
Name: XXXXXXX X. XXXX
---------------------------
Title: VICE PRESIDENT
--------------------------
XXXXX FARGO ARMORED SERVICE
CORPORATION OF PUERTO RICO
By: /s/ Xxxxxxx X. Xxxx
--------------------------------
Name: XXXXXXX X. XXXX
---------------------------
Title: VICE PRESIDENT
--------------------------
95
MARINE MIDLAND BANK,
Trustee
By: /s/ Xxxxxx Xxxxxx
--------------------------------
Name: XXXXXX XXXXXX
---------------------------
Title: ASSISTANT VICE PRESIDENT
--------------------------
96
EXHIBIT A-1
FORM OF NOTE
(Face of Note)
XXXXXX, FARGO & CO.
10% SENIOR SUBORDINATED NOTE DUE 2004
[THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR
DEPOSITARY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN
THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE,
AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS
SECURITY 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) MAY BE REGISTERED EXCEPT IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.]/1/
[THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
ANY STATE SECURITIES LAWS AND NEITHER THIS SECURITY NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY
IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE
EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
IN CONNECTION WITH THE SALE HEREOF, AND SUCH PURCHASER
REPRESENTS, ACKNOWLEDGES AND AGREES FOR THE BENEFIT OF THE
COMPANY THAT: (I) IT HAS ACQUIRED A "RESTRICTED" SECURITY WHICH
HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT; (II) IT WILL
NOT OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY PRIOR TO THE
LATER OF THE DATE WHICH IS THREE YEARS AFTER THE DATE OF ORIGINAL
ISSUANCE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF SUCH RESTRICTED
SECURITIES (OR ANY PREDECESSOR) EXCEPT (A) TO THE COMPANY, (B)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THIS
SECURITY IS ELIGIBLE FOR RESALE
_____________________
/1/ To be included only if the Note is issued in global form.
A-1-1
PURSUANT TO RULE 144A, TO A PERSON WHO 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, (D) OUTSIDE THE UNITED STATES IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE
SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND, IN
EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF
ANY STATE OF THE UNITED STATES OR ANY APPLICABLE JURISDICTION;
AND (III) IT WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,
NOTIFY ANY PURCHASER FROM IT OF THIS SECURITY OF THE RESALE
RESTRICTIONS SET FORTH IN (II) ABOVE; ANY OFFER, SALE OR OTHER
DISPOSITION PURSUANT TO THE FOREGOING CLAUSES (II)(D) AND (E) IS
SUBJECT TO THE RIGHT OF THE ISSUER OF THIS SECURITY AND THE
TRUSTEE FOR SUCH SECURITIES TO REQUIRE THE DELIVERY OF AN OPINION
OF COUNSEL, CERTIFICATIONS OR OTHER INFORMATION ACCEPTABLE TO
THEM IN FORM AND SUBSTANCE.
A HOLDER OF THIS NOTE SHALL HAVE ALL THE RIGHTS SET FORTH IN THE
REGISTRATION RIGHTS AGREEMENT.]/2/
_____________________
/2/ To be included on the Senior Subordinated Notes and omitted from the New
Senior Subordinated Notes.
A-1-2
XXXXXX, FARGO & CO.
10% SENIOR SUBORDINATED NOTE DUE 2004
No. __________ $_______________
Record Dates: January 1 and July 1 CUSIP No. ________________
Interest Payment Dates: January 15 and Maturity Date: January 15, 2004
July 15, commencing July 15, 1997
XXXXXX, FARGO & CO., a Delaware corporation (the "Company," which term
includes any successor corporation under the indenture hereinafter referred to),
for value received promises to pay to __________________________________________
or registered assigns, the principal sum ________________ of Dollars on January
15, 2004.
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Note shall
not be entitled to any benefits under the Indenture referred to on the reverse
hereof or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this Note to be duly executed
under its corporate seal.
[SEAL] XXXXXX, FARGO & CO.
By:_________________________
Name:
Dated: _____________ Title:
By:_________________________
Name:
Title:
This is one of the Notes referred to in
the within-mentioned Indenture:
MARINE MIDLAND BANK,
as Trustee
By:______________________________
Name:
Title:
A-1-3
(Back of Note)
10% SENIOR SUBORDINATED NOTES DUE 2004
Capitalized terms used herein shall have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
1. INTEREST. The Company promises to pay interest on the principal
amount of this Note at the rate of 10% per annum from the date of original
issuance until maturity and shall pay the Liquidated Damages payable pursuant to
Section 5 of the Registration Rights Agreement referred to below. The Company
will pay interest and Liquidated Damages, if any, semi-annually on January 15
and July 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 Note
will accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from the date of issuance; provided that if there is no
existing Default in the payment of interest, and if this Note is authenticated
between a record date referred to on the face hereof and the next succeeding
Interest Payment Date, interest shall accrue from such next succeeding Interest
Payment Date; provided, further, that the first Interest Payment Date shall be
July 15, 1997. The Company shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue payments of the
principal, Purchase Price and Redemption Price of this Note from time to time on
demand at a rate that is 1% per annum in excess of the rate then in effect; it
shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Liquidated Damages, if
any, (without regard to any applicable grace periods) hereon from time to time
on demand at the same rate to the extent lawful. Interest will be computed on
the basis of a 360-day year of twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Notes (except
defaulted interest) and Liquidated Damages, if any, to the Persons who are
registered Holders of Notes at the close of business on the January 1 or July 1
next 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 2.12 of the Indenture with respect to defaulted interest. Any such
installment of interest or Liquidated Damages, if any, not punctually paid or
duly provided for shall forthwith cease to be payable to the registered Holders
on such Interest Payment Date, and may be paid to the registered Holders at the
close of business on a special Interest Payment Date to be fixed by the Trustee
for the payment of such defaulted interest, notice whereof shall be given to the
registered Holders not less than 10 days prior to such special Interest Payment
Date, or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Notes may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in the Indenture. The Notes will be payable as to principal,
Redemption Price, Purchase Price, interest and Liquidated Damages, if any, at
the office or agency of the Company maintained for such purpose within or
without the City and State of New York, or, at the option of the Company,
payment of interest and Liquidated Damages 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, Redemption Price and Purchase Price of, and interest and
Liquidated Damages (if any) on, all Global Notes and all other Notes the Holders
of which shall have provided wire transfer instructions to the Trustee or the
Paying Agent. Such payment shall be in
A-1-4
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. INDENTURE. The Company issued the Notes under an Indenture dated as
of January 24, 1997 (the "Indenture") among the Company, Loomis Holding
Corporation (to be renamed LFC Holding Corporation), Xxxxxx Armored Inc. (to be
renamed Xxxxxx, Fargo & Co.), Xxxxx Fargo Armored Service Corporation of Texas
(to be renamed LFC Armored of Texas Inc.), Xxxxx Fargo Armored Service
Corporation of Puerto Rico (to be renamed Xxxxxx, Fargo & Co. of Puerto Rico),
and the Trustee. The terms of the Notes include those stated in the Indenture
and those made part of the Indenture by reference to the Trust Indenture Act of
1939, as amended (15 U.S. Code (S)(S) 77aaa-77bbbb). The Notes are subject to
all such terms, and Holders are referred to the Indenture and such Act for a
statement of such terms. The Notes are general obligations of the Company
limited to $85.0 million in aggregate principal amount.
4. PAYING AGENT AND REGISTRAR. Initially, Marine Midland 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 may act in any such capacity.
