Exhibit 4.1
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JORDAN INDUSTRIES, INC.
AND
FIRST TRUST NATIONAL ASSOCIATION
AS TRUSTEE
$120,000,000
SERIES A AND SERIES B
10 3/8% SENIOR NOTES DUE 2007
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INDENTURE
Dated as of July 25, 1997
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CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
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310(a)(1) .......................................................... 7.10
(a)(2) .......................................................... 7.10
(a)(3) .......................................................... N.A.**
(a)(4) .......................................................... N.A.
(a)(5) .......................................................... 7.10
(b) ............................................................. 7.10
(c) ............................................................. N.A.
311(a) ............................................................. 7.11
(b) ............................................................. 7.11
(c) ............................................................. N.A.
312(a) ............................................................. 2.05
(b) ............................................................. 10.03
(c) ............................................................. 10.03
313(a) ............................................................. 7.06
(b)(1) .......................................................... N.A.
(b)(2) .......................................................... 7.06
(c) ............................................................. 7.06; 10.02
(d) ............................................................. 7.06
314(a) ............................................................. 4.02; 10.02
(b) ............................................................. N.A.
(c)(1) .......................................................... 10.04
(c)(2) .......................................................... 10.04
(c)(3) .......................................................... N.A.
(d) ............................................................. N.A.
(e) ............................................................. 10.05
(f) ............................................................. N.A.
315(a) ............................................................. 7.01
(b) ............................................................. 7.05; 10.02
(c) ............................................................. 7.01
(d) ............................................................. 7.01
(e) ............................................................. 6.11
316(a)(last sentence) .............................................. 2.09
(a)(1)(A) ....................................................... 6.05
(a)(1)(B) ....................................................... 6.04
(a)(2) .......................................................... N.A.
(b) ............................................................. 9.02
317(a)(1) .......................................................... 6.08
(a)(2) .......................................................... 6.09
(b) ............................................................. 2.04
318(a) ............................................................. 10.01
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* This Cross-Reference Table is not part of the Indenture.
** Not applicable.
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TABLE OF CONTENTS
Page
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ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Definitions ................................................ 1
Section 1.02. Other Definitions .......................................... 20
Section 1.03. Incorporation by Reference of Trust Indenture Act .......... 20
Section 1.04. Rules of Construction ...................................... 21
ARTICLE 2
THE SECURITIES
Section 2.01. Form and Dating ............................................ 21
Section 2.02. Execution and Authentication ............................... 22
Section 2.03. Registrar and Paying Agent ................................. 22
Section 2.04. Paying Agent to Hold Money in Trust ........................ 23
Section 2.05. Holder Lists ............................................... 23
Section 2.06. Transfer and Exchange ...................................... 23
Section 2.07. Replacement Securities ..................................... 27
Section 2.08. Outstanding Securities ..................................... 28
Section 2.09. Treasury Securities ........................................ 28
Section 2.10. Temporary Securities ....................................... 28
Section 2.11. Cancellation ............................................... 29
Section 2.12. Defaulted Interest ......................................... 29
Section 2.13. Record Date ................................................ 29
Section 2.14. CUSIP Number ............................................... 29
Section 2.15. Legends .................................................... 30
ARTICLE 3
REDEMPTION
Section 3.01. Notices to Trustee ......................................... 30
Section 3.02. Selection of Securities to Be Redeemed or Purchased ........ 31
Section 3.03. Notice of Redemption ....................................... 31
Section 3.04. Effect of Notice of Redemption ............................. 33
Section 3.05. Deposit of Redemption Price ................................ 33
Section 3.06. Securities Redeemed in Part ................................ 33
Section 3.07. Optional Redemption Provisions ............................. 33
Section 3.08. Mandatory Purchase Provision ............................... 34
ARTICLE 4
COVENANTS
Section 4.01. Payment of Securities ........................................ 36
Section 4.02. SEC Reports .................................................. 36
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Section 4.03. Compliance Certificate ..................................... 37
Section 4.04. Stay, Extension and Usury Laws ............................. 38
Section 4.05. Limitation on Restricted Payments .......................... 38
Section 4.06. Corporate Existence ........................................ 42
Section 4.07. Limitation on Incurrence of Indebtedness ................... 43
Section 4.08. Limitation on Transactions with Affiliates ................. 44
Section 4.09. Limitation on Liens ........................................ 44
Section 4.10. Compliance with Laws, Taxes ................................ 45
Section 4.11. Limitation on Dividends and Other Payment Restrictions
Affecting Restricted Subsidiaries ........................ 45
Section 4.12. Maintenance of Office or Agencies .......................... 47
Section 4.13. Change of Control .......................................... 47
Section 4.14. Limitation on Asset Sales .................................. 47
Section 4.15. Limitation on Guarantees of Company Indebtedness
by Restricted Subsidiaries ................................. 48
ARTICLE 5
SUCCESSORS
Section 5.01. Merger or Consolidation .................................... 49
Section 5.02. Successor Corporation Substituted .......................... 50
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default .......................................... 51
Section 6.02. Acceleration ............................................... 53
Section 6.03. Other Remedies ............................................. 53
Section 6.04. Waiver of Past Defaults .................................... 54
Section 6.05. Control by Majority ........................................ 54
Section 6.06. Limitation on Suits ........................................ 54
Section 6.07. Rights of Holders to Receive Payment ....................... 55
Section 6.08. Collection Suit by Trustee ................................. 55
Section 6.09. Trustee May File Proofs of Claim ........................... 55
Section 6.10. Priorities ................................................. 56
Section 6.11. Undertaking for Costs ...................................... 56
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee .......................................... 56
Section 7.02. Rights of Trustee .......................................... 57
Section 7.03. Individual Rights of Trustee ............................... 58
Section 7.04. Trustee's Disclaimer ....................................... 58
Section 7.05. Notice to Holders of Defaults and Events of Default ........ 59
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Section 7.06. Reports by Trustee to Holders .............................. 59
Section 7.07. Compensation and Indemnity ................................. 59
Section 7.08. Replacement of Trustee ..................................... 60
Section 7.09. Successor Trustee by Merger, etc. .......................... 61
Section 7.10. Eligibility; Disqualification .............................. 61
Section 7.11. Preferential Collection of Claims Against Company .......... 61
ARTICLE 8
DISCHARGE OF INDENTURE
Section 8.01. Discharge of Liability on Securities; Defeasance ........... 62
Section 8.02. Conditions to Defeasance ................................... 62
Section 8.03. Application of Trust Money ................................. 64
Section 8.04. Repayment to Company ....................................... 64
Section 8.05. Indemnity for Government Obligations ....................... 64
Section 8.06. Reinstatement .............................................. 64
ARTICLE 9
AMENDMENTS
Section 9.01. Amendments and Supplements Permitted Without Consent of
Holders .................................................. 65
Section 9.02. Amendments and Supplements Requiring Consent of Holders .... 65
Section 9.03. Compliance with TIA ........................................ 67
Section 9.04. Revocation and Effect of Consents .......................... 67
Section 9.05. Notation on or Exchange of Securities ...................... 67
Section 9.06. Trustee Protected .......................................... 68
ARTICLE 10
MISCELLANEOUS
Section 10.01. Trustee Indenture Act Controls ............................. 68
Section 10.02. Notices .................................................... 68
Section 10.03. Communication by Holders with Other Holders ................ 69
Section 10.04. Certificate and Opinion as to Conditions Precedent ......... 69
Section 10.05. Statements Required in Certificate or Opinion .............. 69
Section 10.06. Rules by Trustee and Agents ................................ 70
Section 10.07. Legal Holidays ............................................. 70
Section 10.08. No Recourse Against Others ................................. 70
Section 10.09. Counterparts ............................................... 70
Section 10.10. Variable Provisions ........................................ 70
Section 10.11. Governing Law .............................................. 71
Section 10.12. No Adverse Interpretation of Other Agreements .............. 71
Section 10.13. Successors ................................................. 71
Section 10.14. Severability ............................................... 71
Section 10.15. Table of Contents, Headings, etc ........................... 71
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INDENTURE, dated as of July 25, 1997, between Jordan Industries, Inc., an
Illinois corporation (the "Company"), and First Trust National Association, as
trustee (the "Trustee").
Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the Holders of the Company's 10 3/8% Series A
Senior Notes due 2007 (the "Series A Notes") and the Company's 10 3/8% Series B
Senior Notes due 2007 (the "Series B Notes" and, together with the Series A
Notes, the "Securities"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Definitions.
"Affiliate" means any of the following:
(i) any Person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Company,
(ii) any spouse, immediate family member or other relative who has
the same principal residence as any Person described in clause
(i) above,
(iii) any trust in which any such Persons described in clause (i) or
(ii) above has a beneficial interest, and
(iv) any corporation or other organization of which any such
Persons described above collectively own 50% or more of the
equity of such entity.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Asset Sale" means the sale, lease, conveyance or other disposition by the
Company or a Restricted Subsidiary of assets or property (other than (i) the
sale or disposition of any Restricted Investment, (ii) the sale or lease of
inventory, equipment, receivables or other assets in the ordinary course of
business, (iii) Receivables Financings, (iv) any sale or transfer of properties
or assets by the Company or a Restricted Subsidiary to the Company or any other
Restricted Subsidiary, (v) the sale, lease, conveyance or other disposition of
all or substantially all of the assets of the Company as permitted pursuant to
Section 5.01 or (vi) Restricted Payments permitted by Section 4.05).
"Bankruptcy Law" means title 11, U.S. Code, or any similar federal or
state law for the relief of debtors.
"Board of Directors" means the Company's board of directors or any
authorized committee of such board of directors.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligations" means any obligation that is required to be
classified and accounted for as a capitalized lease for financial purposes in
accordance with GAAP, and the amount of Indebtedness represented by such
obligation shall be the capitalized amount of such obligation determined in
accordance with GAAP.
"Capital Stock" means any and all shares, interests, participations or
other equivalents (however designated) of corporate stock, including any
Preferred Stock.
"Cash Equivalents" means (a) securities with maturities of one year or
less from the date of acquisition issued or fully guaranteed or insured by the
United States Government or any agency thereof, (b) certificates of deposit,
time deposits, overnight bank deposits, bankers acceptances and repurchase
agreements of any commercial bank that has capital and surplus in excess of
$100,000,000 having maturities of one year or less from the date of acquisition,
(c) commercial paper of an issuer rated at least A-2 by Standard & Poor's
Corporation or P-2 by Xxxxx'x Investor Service, Inc., or carrying an equivalent
rating by a nationally recognized rating agency if both of the two named rating
agencies cease publishing ratings of investments, and (d) money market accounts
or funds with or issued by Qualified Issuers.
"Cash Flow" means, for any given period and Person, the sum of, without
duplication, Consolidated Net Income, plus
(i) the portion of Net Income attributable to the minority
interests in its Subsidiaries, to the extent not included in
calculating Consolidated Net Income, plus
(ii) provision for taxes based on income or profits to the extent
such income or profits were included in computing Consolidated
Net Income, plus
(iii) Consolidated Interest Expense, to the extent deducted in
computing Consolidated Net Income, plus
(iv) the amortization of all intangible assets, to the extent such
amortization was deducted in computing Consolidated Net Income
(including, but not limited to, inventory write-ups, goodwill,
debt and financing costs and Incentive Arrangements), plus
(v) noncapitalized transaction costs incurred in connection with
financings, acquisitions or dispositions (including, but not
limited to, financing and refinancing fees, to the extent
deducted in computing Consolidated Net Income), plus
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(vi) all depreciation and all other noncash charges (including,
without limitation, those charges relating to purchase
accounting adjustments to the extent deducted in computing
Consolidated Net Income), plus
(vii) interest income, to the extent such income was not included in
computing Consolidated Net Income, plus
(viii) all dividend payments on Preferred Stock (whether or not paid
in cash), to the extent deducted in computing Consolidated Net
Income, plus
(ix) any extraordinary or nonrecurring charge or expense arising
out of the implementation of SFAS 106 or SFAS 109 to the
extent deducted in computing Consolidated Net Income,
provided, however, that if any such calculation includes any period during which
an acquisition or sale of a Person or the incurrence or repayment of
Indebtedness occurred, then such calculation for such period shall be made on a
Pro Forma Basis.
"Cash Flow Coverage Ratio" means, for any given period and Person, the
ratio of:
(i) Cash Flow, divided by
(ii) the sum of Consolidated Interest Expense and the amount of all
dividend payments on any series of Preferred Stock of such
Person (except dividends paid or payable in additional shares
of Capital Stock (other than Disqualified Stock)), in each
case, without duplication;
provided, however, that if any such calculation includes any period during which
an acquisition or sale of a Person or the incurrence or repayment of
Indebtedness occurred, then such calculation for such period shall be made on a
Pro Forma Basis.
"Change of Control" means the occurrence of any of the following: (i) the
Jordan Stockholders shall fail to be the beneficial owners, directly or
indirectly, of at least 22% of the outstanding shares of common stock of the
Company on a fully-diluted basis (provided that the Issuance of any shares of
the Company's common stock pursuant to a primary public offering shall not be
considered to have diluted such percentage ownership); or (ii) the Company is
merged or consolidated with another corporation, or all or substantially all of
the assets of the Company are sold, leased or conveyed to another Person, and
the Jordan Stockholders are not the beneficial owners, directly or indirectly,
immediately following such transaction, of at least 22% of the Equity Interests
(which are entitled to vote in the election of directors or other governing
body) of the corporation surviving any such consolidation or merger, or the
Person to which such sale, lease or conveyance shall have been made; or (iii)
the Company is liquidated or dissolved.
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"Commission" means the Securities and Exchange Commission.
"Company" means Jordan Industries, Inc. until a successor replaces it in
accordance with Article 5 and thereafter means the successor, and shall include
any and all other obligors on the Securities.
"Company Order" means a written request or order signed in the name of the
Company by its Chairman of the Board, President or Senior Vice President, and by
its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary
and delivered to the Trustee.
"Consolidated Interest Expense" means, for any given period and Person,
the aggregate of the interest expense in respect of all Indebtedness of such
Person and its Subsidiaries for such period, on a consolidated basis, determined
in accordance with GAAP (including amortization of original issue discount on
any such Indebtedness, all noncash interest payments, the interest portion of
any deferred payment obligation and the interest component of Capital Lease
Obligations, but excluding amortization of deferred financing fees if such
amortization would otherwise be included in interest expense); provided,
however, that for the purpose of the Cash Flow Coverage Ratio (with respect to
Sections 4.07 and 5.01), Consolidated Interest Expense shall be calculated on a
Pro Forma Basis; provided further that any premiums, fees and expenses
(including the amortization thereof) payable in connection with the Plan and the
Offering and the applications of the net proceeds therefrom or any other
refinancing of Indebtedness will be excluded.
"Consolidated Net Income" means, for any given period and Person, the
aggregate of the Net Income of such Person and its Subsidiaries for such period,
on a consolidated basis, determined in accordance with GAAP; provided, however,
that
(i) the Net Income of any Person acquired in a pooling-of-interests
transaction for any period prior to the date of such acquisition
shall be excluded, and
(ii) Consolidated Net Income of any Person will not include, without
duplication, any deduction for:
(A) any increased amortization or depreciation resulting from the
write-up of assets pursuant to Accounting Principles Board
Opinion Nos. 16 and 17, as amended or supplemented from time
to time,
(B) the amortization of all intangible assets (including
amortization attributable to inventory write-ups, goodwill,
debt and financing costs, and Incentive Arrangements),
(C) any noncapitalized transaction costs incurred in connection
with financings, acquisitions or divestitures (including, but
not limited to, financing and refinancing fees),
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(D) any extraordinary or nonrecurring charges relating to any
premium or penalty paid, write-off of deferred financing costs
or other financial recapitalization charges in connection with
redeeming or retiring any Indebtedness prior to its stated
maturity, and
(E) any nonrecurring charge arising out of the restructuring or
consolidation of the operations of any Person(s) or business
either alone or together with the Company or any Restricted
Subsidiary, incurred within 18 months following the
acquisition of such Person(s) or business by the Company or
any Restricted Subsidiary;
provided, however, that for purposes of determining the Cash Flow Coverage
Ratio, Consolidated Net Income shall be calculated on a Pro Forma Basis.