5. OPTIONAL REDEMPTION. The Company may redeem any or all of the Notes at
any time on or after January 15, 2001, upon not less than 30 nor more than 60
days' prior notice in amounts of $1,000 or an integral multiple thereof at the
Redemption Prices (expressed as a percentage of the principal amount) set forth
below, if redeemed during the 12-month period beginning January 15 of the years
indicated below:
YEAR REDEMPTION PRICE
---- ----------------
2001........................ 105.000%
2002........................ 102.500%
2003 and thereafter......... 100.000%
in each case together with accrued and unpaid interest and Liquidated Damages,
if any, to the Redemption Date.
If less than all the Notes are to be redeemed, the Trustee will select the
particular Notes or portions thereof to be redeemed by lot, pro rata or by any
other method the Trustee shall deem fair and reasonable.
Notwithstanding the foregoing, prior to January 15, 2000, the Company may
in its discretion redeem up to an aggregate of $25.0 million in principal amount
of the Notes at a Redemption Price of 110% of the principal amount thereof, in
each case plus accrued and unpaid interest and Liquidated Damages, if any,
thereon to the Redemption Date, with the net proceeds of one or more public
offerings of Common Stock of the Company, provided, that at least $60.0 million
in aggregate principal amount of the Notes remain outstanding immediately after
the occurrence of such redemption; and provided, further, that such redemption
shall occur within 90 days of the date of the closing of such public offering of
Common Stock of the Company.
A-1-5
If less than all the Notes are to be redeemed, the Trustee will select the
particular Notes or portions thereof to be redeemed by lot, pro rata or by any
other method the Trustee shall deem fair and reasonable.
6. MANDATORY REDEMPTION. Except as set forth in Paragraph 8 below with
respect to repurchases of Notes in certain events, the Company shall not be
required to make mandatory redemption payments with respect to the Notes.
7. NOTICE OF REDEMPTION. Subject to the provisions of the Indenture, a
notice of redemption will be mailed at least 30 days but not more than 60 days
before the Redemption Date to each Holder whose Notes are to be redeemed at its
registered address. Notes in denominations larger than $1,000 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.
8. REPURCHASE AT OPTION OF HOLDER.
(a) If there is a Change of Control, the Company shall be required to make
an offer (a "Change of Control Offer") to repurchase all or any part (equal to
$1,000 or an integral multiple thereof) of each Holder's Notes at a Purchase
Price equal to 101% of the principal amount thereof plus accrued and unpaid
interest and Liquidated Damages, if any, to the date of repurchase, in
accordance with the procedures set forth in the Indenture. Within 30 days
following any Change of Control, the Company, shall mail a notice to each Holder
setting forth the procedures governing the Change of Control Offer as required
by the Indenture.
(b) If the Company or a Subsidiary consummates any Asset Sale, within 30
days after each date on which the aggregate amount of Excess Proceeds exceeds
$5.0 million, the Company shall commence an offer to all Holders of Notes (as
"Asset Sale Offer") pursuant to Section 3.9 of the Indenture to repurchase the
maximum principal amount of Notes that may be purchased out of the Excess
Proceeds at a Purchase Price equal to 100% of the principal amount thereof plus
accrued and unpaid interest and Liquidated Damages, if any, to the date of
repurchase, in accordance with the procedures set forth in the Indenture. To the
extent that the aggregate principal amount of Notes tendered pursuant to an
Asset Sale Offer is less than the Excess Proceeds, the Company (or such
Subsidiary) may use such balance for purposes not prohibited by the Indenture.
If the aggregate principal amount of Notes tendered by Holders thereof exceeds
the amount of Excess Proceeds, the Trustee shall select the Notes or portions
thereof to be purchased on a pro rata basis (with such adjustments as may be
deemed appropriate by the Trustee so that only Notes in denominations of $1,000,
or integral multiples thereof, are purchased). Holders of Notes will receive an
Asset Sale Offer from the Company prior to any related purchase date and may
elect to have such Notes purchased by completing the form entitled "Option of
Holder to Elect Purchase" below.
9. SUBORDINATION. The Notes are subordinated to the prior payment in
full of all Senior Debt, whether outstanding on the date of the Indenture or
thereafter created, incurred or assumed, unless the instrument under which such
Indebtedness is incurred expressly provides that such Indebtedness shall not be
senior in right of payment to the Notes. The Company agrees, and each Holder by
accepting a Note agrees, to the subordination and authorizes the Trustee to give
it effect.
A-1-6
10. 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, it need not
exchange or register the transfer of any Notes for a period of 15 days before a
selection of Notes to be redeemed or during the period between a record date and
the corresponding Interest Payment Date.
11. PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated
as its owner for all purposes.
12. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the
Indenture and 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, and any existing default 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. Without the consent
of any Holder of a Note, the Indenture and 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 Holders of the Notes
in case of a merger or consolidation, to add or release a Guarantor, 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.
13. DEFAULTS AND REMEDIES. Events of Default include: (i) default for 30
days in the payment when due of interest or Liquidated Damages, if any, on the
Notes; (ii) default in payment when due of principal, Redemption Price or
Purchase Price of the Notes when the same becomes due and payable at maturity,
upon redemption, repurchase or otherwise; (iii) failure by the Company to comply
with Sections 4.10, 4.15 or 4.18 of the Indenture; (iv) failure by the Company
to comply with Sections 4.7 or 4.9 of the Indenture for 30 days after notice to
the Company by the Trustee or the Holders of at least 25% of the aggregate
principal amount of the Notes outstanding; (v) failure by the Company for 60
days after notice to the Company to comply with certain other agreements in the
Indenture or the Notes by the Trustee or the Holders of at least 25% of the
aggregate principal amount of the Notes outstanding; (vi) default under certain
other agreements relating to Indebtedness of the Company 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 applicable grace period (a "Payment
Default") or (b) results in the acceleration of any Indebtedness prior to its
express maturity and, in each case, the principal amount of 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 $7.5 million or more; (vii) certain final judgments for
the payment of money that remain undischarged for a period of 60 days, provided
that the aggregate of all such undischarged judgments exceeds $7.5 million;
(viii) a Subsidiary Guarantee shall have been held unenforceable or invalid or
shall have ceased to be in full force and effect; and (ix) certain events of
bankruptcy
A-1-7
or insolvency with respect to the Company, any Guarantor or any Subsidiary that
is obligated to become a Guarantor. If any Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the then outstanding Notes may declare all the Notes to be due and payable
immediately. Notwithstanding the foregoing, in the case of an Event of Default
arising from certain events of bankruptcy or insolvency, all outstanding Notes
will become due and payable without further action or notice. Holders may not
enforce the Indenture or the Notes except as provided in the Indenture. Subject
to certain limitations, Holders of a majority in principal amount of the then
outstanding Notes may direct the Trustee in its exercise of any trust or power.
The 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
payment on any Note) if it determines in good faith that withholding notice is
in their interest. The Holders of not less than a majority in aggregate
principal amount of the Notes then outstanding by notice to the Trustee may on
behalf of the Holders of all of the Notes waive any existing Default or Event of
Default and its consequences under the Indenture except a continuing Default or
Event of Default in the payment of the principal, Redemption Price or Purchase
Price of, or interest, or Liquidated Damages, if any, on, the Notes (which may
be waived only by Holders of all of the Notes then outstanding). The Company is
required to deliver to the Trustee annually a statement regarding compliance
with the Indenture, and the Company is required upon becoming aware of any
Default or Event of Default, to deliver to the Trustee a statement specifying
such Default or Event of Default.
14. TRUSTEE DEALINGS WITH COMPANY. Subject to certain limitations, the
Trustee under the Indenture, in its individual or any other capacity, may become
owner or pledgee of Notes and may otherwise deal with the Company or its
Affiliates, as if it were not Trustee.
15. NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, incorporator or stockholder of the Company or of any
Guarantor, as such, shall have any liability for any obligations of the Company
under the Notes or the Indenture or of a Guarantor under the Subsidiary
Guarantee or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder by accepting a Note waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes.
16. AUTHENTICATION. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
17. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), 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).
18. DISCHARGE PRIOR TO MATURITY. If the Company deposits with the Trustee
or Paying Agent cash or U.S. Government Securities sufficient to pay the
principal or Redemption Price of, and interest and Liquidated Damages, if any,
on, the Notes to maturity or a specified Redemption Date and satisfies certain
conditions specified in the Indenture, the Company will be discharged from the
Indenture, except for certain Sections thereof. If the Company makes such
deposit and satisfies certain other conditions, the Company will be released
from certain covenants and related Events of Default.
A-1-8
19. ADDITIONAL RIGHTS OF HOLDERS OF TRANSFER RESTRICTED SECURITIES. In
addition to the rights provided to Holders of Notes under the Indenture, Holders
of Transferred Restricted Securities shall have all the rights set forth in the
Registration Rights Agreement.
20. SUBSIDIARY GUARANTEES. This Note is entitled to the benefits of the
guarantee of each of the Guarantors made for the benefit of the Holders. Upon
the terms and subject to the conditions set forth in Article XI of the
Indenture, the Guarantors have unconditionally agreed that the principal,
Redemption Price and Purchase Price of, and interest and Liquidated Damages, if
any, on the Notes shall be promptly paid in full when due, whether at maturity,
by acceleration, redemption, repurchase or otherwise, and (to the extent
permitted by law) interest on overdue principal, Redemption Price and Purchase
Price of, and interest and Liquidated Damages, if any, on the Notes and all
other obligations of the Company to the Holders or the Trustee under the Notes
or the Indenture shall be promptly paid in full or performed.
21. GOVERNING LAW. The Indenture, any Supplemental Indenture and this Note
shall be governed by and construed in accordance with the laws of the State of
New York, including Section 5-1401 of the General Obligation Law, but otherwise
without regard to conflict of law rules. Each of the Company and each Guarantor
hereby irrevocably submits to the jurisdiction of any New York state court
sitting in the Borough of Manhattan in the City of New York or any Federal court
sitting in the Borough of Manhattan in the City of New York in respect of any
suit, action or proceeding arising out of or relating to the Indenture and the
Notes, and irrevocably accept for itself and in respect of its property,
generally and unconditionally, jurisdiction of the aforesaid courts. Each of the
Company and each Guarantor irrevocably waives, to the fullest extent that it may
effectively do so under applicable law, trial by jury and any objection which it
may now or hereafter have to the laying of the venue of any such suit, action or
proceeding brought in any such court and any claim that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient forum.
Nothing herein shall affect the right of the Trustee or any Holder of the Notes
to serve process in any other manner permitted by law or to commence legal
proceedings or otherwise proceed against the Company or any Guarantor in any
other jurisdiction.
22. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the correctness or accuracy of such numbers either as printed on the Notes
or as contained in any notice of redemption or repurchase and reliance may be
placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Request may be made to:
Xxxxxx, Xxxxx & Co.
00000 Xxxx Xxx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Secretary
A-1-9
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 ________________________________________________________
agent 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 recognized signature guarantee
medallion program)
A-1-10
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to elect to have all or any portion of this Note purchased by
the Company pursuant to Section 4.10 ("Asset Sale Offer") or Section 4.15
("Change of Control Offer") of the Indenture, check the applicable boxes:
[_] Asset Sale Offer: [_] Change of Control Offer:
in whole [_] in whole [_]
in part [_] in part [_]
Amount to be Amount to be
purchased: $______ purchased: $______
Dated:_____________ Signature: __________________________________
(Sign exactly as your name appears
on the other side of this Note)
Signature
Guarantee:______________________________________________________________________
(Participant in recognized signature guarantee medallion program)
Social Security Number or
Taxpayer Identification Number:_________________________________________________
A-1-11
SCHEDULE OF EXCHANGES FOR CERTIFICATED NOTE
OR ANOTHER GLOBAL NOTE/3/
The following exchanges of a part of this Global Note for Certificated
Notes or another Global Note have been made:
Principal Amount of Signature of
Amount of decrease in Amount of increase in this Global Note authorized officer of
Principal Amount of Principal Amount of following such Trustee or Note
Date of Exchange this Global Note this Global Note decrease (or increase) Custodian
-------------------- ----------------------- ----------------------- ------------------------ -----------------------
___________________
/3/ This should be included only if the Note is issued in global form.
A-1-12
EXHIBIT A-2
FORM OF REGULATION S TEMPORARY NOTE
(Face of Note)
XXXXXX, FARGO & CO.
10% SENIOR SUBORDINATED NOTE DUE 2004
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR
DEPOSITARY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN
THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE,
AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS
SECURITY 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) MAY BE REGISTERED EXCEPT IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
ANY STATE SECURITIES LAWS AND NEITHER THIS SECURITY NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY
IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE
EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
IN CONNECTION WITH THE SALE HEREOF, AND SUCH PURCHASER
REPRESENTS, ACKNOWLEDGES AND AGREES FOR THE BENEFIT OF THE
COMPANY THAT: (I) IT HAS ACQUIRED A "RESTRICTED" SECURITY WHICH
HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT; (II) IT WILL
NOT OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY PRIOR TO THE
LATER OF THE DATE WHICH IS THREE YEARS AFTER THE DATE OF ORIGINAL
ISSUANCE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF SUCH RESTRICTED
SECURITIES (OR ANY PREDECESSOR) EXCEPT (A) TO THE COMPANY, (B)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THIS
SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A
PERSON WHO 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, (D) OUTSIDE THE UNITED STATES IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT, OR (E)
PURSUANT
A-2-1
TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH THE
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR
ANY APPLICABLE JURISDICTION; AND (III) IT WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF
THIS SECURITY OF THE RESALE RESTRICTIONS SET FORTH IN (II) ABOVE;
ANY OFFER, SALE OR OTHER DISPOSITION PURSUANT TO THE FOREGOING
CLAUSES (II)(D) AND (E) IS SUBJECT TO THE RIGHT OF THE ISSUER OF
THIS SECURITY AND THE TRUSTEE FOR SUCH SECURITIES TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS OR OTHER
INFORMATION ACCEPTABLE TO THEM IN FORM AND SUBSTANCE.
A HOLDER OF THIS NOTE SHALL HAVE ALL THE RIGHTS SET FORTH IN THE
REGISTRATION RIGHTS AGREEMENT.
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE,
AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR
CERTIFICATED NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED
HEREIN).
THIS REGULATION S TEMPORARY GLOBAL NOTE IS EXCHANGEABLE IN WHOLE
OR IN PART FOR ONE OR MORE REGULATION S PERMANENT GLOBAL NOTES OR
RESTRICTED GLOBAL NOTES ONLY (i) AFTER THE TERMINATION OF THE
RESTRICTED PERIOD (AS DEFINED IN REGULATION S) AND (ii) UPON
PRESENTATION OF CERTIFICATES REQUIRED BY ARTICLE II OF THE
INDENTURE. UPON EXCHANGE OF THIS REGULATION S TEMPORARY GLOBAL
NOTE FOR ONE OR MORE REGULATION S PERMANENT GLOBAL NOTES OR
RESTRICTED GLOBAL NOTES, THE TRUSTEE SHALL CANCEL THIS REGULATION
S TEMPORARY GLOBAL NOTE.
A-2-2
XXXXXX, FARGO & CO.
10% SENIOR SUBORDINATED NOTE DUE 2004
No. ___________ $_______________
Record Dates: January 1 and July 1 CUSIP No. _______________
Interest Payment Dates: January 15 and Maturity Date: January 15, 2004
July 15, commencing July 15, 1997
XXXXXX, FARGO & CO., a Delaware corporation (the "Company," which term
includes any successor corporation under the indenture hereinafter referred to),
for value received promises to pay to __________________________________________
or registered assigns, the principal sum of _______________ Dollars on January
15, 2004.