"Consolidated Net Worth" with respect to any Person means, as of any
date, the consolidated equity of the common stockholders of such Person
(excluding the accumulated foreign currency translation adjustment), all
determined on a consolidated basis in accordance with GAAP, but without any
reduction in respect of the payment of dividends on any series of such Person's
Preferred Stock if such dividends are paid in additional shares of Capital Stock
(other than Disqualified Stock); provided, however, that Consolidated Net Worth
shall also include, without duplication:
(i) the amortization of all write-ups of inventory,
(ii) the amortization of all intangible assets (including amortization of
goodwill, debt and financing costs, and Incentive Arrangements),
(iii) any noncapitalized transaction costs incurred in connection with
financings, acquisitions or divestitures (including, but not limited
to, financing and refinancing fees),
(iv) any increased amortization or depreciation resulting from the
write-up of assets pursuant to Accounting Principles Board Opinion
Nos. 16 and 17, as amended and supplemented from time to time,
(v) any extraordinary or nonrecurring charges or expenses relating to
any premium or penalty paid, write-off of deferred financing costs
or other financial recapitalization charges incurred in connection
with redeeming or retiring any Indebtedness prior to its stated
maturity,
(vi) any nonrecurring cash charge arising out of the restructuring or
consolidation of the operations of any Person(s) or business either
alone or together with the Company or any Restricted Subsidiary,
incurred within 18 months following the
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acquisition of such Person(s) or business by the Company or any
Restricted Subsidiary, and
(vii) any extraordinary or nonrecurring charge arising out of the
implementation of SFAS 106 or SFAS 109;
provided, however, that for purposes of determining Consolidated Net Worth (with
respect to Section 5.01), Consolidated Net Worth shall be calculated on a Pro
Forma Basis.
"Corporate Trust Office" shall be at the address of the Trustee specified
in Section 10.02 or such other address as the Trustee may give notice to the
Company.
"Custodian" means any receiver, trustee, assignee, liquidator or similar
official under any Bankruptcy Law.
"Default" means any event that is, or after notice or passage of time or
both would be, an Event of Default.
"Definitive Securities" means Securities that are in the form of Exhibit A
attached hereto (but without including the text referred to in footnotes 1 and 2
thereto).
"Depositary" means, with respect to the Securities issuable or issued in
whole or in part in global form, the Person specified in Section 2.03 as the
Depositary with respect to the Securities, until a successor shall have been
appointed and become such pursuant to the applicable provision of this
Indenture, and thereafter "Depositary" shall mean or include such successor.
"Discount Debentures" means (i) the 11 3/4 % Senior Subordinated Discount
Debentures due 2009 of the Company and (ii) the 11 3/4 % Senior Subordinated
Discount Debentures due 2005 of the Company, if any, collectively.
"Disqualified Stock" means any Capital Stock that by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the option of the holder thereof, in whole or in part on, or prior to, the
maturity date of the Securities.
"Equity Interests" means Capital Stock or partnership interests or
warrants, options or other rights to acquire Capital Stock or partnership
interests (but excluding (i) any debt security that is convertible into, or
exchangeable for, Capital Stock or partnership interests, and (ii) any other
Indebtedness or Obligation); provided, however, that Equity Interests will not
include any Incentive Arrangements or obligations or payments thereunder.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
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"Exchange Offer" means the offer by the Company to Holders to exchange
Series A Notes for Series B Notes pursuant to the Registration Rights Agreement.
"GAAP" means generally accepted accounting principles, consistently
applied, as of the Issue Date. All financial and accounting determinations and
calculations under this Indenture shall be made in accordance with GAAP.
"Global Security" means a Security that contains the paragraph referred to
in footnote 1 and the additional schedule referred to in footnote 2 in the form
of the Security attached hereto as Exhibit A.
"Hedging Obligations" means, with respect to any Person, the Obligations
of such Persons under (i) interest rate swap agreements, interest rate cap
agreements and interest rate collar agreements, (ii) foreign exchange contracts,
currency swap agreements or similar agreements, and (iii) other agreements or
arrangements designed to protect such Person against fluctuations in, or
otherwise to establish financial xxxxxx in respect of, exchange rates, currency
rates or interest rates.
"Holder" means a Person in whose name a Security is registered.
"Incentive Arrangements" means any earn-out agreements, stock appreciation
rights, "phantom" stock plans, employment agreements, noncompetition agreements,
subscription and stockholders agreements and other incentive and bonus plans and
similar arrangements made in connection with acquisitions of Persons or
businesses by the Company or the Restricted Subsidiaries or the retention of
executives, officers or employees by the Company or the Restricted Subsidiaries.
"Indebtedness" means, with respect to any Person, any indebtedness,
whether or not contingent, in respect of borrowed money or evidenced by bonds,
notes, debentures or similar instruments or letters of credit (or reimbursement
agreements in respect thereof) or representing the deferred and unpaid balance
of the purchase price of any property (including pursuant to capital leases),
except any such balance that constitutes an accrued expense or a trade payable,
and any Hedging Obligations, if and to the extent such indebtedness (other than
a Hedging Obligation) would appear as a liability upon a balance sheet of such
Person prepared on a consolidated basis in accordance with GAAP, and also
includes, to the extent not otherwise included, the guarantee of items that
would be included within this definition; provided, however, that "Indebtedness"
will not include any Incentive Arrangements or obligations or payments
thereunder.
"Indenture" means this Indenture as amended or supplemented from time to
time.
"Initial Purchasers" means Xxxxxxxxx & Company, Inc. and Xxxxxxxxx, Lufkin
& Xxxxxxxx Securities Corporation.
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"Insolvency or Liquidation Proceeding" means (i) any insolvency or
bankruptcy or similar case or proceeding, or any reorganization, receivership,
liquidation, dissolution or winding up of the Company, whether voluntary or
involuntary, or (ii) any assignment for the benefit of creditors or any other
marshalling of assets and liabilities of the Company.
"Issue" means to create, issue, assume, guarantee, incur or otherwise
become directly or indirectly liable for any Indebtedness or Capital Stock, as
applicable; provided, however, that any Indebtedness or Capital Stock of a
Person existing at the time such Person becomes a Restricted Subsidiary (whether
by merger, consolidation, acquisition or otherwise) shall be deemed to be issued
by such Restricted Subsidiary at the time it becomes a Restricted Subsidiary.
For this definition, the terms "Issuing," "Issuer," "Issuance" and "Issued"
have meanings correlative to the foregoing.
"Issue Date" means the date on which Securities are first Issued pursuant
to the Indenture.
"JI Property Services Agreement" means the JI Property Services Agreement,
between the Company and JI Properties, Inc., as in effect on the Issue Date.
"Jordan Stockholders" means Xxxx X. Xxxxxx, XX, and/or his heirs,
executors and administrators, and/or The Xxxx X. Xxxxxx, XX Revocable Trust, The
Jordan Family Trust and/or any other trust established by Xxxx X. Xxxxxx, XX
whose beneficiaries are Xxxx X. Xxxxxx, XX and/or his lineal descendants or
other relatives.
"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 and any filing of or
agreement to give any financing statement under the Uniform Commercial Code (or
equivalent statutes) of any jurisdiction).
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York are not required to be open.
"Liquidated Damages" has the meaning set out in the Registration Rights
Agreement.
"Net Income" means, with respect to any Person, the net income (loss) of
such Person, determined in accordance with GAAP, excluding, however, any gain or
loss, together with any related provision for taxes, realized in connection with
any Asset Sale (including, without limitation, dispositions pursuant to sale and
leaseback transactions).
"Net Proceeds" means, with respect to any Asset Sale, the aggregate amount
of cash proceeds (including any cash received by way of deferred payment
pursuant to a note receivable Issued in connection with such Asset Sale, other
than the portion of such deferred payment
8
constituting interest, and including any amounts received as disbursements or
withdrawals from any escrow or similar account established in connection with
any such Asset Sale, but, in either such case, only as and when so received)
received by the Company or any of its Restricted Subsidiaries in respect of such
Asset Sale, net of:
(i) the cash expenses of such Asset Sale (including, without limitation,
the payment of principal, premium, if any, and interest on
Indebtedness required to be paid as a result of such Asset Sale
(other than the Securities) and legal, accounting, management,
advisory and investment banking fees and sales commissions),
(ii) taxes paid or payable as a result thereof,
(iii) any portion of cash proceeds that the Company determines in good
faith should be reserved for post-closing adjustments, it being
understood and agreed that on the day that all such post-closing
adjustments have been determined, the amount (if any) by which the
reserved amount in respect of such Asset Sale exceeds the actual
post-closing adjustments payable by the Company or any of its
Restricted Subsidiaries shall constitute Net Proceeds on such date,
(iv) any relocation expenses and pension, severance and shutdown costs
incurred as a result thereof, and
(v) any deduction of appropriate amounts to be provided by the Company
or any of its Restricted Subsidiaries as a reserve in accordance
with GAAP against any liabilities associated with the asset disposed
of in such transaction and retained by the Company or such
Restricted Subsidiary after such sale or other disposition thereof,
including, without limitation, pension and other postemployment
benefit liabilities and liabilities related to environmental matters
or against any indemnification obligations associated with such
transaction.
"No Credit Agreement" means the credit agreement, dated as of the date
hereof and entered into by the Company and/or certain of its Restricted
Subsidiaries and certain Subsidiaries and the lenders party thereto in their
capacities as lenders thereunder and BankBoston, N.A., as agent, together with
all loan documents and instruments thereunder (including, without limitation,
any guarantee agreements and security documents), in each case as such
agreements may be amended (including any amendment and restatement thereof),
supplemented or otherwise modified from time to time, including any agreement
extending the maturity of, refinancing, replacing or otherwise restructuring
(including, without limitation, increasing the amount of available borrowings
thereunder, and all Obligations with respect thereto, in each case, to the
extent permitted by Section 4.07, or adding Subsidiaries of the Company as
additional borrowers or guarantors thereunder) all or any portion of the
Indebtedness under such agreement or any successor or replacement agreement and
whether by the same or any other agent, lender or group of lenders.
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"New Subsidiary Advisory Agreements" means the New Subsidiary Advisory
Agreements, between the Company and each of its Restricted and Non-Restricted
Subsidiaries, as in effect on the Issue Date.
"New Subsidiary Consulting Agreements" means the New Subsidiary Consulting
Agreements, between the Company and each of its Restricted and Non-Restricted
Subsidiaries, as in effect on the Issue Date.
"New TJC Management Consulting Agreement" means the New TJC Management
Consulting Agreement, between the Company and TJC Management Corporation, as in
effect on the Issue Date.
"Nonrestricted Subsidiary" means Motors and Gears Holdings, Inc. and its
Subsidiaries, Jordan Telecommunication Products, Inc. and its Subsidiaries, J.I.
Properties, Inc. and its Subsidiaries, and any other Subsidiary of the Company
other than a Restricted Subsidiary.
"Obligations" means, with respect to any Indebtedness, all principal,
interest, premium, penalties, fees, indemnities, expenses (including legal fees
and expenses), reimbursement obligations and other liabilities payable to the
holder of such Indebtedness under the documentation governing such Indebtedness,
and any other claims of such holder arising in respect of such Indebtedness.
"Offering" means the offering and sale of the Securities as contemplated
by the Offering Circular.
"Offering Circular" means the Offering Circular, dated July 21, 1997,
relating to the Company's offering and placement of the Securities.
"Officer" means the President, the Treasurer, any Assistant Treasurer, the
Controller, the Secretary or any Vice President of the Company.
"Officers' Certificate" means a certificate signed by two Officers.
"Old Senior Notes" means the Company's 10 3/8% Senior Notes due 2003.
"Opinion of Counsel" means a written opinion in form and substance
satisfactory to, and from legal counsel who is acceptable to, the Trustee (such
counsel may be an employee of or counsel to the Company or the Trustee).
"Other Permitted Indebtedness" means:
(i) Indebtedness of the Company and its Restricted Subsidiaries existing
as of the Issue Date and all related Obligations as in effect on
such date (including Old Senior Notes, if any, the Discount
Debentures and the Securities);
10
(ii) Indebtedness of the Company and its Restricted Subsidiaries in
respect of bankers' acceptances and letters of credit (including,
without limitation, letters of credit in respect of workers'
compensation claims) Issued in the ordinary course of business, or
other Indebtedness in respect of reimbursement-type obligations
regarding workers' compensation claims;
(iii) Refinancing Indebtedness, provided that:
(A) the principal amount of such Refinancing Indebtedness shall
not exceed the outstanding principal amount of Indebtedness
(including unused commitments) so extended, refinanced,
renewed, replaced, substituted or refunded plus any amounts
incurred to pay premiums, fees and expenses in connection
therewith,
(B) the Refinancing Indebtedness shall have 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, substituted or refunded,
(C) in the case of Refinancing Indebtedness for subordinated
Indebtedness, such Refinancing Indebtedness shall be
subordinated to the Securities at least to the same extent as
the Indebtedness being extended, refinanced, renewed,
replaced, substituted or refunded;
(iv) intercompany Indebtedness of and among the Company and its
Restricted Subsidiaries (excluding guarantees by Restricted
Subsidiaries of Indebtedness of the Company not Issued in compliance
with Section 4.15);
(v) Indebtedness of the Company and its Restricted Subsidiaries Issued
in connection with making permitted Restricted Payments under clause
(iv) or (v) of Section 4.05(b) and guarantees by the Company of
Capital Lease Obligations of the Company's Nonrestricted
Subsidiaries up to the aggregate amount permitted by clause (xv) of
Section 4.05(b);
(vi) Indebtedness of any Nonrestricted Subsidiary; provided that such
Indebtedness is nonrecourse to the Company and its Restricted
Subsidiaries and the Company and its Restricted Subsidiaries have no
Obligations with respect to such Indebtedness;
(vii) Indebtedness of the Company and its Restricted Subsidiaries under
Hedging Obligations;
(viii) Indebtedness of the Company and its Restricted Subsidiaries arising
from the honoring by a bank or other financial institution of a
check, draft or similar instrument inadvertently (except in the case
of daylight overdrafts, which will not
11
be, and will not be deemed to be, inadvertent) drawn against
insufficient funds in the ordinary course of business;
(ix) Indebtedness of any Person at the time it is acquired as a
Restricted Subsidiary; provided that such Indebtedness was not
Issued by such Person in connection with or in anticipation of such
acquisition and that such Indebtedness is nonrecourse to the Company
and any other Restricted Subsidiary and the Company and such other
Restricted Subsidiaries have no Obligations with respect to such
Indebtedness;
(x) guarantees by Restricted Subsidiaries of Indebtedness of any
Restricted Subsidiary if the Indebtedness so guaranteed is permitted
under this Indenture;
(xi) guarantees by a Restricted Subsidiary of Indebtedness of the Company
if the Indebtedness so guaranteed is permitted under this Indenture
and the Securities are guaranteed by such Restricted Subsidiary to
the extent required by Section 4.15;
(xii) guarantees by the Company of Indebtedness of any Restricted
Subsidiaries if the Indebtedness so guaranteed is permitted under
this Indenture;
(xiii) Indebtedness of the Company and its Restricted Subsidiaries Issued
in connection with performance, surety, statutory, appeal or similar
bonds in the ordinary course of business; and
(xiv) Indebtedness of the Company and its Restricted Subsidiaries Issued
in connection with agreements providing for indemnification,
purchase price adjustments and similar obligations in connection
with the sale or disposition of any of their business, properties or
assets.