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Note shall
not be entitled to any benefits under the Indenture referred to on the reverse
hereof or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this Note to be duly executed
under its corporate seal.
[SEAL] Dated:
XXXXXX, FARGO & CO.
By:_________________________
Name:
Title:
By:_________________________
Name:
Title:
This is one of the Notes referred to in the
within-mentioned Indenture:
MARINE MIDLAND BANK,
as Trustee
By:______________________________
Name:
Title:
A-2-3
SCHEDULE OF EXCHANGES FOR GLOBAL NOTES
The following exchanges of a part of this Regulation S Temporary
Global Note for other Global Notes have been made:
Principal Amount of Signature of
Amount of decrease in Amount of increase in this Global Note authorized officer of
Principal Amount of Principal Amount of following such Trustee or Note
Date of Exchange this Global Note this Global Note decrease (or increase) Custodian
-------------------- ----------------------- ----------------------- ------------------------ -----------------------
A-2-4
EXHIBIT A-3
FORM OF NEW SENIOR SUBORDINATED NOTE
(Face of New Note)
XXXXXX, FARGO & CO.
10% SENIOR SUBORDINATED NOTE DUE 2004
[THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR
DEPOSITARY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN
THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE,
AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS
SECURITY 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) MAY BE REGISTERED EXCEPT IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.]/1/
_____________________
/1/ To be included only if the Note is issued in global form.
A-3-1
XXXXXX, FARGO & CO.
10% SENIOR SUBORDINATED NOTE DUE 2004
No. ___________ $_______________
Record Dates: January 1 and July 1 CUSIP No. _______________
Interest Payment Dates: January 15 and Maturity Date: January 15, 2004
July 15, commencing _____________
XXXXXX, FARGO & CO., a Delaware corporation (the "Company," which term
includes any successor corporation under the indenture hereinafter referred to),
for value received promises to pay to __________________________________________
or registered assigns, the principal sum of ___________________ Dollars on
January 15, 2004.
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Note shall
not be entitled to any benefits under the Indenture referred to on the reverse
hereof or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this Note to be duly executed
under its corporate seal.
[SEAL] XXXXXX, FARGO & CO.
By:_________________________
Name:
Dated: ____________ Title:
By:_________________________
Name:
Title:
This is one of the Notes referred to in the
within-mentioned Indenture:
MARINE MIDLAND BANK,
as Trustee
By:______________________________
Name:
Title:
A-3-2
(Back of Note)
10% SENIOR SUBORDINATED NOTES DUE 2004
Capitalized terms used herein shall have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
1. INTEREST. The Company promises to pay interest on the principal
amount of this Note at the rate of 10% per annum from the date of original
issuance until maturity and shall pay the Liquidated Damages payable pursuant to
Section 5 of the Registration Rights Agreement referred to below. The Company
will pay interest and Liquidated Damages, if any, semi-annually on January 15
and July 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 Note
will accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from the date of issuance; provided that if there is no
existing Default in the payment of interest, and if this Note is authenticated
between a record date referred to on the face hereof and the next succeeding
Interest Payment Date, interest shall accrue from such next succeeding Interest
Payment Date; provided, further, that the first Interest Payment Date shall be
_________. The Company shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue payments of the principal,
Purchase Price and Redemption Price of this Note from time to time on demand at
a rate that is 1% per annum in excess of the rate then in effect; it shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Liquidated Damages, if
any, (without regard to any applicable grace periods) hereon from time to time
on demand at the same rate to the extent lawful. Interest will be computed on
the basis of a 360-day year of twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Notes (except
defaulted interest) and Liquidated Damages, if any, to the Persons who are
registered Holders of Notes at the close of business on the January 1 or July 1
next 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 2.12 of the Indenture with respect to defaulted interest. Any such
installment of interest or Liquidated Damages, if any, not punctually paid or
duly provided for shall forthwith cease to be payable to the registered Holders
on such Interest Payment Date, and may be paid to the registered Holders at the
close of business on a special Interest Payment Date to be fixed by the Trustee
for the payment of such defaulted interest, notice whereof shall be given to the
registered Holders not less than 10 days prior to such special Interest Payment
Date, or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Notes may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in the Indenture. The Notes will be payable as to principal,
Redemption Price, Purchase Price, interest and Liquidated Damages, if any, at
the office or agency of the Company maintained for such purpose within or
without the City and State of New York, or, at the option of the Company,
payment of interest and Liquidated Damages 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, Redemption Price and Purchase Price of, and interest and
Liquidated Damages (if any) on, all Global Notes and all other Notes the Holders
of which shall have provided wire transfer instructions to the Trustee or the
Paying Agent. Such payment shall be in
A-3-3
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. INDENTURE. The Company issued the Notes under an Indenture dated as
of January 24, 1997 (the "Indenture") among the Company, Loomis Holding
Corporation (to be renamed LFC Holding Corporation), Xxxxxx Armored Inc. (to be
renamed Xxxxxx, Fargo & Co.), Xxxxx Fargo Armored Service Corporation of Texas
(to be renamed LFC Armored of Texas Inc.), Xxxxx Fargo Armored Service
Corporation of Puerto Rico (to be renamed Xxxxxx, Fargo & Co. of Puerto Rico),
and the Trustee. The terms of the Notes include those stated in the Indenture
and those made part of the Indenture by reference to the Trust Indenture Act of
1939, as amended (15 U.S. Code (S)(S) 77aaa-77bbbb). The Notes are subject to
all such terms, and Holders are referred to the Indenture and such Act for a
statement of such terms. The Notes are general obligations of the Company
limited to $85.0 million in aggregate principal amount.
4. PAYING AGENT AND REGISTRAR. Initially, Marine Midland 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 may act in any such capacity.
5. OPTIONAL REDEMPTION. The Company may redeem any or all of the Notes at
any time on or after January 15, 2001, upon not less than 30 nor more than 60
days' prior notice in amounts of $1,000 or an integral multiple thereof at the
Redemption Prices (expressed as a percentage of the principal amount) set forth
below, if redeemed during the 12-month period beginning January 15 of the years
indicated below:
YEAR REDEMPTION PRICE
---- ----------------
2001........................... 105.000%
2002........................... 102.500%
2003 and thereafter............ 100.000%
in each case together with accrued and unpaid interest and Liquidated Damages,
if any, to the Redemption Date.
If less than all the Notes are to be redeemed, the Trustee will select the
particular Notes or portions thereof to be redeemed by lot, pro rata or by any
other method the Trustee shall deem fair and reasonable.
Notwithstanding the foregoing, prior to January 15, 2000, the Company may
in its discretion redeem up to an aggregate of $25.0 million in principal amount
of the Notes at a Redemption Price of 110% of the principal amount thereof, in
each case plus accrued and unpaid interest and Liquidated Damages, if any,
thereon to the Redemption Date, with the net proceeds of one or more public
offerings of Common Stock of the Company, provided, that at least $60.0 million
in aggregate principal amount of the Notes remain outstanding immediately after
the occurrence of such redemption; and provided, further, that such redemption
shall occur within 90 days of the date of the closing of such public offering of
Common Stock of the Company.
A-3-4
If less than all the Notes are to be redeemed, the Trustee will select the
particular Notes or portions thereof to be redeemed by lot, pro rata or by any
other method the Trustee shall deem fair and reasonable.
6. MANDATORY REDEMPTION. Except as set forth in Paragraph 8 below with
respect to repurchases of Notes in certain events, the Company shall not be
required to make mandatory redemption payments with respect to the Notes.