"Permitted Liens" means:
(a) with respect to the Company and the Restricted Subsidiaries,
(1) Liens for taxes, assessments, governmental charges or claims which
are being contested in good faith by appropriate proceedings
promptly instituted and diligently conducted and if a reserve or
other appropriate provision, if any, as shall be required in
conformity with GAAP shall have been made therefor;
(2) statutory Liens of landlords and carriers', warehousemen's,
mechanics', suppliers', materialmen's, repairmen's or other like
Liens arising in the ordinary course of business and with respect to
amounts not yet delinquent or being contested in good faith by
appropriate proceedings if a reserve
12
or other appropriate provision, if any, as shall be required in
conformity with GAAP shall have been made therefor;
(3) Liens incurred on deposits made in the ordinary course of business
in connection with workers' compensation, unemployment insurance and
other types of social security;
(4) Liens incurred on deposits made to secure the performance of
tenders, bids, leases, statutory obligations, surety and appeal
bonds, government contracts, performance and return of money bonds
and other obligations of a like nature incurred in the ordinary
course of business (exclusive of obligations for the payment of
borrowed money);
(5) easements, rights-of-way, zoning or other restrictions, minor
defects or irregularities in title and other similar charges or
encumbrances not interfering in any material respect with the
business of the Company or any of its Restricted Subsidiaries
incurred in the ordinary course of business;
(6) Liens (including extensions, renewals and replacements thereof) upon
property acquired (the "Acquired Property") after the date of
original Issuance of the Securities, provided that
(A) any such Lien is created solely for the purpose of securing
Indebtedness representing, or Issued to finance, refinance or
refund, the cost (including the cost of construction) of the
Acquired Property,
(B) the principal amount of the Indebtedness secured by such Lien
does not exceed 100% of the cost of the Acquired Property,
(C) such Lien does not extend to or cover any property other than
the Acquired Property and any improvements on such Acquired
Property, and
(D) the Issuance of the Indebtedness to purchase the Acquired
Property is permitted by Section 4.07;
(7) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with
the importation of goods;
(8) judgment and attachment Liens not giving rise to an Event of
Default;
13
(9) leases or subleases granted to others not interfering in any
material respect with the business of the Company or any of its
Restricted Subsidiaries;
(10) Liens encumbering customary initial deposits and margin deposits,
and other Liens incurred in the ordinary course of business and that
are within the general parameters customary in the industry, in each
case securing Indebtedness under Hedging Obligations;
(11) Liens encumbering deposits made to secure obligations arising from
statutory, regulatory, contractual or warranty requirements of the
Company or its Restricted Subsidiaries;
(12) Liens arising out of consignment or similar arrangements for the
sale of goods entered into by the Company or its Restricted
Subsidiaries in the ordinary course of business;
(13) any interest or title of a lessor in property subject to any Capital
Lease Obligation or operating lease;
(14) Liens arising from filing Uniform Commercial Code financing
statements regarding leases;
(15) Liens existing on the Issue Date and any extensions, renewals or
replacements thereof; and
(16) any Lien granted to the Trustee under this Indenture and any
substantially equivalent Lien granted to any trustee or similar
institution under any indenture for senior Indebtedness permitted by
the terms of this Indenture;
(b) with respect to the Restricted Subsidiaries,
(1) Liens securing Restricted Subsidiaries' reimbursement Obligations
with respect to letters of credit that encumber documents and other
property relating to such letters of credit and the products and
proceeds thereof;
(2) Liens securing Indebtedness Issued by Restricted Subsidiaries if
such Indebtedness is permitted by (A) Section 4.07(a), (B) Section
4.07(b)(i), (b)(ii), (b)(iii) or (b)(iv), or (C) clause (i), (iii)
(to the extent the Indebtedness subject to such Refinancing
Indebtedness was subject to Liens), (vii), (ix) or (x) of the
definition of Other Permitted Indebtedness;
(3) Liens securing intercompany Indebtedness Issued by any Restricted
Subsidiary to the Company or another Restricted Subsidiary;
14
(4) additional Liens at any one time outstanding with respect to assets
of the Restricted Subsidiaries the aggregate fair market value of
which does not exceed $10,000,000 (the fair market value of any such
asset is to be determined on the date such Lien is granted on such
asset); and
(5) Liens securing guarantees by Restricted Subsidiaries of Indebtedness
Issued by the Company if such guarantees are permitted by clause
(xi) (but only in respect of the property, rights and assets of the
Restricted Subsidiaries Issuing such guarantees) of the definition
of Other Permitted Indebtedness; and
(c) with respect to the Company,
(1) Liens securing Indebtedness Issued by the Company under the
New Credit Agreement if such Indebtedness is permitted by
Section 4.07 (including, but not limited to, Indebtedness
Issued by the Company under the New Credit Agreement pursuant
to Section 4.07(b)(i) and/or (iv));
(2) Liens securing Indebtedness of the Company if such
Indebtedness is permitted by clauses (i), (iii) (to the extent
the Indebtedness subject to such Refinancing Indebtedness is
subject to Liens) or (vii) of the definition of Other
Permitted Indebtedness; and
(3) Liens securing guarantees by the Company of Indebtedness
Issued by Restricted Subsidiaries if (x) such Indebtedness is
permitted by Section 4.07 (including, but not limited to,
Indebtedness Issued by Restricted Subsidiaries under the New
Credit Agreement pursuant to Sections 4.07(b)(i) and/or (v))
and (y) such guarantees are permitted by clause (xii) (but
only in respect of Indebtedness Issued by the Restricted
Subsidiaries under the New Credit Agreement pursuant to
Section 4.07) of the definition of Other Permitted
Indebtedness;
provided, however, that, notwithstanding any of the foregoing, the Permitted
Liens referred to in clause (c) of this definition shall not include any Lien on
Capital Stock of Restricted Subsidiaries held by the Company (as distinguished
from Liens on Capital Stock of Restricted Subsidiaries held by other Restricted
Subsidiaries) other than Liens securing (A) Indebtedness of the Company Issued
under the New Credit Agreement pursuant to Section 4.07 and any permitted
Refinancing Indebtedness of such Indebtedness and (B) guarantees by the Company
of Indebtedness Issued by Restricted Subsidiaries under the New Credit Agreement
pursuant to Section 4.07 and any permitted Refinancing Indebtedness of such
Indebtedness.
"Person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
15
"Plan" means the Company's Recapitalization and Reposition Plan as
described in the Offering Circular and all agreements, instruments and
transactions pursuant thereto.
"Postpetition Interest" means all interest accrued or accruing after the
commencement of any Insolvency or Liquidation Proceeding in accordance with and
at the contract rate (including, without limitation, any rate applicable upon
default) specified in the agreement or instrument creating, evidencing or
governing any Indebtedness which is not subordinated in right of payment to any
other Indebtedness of the Company, whether or not, pursuant to applicable law or
otherwise, the claim for such interest is allowed as a claim in such Insolvency
or Liquidation Proceeding.
"Preferred Stock" as applied to the Capital Stock of any corporation,
means Capital Stock of any class or classes (however designated) that is
preferred as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
"Pro Forma Basis" means, for purposes of determining Consolidated Net
Income, Cash Flow, and Consolidated Interest Expense in connection with the Cash
Flow Coverage Ratio (including, in connection with Section 4.05, the incurrence
of Indebtedness pursuant to Section 4.07(a) and Consolidated Net Worth for
purposes of Section 5.01), giving pro forma effect to (x) any acquisition or
sale of a Person, business or asset, related incurrence, repayment or
refinancing of Indebtedness or other related transactions, including any related
restructuring charges in respect of restructurings, consolidations, compensation
or head-count reductions or other cost savings which would otherwise be
accounted for as an adjustment permitted by Regulation S-X under the Securities
Act or on a pro forma basis under GAAP, or (y) any incurrence, repayment or
refinancing of any Indebtedness and the application of the proceeds therefrom,
in each case, as if such acquisition or sale and related transactions,
restructurings, consolidations, cost savings, reductions, incurrence, repayment
or refinancing were realized on the first day of the relevant period permitted
by Regulation S-X under the Securities Act or on a pro forma basis under GAAP.
Furthermore, in calculating the Cash Flow Coverage Ratio, (1) interest on
outstanding Indebtedness which is determined on a fluctuating basis as of the
determination date and which will continue to be so determined thereafter shall
be deemed to have accrued at a fixed rate per annum equal to the rate of
interest on such Indebtedness in effect on the determination date; (2) if
interest on any Indebtedness actually incurred on the determined date may
optionally be determined at an interest rate based upon a factor of a prime or
similar rate, a eurocurrency interbank offered rate, or other rates, then the
interest rate in effect on the determination date will be deemed to have been in
effect during the relevant period; and (3), notwithstanding clause (1) above,
interest on Indebtedness determined on a fluctuating basis, to the extent such
interest is covered by agreements relating to interest rate swaps or similar
interest rate protection Hedging Obligations, shall be deemed to accrue at the
rate per annum resulting after giving effect to the operation of such
agreements.
"Qualified Issuer" means any commercial bank (a) which has capital and
surplus in excess of $100,000,000, and (b) the outstanding long-term debt
securities of which are rated at
16
least A-2 by Standard & Poor's Corporation or P-2 by Xxxxx'x Investor Service,
Inc., or carry an equivalent rating by a nationally recognized rating agency if
both of the two named rating agencies cease publishing ratings of investments.
"Qualified Stock" means, with respect to any Person, Capital Stock of such
Person other than Disqualified Stock.
"QIB" shall mean "qualified institutional buyer" as defined in Rule 144A.
"Receivables" means, with respect to any person or entity, all of the
following property and interests in property of such person or entity, whether
now existing or existing in the future or hereafter acquired or arising: (i)
accounts, (ii) accounts receivable (including, without limitation, all rights to
payment created by or arising from sales of goods, leases of goods or leased or
the rendition of services rendered no matter how evidenced, whether or not
earned by performance), (iii) all unpaid seller's or lessor's rights (including,
without limitation, recession, replevin, reclamation and stoppage in transit,
relating to any of the foregoing or arising therefrom), (iv) all rights to any
goods or merchandise represented by any of the foregoing (including, without
limitation, returned or repossessed goods), (v) all reserves and credit balances
with respect to any such accounts receivable or account debtors, (vi) all
letters of credit, security or guarantees of any of the foregoing, (vii) all
insurance policies or reports relating to any of the foregoing, (viii) all
collection or deposit accounts relating to any of the foregoing, (ix) all
proceeds of any of the foregoing, and (x) all books and records relating to any
of the foregoing.
"Receivables Financing" means (i) the sale or other disposition of
Receivables arising in the ordinary course of business or (ii) the sale or other
disposition of Receivables arising in the ordinary course of business to a
Receivables Subsidiary followed by a financing transaction in connection with
such sale or disposition of such Receivables.
"Receivables Subsidiary" means a Subsidiary of the Company that is
exclusively engaged in Receivables Financings and activities reasonably related
thereto.
"Refinancing Indebtedness" means (i) Indebtedness of the Company and its
Restricted Subsidiaries Issued or given in exchange for, or the proceeds of
which are used to, extend, refinance, renew, replace, substitute or refund any
Indebtedness permitted under this Indenture or any Indebtedness Issued to so
extend, refinance, renew, replace, substitute or refund such Indebtedness, (ii)
any refinancings of Indebtedness Issued under the New Credit Agreement, and
(iii) any additional Indebtedness Issued to pay premiums and fees in connection
with clauses (i) and (ii).
"Registration Rights Agreement" means the Registration Rights Agreement,
dated as of the Issue Date, by and between the Company, and the Initial
Purchasers as such agreement may be amended, modified or supplemented from time
to time.
17
"Restricted Investment" means any capital contribution to, or other debt
or equity investment in (other than certain investments in marketable securities
and other negotiable instruments permitted by this Indenture), any Nonrestricted
Subsidiary or any Person other than a Restricted Subsidiary or the Company,
provided that Restricted Investments will not include any Incentive
Arrangements. The amount of any Restricted Investment shall be the amount of
cash and the fair market value at the time of transfer of all other property (as
determined by the Board of Directors in good faith) included in the original
Restricted Investment, plus all additions thereto, without any adjustments for
increases or decreases in value or write-ups, write-downs or write-offs with
respect to such Restricted Investment. Notwithstanding the foregoing, the
assignment by the Company and the assumption by a Nonrestricted Subsidiary of
operating leases of the Company shall not be deemed a Restricted Investment so
long as the Obligations of the Company thereunder are not increased thereby.
"Restricted Securities" means Securities that bear or are required to bear
the legends set forth in Exhibit A hereto.
"Restricted Subsidiary" means:
(i) any Subsidiary of the Company existing on the Issue Date, other than
a Nonrestricted Subsidiary, and
(ii) any other Subsidiary of the Company formed, acquired or existing
after the Issue Date that is designated as a "Restricted Subsidiary"
by the Company pursuant to a resolution approved by a majority of
the Board of Directors,
provided that any Restricted Subsidiary that is organized under the laws of a
foreign jurisdiction and whose stock or ownership interests are sold or
transferred to a Nonrestricted Subsidiary may, by resolution approved by a
majority of the Board of Directors, be thereafter designated and considered as a
Nonrestricted Subsidiary.
"Restructuring Charges" means any charges or expenses in respect of
restructuring or consolidating any business, operations or facilities, any
compensation or head-count reduction, or any other cost savings, of any Persons
or businesses either alone or together with the Company or any Restricted
Subsidiary, as permitted by GAAP or Regulation S-X under the Securities Act.
"Rule 144A" means Rule 144A under the Securities Act, as such Rule may be
amended from time to time, or under any similar rule or regulation hereafter
adopted by the Commission.
"Securities" has the meaning set forth in the preamble to this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
18
"Significant Subsidiary" means (i) any Restricted Subsidiary of the
Company that would be a "significant subsidiary" as defined in clause (2) of the
definition of such term in Rule 1-02 of Regulation S-X under the Securities Act
and the Exchange Act and (ii) any other Restricted Subsidiary of the Company
that is material to the business, earnings, prospects, assets or condition,
financial or otherwise, of the Company and its Restricted Subsidiaries taken as
a whole.
"Stated Maturity" means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"SFAS 106" means Statement of Financial Accounting Standards No. 106.
"SFAS 109" means Statement of Financial Accounting Standards No. 109.
"SAR Agreements" means any agreements of the Company with regard to stock
appreciation rights in effect on the Issue Date.
"Subsidiary" of any Person means any entity of which the Equity Interests
entitled to cast at least a majority of the votes that may be cast by all Equity
Interests having ordinary voting power for the election of directors or other
governing body of such entity are owned by such Person (regardless of whether
such Equity Interests are owned directly by such Person or through one or more
Subsidiaries).
"Tax Sharing Agreement" means the tax sharing agreement between the
Company and each of its Subsidiaries, as in effect on the Issue Date.
"Transition Agreement" means the transition agreement between the Company
and Motors and Gears Holdings, Inc. and the transition agreement between the
Company and Jordan Telecommunication Products, Inc., as in effect on the Issue
Date.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code xx.xx.