7. NOTICE OF REDEMPTION. Subject to the provisions of the Indenture, a
notice of redemption will be mailed at least 30 days but not more than 60 days
before the Redemption Date to each Holder whose Notes are to be redeemed at its
registered address. Notes in denominations larger than $1,000 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.
8. REPURCHASE AT OPTION OF HOLDER.
(a) If there is a Change of Control, the Company shall be required to make
an offer (a "Change of Control Offer") to repurchase all or any part (equal to
$1,000 or an integral multiple thereof) of each Holder's Notes at a Purchase
Price equal to 101% of the principal amount thereof plus accrued and unpaid
interest and Liquidated Damages, if any, to the date of repurchase, in
accordance with the procedures set forth in the Indenture. Within 30 days
following any Change of Control, the Company, shall mail a notice to each Holder
setting forth the procedures governing the Change of Control Offer as required
by the Indenture.
(b) If the Company or a Subsidiary consummates any Asset Sale, within 30
days after each date on which the aggregate amount of Excess Proceeds exceeds
$5.0 million, the Company shall commence an offer to all Holders of Notes (as
"Asset Sale Offer") pursuant to Section 3.9 of the Indenture to repurchase the
maximum principal amount of Notes that may be purchased out of the Excess
Proceeds at a Purchase Price equal to 100% of the principal amount thereof plus
accrued and unpaid interest and Liquidated Damages, if any, to the date of
repurchase, in accordance with the procedures set forth in the Indenture. To the
extent that the aggregate principal amount of Notes tendered pursuant to an
Asset Sale Offer is less than the Excess Proceeds, the Company (or such
Subsidiary) may use such balance for purposes not prohibited by the Indenture.
If the aggregate principal amount of Notes tendered by Holders thereof exceeds
the amount of Excess Proceeds, the Trustee shall select the Notes or portions
thereof to be purchased on a pro rata basis (with such adjustments as may be
deemed appropriate by the Trustee so that only Notes in denominations of $1,000,
or integral multiples thereof, are purchased). Holders of Notes will receive an
Asset Sale Offer from the Company prior to any related purchase date and may
elect to have such Notes purchased by completing the form entitled "Option of
Holder to Elect Purchase" below.
9. SUBORDINATION. The Notes are subordinated to the prior payment in
full of all Senior Debt, whether outstanding on the date of the Indenture or
thereafter created, incurred or assumed, unless the instrument under which such
Indebtedness is incurred expressly provides that such Indebtedness shall not be
senior in right of payment to the Notes. The Company agrees, and each Holder by
accepting a Note agrees, to the subordination and authorizes the Trustee to give
it effect.
A-3-5
10. 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, it need not
exchange or register the transfer of any Notes for a period of 15 days before a
selection of Notes to be redeemed or during the period between a record date and
the corresponding Interest Payment Date.
11. PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated
as its owner for all purposes.
12. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the
Indenture and 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, and any existing default 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. Without the consent
of any Holder of a Note, the Indenture and 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 Holders of the Notes
in case of a merger or consolidation, to add a Guarantor, 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.
13. DEFAULTS AND REMEDIES. Events of Default include: (i) default for 30
days in the payment when due of interest or Liquidated Damages, if any, on the
Notes; (ii) default in payment when due of principal, Redemption Price or
Purchase Price of the Notes when the same becomes due and payable at maturity,
upon redemption, repurchase or otherwise; (iii) failure by the Company to comply
with Sections 4.10, 4.15 or 4.18 of the Indenture; (iv) failure by the Company
to comply with Sections 4.7 or 4.9 of the Indenture for 30 days after notice to
the Company by the Trustee or the Holders of at least 25% of the aggregate
principal amount of the Notes outstanding; (v) failure by the Company for 60
days after notice to the Company to comply with certain other agreements in the
Indenture or the Notes by the Trustee or the Holders of at least 25% of the
aggregate principal amount of the Notes outstanding; (vi) default under certain
other agreements relating to Indebtedness of the Company 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 applicable grace period (a "Payment
Default") or (b) results in the acceleration of any Indebtedness prior to its
express maturity and, in each case, the principal amount of 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 $7.5 million or more; (vii) certain final judgments for
the payment of money that remain undischarged for a period of 60 days, provided
that the aggregate of all such undischarged judgments exceeds $7.5 million;
(viii) a Subsidiary Guarantee shall have been held unenforceable or invalid or
shall have ceased to be in full force and effect; and (ix) certain events of
bankruptcy
A-3-6
or insolvency with respect to the Company, any Guarantor or any Subsidiary that
is obligated to become a Guarantor. If any Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the then outstanding Notes may declare all the Notes to be due and payable
immediately. Notwithstanding the foregoing, in the case of an Event of Default
arising from certain events of bankruptcy or insolvency, all outstanding Notes
will become due and payable without further action or notice. Holders may not
enforce the Indenture or the Notes except as provided in the Indenture. Subject
to certain limitations, Holders of a majority in principal amount of the then
outstanding Notes may direct the Trustee in its exercise of any trust or power.
The 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
payment on any Note) if it determines in good faith that withholding notice is
in their interest. The Holders of not less than a majority in aggregate
principal amount of the Notes then outstanding by notice to the Trustee may on
behalf of the Holders of all of the Notes waive any existing Default or Event of
Default and its consequences under the Indenture except a continuing Default or
Event of Default in the payment of the principal, Redemption Price or Purchase
Price of, or interest, or Liquidated Damages, if any, on, the Notes (which may
be waived only by Holders of all of the Notes then outstanding). The Company is
required to deliver to the Trustee annually a statement regarding compliance
with the Indenture, and the Company is required upon becoming aware of any
Default or Event of Default, to deliver to the Trustee a statement specifying
such Default or Event of Default.
14. TRUSTEE DEALINGS WITH COMPANY. Subject to certain limitations, the
Trustee under the Indenture, in its individual or any other capacity, may become
owner or pledgee of Notes and may otherwise deal with the Company or its
Affiliates, as if it were not Trustee.
15. NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, incorporator or stockholder of the Company or of any
Guarantor, as such, shall have any liability for any obligations of the Company
under the Notes or the Indenture or of a Guarantor under the Subsidiary
Guarantee or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder by accepting a Note waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes.
16. AUTHENTICATION. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
17. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), 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).
18. DISCHARGE PRIOR TO MATURITY. If the Company deposits with the Trustee
or Paying Agent cash or U.S. Government Securities sufficient to pay the
principal or Redemption Price of, and interest and Liquidated Damages, if any,
on, the Notes to maturity or a specified Redemption Date and satisfies certain
conditions specified in the Indenture, the Company will be discharged from the
Indenture, except for certain Sections thereof. If the Company makes such
deposit and satisfies certain other conditions, the Company will be released
from certain covenants and related Events of Default.
A-3-7
19. ADDITIONAL RIGHTS OF HOLDERS OF TRANSFER RESTRICTED SECURITIES. In
addition to the rights provided to Holders of Notes under the Indenture, Holders
of Transferred Restricted Securities shall have all the rights set forth in the
Registration Rights Agreement.
20. SUBSIDIARY GUARANTEES. This Note is entitled to the benefits of the
guarantee of each of the Guarantors made for the benefit of the Holders. Upon
the terms and subject to the conditions set forth in Article XI of the
Indenture, the Guarantors have unconditionally agreed that the principal,
Redemption Price and Purchase Price of, and interest and Liquidated Damages, if
any, on the Notes shall be promptly paid in full when due, whether at maturity,
by acceleration, redemption, repurchase or otherwise, and (to the extent
permitted by law) interest on overdue principal, Redemption Price and Purchase
Price of, and interest and Liquidated Damages, if any, on the Notes and all
other obligations of the Company to the Holders or the Trustee under the Notes
or the Indenture shall be promptly paid in full or performed.