77aaa-77bbbb) as in effect on the Issue Date.
"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.
"Trust Officer" means the chairman of the board, the president or any
other officer or assistant officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
19
"U.S. Government Obligations" means direct obligations of the United
States of America for the payment of which the full faith and credit of the
United States of America is pledged, provided that no U.S. Government Obligation
shall be callable at the Issuer's option.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the then
outstanding principal amount of such Indebtedness into (ii) the sum of the
product(s) obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payment 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.
Section 1.02. Other Definitions.
Defined in
Term Section
"Affiliate Transaction" .......................................... 4.08
"Asset Sale Disposition Date" .................................... 4.14
"Asset Sale Trigger Date" ........................................ 4.14
"Change of Control Trigger Date" ................................. 4.13
"covenant defeasance option" ..................................... 8.01
"DTC" ............................................................ 2.03
"Disposition" .................................................... 5.01
"Event of Default" ............................................... 6.01
"Excess Proceeds" ................................................ 4.14
"legal defeasance option" ........................................ 8.01
"Notice of Default" .............................................. 6.01
"Offer" .......................................................... 3.08
"Other Indebtedness " ............................................ 4.15
"Other Indebtedness Guarantee" ................................... 4.15
"Paying Agent" ................................................... 2.03
"Purchase Date" .................................................. 3.08
"Registrar" ...................................................... 2.03
"Restricted Payments" ............................................ 4.05
"Successor Corporation" .......................................... 5.01
"Trustee Expenses" ............................................... 6.08
Section 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. Any terms
incorporated by reference in this Indenture that are defined by the TIA, defined
by TIA reference to another statute or defined in a Commission rule under the
TIA have the meanings so assigned to them therein.
20
Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it under GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular; and
(5) provisions apply to successive events and transactions.
ARTICLE 2
THE SECURITIES
Section 2.01. Form and Dating.
The Securities and the Trustee's certificates of authentication shall be
substantially in the form of Exhibit A, which is part of this Indenture. The
Securities may have notations, legends or endorsements required by law, stock
exchange rule or usage. Each Security shall be dated the date of its
authentication. The Securities shall be in denominations of $1,000 and integral
multiples thereof.
The Securities will be Issued (i) in the form of a Global Security,
substantially in the form of Exhibit A attached hereto (including the text
referred to in footnotes 1 and 2 thereto), and (ii) in the form of a Definitive
Security, substantially in the form of Exhibit A attached hereto (excluding the
text referred to in footnotes 1 and 2 thereto). The Global Security shall
represent the aggregate amount of outstanding Securities from time to time
endorsed thereon; provided that the aggregate amount of outstanding Securities
represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any endorsement of the Global
Security to reflect the amount of any increase or decrease in the amount of
outstanding Securities represented thereby shall be made by the Trustee, in
accordance with instructions given by the Holder thereof as required by Section
2.06 hereof.
The terms and provisions contained in the Securities shall constitute, and
are hereby expressly made, a part of this Indenture and to the extent
applicable, 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.
21
Section 2.02. Execution and Authentication.
Two officers shall sign the Securities for the Company by manual or
facsimile signature. If an Officer whose signature is on a Security no longer
holds that office at the time the Security is authenticated, the Security shall
nevertheless be valid.
A Security shall not be valid until authenticated by the manual signature
of the Trustee. The Trustee's signature shall be conclusive evidence that the
Security has been authenticated under this Indenture. The form of Trustee's
certificate of authentication to be borne by the Securities shall be
substantially as set forth in Exhibit A.
The Trustee shall upon a Company Order authenticate Securities for
original Issuance up to an aggregate principal amount of $120,000,000. The
aggregate principal amount of Securities outstanding at any time may not exceed
$120,000,000 except as provided in Section 2.07.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Securities. Unless limited by the terms of such appointment, an
authenticating agent may authenticate Securities whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as an
Agent to deal with the Company or an Affiliate.
Section 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange (the "Registrar") and an
office or agency where Securities may be presented for payment (the "Paying
Agent"). The Registrar shall keep a register of the Securities and of their
transfer and exchange. The Company may appoint one or more co-registrars and one
or more additional paying agents. The term "Paying Agent" includes any
additional paying agent. The Company may change any Paying Agent, Registrar or
co-registrar without prior notice to any Holder. The Company shall notify the
Trustee and the Trustee shall notify the Holders of the name and address of any
Agent not a party to this Indenture. The Company shall enter into an appropriate
agency agreement with any Agent not a party to this Indenture, which shall
incorporate the TIA's provisions. The agreement shall implement this Indenture's
provisions that relate to such Agent.
The Company initially appoints the Trustee as Registrar, Paying Agent and
agent for service of notices and demands in connection with the Securities. The
Company or any of its subsidiaries may act as Paying Agent, Registrar or
co-registrar. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such and shall be entitled
to appropriate compensation in accordance with Section 7.07.
The Company initially appoints The Depositary Trust Company ("DTC") to act
as Depositary with prospect to Global Securities. The Trustee shall act as
custodian for the Depositary with respect to the Global Securities.
22
Section 2.04. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the Holders'
benefit or the Trustee all money the Paying Agent holds for redemption or
purchase of the Securities or for the payment of principal of, premium, if any,
and interest on, the Securities, and will notify the Trustee of any Default by
the Company in providing the Paying Agent with sufficient funds to (i) purchase
Securities tendered pursuant to a Change of Control Offer, (ii) redeem
Securities called for redemption, or (iii) make any payment of principal,
premium or interest due on the Securities. While any such Default continues, the
Trustee may require the Paying Agent to pay all money it holds to the Trustee.
The Company at any time may require the Paying Agent to pay all money it holds
to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other
than the Company or any of its Subsidiaries) shall have no further liability for
the money it delivered to the Trustee. If the Company or any of its Subsidiaries
acts as Paying Agent, it shall segregate and hold in a separate trust fund for
the Holders' benefit or the Trustee all money it holds as Paying Agent.
Section 2.05. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders and shall otherwise comply with ss. 312(a) of the TIA. 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 Holders including
the aggregate principal amount of the Securities each holds, and the Company
shall otherwise comply with ss. 312(a) of the TIA.
Section 2.06. Transfer and Exchange.
(a) Transfer and Exchange of Definitive Securities. When Definitive
Securities are presented by a Holder to the Registrar or co-registrar with a
request (1) to register the transfer of the Definitive Securities or (2) to
exchange such Definitive Securities for an equal principal amount of Definitive
Securities of other authorized denominations, the Registrar shall register the
transfer or make the exchange as requested if its requirements for such
transactions are met; provided that any Definitive Securities so presented shall
(A) have been duly endorsed or accompanied by a written instruction of transfer
in form satisfactory to the Registrar duly executed by such Holder or by his
attorney duly authorized in writing; and (B) in the case of a Restricted
Security such request shall be accompanied by the following additional
documents:
(i) if such Restricted Security is being delivered to the
Registrar or co-registrar by a Holder for registration in the
name of such Holder, without transfer, a certification to that
effect (in substantially the form of Exhibit B attached
hereto); or
23
(ii) if such Restricted Security is being transferred to a QIB in
accordance with Rule 144A or pursuant to an effective
registration statement under the Securities Act, a
certification to that effect (in substantially the form of
Exhibit B attached hereto); or
(iii) if such Restricted Security is being transferred to an
accredited "institutional investor," as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act, a
transferee letter of representations (in substantially the
form attached as Annex A to the Offering Circular); or
(iv) if such Restricted Security is being transferred in reliance
on another exemption from the registration requirements of the
Securities Act, a certification to that effect (in
substantially the form of Exhibit B attached hereto) and an
opinion of counsel reasonably acceptable to the Company and
the Registrar to the effect that such transfer is in
compliance with the Securities Act.
(b) Transfer of a Definitive Security for a Beneficial Interest in a
Global Security. A Definitive Security may be exchanged for a beneficial
interest in a Global Security only upon receipt by the Trustee of a Definitive
Security, duly endorsed or accompanied by appropriate instruments of transfer,
in form satisfactory to the Trustee, together with
(i) written instructions directing the Trustee to make an
endorsement on the Global Security to reflect an increase in
the aggregate principal amount of the Securities represented
by the Global Security; and
(ii) if such Definitive Security is a Restricted Security, a
certification (in substantially the form of Exhibit B attached
hereto) to the effect that such Definitive Security is being
transferred to a QIB in accordance with Rule 144A;
in which case the Trustee shall cancel such Definitive Security and cause the
aggregate principal amount of Securities represented by the Global Security to
be increased accordingly. If no Global Security is then outstanding, the Company
shall issue and the Trustee shall authenticate a new Global Security in the
appropriate principal amount.
(c) Transfer and Exchange of Global Securities. The transfer and
exchange of a Global Security 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.
(d) Transfer of a Beneficial Interest in a Global Security for a
Definitive Security. Upon receipt by the Trustee of written transfer
instructions (or such other form of
24
instructions as is customary for the Depositary), from the Depositary (or its
nominee) on behalf of any Person having a beneficial interest in a Global
Security, the Trustee shall, in accordance with the standing instructions and
procedures existing between the Depositary and the Trustee, cause the aggregate
principal amount of Global Securities to be reduced accordingly and, following
such reduction, the Company shall execute and the Trustee shall authenticate and
deliver to the transferee a Definitive Security in the appropriate principal
amount; provided that in the case of a Restricted Security such instructions
shall be accompanied by the following additional documents:
(i) if such beneficial interest is being transferred to the Person
designated by the Depositary as being the beneficial owner, a
certification to that effect (in substantially the form of
Exhibit B attached hereto); or
(ii) if such beneficial interest is being transferred to a QIB in
accordance with Rule 144A or pursuant to an effective
registration statement under the Securities Act, a
certification to that effect (in substantially the form of
Exhibit B attached hereto); or
(iii) if such Restricted Security is being transferred to an
accredited "institutional investor," as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act, a
transferee letter of representations (in substantially the
form attached as Annex A to the Offering Circular); or
(iv) if such beneficial interest is being transferred in reliance
on another exemption from the registration requirements of the
Securities Act, a certification to that effect (in
substantially the form of Exhibit B attached hereto) and an
opinion of counsel reasonably acceptable to the Company and to
the Registrar to the effect that such transfer is in
compliance with the Securities Act.
Definitive Securities Issued in exchange for a beneficial interest in a
Global Security shall be registered in such names and in such authorized
denominations as the Depositary shall instruct the Trustee.
(e) Transfer and Exchange of Global Securities. Notwithstanding any
other provision of this Indenture, the Global Security 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; provided that if
(i) the Depositary notifies the Company that the Depositary is
unwilling or unable to continue as Depositary and a successor
Depositary is not appointed by the Company within 90 days
after delivery of such notice, or
25
(ii) the Company, at its sole discretion, notifies the Trustee in
writing that it elects to cause the Issuance of Definitive
Securities under this Indenture,
then the Company shall execute, and the Trustee shall authenticate and deliver,
Definitive Securities in an aggregate principal amount equal to the aggregate
principal amount of the Global Security in exchange for such Global Security.
(f) Cancellation and/or Adjustment of Global Securities. At such
time as all beneficial interests in the Global Security have either been
exchanged for Definitive Securities, redeemed, repurchased or cancelled, the
Global Security shall be returned to or retained and cancelled by the Trustee.
At any time prior to such cancellation, if any beneficial interest in the Global
Security is exchanged for Definitive Securities, redeemed, repurchased or
cancelled, the aggregate principal amount of Securities represented by such
Global Security shall be reduced accordingly and an endorsement shall be made on
such Global Security by the Trustee to reflect such reduction.
(g) General Provisions Relating to Transfers and Exchanges. To
permit registrations of transfers and exchanges, the Company shall execute and
the Trustee shall authenticate Definitive Securities and Global Securities at
the Registrar's request. All Definitive Securities and Global Securities Issued
upon any registration of transfer or exchange of Definitive Securities or Global
Securities shall be legal, valid and binding obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Definitive Securities or Global Securities surrendered upon
such registration of transfer or exchange.
No service charge shall be made to a Holder for any registration of
transfer or exchange (except as otherwise expressly permitted herein), but the
Company may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than any such
transfer taxes or similar governmental charge payable upon exchanges (without
transfer to another Person) pursuant to Section 2.10, 3.06, 3.08 or 9.05, which
the Company shall pay).
The Company shall not be required to (i) issue, register the transfer of
or exchange Securities during a period beginning at the opening of business 15
days before the day of any selection of Securities for redemption under Section
3.02 hereof and ending at the close of business on the day of selection; or (ii)
register the transfer of or exchange any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed
in part; or (iii) register the transfer of or exchange a Security between a
record date and the next succeeding interest payment date.
Prior to due presentment for registration of transfer of any Security, the
Trustee, any Agent and the Company may deem and treat the Person in whose name
any Security is registered as the absolute owner of such Security for all
purposes, and neither the Trustee, any Agent nor the Company shall be affected
by notice to the contrary.
26
(h) Exchange of Series A Notes for Series B Notes. The Series A
Notes may be exchanged for Series B Notes pursuant to the terms of the Exchange
Offer. The Trustee and Registrar shall make the exchange as follows:
The Company shall present the Trustee with an Officers' Certificate
certifying the following:
(A) upon Issuance of the Series B Notes, the transactions
contemplated by the Exchange Offer have been consummated; and
(B) the principal amount of Series A Notes properly tendered in
the Exchange Offer that are represented by a Global Security
and the principal amount of Series A Notes properly tendered
in the Exchange Offer that are represented by Definitive
Securities, the name of each Holder of such Definitive
Securities, the principal amount at maturity properly tendered
in the Exchange Offer by each such Holder and the name and
address to which Definitive Securities for Series B Notes
shall be registered and sent for each such Holder.
The Trustee, upon receipt of (i) such Officers' Certificate, (ii) an
Opinion of Counsel (x) to the effect that the Series B Notes have been
registered under Section 5 of the Securities Act and this Indenture has been
qualified under the TIA and (y) with respect to the matters set forth in Section
6(p) of the Registration Rights Agreement and (iii) a Company Order, shall
authenticate (A) a Global Security for Series B Notes in aggregate principal
amount equal to the aggregate principal amount of Series A Notes represented by
a Global Security indicated in such Officers' Certificate as having been
properly tendered and (B) Definitive Securities representing Series B Notes
registered in the names of and in the principal amounts indicated in such
Officers' Certificate.
If the principal amount at maturity of the Global Security for the Series
B Notes is less than the principal amount at maturity of the Global Security for
the Series A Notes, the Trustee shall make an endorsement on such Global
Security for Series A Notes indicating a reduction in the principal amount at
maturity represented thereby.
The Trustee shall deliver such Definitive Securities for Series B Notes to
the Holders thereof as indicated in such Officers' Certificate.
Section 2.07. Replacement Securities.
If any mutilated Security is surrendered to the Trustee, or if the Company
and the Trustee receive evidence to their satisfaction of the destruction, loss
or theft of any Security, the Company shall Issue and the Trustee, upon the
Company's written order signed by two Officers, shall authenticate a replacement
Security if the Trustee's requirements are met. If the Trustee or the Company
requires, the Holder must supply an indemnity bond that is sufficient in the
27
judgment of the Trustee and the Company to protect the Company, the Trustee, any
Agent or any authenticating agent from any loss which any of them may suffer if
a Security is replaced. The Company and the Trustee may charge for its expenses
in replacing a Security.
Every replacement Security is an additional Obligation of the Company.
Section 2.08. Outstanding Securities.
The Securities outstanding at any time are all the Securities the Trustee
has authenticated except for those it has cancelled, those delivered to it for
cancellation, and those described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that a bona
fide purchaser holds the replaced Security.
If the entire principal of and premium, if any, and accrued interest on
any Security is considered paid under Section 4.01, it ceases to be outstanding
and interest on it ceases to accrue.
Subject to Section 2.09, a Security does not cease to be outstanding
because the Company or an Affiliate holds the Security.
Section 2.09. Treasury Securities.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities that
the Company or an Affiliate own shall be considered as though they are not
outstanding, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities which the Trustee knows are so owned shall be so disregarded.
Notwithstanding the foregoing, Securities that the Company or an Affiliate
offers to purchase or acquire pursuant to an Offer, exchange offer, tender offer
or otherwise shall not be deemed to be owned by the Company or an Affiliate
until legal title to such Securities passes to the Company or such Affiliate, as
the case may be.
Section 2.10. Temporary Securities.
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of definitive Securities but may
have variations that the Company considers appropriate for temporary Securities.
Without unreasonable delay, the Company shall prepare and the Trustee, upon
receipt of the Company's written order signed by two Officers, shall
authenticate definitive Securities in exchange for temporary Securities. Until
such exchange, temporary Securities shall be entitled to the same rights,
benefits and privileges as definitive Securities.
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Section 2.11. Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar, any co-registrar and the Paying Agent shall forward
to the Trustee any Securities surrendered to them for registration of transfer,
exchange, replacement, payment (including all Securities called for redemption
and all Securities accepted for payment pursuant to an Offer) or cancellation,
and the Trustee shall cancel all such Securities and shall destroy all cancelled
Securities (subject to the Exchange Act's record retention requirements) and
deliver a certificate of their destruction to the Company unless by a Company
Order, the Company shall direct that cancelled Securities be returned to it. The
Company may not Issue new Securities to replace Securities that have been
cancelled by the Trustee or that have been delivered to the Trustee for
cancellation. If the Company or an Affiliate acquires any Securities (other than
by redemption or pursuant to an Offer), such acquisition shall not operate as a
redemption or satisfaction of the Indebtedness represented by such Securities
unless and until such Securities are delivered to the Trustee for cancellation.
Section 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the Securities, it
shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to Holders on a subsequent
special record date, in each case at the rate provided in the Securities and
Section 4.01. The Company shall, with the Trustee's consent, fix or cause to be
fixed each such special record date and payment date. At least 15 days before
the special record date, the Company (or the Trustee, in the name of and at the
expense of the Company) shall mail a notice that states the special record date,
the related payment date and the amount of such interest to be paid.
Section 2.13. Record Date.
The record date for purposes of determining the identity of Holders of
Securities entitled to vote or consent to any action by vote or consent
authorized or permitted under this Indenture shall be determined as provided for
in ss. 316(c) of the TIA.
Section 2.14. CUSIP Number.
A "CUSIP" number will be printed on the Securities, and the Trustee shall
use the CUSIP number in notices of redemption, purchase 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 Securities and that reliance may be placed only
on the other identification numbers printed on the Securities. The Company will
promptly notify the Trustee of any change in the CUSIP number.
29
Section 2.15. Legends.
(a) Except as permitted by subsection (b) or (c) hereof, each
Security shall bear legends relating to restrictions on transfer pursuant to the
securities laws in substantially the form set forth on Exhibit A attached
hereto.
(b) Upon any sale or transfer of a Restricted Security (including
any Restricted Security represented by a Global Security) pursuant to Rule 144
under the Securities Act or pursuant to an effective registration statement
under the Securities Act:
(i) in the case of any Restricted Security that is a Definitive
Security, the Registrar shall permit the Holder thereof to
exchange such Restricted Security for a Definitive Security
that does not bear the legends required by subsection (a)
above; and
(ii) in the case of any Restricted Security represented by a Global
Security, such Restricted Security shall not be required to
bear the legends required by subsection (a) above but shall
continue to be subject to the provisions of Section 2.06(c)
hereof; provided that with respect to any request for an
exchange of a Restricted Security that is represented by a
Global Security for a Definitive Security that does not bear
the legends required by subsection (a) above, which request is
made in reliance upon Rule 144, the Holder thereof shall
certify in writing to the Registrar that such request is being
made pursuant to Rule 144.
(c) The Company shall issue and the Trustee shall authenticate
Series B Notes in exchange for Series A Notes accepted for exchange in the
Exchange Offer. The Series B Notes shall not bear the legends required by
subsection (a) above unless the Holder of such Series A Notes is either (A) a
broker-dealer who purchased such Series A Notes directly from the Company to
resell pursuant to Rule 144A or any other available exemption under the
Securities Act, (B) a Person participating in the distribution of the Series A
Notes or (C) a Person who is an affiliate (as defined in Rule 144A) of the
Company.
ARTICLE 3
REDEMPTION
Section 3.01. Notices to Trustee.
If the Company elects to redeem Securities pursuant to Section 3.07, it
shall furnish to the Trustee, at least 10 but not more than 15 days before
notice of redemption is to be mailed by the Company to the Holders, an Officers'
Certificate stating that the Company has elected to redeem Securities pursuant
to Section 3.07, the date notice of redemption is to be mailed to Holders, the
redemption date, the aggregate principal amount of Securities to be redeemed,
the redemption price for such Securities and the amount of accrued and unpaid
interest on such
30
Securities as of the redemption date. If the Trustee is not the Registrar, the
Company shall, concurrently with delivery of its notice to the Trustee of a
redemption, cause the Registrar to deliver to the Trustee a certificate (upon
which the Trustee may rely) setting forth the name of, and the aggregate
principal amount of Securities held by, each Holder.
If the Company is required to offer to purchase Securities pursuant to
Section 4.13 or 4.14, it shall furnish to the Trustee, at least 2 Business Days
before notice of the Offer is to be mailed to Holders, an Officers' Certificate
setting forth that the Offer is being made pursuant to Section 4.13 or 4.14, as
the case may be, the Purchase Date, the maximum principal amount of Securities
the Company is offering to purchase pursuant to the Offer, the purchase price
for such Securities, and the amount of accrued and unpaid interest on such
Securities as of the Purchase Date.
The Company will also provide the Trustee with any additional information
that the Trustee reasonably requests in connection with any redemption or Offer.
Section 3.02. Selection of Securities to Be Redeemed or Purchased.
If less than all the Securities are to be redeemed or if less than all the
Securities tendered pursuant to an Offer are to be accepted for payment, the
Trustee shall select the outstanding Securities to be redeemed or accepted for
payment pro rata, by lot or by a method that complies with the requirements of
any exchange, if any, on which the Securities are listed and that the Trustee
considers fair and appropriate. If the Company elects to mail notice of a
redemption to Holders, the Trustee shall at least 5 business days prior to the
date notice of redemption is to be mailed, (i) select the Securities to be
redeemed from Securities outstanding not previously called for redemption, and
(ii) notify the Company of the names of each Holder of Securities selected for
redemption, the principal amount of Securities held by each such Holder and the
principal amount of such Holder's Securities that are to be redeemed. If less
than all Securities tendered pursuant to an Offer on the Purchase Date are to be
accepted for payment, the Trustee shall select on or promptly after the Purchase
Date the Securities to be accepted for payment. The Trustee shall select for
redemption or purchase Securities or portions of Securities in principal amounts
of $1,000 or integral multiples of $1,000; except that if all of the Securities
of a Holder are selected for redemption or purchase, the entire outstanding
amount of Securities held by such Holder, even if not a multiple of $1,000,
shall be redeemed or purchased. Except as provided in the preceding sentence,
provisions of this Indenture that apply to Securities called for redemption or
tendered pursuant to an Offer also apply to portions of Securities called for
redemption or tendered pursuant to an Offer. The Trustee shall notify the
Company promptly of the Securities or portions of Securities to be called for
redemption or selected for purchase.
Section 3.03. Notice of Redemption.
At least 30 days but not more than 60 days before a redemption date, the
Company shall mail a notice of redemption to each Holder of Securities or
portions thereof to be redeemed.
31
The notice shall identify the Securities or portions thereof to be
redeemed and shall state:
(1) the redemption date;
(2) the redemption price for the Securities and the amount of
unpaid and accrued interest on such Securities as of the date
of redemption;
(3) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that,
after the redemption date, upon surrender of such Security, a
new Security or Securities in principal amount equal to the
unredeemed portion will be Issued;
(4) the name and address of the Paying Agent;
(5) that Securities called for redemption must be surrendered to
the Paying Agent to collect the redemption price for, and any
accrued and unpaid interest on, such Securities;
(6) that, unless the Company defaults in making such redemption
payment, interest on Securities called for redemption ceases
to accrue on and after the redemption date;
(7) the paragraph of the Securities pursuant to which the
Securities called for redemption are being redeemed; and
(8) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or
printed on the Securities.
At the Company's request, the Trustee shall (at the Company's expense)
give notice of redemption in the Company's name at least 30 but not more than 60
days before a redemption; provided, however, that the Company shall deliver to
the Trustee, at least 45 days prior to the redemption date and at least 10 days
prior to the date that notice of the redemption is to be mailed to Holders, an
Officers' Certificate that (i) requests the Trustee to give notice of the
redemption to Holders, (ii) sets forth the information to be provided to Holders
in the notice of redemption, as set forth in the preceding paragraph, (iii)
states that the Company has elected to redeem Securities pursuant to Section
3.07(a) or 3.07(b), as the case may be, and (iv) sets forth the aggregate
principal amount of Securities to be redeemed and the amount of accrued and
unpaid interest thereon as of the redemption date. If the Trustee is not the
Registrar, the Company shall, concurrently with any such request, cause the
Registrar to deliver to the Trustee a certificate (upon which the Trustee may
rely) setting forth the name of, the address of, and the aggregate principal
amount of Securities held by, each Holder.
32
Section 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed, Securities called for redemption
become due and payable on the redemption date at the price set forth in the
Security.
Section 3.05. Deposit of Redemption Price.
On or prior to any redemption date, the Company shall deposit with the
Trustee or with the Paying Agent money sufficient to pay the redemption price of
and accrued interest on all Securities to be redeemed on that date. The Trustee
or the Paying Agent shall return to the Company any money that the Company
deposited with the Trustee or the Paying Agent in excess of the amounts
necessary to pay the redemption price of, and accrued interest on, all
Securities to be redeemed.
If the Company complies with the preceding paragraph, interest on the
Securities to be redeemed will cease to accrue on such Securities on the
applicable redemption date, whether or not such Securities are presented for
payment. If a Security is redeemed on or after an interest record date but on or
prior to the related interest payment date, then any accrued and unpaid interest
shall be paid to the Person in whose name such Security was registered at the
close of business on such record date. If any Security called for redemption
shall not be so paid upon surrender for redemption because of the failure of the
Company to comply with the preceding paragraph, interest will be paid on the
unpaid principal and premium, if any, and interest from the redemption date
until such principal, premium and interest is paid, at the rate of interest
provided in the Securities and in Section 4.01.
Section 3.06. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Company shall
Issue and the Trustee shall authenticate for the Holder at the Company's expense
a new Security equal in principal amount to the unredeemed portion of the
Security surrendered.
Section 3.07. Optional Redemption Provisions.
The Securities may not be redeemed at the option of the Company prior to
August 1, 2002. During the twelve-month period beginning August 1 of the years
indicated below, the Securities will be redeemable at the option of the Company,
in whole or in part, on at least 30 but not more than 60 days' notice to each
Holder to be redeemed, at the redemption prices (expressed as percentages of the
principal amount) set forth below, plus any accrued and unpaid interest to the
date of redemption:
33
Year Percentage
---- ----------
2002 ...................................................... 105.188%
2003 ...................................................... 102.594%
2004 and thereafter ....................................... 100.000%
Section 3.08. Mandatory Purchase Provision.
(a) Within 30 days after any Change of Control Trigger Date or Asset
Sale Trigger Date, the Company shall mail a notice to each Holder stating:
(i) that an offer ("Offer") is being made pursuant to Section 4.13
or 4.14, as the case may be, the length of time the Offer
shall remain open and the maximum aggregate principal amount
of Securities that the Company is offering to purchase;
(ii) the purchase price for the Securities (as set forth in Section
4.13 or 4.14, as the case may be), the amount of accrued and
unpaid interest on such Securities as of the purchase date,
and the purchase date (which shall be no earlier than 30 days
nor later than 40 days from the date such notice is mailed
(the "Purchase Date"));
(iii) that any Security not accepted for payment will continue to
accrue interest;
(iv) that, unless the Company fails to deposit with the Paying
Agent on the Purchase Date an amount sufficient to purchase
all Securities accepted for payment, interest shall cease to
accrue on such Securities after the Purchase Date;
(v) that Holders electing to tender any Security or portion
thereof will be required to surrender their Security, with a
form entitled "Option of Holder to Elect Purchase" completed,
to the Paying Agent at the address specified in the notice
prior to the close of business on the Business Day preceding
the Purchase Date; provided that Holders electing to tender
only a portion of any Security must tender a principal amount
of $1,000 or integral multiples thereof;
(vi) that Holders will be entitled to withdraw their election to
tender Securities if the Paying Agent receives, not later than
the close of business on the third Business Day preceding the
Purchase Date, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the principal
amount of Securities delivered for purchase and a statement
that
34
such Holder is withdrawing his election to have such Security
purchased; and
(vii) that Holders whose Securities are accepted for payment in part
will be Issued new Securities equal in principal amount to the
unpurchased portion of Securities surrendered; provided that
only Securities in a principal amount of $1,000 or integral
multiples thereof will be accepted for payment.
(b) On the Purchase Date, the Company will, to the extent required
by this Indenture and the Offer,
(i) accept for payment Securities or portions thereof tendered
pursuant to such Offer,
(ii) deposit with the Paying Agent an amount sufficient to purchase
the lesser of (a) the Securities or portions thereof tendered
pursuant to such Offer, and (b) the maximum aggregate
principal amount of Securities that the Company offered to
purchase pursuant to such Offer, and
(iii) deliver or cause to be delivered to the Trustee all Securities
tendered pursuant to the Offer, together with an Officers'
Certificate setting forth the name of each Holder that
tendered Securities and the principal amount of the Securities
or portions thereof tendered by each such Holder.
(c) With respect to any Offer, if less than all of the Securities
tendered pursuant to an Offer are to be purchased by the Company, the Trustee
shall select on the Purchase Date the Securities or portions thereof to be
accepted for payment pursuant to Section 3.02.
(d) Promptly after consummation of an Offer, (i) the Paying Agent
shall mail to each Holder of Securities or portions thereof accepted for payment
an amount equal to the purchase price for, plus any accrued and unpaid interest
on, such Securities, (ii) with respect to any tendered Security not accepted for
payment in whole or in part, the Trustee shall return such Security to the
Holder thereof, and (iii) with respect to any Security accepted for payment in
part, the Trustee shall authenticate and mail to each such Holder a new Security
equal in principal amount to the unpurchased portion of the tendered Security.
(e) The Company will publicly announce the results of the Offer on
or as soon as practicable after the Purchase Date.
(f) The Company will comply with Rule 14e-1 under the Exchange Act
and any other securities laws and regulations to the extent such laws and
regulations are applicable to any Offer.
35
(g) With respect to any Offer, if the Company deposits with the
Paying Agent on the Purchase Date an amount sufficient to purchase all
Securities accepted for payment, interest shall cease to accrue on such
Securities after the Purchase Date; provided, however, that if the Company fails
to deposit such amount on the Purchase Date, interest shall continue to accrue
on such Securities until such deposit is made.