21. GOVERNING LAW. The Indenture, any Supplemental Indenture and this Note
shall be governed by and construed in accordance with the laws of the State of
New York, including Section 5-1401 of the General Obligation Law, but otherwise
without regard to conflict of law rules. Each of the Company and each Guarantor
hereby irrevocably submits to the jurisdiction of any New York state court
sitting in the Borough of Manhattan in the City of New York or any Federal court
sitting in the Borough of Manhattan in the City of New York in respect of any
suit, action or proceeding arising out of or relating to the Indenture and the
Notes, and irrevocably accept for itself and in respect of its property,
generally and unconditionally, jurisdiction of the aforesaid courts. Each of the
Company and each Guarantor irrevocably waives, to the fullest extent that it may
effectively do so under applicable law, trial by jury and any objection which it
may now or hereafter have to the laying of the venue of any such suit, action or
proceeding brought in any such court and any claim that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient forum.
Nothing herein shall affect the right of the Trustee or any Holder of the Notes
to serve process in any other manner permitted by law or to commence legal
proceedings or otherwise proceed against the Company or any Guarantor in any
other jurisdiction.
22. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the correctness or accuracy of such numbers either as printed on the Notes
or as contained in any notice of redemption or repurchase and reliance may be
placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Request may be made to:
Xxxxxx, Xxxxx & Co.
00000 Xxxx Xxx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Secretary
A-3-8
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 ________________________________________________________
agent 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 recognized signature guarantee
medallion program)
A-3-9
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to elect to have all or any portion of this Note purchased by
the Company pursuant to Section 4.10 ("Asset Sale Offer") or Section 4.15
("Change of Control Offer") of the Indenture, check the applicable boxes:
[_] Asset Sale Offer: [_] Change of Control Offer:
in whole [_] in whole [_]
in part [_] in part [_]
Amount to be Amount to be
purchased: $______ purchased: $______
Dated:_____________ Signature: __________________________________
(Sign exactly as your name appears
on the other side of this Note)
Signature
Guarantee:______________________________________________________________________
(Participant in recognized signature guarantee medallion program)
Social Security Number or
Taxpayer Identification Number:_________________________________________________
A-3-10
SCHEDULE OF EXCHANGES FOR CERTIFICATED NOTE
OR ANOTHER GLOBAL NOTE/2/
The following exchanges of a part of this Global Note for Certificated
Notes or another Global Note have been made:
Principal Amount of Signature of
Amount of decrease in Amount of increase in this Global Note authorized officer of
Principal Amount of Principal Amount of following such Trustee or Note
Date of Exchange this Global Note this Global Note decrease (or increase) Custodian
-------------------- ----------------------- ----------------------- ------------------------ -----------------------
___________________
/2/ This should be included only if the Note is issued in global form.
A-3-11
EXHIBIT B-1
FORM OF CERTIFICATE FOR REGISTRATION OF TRANSFER
FROM RESTRICTED GLOBAL NOTE TO REGULATION S GLOBAL NOTE
(Pursuant to Section 2.6(a)(i) of the Indenture)
Marine Midland Bank
000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-1180
Attention: Corporate Trust Administration
Re: 10% Senior Subordinated Notes due 2004 of Xxxxxx, Fargo & Co.
Reference is hereby made to the Indenture, dated as of January 24, 1997
(the "Indenture"), among Xxxxxx, Fargo & Co., as issuer (the "Company"), Loomis
Holding Corporation, Xxxxxx Armored Inc., Xxxxx Fargo Armored Service
Corporation of Texas and Xxxxx Fargo Armored Service Corporation of Puerto Rico,
as Guarantors, and Marine Midland Bank, as trustee. Capitalized terms used but
not defined herein shall have the meanings given to them in the Indenture.
This letter relates to $________ principal amount of Notes which are
evidenced by one or more Restricted Global Notes (CUSIP No. ____________) and
held with the Depositary in the name of ________________ (the "Transferor"). The
Transferor has requested a transfer of such beneficial interest in the Notes to
a Person who will take delivery thereof in the form of an equal principal amount
of Notes evidenced by one or more Regulation S Global Notes (CUSIP No.
______________).
In connection with such request and in respect of such Notes, the
Transferor hereby certifies that such transfer has been effected in compliance
with the transfer restrictions applicable to the Global Notes and pursuant to
and in accordance with Rule 903 or Rule 904 under the United States Securities
Act of 1933, as amended (the "Securities Act"), and accordingly the Transferor
hereby further certifies that:
1. The offer of the Notes was not made to a person in the United
States;
2. at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting on its
behalf reasonably believed and believes that the transferee was outside the
United States;
3. no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable;
4. the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
B-1-1
5. if the transaction is completed prior to the expiration of the
Restricted Period, the beneficial interest being transferred as described
above is to be held with the Depositary through Euroclear or Cedel Bank or
both (Common Code _________).
Upon giving effect to this request to exchange a beneficial interest in a
Restricted Global Note for a beneficial interest in a Regulation S Global Note,
the resulting beneficial interest shall be subject to the restrictions on
transfer applicable to Regulation S Global Notes pursuant to the Indenture and
the Securities Act and, if such transfer occurs prior to the end of the
Restricted Period associated with the initial offering of Notes, the additional
restrictions applicable to transfers of interest in the Regulation S Temporary
Global Note.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and Xxxxxx Brothers Inc. and NationsBanc
Capital Markets, Inc. (c/x Xxxxxx Brothers Inc., 3 World Financial Center, New
York, New York 10285), the initial purchasers of such Notes being transferred.
Terms used in this certificate and not otherwise defined in the Indenture have
the meanings set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By: ______________________
Name:
Title:
Dated: __________, _____
cc: Xxxxxx, Fargo & Co.
Xxxxxx Brothers Inc.
NationsBanc Capital Markets, Inc.
B-1-2
EXHIBIT B-2
FORM OF CERTIFICATE FOR REGISTRATION OF TRANSFER
FROM REGULATION S GLOBAL NOTE TO RESTRICTED GLOBAL NOTE
(Pursuant to Section 2.6(a)(ii) of the Indenture)
Marine Midland Bank
000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-1180
Attention: Corporate Trust Administration
Re: 10% Senior Subordinated Notes due 2004 of Xxxxxx, Fargo & Co.
Reference is hereby made to the Indenture, dated as of January 24, 1997
(the "Indenture"), among Xxxxxx, Fargo & Co., as issuer (the "Company"), Loomis
Holding Corporation, Xxxxxx Armored Inc., Xxxxx Fargo Armored Service
Corporation of Texas and Xxxxx Fargo Armored Service Corporation of Puerto Rico,
as Guarantors, and Marine Midland Bank, as trustee. Capitalized terms used but
not defined herein shall have the meanings given to them in the Indenture.
This letter relates to $________ principal amount of Notes which are
evidenced by one or more Regulation S Global Notes (CUSIP No. ____________) and
held with the Depositary or through [Euroclear] [Cedel Bank] (Common Code
_________) in the name of __________ (the "Transferor"). The Transferor has
requested a transfer of such beneficial interest in the Notes to a Person who
will take delivery thereof in the form of an equal principal amount of Notes
evidenced by one or more Restricted Global Notes (CUSIP No. ______________), to
be held with the Depositary.