ARTICLE 4
COVENANTS
Section 4.01. Payment of Securities.
The Company shall pay the principal of, and premium, if any, and interest
on the Securities on the dates and in the manner provided in the Securities.
Holders of Securities must surrender their Securities to the Paying Agent to
collect principal payments. Principal, premium and interest shall be considered
paid on the date due if the Paying Agent (other than the Company or any of its
Subsidiaries) holds as of 10:00 a.m. Eastern Standard Time money the Company
deposited in immediately available funds designated for and sufficient to pay
all principal premium, if any, and interest then due. The Paying Agent shall
return to the Company, no later than five days following the date of payment,
any money (including accrued interest) that exceeds such amount of principal,
premium, if any, and interest paid on the Securities. The Company shall pay any
and all amounts, including, without limitation, Liquidated Damages, if any, on
the dates and in the manner required under the Registration Rights Agreement.
Section 4.02. SEC Reports.
(a) The Company shall file with the Trustee, within 15 days after
the time of filing with the Commission, copies of the reports, information and
other documents (or copies of such portions of any of the foregoing as the
Commission may by rules and regulations prescribe) that the Company is required
to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act.
If the Company is not subject to the requirements of Section 13 or 15(d) of the
Exchange Act, the Company shall file with the Commission and the Trustee all
such reports, information and other documents as it would be required to file if
it were subject to the requirements of Section 13 or 15(d) of the Exchange Act;
provided, that the Company shall not be in default of the provisions of this
Section 4.02 for any failure to file reports with the Commission solely by
refusal by the Commission to accept the same for filing. The Company shall
deliver (or cause the Trustee to deliver) copies of all reports, information and
documents required to be filed with the Trustee pursuant to this Section 4.02 to
the Holders at their addresses appearing in the register of Securities
maintained by the Registrar. The Company shall also comply with the provisions
of TIA ss. 314(a).
(b) If the Company is required to furnish annual, quarterly or
current reports to its stockholders pursuant to the Exchange Act, the Company
shall cause any annual, quarterly, current or other financial report furnished
by it generally to its stockholders to be filed with the
36
Trustee and mailed to the Holders at their addresses appearing in the register
of Securities maintained by the Registrar. If the Company is not required to
furnish annual, quarterly or current reports to its stockholders pursuant to the
Exchange Act, the Company shall cause the financial statements of the Company
and its consolidated Subsidiaries (and similar financial statements for all
unconsolidated Subsidiaries, if any), including any notes thereto (and, with
respect to annual reports, an auditors' report by an accounting firm of
established national reputation), and a "Management's Discussion and Analysis of
Financial Condition and Results of Operations," comparable to that which would
have been required to appear in annual or quarterly reports filed under Section
13 or 15(d) of the Exchange Act to be so filed with the Trustee and mailed to
the Holders promptly, but in any event, within 120 days after the end of each of
the fiscal years of the Company and within 60 days after the end of each of the
first three fiscal quarters of each such fiscal year.
(c) So long as is required for an offer or sale of the Securities to
qualify for an exemption under Rule 144A, the Company shall, upon request,
provide the information as would be required by clause (d)(4) thereunder if the
Company were subject to the requirements of such clause to each Holder and to
each beneficial owner and prospective purchaser of Securities identified by any
Holder of Restricted Securities.
(d) Notwithstanding anything herein to the contrary, the Trustee
shall have no duty to review such documents for purposes of determining their
compliance with any provision of this Indenture.
Section 4.03. Compliance Certificate.
(a) The Company shall deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company, an Officers' Certificate stating
that a review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that to the best of
his or her knowledge the Company has kept, observed, performed and fulfilled
each and every covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions hereof
(or, if a Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which he or she may have knowledge and what
action the Company has taken or proposes to take with respect thereto) and that
to the best of his or her knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal of, or
premium, if any or interest on, the Securities are prohibited or if such event
has occurred, a description of the event and what action the Company is taking
or proposes to take with respect thereto.
(b) So long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, the financial statements
delivered pursuant to Section 4.02 shall be accompanied by a written statement
of the Company's independent
37
public accountants (who shall be a firm of established national reputation
reasonably satisfactory to the Trustee) that in making the examination necessary
for certification of such financial statements nothing has come to their
attention which would lead them to believe that the Company has violated any
provisions of Section 4.01, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12,
4.13, 4.14 or 4.15 or of Article 5 or, if any such violation has occurred,
specifying the nature and period of existence thereof, it being understood that
such accountants shall not be liable directly or indirectly to any Person for
any failure to obtain knowledge of any such violation.
(c) The Company will, so long as any of the Securities are
outstanding, deliver to the Trustee, forthwith upon any Officer becoming aware
of (i) any Default or Event of Default or (ii) any event of default under any
other mortgage, indenture or instrument that could result in an Event of Default
under Section 6.01(4), an Officers' Certificate specifying such Default, Event
of Default or default and what action the Company is taking or proposes to take
with respect thereto.
Section 4.04. Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will 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 might affect the covenants
or the performance of this Indenture; and the Company (to the extent it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not, by resort to any such law, hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law has been
enacted.
Section 4.05. Limitation on Restricted Payments.
(a) The Company will not, and will not permit any Restricted
Subsidiary to, directly or indirectly,
(i) declare or pay any dividend or make any distribution on
account of the Company's or such Restricted Subsidiary's
Capital Stock or other Equity Interests (other than dividends
or distributions payable in Equity Interests (other than
Disqualified Stock) of the Company or a Restricted Subsidiary
and other than dividends or distributions payable by a
Restricted Subsidiary to another Restricted Subsidiary or to
the Company),
(ii) purchase, redeem or otherwise acquire or retire for value any
Equity Interests of the Company or any of its Restricted
Subsidiaries (other than any such Equity Interest purchased
from the Company or any Restricted Subsidiary),
38
(iii) voluntarily prepay Indebtedness that is subordinated to the
Securities, whether any such subordinated indebtedness is
outstanding on, or Issued after, the Issue Date, or
(iv) make any Restricted Investment (all such dividends, distributions,
purchases, redemptions or other acquisitions, retirements,
prepayments and Restricted Investments being collectively referred
to as "Restricted Payments"), if, at the time of such Restricted
Payment:
(1) a Default or Event of Default shall have occurred and be
continuing or shall occur as a consequence thereof; or
(2) immediately after such Restricted Payment and after giving effect
thereto on a Pro Forma Basis, the Company shall not be able to
issue $1.00 of additional Indebtedness pursuant to Section
4.07(a); or
(3) such Restricted Payment, together with the aggregate of all other
Restricted Payments made after the Issue Date, exceeds the sum,
without duplication, of
(A) 50% of the aggregate Consolidated Net Income (including,
for this purpose, gains from Asset Sales and, to the extent
not included in Consolidated Net Income, any gain from a
Restricted Investment) of the Company (or, in case such
aggregate is a loss, 100% of such loss) for the period
(taken as one accounting period) from the beginning of the
first fiscal quarter commencing immediately after the Issue
Date and ending as of the Company's most recently ended
fiscal quarter at the time of such Restricted Payment, plus
(B) 100% of the aggregate net cash proceeds and the fair market
value of any property or securities (as determined by the
Board of Directors in good faith) received by the Company
from the Issue or sale of Equity Interests or warrants,
options or rights to acquire Equity Interests of the
Company or any Restricted Subsidiary subsequent to the
Issue Date (other than Equity Interests Issued or sold to a
Restricted Subsidiary and other than Disqualified Stock),
plus
(C) $5,000,000, plus
(D) the amount by which the principal amount of and any accrued
interest on either senior Indebtedness of the Company or
any Indebtedness of the Restricted Subsidiaries (not held
by the Company or any Restricted Subsidiary) is reduced on
the
39
Company's consolidated balance sheet upon the conversion or
exchange subsequent to the Issue Date of such Indebtedness
for Equity Interests (other than Disqualified Stock) of the
Company or any Restricted Subsidiaries (less the amount of
any cash, or the fair market value of any other property or
securities (as determined by the Board of Directors in good
faith), distributed by the Company or any Restricted
Subsidiary (to Persons other than the Company or any other
Restricted Subsidiary) upon such conversion or exchange,
plus
(E) if any Nonrestricted Subsidiary is redesignated as a
Restricted Subsidiary, the fair market value (as determined
by the Board of Directors in good faith) of such
Nonrestricted Subsidiary as of the date it is redesignated;
provided, however, that for purposes of this clause (E),
the fair market value of any redesignated Nonrestricted
Subsidiary shall be reduced by the amount that any such
redesignation replenishes or increases the amount of
Restricted Investments permitted to be made pursuant to
Section 4.05(b)(iii).
(b) Notwithstanding Section 4.05(a), the following Restricted Payments
may be made:
(i) the payment of any dividend within 60 days after the date of
declaration thereof if at said date of declaration such payment
would comply with the provisions hereof;
(ii) the retirement of any of the Company's Capital Stock or
subordinated Indebtedness in exchange for, or out of the net
proceeds of the substantially concurrent sale (other than to a
Restricted Subsidiary) of, other Capital Stock (other than
Disqualified Stock) and neither such retirement nor the proceeds
of any such sale or exchange shall be included in any computation
made pursuant to Section 4.05(a);
(iii) making Restricted Investments at any time, and from time to time,
in an aggregate outstanding amount of $40,000,000 after the Issue
Date (it being understood that if any Restricted Investment
acquired with a Restricted Payment after the Issue Date pursuant
to this Section 4.05(b)(iii) is sold, transferred or otherwise
conveyed to any Person other than the Company or a Restricted
Subsidiary, the portion of the net cash proceeds or fair market
value of securities or properties paid or transferred to the
Company and its Restricted Subsidiaries in connection with such
sale, transfer or conveyance that relates or corresponds to the
repayment or return of the original cost of such a Restricted
Investment will replenish or increase the amount of Restricted
Investments permitted to be made
40
pursuant to this Section 4.05(b)(iii), so that up to $40,000,000
of Restricted Investments may be outstanding under this Section
4.05(b)(iii) at any given time);
(iv) the repurchase or redemption of the Company's common stock upon
the death of Xxxxxx X. Xxxxx, pursuant to the terms of an
Employment Agreement, dated as of February 25, 1988, between the
Company and Xxxxxx X. Xxxxx; provided, however, that the funds
necessary to satisfy the Company's obligation to repurchase or
redeem such Common Stock shall be fully reimbursed by insurance;
(v) the repurchase or redemption of the Company's common stock
pursuant to the terms of the several Restricted Stock Agreements,
each dated as of February 25, 1988, between the Company and each
of Xxxxxx X. Xxxxx, Xxxxxxxx X. Xxxxxxx and Xxxx X. Xxxxxx, the
Restricted Stock Agreement, dated as of January 1, 1992, between
the Company and Xxxxxx Xxxxx, the Restricted Stock Agreements,
each dated as of January 1, 1992, between the Company and each of
Xxxxxxxx X. Xxxxxxx, Xxxx Max and Xxxxxx Xxxxx, and the Restricted
Stock Agreement, dated as of May 16, 1997, between the Company and
Xxxxxx Xxxxx, in each case as amended or supplemented, up to an
aggregate amount not to exceed $7,500,000;
(vi) any loans, advances, distributions or payments from the Company to
its Restricted Subsidiaries, or any loans, advances, distributions
or payments by a Restricted Subsidiary to the Company or to
another Restricted Subsidiary, pursuant to intercompany
Indebtedness, intercompany management agreements, intercompany tax
sharing agreements, and other intercompany agreements and
obligations;
(vii) the payment of directors' fees in an annual aggregate amount not
to exceed $250,000;
(viii) to the extent constituting Restricted Payments, if no Default or
Event of Default shall have occurred and be continuing or shall
occur as a consequence thereof, the payment of consulting,
financial and investment banking fees (but not limiting the
payment of indemnities, expenses and other amounts) under the New
TJC Management Consulting Agreement, provided that the obligation
of the Company to pay such fees under the New TJC Management
Consulting Agreement shall be subordinated expressly to the
Company's Obligations on the Securities;
(ix) the purchase, redemption, retirement or other acquisition of the
Discount Debentures required by their terms to be purchased,
redeemed, retired or
41
acquired with the net proceeds from asset sales (as defined in the
instrument evidencing such subordinated Indebtedness) or upon a
change of control (as defined in the instrument evidencing such
subordinated Indebtedness);
(x) the exchanging, refinancing or refunding of subordinated
Indebtedness through the Issuance of subordinated Indebtedness so
long as the subordinated Indebtedness to be Issued is Refinancing
Indebtedness permitted under Section 4.07;
(xi) to the extent constituting Restricted Payments, any payments made
in connection with the Plan;
(xii) Restricted Investments received as consideration for the sale,
transfer or disposition of any business, properties or assets of
the Company or any Restricted Subsidiary, provided that the
Company complies with Section 4.14;
(xiii) any Restricted Investment constituting securities or instruments
of a Person Issued in exchange for trade or other claims against
such Person in connection with a financial reorganization or
restructuring of such Person;
(xiv) any Restricted Investment constituting an equity investment in a
Receivables Subsidiary; provided that the aggregate amount of such
equity investments does not exceed $1,000,000; and
(xv) guarantees by the Company of Capital Lease Obligations of
Nonrestricted Subsidiaries in an aggregate principal or face
amount not exceeding the aggregate principal or face amount of
capital leases of the Nonrestricted Subsidiaries guaranteed by the
Company on the Issue Date.
Section 4.06. Corporate Existence.
Subject to Section 4.14 and Article 5 hereof, the Company will do or cause
to be done all things necessary to preserve and keep in full force and effect
its corporate existence and the corporate, partnership or other existence of
each of its Restricted Subsidiaries in accordance with the respective
organizational documents of each of its Restricted Subsidiaries and the rights
(charter and statutory), licenses and franchises of the Company and each of its
Restricted Subsidiaries; provided, however, that the Company shall not be
required to preserve any such right, license or franchise, or the corporate,
partnership or other existence of any Restricted Subsidiary, if the Board of
Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company and its Restricted Subsidiaries
taken as a whole and that the loss thereof is not adverse in any material
respect to the Holders.
42
Section 4.07. Limitation on Incurrence of Indebtedness.
(a) The Company will not, and will not permit any Restricted
Subsidiary to, Issue any Indebtedness (other than the Indebtedness represented
by the Securities, the Old Senior Notes and the Discount Debentures) unless the
Company's Cash Flow Coverage Ratio for its four full fiscal quarters next
preceding the date such additional Indebtedness is Issued would have been at
least (i) 1.7 to 1, if such date is between the date of original Issuance of the
Securities and June 30, 1999, (ii) 1.85 to 1, from July 1, 1999, through June
30, 2001, or (iii) 2.0 to 1, from July 1, 2001, and thereafter, in each case
determined on a Pro Forma Basis as if such additional Indebtedness and any other
Indebtedness issued since the end of the applicable four-quarter period had been
issued at the beginning of such four-quarter period.
(b) Section 4.07(a) will not apply to the Issuance of:
(i) Indebtedness of the Company and/or its Restricted
Subsidiaries up to the greater of (A) $75.0 million in
aggregate principal amount pursuant to the New Credit
Agreement and (B) an aggregate principal amount up to the
sum of (x) 85% of the book value of the Company and its
Restricted Subsidiaries' Receivables on a consolidated
basis and (y) 65% of the book value of the Company and its
Restricted Subsidiaries' inventories on a consolidated
basis;
(ii) Indebtedness of the Company and its Restricted Subsidiaries
pursuant to any Receivables Financing;
(iii) Indebtedness of the Company and its Restricted Subsidiaries
in connection with capital leases, sale and leaseback
transactions, purchase money obligations, capital
expenditures or similar financing transactions relating to
(A) their properties, assets and rights as of the date of
original Issuance of the Securities up to $20,000,000 in
aggregate principal amount, or (B) their properties, assets
and rights acquired after the date of original Issuance of
the Securities, provided that such Indebtedness under this
Section 4.07(b)(iii)(B) does not exceed 100% of the cost of
such properties, assets and rights;
(iv) additional Indebtedness of the Company and its Restricted
Subsidiaries in an aggregate principal amount up to
$25,000,000 (all or any portion of which may be Issued as
additional Indebtedness under the New Credit Agreement);
and
(v) Other Permitted Indebtedness.