In connection with such request and in respect of such Notes, the
Transferor hereby certifies that:
[CHECK ONE]
[_] such transfer is being effected pursuant to and in accordance with
Rule 144A under the United States Securities Act of 1933, as amended
(the "Securities Act"), and, accordingly, the Transferor hereby
further certifies that the Notes are being transferred to a Person
that the Transferor reasonably believes is purchasing the Notes for
its own account, or for one or more accounts with respect to which
such Person exercises sole investment discretion, and such Person and
each such account is a "qualified institutional buyer" within the
meaning of Rule 144A in a transaction meeting the requirements of Rule
144A; or
[_] such transfer is being effected pursuant to and in accordance with
Rule 144 under the Securities Act; or
B-2-1
[_] such transfer is being effected pursuant to an effective registration
statement under the Securities Act; or
[_] such transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A
or Rule 144, and the Transferor hereby further certifies that the
Notes are being transferred in compliance with the transfer
restrictions applicable to the Global Notes and in accordance with the
requirements of the exemption claimed, which certification is
supported by an Opinion of Counsel, provided by the Transferor or the
transferee (a copy of which the Transferor has attached to this
certification) in form and substance reasonably acceptable to the
Company, to the effect that such transfer is in compliance with the
Securities Act;
and such Notes are being transferred in compliance with any applicable blue sky
securities laws of any state of the United States.
Upon giving effect to this request to exchange a beneficial interest in
Regulation S Global Notes for a beneficial interest in Restricted Global Notes,
the resulting beneficial interest shall be subject to the restrictions on
transfer applicable to Restricted Global Notes pursuant to the Indenture and the
Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and Xxxxxx Brothers Inc. and NationsBanc
Capital Markets, Inc. (c/x Xxxxxx Brothers Inc., 3 World Financial Center, New
York, New York 10285), the initial purchasers of such Notes being transferred.
[Insert Name of Transferor]
By: ______________________
Name:
Title:
Dated: __________, _____
cc: Xxxxxx, Fargo & Co.
Xxxxxx Brothers Inc.
NationsBanc Capital Markets, Inc.
B-2-2
EXHIBIT B-3
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
OF CERTIFICATED NOTES
(Pursuant to Section 2.6(b) of the Indenture)
Marine Midland Bank
000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-1180
Attention: Corporate Trust Administration
Re: 10% Senior Subordinated Notes due 2004 of Xxxxxx, Fargo & Co.
Reference is hereby made to the Indenture, dated as of January 24, 1997
(the "Indenture"), among Xxxxxx, Fargo & Co., as issuer (the "Company"), Loomis
Holding Corporation, Xxxxxx Armored Inc., Xxxxx Fargo Armored Service
Corporation of Texas and Xxxxx Fargo Armored Service Corporation of Puerto Rico,
as Guarantors, and Marine Midland Bank, as trustee. Capitalized terms used but
not defined herein shall have the meanings given to them in the Indenture.
This letter relates to $________ principal amount of Notes which are
evidenced by one or more Certificated Notes (CUSIP No. ____________) in the name
of ________________ (the "Transferor"). The Transferor has requested an exchange
or transfer of such Certificated Note(s) in the form of an equal principal
amount of Notes evidenced by one or more Certificated Notes (CUSIP No.
______________), to be delivered to the Transferor or, in the case of a transfer
of such Notes, to such Person as the Transferor instructs the Trustee.
In connection with such request and in respect of the Notes surrendered to
the Trustee herewith for exchange (the "Surrendered Notes"), the Holder of such
Surrendered Notes hereby certifies that:
[CHECK ONE]
[_] the Surrendered Notes are being acquired for the Transferor's own
account, without transfer; or
[_] the Surrendered Notes are being transferred to the Company; or
[_] the Surrendered Notes are being transferred pursuant to and in
accordance with Rule 144A under the United States Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, the
Transferor hereby further certifies that the Surrendered Notes are
being transferred to a Person that the Transferor reasonably believes
is purchasing the Surrendered Notes for its own account, or for one or
more accounts with respect to which such Person exercises sole
investment discretion, and such
B-3-1
Person and each such account is a "qualified institutional buyer"
within the meaning of Rule 144A, in each case in a transaction meeting
the requirements of Rule 144A; or
[_] the Surrendered Notes are being transferred in a transaction permitted
by Rule 144 under the Securities Act; or
[_] the Surrendered Notes are being transferred pursuant to an effective
registration statement under the Securities Act; or
[_] such transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A
or Rule 144, and the Transferor hereby further certifies that the
Notes are being transferred in compliance with the transfer
restrictions applicable to the Notes and in accordance with the
requirements of the exemption claimed, which certification is
supported by an Opinion of Counsel, provided by the Transferor or the
transferee (a copy of which the Transferor has attached to this
certification) in form and substance reasonably acceptable to the
Company, to the effect that such transfer is in compliance with the
Securities Act;
and the Surrendered Notes are being transferred in compliance with any
applicable blue sky securities laws of any state of the United States.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and Xxxxxx Brothers Inc. and NationsBanc
Capital Markets, Inc. (c/x Xxxxxx Brothers Inc., 3 World Financial Center, New
York, New York 10285), the initial purchasers of such Notes being transferred.
[Insert Name of Transferor]
By: ______________________
Name:
Title:
Dated: __________, _____
cc: Xxxxxx, Fargo & Co.
Xxxxxx Brothers Inc.
NationsBanc Capital Markets, Inc. B-4-2
B-3-2
EXHIBIT B-4
FORM OF CERTIFICATE FOR EXCHANGE
OF RESTRICTED GLOBAL NOTE OR REGULATION S
PERMANENT GLOBAL NOTE TO CERTIFICATED NOTE
(Pursuant to Section 2.6(c) of the Indenture)
Marine Midland Bank
000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-1180
Attention: Corporate Trust Administration
Re: 10% Senior Subordinated Notes due 2004 of Xxxxxx, Fargo & Co.
Reference is hereby made to the Indenture, dated as of January 24, 1997
(the "Indenture"), among Xxxxxx, Fargo & Co., as issuer (the "Company"), Loomis
Holding Corporation, Xxxxxx Armored Inc., Xxxxx Fargo Armored Service
Corporation of Texas and Xxxxx Fargo Armored Service Corporation of Puerto Rico,
as Guarantors, and Marine Midland Bank, as trustee. Capitalized terms used but
not defined herein shall have the meanings given to them in the Indenture.
This letter relates to $________ principal amount of Notes which are
evidenced by a beneficial interest in one or more Restricted Global Notes or
Regulation S Permanent Global Notes (CUSIP Nos. ____________ and ______________)
in the name of ________________ (the "Transferor"). The Transferor has requested
an exchange of such beneficial interest in the form of an equal principal amount
of Notes evidenced by one or more Certificated Notes (CUSIP No. ______________),
to be delivered to the Transferor.
In connection with such request and in respect of the Notes surrendered to
the Trustee herewith for exchange (the "Surrendered Notes"), the Holder of such
Surrendered Notes hereby certifies that the Surrendered Notes are being
transferred to the beneficial owner of such Notes.
B-4-1
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and Xxxxxx Brothers Inc. and NationsBanc
Capital Markets, Inc. (c/x Xxxxxx Brothers Inc., 3 World Financial Center, New
York, New York 10285), the initial purchasers of such Notes being transferred.
[Insert Name of Transferor]
By: ______________________
Name:
Title:
Dated: __________, _____
cc: Xxxxxx, Fargo & Co.
Xxxxxx Brothers Inc.
NationsBanc Capital Markets, Inc.
B-4-2
EXHIBIT B-5
FORM OF CERTIFICATE FOR REGISTRATION OF TRANSFER
FROM ACCREDITED RESTRICTED NOTE TO QIB RESTRICTED NOTE
(Pursuant to Section 2.6(a)(iii) of the Indenture)
Marine Midland Bank
000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-1180
Attention: Corporate Trust Administration
Re: 10% Senior Subordinated Notes due 2004 of Xxxxxx, Fargo & Co.
Reference is hereby made to the Indenture, dated as of January 24, 1997
(the "Indenture"), among Xxxxxx, Fargo & Co., as issuer (the "Company"), Loomis
Holding Corporation, Xxxxxx Armored Inc., Xxxxx Fargo Armored Service
Corporation of Texas and Xxxxx Fargo Armored Service Corporation of Puerto Rico,
as guarantors, and Marine Midland Bank, as trustee. Capitalized terms used but
not defined herein shall have the meanings given to them in the Indenture.
This letter relates to $________ principal amount of Notes which are
evidenced by one or more Accredited Restricted Notes (CUSIP No. ___________) and
held with the Depositary in the name of __________ (the "Transferor"). The
Transferor has requested a transfer of such beneficial interest in the Notes to
a Person who will take delivery thereof in the form of an equal principal amount
of Notes evidenced by one or more QIB Restricted Notes (CUSIP No. ________), to
be held with the Depositary.
In connection with such request and in respect of such Notes, the
Transferor hereby certifies that such transfer is being effected pursuant to and
in accordance with Rule 144A under the United States Securities Act of 1933, as
amended (the "Securities Act"), and, accordingly, the Transferor hereby further
certifies that the Notes are being transferred to a Person that the Transferor
reasonably believes is purchasing the Notes for its own account, or for one or
more accounts with respect to which such Person exercises sole investment
discretion, and such Person and each such account is a "qualified institutional
buyer" within the meaning of Rule 144A in a transaction meeting the requirements
of Rule 144A and such Notes are being transferred in compliance with any
applicable blue sky securities laws of any state of the United States.
Upon giving effect to this request to exchange a beneficial interest in
Accredited Restricted Notes for a beneficial interest in QIB Restricted Notes,
the resulting beneficial interest shall be subject to the restrictions on
transfer applicable to QIB Restricted Notes pursuant to the Indenture and the
Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and Xxxxxx Brothers Inc. and NationsBanc
Capital Markets, Inc. (c/o
B-5-1
Xxxxxx Brothers Inc., 0 Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 10285), the
initial purchasers of such Notes being transferred.
[Insert Name of Transferor]
By: ______________________
Name:
Title:
Dated: __________, _____
cc: Xxxxxx, Fargo & Co.
Xxxxxx Brothers Inc.
NationsBanc Capital Markets, Inc.
B-5-2
EXHIBIT B-6
FORM OF CERTIFICATE FOR REGISTRATION OF TRANSFER
FROM QIB RESTRICTED NOTE TO ACCREDITED RESTRICTED NOTE
(Pursuant to Section 2.6(a)(iv) of the Indenture)
Marine Midland Bank
000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-1180
Attention: Corporate Trust Administration
Re: 10% Senior Subordinated Notes due 2004 of Xxxxxx, Fargo & Co.
Reference is hereby made to the Indenture, dated as of January 24, 1997
(the "Indenture"), among Xxxxxx, Fargo & Co., as issuer (the "Company"), Loomis
Holding Corporation, Xxxxxx Armored Inc., Xxxxx Fargo Armored Service
Corporation of Texas and Xxxxx Fargo Armored Service Corporation of Puerto Rico,
as guarantors, and Marine Midland Bank, as trustee. Capitalized terms used but
not defined herein shall have the meanings given to them in the Indenture.
This letter relates to $________ principal amount of Notes which are
evidenced by one or more QIB Restricted Notes (CUSIP No. ___________) and held
with the Depositary in the name of __________ (the "Transferor"). The Transferor
has requested a transfer of such beneficial interest in the Notes to a Person
who will take delivery thereof in the form of an equal principal amount of Notes
evidenced by one or more Accredited Restricted Notes (CUSIP No. ______), to be
held with the Depositary.
In connection with such request and in respect of such Notes, the
Transferor hereby certifies that such transfer is being effected pursuant to an
exemption from the registration requirements of the Securities Act other than
Rule 144A or Rule 144, and the Transferor hereby further certifies that the
Notes are being transferred in compliance with the transfer restrictions
applicable to the Global Notes and in accordance with the requirements of the
exemption claimed, which certification is supported by an Opinion of Counsel,
provided by the Transferor or the transferee (a copy of which the Transferor has
attached to this certification) in form and substance reasonably acceptable to
the Company, to the effect that such transfer is in compliance with the
Securities Act and the Notes are being transferred in compliance with any
applicable blue sky securities laws of any state of the United States.
Upon giving effect to this request to exchange a beneficial interest in QIB
Restricted Notes for a beneficial interest in Accredited Restricted Notes, the
resulting beneficial interest shall be subject to the restrictions on transfer
applicable to Accredited Restricted Notes pursuant to the Indenture and the
Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and Xxxxxx Brothers Inc. and NationsBanc
Capital Markets, Inc. (c/o
B-6-1
Xxxxxx Brothers Inc., 0 Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 10285), the
initial purchasers of such Notes being transferred.
[Insert Name of Transferor]
By: ______________________
Name:
Title:
Dated: __________, _____
cc: Xxxxxx, Fargo & Co.
Xxxxxx Brothers Inc.
NationsBanc Capital Markets, Inc.
B-6-2
EXHIBIT C
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
_____________________, among ___________________ (the "Guarantor"), a direct or
indirect subsidiary of Xxxxxx Fargo & Co. (or its successor), Xxxxxx, Fargo &
Co., a Delaware corporation (the "Company"), and Marine Midland Bank, trustee
under the indenture referred to below (the "Trustee").
WITNESSETH
WHEREAS, the Company, Loomis Holding Corporation, Xxxxxx Armored Inc.,
Xxxxx Fargo Armored Service Corporation of Texas and Xxxxx Fargo Armored Service
Corporation of Puerto Rico have heretofore executed and delivered to the Trustee
an indenture (the "Indenture"), dated as of January 24, 1997, providing for the
issuance of an aggregate principal amount of 85,000,000 of 10% Senior
Subordinated Notes due 2004 (the "Notes); and
WHEREAS, Section 4.20 of the Indenture provides that under certain
circumstances the Company is required to cause the Guarantor to execute and
deliver to the Trustee a Supplemental Indenture pursuant to which the Guarantor
shall unconditionally guarantee all of the Company's obligations under the Notes
pursuant to a Subsidiary Guarantee on the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Guarantor and the Trustee mutually covenant and agree for the equal and ratable
benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The Guarantor hereby agrees, jointly and
severally with all other Guarantors under the Indenture, (i) that it is a
Guarantor as defined in the Indenture, (ii) to guarantee the Company's
obligations under the Notes on the terms and subject to the conditions set forth
in Section 4.20 and Article XI of the Indenture, and (iii) to be bound by all
other applicable provisions of the Indenture.
3. NO RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator or stockholder of the Guarantor, as such, shall have any liability
for any obligations of the Company or any Guarantor under the Notes, any
Subsidiary Guarantees, the Indenture or this Supplemental Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder 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.
C-1
4. EFFECTIVENESS. This Supplemental Indenture shall be effective
upon execution by the parties hereto.
5. RECITALS. The recitals contained herein shall be taken as the
statements of the Company and the Guarantor and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity of this Supplemental Indenture.
6. NEW YORK LAW TO GOVERN. THE INTERNAL LAWS OF THE STATE OF NEW
YORK, INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATION LAW, BUT OTHERWISE
WITHOUT REGARD TO CONFLICT OF LAW RULES, SHALL GOVERN AND BE USED TO CONSTRUE
THIS SUPPLEMENTAL INDENTURE.
7. COUNTERPARTS. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
8. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
XXXXXX, FARGO & CO.
By:_______________________________
Name:
Title:
[GUARANTOR]
By:________________________________
Name:
Title:
MARINE MIDLAND BANK
By:________________________________
Name:
Title:
C-2