43
Section 4.08. Limitation on Transactions with Affiliates.
(a) Except as otherwise set forth in this Indenture, neither the
Company nor any of its Restricted Subsidiaries may make any loan, advance,
guarantee or capital contribution to, or for the benefit of, or sell, lease,
transfer or dispose of any properties or assets to, or for the benefit of, or
purchase or lease any property or assets from, or enter into any or amend any
contract, agreement or understanding with, or for the benefit of, an Affiliate
(each such transaction or series of related transactions that are part of a
common plan an "Affiliate Transaction"), except in good faith and on terms that
are no less favorable to the Company or the relevant Restricted Subsidiary than
those that would have been obtained in a comparable transaction on an
arm's-length basis from an unrelated Person.
(b) Neither the Company nor any of its Restricted Subsidiaries may
engage in any Affiliate Transaction involving aggregate payments or other
transfers by the Company and its Restricted Subsidiaries in excess of $5,000,000
(including cash and noncash payments and benefits valued at their fair market
value by the Board of Directors in good faith) unless the Company delivers to
the Trustee (i) a resolution of the Board of Directors stating that the Board of
Directors (including a majority of the disinterested directors, if any) has, in
good faith, determined that such Affiliate Transaction complies with the
provisions of this Indenture, and (ii) an opinion as to the fairness of such
Affiliate Transaction to the Company or such Restricted Subsidiary and the
Holders of Securities, in each case from a financial point of view by an
investment banking firm of national prominence that is not an Affiliate of the
Company.
(c) Notwithstanding Sections 4.08(a) and (b), this Section 4.08
will not apply to (i) transactions between the Company and any Restricted
Subsidiary or between Restricted Subsidiaries, (ii) any Restricted Payments
permitted pursuant to Section 4.05, (iii) payments of fees and other amounts
expressly due under any SAR Agreement, the New Subsidiary Advisory Agreements,
the New Subsidiary Consulting Agreements, the Tax Sharing Agreement, the JI
Properties Service Agreement, the Transition Agreement and the New TJC
Management Consulting Agreement, provided that any amendments, supplements,
modifications, substitutions, renewals or replacements of the foregoing
agreements are approved by a majority of the Board of Directors (including a
majority of the disinterested directors, if any) as fair to the Company and the
Holders of Securities, (iv) the payment of reasonable and customary directors'
fees to directors of the Company and its Restricted Subsidiaries, (v)
transactions in connection with a Receivables Financing or (vi) payments and
transactions in connection with the Plan.
Section 4.09. Limitation on Liens.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Lien (other than Permitted Liens) upon any asset now owned or
hereafter acquired by them, or any income or profits therefrom or assign or
convey any right to receive income therefrom; provided, however, that in
addition to creating Permitted Liens on its properties or assets, the Company
and any of its Restricted
44
Subsidiaries may create any Lien upon any of their properties or assets
(including, but not limited to, any Capital Stock of its Subsidiaries) if the
Securities are equally and ratably secured.
Section 4.10. Compliance with Laws, Taxes.
The Company shall, and shall cause each of its Restricted Subsidiaries to,
comply with all statutes, laws, ordinances, or government rules and regulations
to which it is subject, noncompliance with which would materially adversely
affect the business, prospects, earnings, properties, assets or condition,
financial or otherwise, of the Company and its Restricted Subsidiaries taken as
a whole.
The Company shall, and shall cause each of its Restricted Subsidiaries to,
pay prior to delinquency all taxes, assessments and governmental levies, except
those contested in good faith and by appropriate proceedings.
Section 4.11. Limitation on Dividends and Other Payment Restrictions Affecting
Restricted Subsidiaries.
(a) The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or
suffer to exist or become effective, any encumbrance or restriction on the
ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions on its
Capital Stock or any other interest or participation in, or
measured by, its profits, owned by the Company or any
Restricted Subsidiary, or pay any Indebtedness owed to, the
Company or any Restricted Subsidiary,
(ii) make loans or advances to the Company, or
(iii) transfer any of its properties or assets to the Company,
except for such encumbrances or restrictions existing under
or by reason of:
(A) applicable law,
(B) Indebtedness permitted (x) under Section 4.07(a),
(y) under Sections 4.07(b)(i), (ii) and (iv) and
clauses (i), (vii) and (ix) of the definition of
Other Permitted Indebtedness, or (z) Restricted
Payments and agreements or instruments evidencing
Restricted Payments permitted under Section 4.05,
(C) customary provisions restricting subletting or
assignment of any lease or license of the Company or
any Restricted Subsidiary,
45
(D) customary provisions of any franchise, distribution
or similar agreement,
(E) any instrument governing Indebtedness or any other
encumbrance or restriction of a Person acquired by
the Company or any Restricted Subsidiary at the time
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,
(F) Indebtedness or other agreements existing on the
date of original Issuance of the Securities,
(G) any Refinancing Indebtedness of Indebtedness
described in Section 4.07(b)(i), (ii), (iii) and
(iv) and clauses (i), (vi), and (ix) of the
definition of Other Permitted Indebtedness; provided
that the encumbrances and restrictions created in
connection with such Refinancing Indebtedness are no
more restrictive in any material respect with regard
to the interests of the Holders than the
encumbrances and restrictions in the refinanced
Indebtedness,
(H) any restrictions, with respect to a Restricted
Subsidiary, imposed pursuant to an agreement that
has been entered into for the sale or disposition of
the stock, business, assets or properties of such
Restricted Subsidiary,
(I) the terms of any Indebtedness of the Company
incurred in connection with Section 4.07, provided
that the terms of such Indebtedness constitute no
greater encumbrance or restriction on the ability of
any Restricted Subsidiary to pay dividends or make
distributions, make loans or advances or transfer
properties or assets than is permitted by this
Section 4.11, and
(J) the terms of purchase money obligations, but only to
the extent such purchase money obligations restrict
or prohibit the transfer of the property so
acquired.
(b) Nothing contained in this Section 4.11 shall prevent the
Company from entering into any agreement or instrument providing for the
incurrence of Permitted Liens or restricting the sale or other disposition of
property or assets of the Company or any of its Restricted Subsidiaries that are
subject to Permitted Liens.
46
Section 4.12. Maintenance of Office or Agencies.
The Company will maintain in the Borough of Manhattan, the City of New
York, an office or agency (which may be an office of any Agent) where Securities
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The Company will give prompt written notice to the
Trustee of any change in the location of such office or agency. If at any time
the Company 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.
The Company may also from time to time designate one or more other offices
or agencies where the Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any matter relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York, for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the Trustee
located at 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 as one such office or
agency of the Company in accordance with Section 2.03.
Section 4.13. Change of Control.
(a) Upon the occurrence of a Change of Control (such date being
the "Change of Control Trigger Date"), each Holder shall have the right to
require the Company to purchase such Holder's Securities pursuant to an Offer at
a purchase price equal to 101% of the aggregate principal amount of such
Securities, plus any accrued and unpaid interest to the Purchase Date. Although
the failure of the Company to purchase all Securities tendered in such an Offer
shall be a Default, if the Company is unable to purchase all Securities tendered
in such an Offer, the Company shall nevertheless purchase the maximum principal
amount of Securities that it is able to purchase at that time.
(b) In the event of a Change of Control, the Company shall not
offer to purchase or redeem any subordinated Indebtedness required or entitled
by its terms to be redeemed or purchased until the Change of Control Offer for
the Securities has been consummated and all Securities tendered pursuant to such
Offer have been accepted for payment.
Section 4. 14. Limitation on Asset Sales.
(a) The Company may not, and may not permit any Restricted
Subsidiary to, directly or indirectly, consummate an Asset Sale (including the
sale of any of the Capital Stock of any Restricted Subsidiary) providing for Net
Proceeds in excess of $2,500,000 unless at least (A) 50% of the consideration
thereof received by the Company is in the form of cash and/or
47
Cash Equivalents and/or Marketable Securities and (B) 75% of the Net Proceeds
from such Asset Sale are applied to one or more of the following in such
combination as the Company shall elect: (i) an investment in another asset or
business in the same line of business as, or a line of business similar to that
of, the line of business of the Company and its Restricted Subsidiaries at that
time; provided that such investment occurs on or prior to the 365th day
following the date of such Asset Sale (the "Asset Sale Disposition Date"), (ii)
the purchase, redemption or other prepayment or repayment of outstanding senior
Indebtedness on or prior to the Asset Sale Disposition Date or (iii) an Offer
expiring on or prior to the Purchase Date.
(b) Any Net Proceeds from any Asset Sale that are not applied or
invested as provided in Section 4 14(a)(i) or (a)(ii) shall constitute "Excess
Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds
$10,000,000 (such date being an "Asset Sale Trigger Date"), the Company shall
make an Offer to all Holders to purchase the maximum principal amount of
Securities (the "Asset Sale Offer Amount") then outstanding that may be
purchased out of Excess Proceeds, at an offer price in cash in an amount equal
to 100% of the outstanding principal amount thereof plus any accrued and unpaid
interest to the Purchase Date.
(d) To the extent that any Excess Proceeds remain after completion
of the Offer, the Company may use such remaining amount for general corporate
purposes.
(e) Upon completion of each such Offer, the amount of Excess
Proceeds shall be reset to zero.
(f) Notwithstanding the foregoing, to the extent that any or all
of the Net Proceeds of an Asset Sale is prohibited or delayed by applicable
local law from being repatriated to the United States, the portion of such Net
Proceeds so affected will not be required to be applied pursuant to this Section
4.14, but may be retained for so long, but only for so long, as the applicable
local law prohibits repatriation to the United States. The Company will promptly
take all reasonable actions required by the applicable local law to permit such
repatriation, and once such repatriation of any affected Net Proceeds is not
prohibited under applicable local law, such repatriation will be immediately
effected and such repatriated Net Proceeds will be applied in the manner set
forth above as if such Asset Sale had occurred on the date of repatriation.
Section 4.15. Limitation on Guarantees of Company Indebtedness by Restricted
Subsidiaries.
(a) The Company will not permit any Restricted Subsidiary,
directly or indirectly, to guarantee any Indebtedness of the Company other than
the Securities ("Other Indebtedness") unless:
(i) such Restricted Subsidiary contemporaneously executes and
delivers a supplemental indenture to this Indenture
providing for a guarantee of payment of the Securities then
outstanding by such Restricted Subsidiary
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to the same extent as the guarantee (the "Other
Indebtedness Guarantee") of the Other Indebtedness
(including waiver of subrogation, if any), and
(ii) if the Other Indebtedness guaranteed by such Restricted
Subsidiary is
(A) senior Indebtedness, the guarantee for the
Securities shall be pari passu in right of payment
with the Other Indebtedness Guarantee, and
(B) subordinated Indebtedness, the guarantee for the
Securities shall be senior in right of payment to
the Other Indebtedness Guarantee,
provided that the foregoing will not limit or restrict
guarantees Issued by Restricted Subsidiaries in respect to
Indebtedness of other Restricted Subsidiaries.
(b) Each guarantee of the Securities created by a Restricted
Subsidiary pursuant to Section 4.15(a) shall be in form and substance
satisfactory to the Trustee and shall provide, among other things, that it shall
be automatically and unconditionally released and discharged upon:
(i) any sale, exchange or transfer permitted by this Indenture
to any Person not an Affiliate of the Company of (A) all of
the Company's Capital Stock in such Restricted Subsidiary,
or (B) the sale of all or substantially all of the assets
of the Restricted Subsidiary and upon the application of
the Net Proceeds from such sale in accordance with Section
4.14, or
(ii) the release or discharge of the Other Indebtedness
Guarantee that resulted in the creation of such guarantee
of the Securities, except a discharge or release by or as a
result of payment under such Other Indebtedness Guarantee.
ARTICLE 5
SUCCESSORS
Section 5.01 Merger or Consolidation.
(a) The Company shall not consolidate or merge with or into, or
sell, lease, convey or otherwise dispose of all or substantially all of its
assets to, any Person (any such consolidation, merger or sale being a
"Disposition") unless:
(i) the successor entity of such Disposition or the Person to
which such Disposition shall have been made is a
corporation organized or existing
49
under the laws of the United States, any state thereof or
the District of Columbia;
(ii) the successor corporation of such Disposition or the
corporation to which such Disposition shall have been made
expressly assumes the Obligations of the Company, pursuant
to a supplemental indenture in a form reasonably
satisfactory to the Trustee, under this Indenture and the
Securities;
(iii) immediately after such Disposition, no Default or Event of
Default exists; and
(iv) the entity (the "Successor Corporation") formed by or
surviving any such Disposition, or the corporation to which
such Disposition shall have been made, shall
(A) have Consolidated Net Worth (immediately after the
Disposition but prior to any purchase accounting
adjustments resulting from the Disposition) equal to
or greater than the Consolidated Net Worth of the
Company immediately preceding the Disposition,
(B) be permitted immediately after the Disposition by
the terms of Section 4.07(a) to Issue at least $1.00
of additional Indebtedness determined on a Pro Forma
Basis pursuant to Section 4.07(a), and
(C) have a Cash Flow Coverage Ratio, for the four fiscal
quarters immediately preceding the applicable
Disposition determined on a Pro Forma Basis, equal
to or greater than the actual Cash Flow Coverage
Ratio of the Company for such four-quarter period.
Prior to the consummation of any proposed Disposition, the Company shall
deliver to the Trustee an Officers' Certificate to the foregoing effect and an
Opinion of Counsel stating that the proposed Disposition and such supplemental
indenture comply with this Indenture.
Section 5.02. Successor Corporation Substituted.
Upon any Disposition, the successor corporation resulting from such
Disposition shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the same effect as if
such Successor Corporation has been named as the Company herein; provided,
however, that neither the Company nor any Successor Corporation shall be
released from its Obligation to pay the principal of, and premium, if any, and
interest on, the Securities.
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ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
(a) An "Event of Default" is
(1) a default for 30 days in payment of interest on the
Securities;
(2) a default in payment when due of principal or premium, if
any;
(3) the failure of the Company to comply with any of its other
agreements or covenants in, or provisions of, this
Indenture or the Securities and the Default continues for
the period, if applicable, and after the notice specified
in Section 6.01(b);
(4) a default by the Company or any Restricted Subsidiary under
any mortgage, indenture or instrument under which there may
be Issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any
Restricted Subsidiary (or the payment of which is
guaranteed by the Company or any Restricted Subsidiary),
whether such Indebtedness exists prior to or is created
after the Issue Date; if
(A) either (i) such default results from the failure to
pay principal of or interest on any such
Indebtedness and such default continues for 30 days
beyond any applicable grace period, or (ii) as a
result of such default the maturity of such
Indebtedness has been accelerated prior to its
expressed maturity; and
(B) the principal amount of such Indebtedness, together
with the principal amount of any other such
Indebtedness in default for failure to pay principal
or interest thereon, or the maturity of which has
been accelerated, aggregates in excess of
$15,000,000;
(5) a failure by the Company or any Restricted Subsidiary to
pay final judgments (not covered by insurance) aggregating
in excess of $7,500,000 which judgments a court of
competent jurisdiction does not rescind, annul or stay
within 45 days after their entry and the Default continues
for the period and after the notice specified in Section
6.01(b); and
(6) in existence when the Company or any Significant Subsidiary
pursuant to or within the meaning of any Bankruptcy Law
51
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against
it in an involuntary case,
(C) consents to the appointment of a Custodian of it or
for all or substantially all of its property, or
(D) makes a general assignment for the benefit of its
creditors;
(7) in existence when a court of competent jurisdiction enters
an order or decree under any Bankruptcy Law that
(A) is for relief against the Company or any Significant
Subsidiary in an involuntary case,
(B) appoints a Custodian of the Company or any
Significant Subsidiary or for all or substantially
all of the property of the Company or any
Significant Subsidiary, or
(C) order the liquidation of the Company or any
Significant Subsidiary,
and any such order or decree remains unstayed and in effect for 60
days.
(b) A Default under Section 6.01(a)(3)(other than a Default under
Sections 4.05, 4.07, 4.08, 4.11, 4.13, 4.14, 4.15, and 5.01 any of which shall
be an Event of Default with the notice but without the passage of time specified
in this Section 6.01(b)) or Section 6.01(a)(5) is not an Event of Default until
the Trustee or the Holders of at least 25% in principal amount of the then
outstanding Securities notify the Company of the Default and the Company does
not cure the Default within 30 days after receipt of the notice. The notice must
specify the Default, demand that it be remedied and state that the notice is a
"Notice of Default."
(c) In the case of any Event of Default pursuant to Section
6.01(a) 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 which the Company would have to pay if the Company then had elected
to redeem the Securities pursuant to paragraph 5 of the Securities, an
equivalent premium shall also become and be immediately due and payable to the
extent permitted by law, anything in this Indenture or in the Securities
contained to the contrary notwithstanding.
52
Section 6.02. Acceleration.
(a) Upon the occurrence of any Event of Default (other than an
Event of Default under Section 6.01(a)(6) or (a)(7)), the Trustee or the Holders
of a least 25% in principal amount of the then outstanding Securities may
declare all outstanding Securities to be due and payable immediately and, upon
such declaration, the principal amount and premium, if any, of all such
Securities, and any accrued interest on, all such Securities to the date of
payment shall be due and payable immediately; provided, however, that if an
Event of Default arises under Section 6.0l(a)(6) or (a)(7) the principal amount
of, and premium, if any, and any accrued and unpaid interest on, all such
Securities, shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Holders.
(b) The Holders of a majority in principal amount of the
Securities then outstanding by notice to the Trustee may rescind any such
declaration of acceleration of such Securities and its consequences if the
rescission would not conflict with any judgment or decree and if all existing
Events of Default (other than the nonpayment of principal of, or premium, if
any, or interest on, the Securities which shall have become due by such
declaration) shall have been cured or waived.
(c) If there has been a declaration of acceleration of the
Securities because an Event of Default under Section 6.01(a)(4) has occurred and
is continuing, such declaration of acceleration shall be automatically annulled
if the holders of the Indebtedness described in Section 6.0l(a)(4) have
rescinded the declaration of acceleration in respect of such Indebtedness within
30 Business Days thereof and if:
(i) the annulment of such acceleration would not conflict with
any judgment or decree of a court of competent
jurisdiction,
(ii) all existing Events of Default, except non-payment of
principal or interest that shall have become due solely
because of the acceleration, have been cured or waived, and
(iii) the Company has delivered an Officer's Certificate to the
Trustee to the effect of clauses (i) and (ii) above.
Section 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal of, or premium, if any,
or interest on, the Securities or to enforce the performance of any provision of
the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Securities or does not produce any of them in the proceeding. 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
53
right or remedy or constitute a waiver of or acquiescence in the Event of
Default. All remedies are cumulative to the extent permitted by law.
Section 6.04. Waiver of Past Defaults.
The Holders of a majority in principal amount of the then outstanding
Securities by notice to the Trustee may waive an existing Default or Event of
Default and its consequences, except a continuing Default or Event of Default in
the payment of the principal of, premium, if any, or interest on any Security
(which may be waived only with the consent of each Holder affected). Upon any
such waiver, such Default shall cease to exist, and any Event of Default arising
therefrom shall deemed to have been cured for every purpose of this Indenture;
provided, that no such waiver shall extend to any subsequent or other Default or
impair any right consequent thereon.
Section 6.05. Control by Majority.
Subject to Section 7.01(e), the Holders of a majority in principal amount
of the then outstanding Securities may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on it by this Indenture. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture, that
the Trustee determines may be unduly prejudicial to the rights of other Holders,
or would involve the Trustee in personal liability.
Section 6.06. Limitation on Suits.
A Holder may pursue a remedy with respect to this Indenture or the
Securities only if:
(i) the Holder gives to the Trustee notice of a continuing
Event of Default;
(ii) the Holders of at least 25% in principal amount of the then
outstanding Securities make a request to the Trustee to
pursue the remedy;
(iii) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or
expense;
(iv) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of indemnity;
and
(v) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Securities do not
give the Trustee a direction inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over another Holder.
54
Holders of the Securities may not enforce this Indenture, except as
provided herein.
Section 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of principal of, and premium, if any, and interest on
a Security, on or after a respective due date expressed in the Security, or to
bring suit for the enforcement of any such payment on or after such respective
date, shall not be impaired or affected without the consent of the Holder.
Section 6.08. Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(a)(1) or (a)(2) 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 (i) the principal,
premium, if any, and interest remaining unpaid on the Securities, (ii) interest
on overdue principal and premium, if any, and, to the extent lawful, interest
and (iii) such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel ("Trustee
Expenses").
Section 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents as
may be necessary or advisable to have the claims of the Trustee (including any
claim for Trustee Expenses) and the Holders allowed in any Insolvency or
Liquidation Proceeding or other judicial proceedings relative to the Company (or
any other obligor upon the Securities), its creditors or its property and shall
be entitled and empowered to collect, receive and distribute to Holders any
money or other property payable or deliverable on any such claims, and each
Holder authorizes any Custodian in any such Insolvency or Liquidation Proceeding
or other judicial proceeding to make such payments to the Trustee, and if the
Trustee shall consent to the making of such payments directly to the Holders any
such Custodian is hereby authorized to make such payments directly to the
Holders, and to pay to the Trustee any amount due to it hereunder for Trustee
Expenses, and any other amounts due the Trustee under Section 7.07. To the
extent that the payment of any such Trustee Expenses, and any other amounts due
the Trustee under Section 7.07 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 which 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 Securities or the rights of any Holder, or to authorize the
Trustee to vote in respect of the claim of any Holder in any Insolvency or
Liquidation Proceeding.
55
Section 6.10. 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 for amounts due under Section 7.07;
Second; to the Holders for amounts due and unpaid on the
Securities for principal, premium, if any, and interest,
ratably, without preference or priority of any kind,
according to the amounts due and payable on the
Securities for principal, premium, 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 record date and payment date for any payment to
Holders.
Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07, or a suit by Holders of more than 10% in principal
amount of the then outstanding Securities.
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee.
(a) If any Event of Default occurs (and has not been cured), the
Trustee shall (i) exercise the rights and powers vested in it by this Indenture,
and (ii) use the same degree of care and skill in their exercise, as a prudent
man would exercise or use under the circumstances in the conduct of his own
affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee's duties shall be determined solely by the
express provisions of this Indenture, and the Trustee
need perform only those duties that are specifically set
forth in this Indenture and no
56
others, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed upon
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture.
However, the Trustee shall examine the certificates and
opinions to determine whether they conform to this
Indenture's requirements and to confirm the correctness
of all mathematical computations.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful misconduct,
except that
(i) this paragraph does not limit the effect of Section
7.01(b);
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Trust 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 it receives pursuant to
Section 6.05.
(d) Whether or not expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to paragraphs (a),
(b) and (c) of this Section.
(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, unless such Holders shall have offered to the
Trustee security and indemnity satisfactory to it against any loss, liability or
expense.
(f) The Trustee shall not be liable for interest on any money it
receives except as the Trustee may agree in writing with the Company. Money the
Trustee holds in trust need not be segregated from other funds except to the
extent required by law.
Section 7.02. Rights of Trustee.
(a) The Trustee may rely on any document it believes 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.
57
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel. The Trustee may
consult with counsel and advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance
thereon.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers.
(e) Unless otherwise specifically provided in the Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer.
(f) Except with respect to Section 4.01, the Trustee shall have no
duty to inquire as to the performance by the Company with respect to the
covenants contained in Article 4. In addition, the Trustee shall not be deemed
to have knowledge of a Default or Event of Default except (i) any Default or
Event of Default occurring pursuant to Sections 4.01, 6.01(a)(i) or 6.01(a)(ii),
or (ii) any Default or Event of Default of which the Trustee shall have received
written notification or obtained actual knowledge.
Section 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Securities and may otherwise deal with the Company or an Affiliate
with the same rights it would have if it were not Trustee. However, if the
Trustee acquires any conflicting interest it must eliminate such conflict within
90 days, apply to the Commission for permission to the continue as trustee or
resign. Any Agent may do the same with like rights. The Trustee is also subject
to Sections 7.10 and 7.11.
Section 7.04. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation as to
the validity or adequacy of this Indenture or the Securities, it shall not be
accountable for the Company's use of the proceeds from the Securities or for any
money paid to the Company or upon the Company's direction under any provisions
hereof, it shall not be responsible for the use or application of any money any
Paying Agent other than the Trustee receives, and it shall not be responsible
for any statement or recital herein or any statement in the Securities or any
other document in connection with the sale of the Securities or pursuant to this
Indenture, other than its certificate of authentication.
58
Section 7.05. Notice to Holders of Defaults and Events of Default.
If a Default or Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to Holders a notice of the Default
or Event of Default within 90 days after it occurs. Except in the case of a
Default or Event of Default in payment on any Security (including any failure to
redeem Securities called for redemption or any failure to purchase Securities
tendered pursuant to an Offer that are required to be purchased by the terms of
this Indenture), the Trustee may withhold the notice if and so long as a
committee of its Trust Officers in good faith determines that withholding the
notice is in the Holders' interests.
Section 7.06. Reports by Trustee to Holders.
Within 60 days after each May 15 beginning with the May 15 following the
Issue Date, the Trustee shall mail to Holders a brief report dated as of such
reporting date that complies with ss. 313(a) of the TIA (but if no event
described in ss. (313)(a) of the TIA has occurred within the twelve months
preceding the reporting date, no report need be transmitted). The Trustee also
shall comply with ss. 313(b)(2) of the TIA. The Trustee shall also transmit by
mail all reports as required by ss. 313(c) of the TIA.
Commencing at the time this Indenture is qualified under the TIA, a copy
of each report at the time of its mailing to the Holders shall be filed with the
Commission and each stock exchange on which the Securities are listed. The
Company shall notify the Trustee when the Securities are listed on any stock
exchange.
Section 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation for its services 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 upon request for all reasonable disbursements,
advances and expenses it incurs or makes in addition to the compensation for its
services. Such expenses shall include the reasonable compensation, disbursements
and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee against any and all losses,
liabilities or expenses the Trustee incurs arising out of or in connection with
the acceptance or administration of its duties under this Indenture, except as
set forth below. The Trustee shall notify the Company promptly of any claim for
which it may seek indemnity. Failure by the Trustee to so notify the Company
shall not relieve the Company of its Obligations hereunder. The Company shall
defend the claim, and the Trustee shall 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.
59
The Company's Obligations under this Section 7.07 shall survive the
satisfaction and discharge of this Indenture.
The Company need not reimburse any expense or indemnify against any loss
or liability the Trustee incurs through negligence or bad faith.
To secure the Company's payment of its Obligations in this Section, the
Trustee shall have a Lien prior to the Securities on all money or property the
Trustee holds or collects, except that held in trust to pay principal of,
premium, if any, and interest on particular Securities. Such Lien shall survive
the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(a)(6) or (a)(7) occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents and
counsel) are intended to constitute administrative expenses under any Bankruptcy
Law.
Section 7.08. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
The Trustee may resign and be discharged from the trust hereby created by
so notifying the Company. The Holders of a majority in principal amount of the
then outstanding Securities may remove the Trustee by so notifying the Trustee
and the Company. The Company may remove the Trustee if
(i) the Trustee fails to comply with Section 7.10;
(ii) 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;
(iii) a Custodian or public officer takes charge of the Trustee or its
property; or
(iv) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly appoint a successor
Trustee; provided, that the Holders of a majority in principal amount of the
then outstanding Securities may appoint a successor Trustee to replace any
successor Trustee the Company appoints.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in
60
principal amount of the then outstanding Securities may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder may petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Thereupon the resignation or removal
of the retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Indenture. The
successor Trustee shall mail a notice of its succession to Holders. The retiring
Trustee shall promptly transfer all property it holds as Trustee to the
successor Trustee, provided all sums owing to the retiring Trustee hereunder
have been paid and subject to the Lien provided for in Section 7.07.
Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the
Company's obligations under Section 7.07 shall continue for the retiring
Trustee's benefit with respect to expenses and liabilities it incurred prior to
such replacement.
Section 7.09. Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation, the
successor corporation without any further act shall be the successor Trustee.
Section 7.10. Eligibility; Disqualification.
The Trustee shall at all times (i) be a corporation organized and doing
business under the laws of the United States of America, of any state thereof,
or the District of Columbia authorized under such laws to exercise corporate
trustee power, (ii) be subject to supervision or examination by federal or state
authority, (iii) have a combined capital and surplus of at least $25 million
($100 million in the case of any successor Trustee) as set forth in its most
recent published annual report of condition, and (iv) satisfy the requirements
of ss. 310(a)(1), (2) and (5) of the TIA. The Trustee is subject to ss. 310(b)
of the TIA.
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee is subject to ss. 311(a) of the TIA, excluding any creditor
relationship listed in ss. 311(b) of the TIA. A Trustee who has resigned or been
removed shall be subject to ss. 311(a) of the TIA to the extent indicated
therein.
61
ARTICLE 8
DISCHARGE OF INDENTURE
Section 8.01. Discharge of Liability on Securities; Defeasance.
(a) When (i) the Company delivers to the Trustee all outstanding
Securities (other than Securities replaced pursuant to Section 2.07) for
cancellation or (ii) all outstanding Securities have become due and payable and
the Company irrevocably deposits with the Trustee funds sufficient to pay at
maturity all outstanding Securities, including interest thereon (other than
Securities replaced pursuant to Section 2.07), and if in either case the Company
pays all other sums payable hereunder by the Company, then this Indenture shall,
subject to Sections 8.01(c) and 8.06, cease to be of further effect.
(b) Subject to Sections 8.01(c), 8.02, and 8.06, the Company at
any time may terminate (i) all its obligations under the Securities and this
Indenture ("legal defeasance option") or (ii) its obligations under Sections
4.02, 4.03, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.13, 4.14 and 4.15, and
the operation of Sections 5.01(a)(iii), 5.01(a)(iv) or 6.01(a)(3) through (a)(7)
("covenant defeasance option"). The Company may exercise its legal defeasance
option notwithstanding its prior exercise of its covenant defeasance option.
If the Company exercises its legal defeasance option, payment of the
Securities may not be accelerated because of an Event of Default. If the Company
exercises its covenant defeasance option, payment of the Securities may not be
accelerated because of an Event of Default specified in Section 6.01(a)(3)
through (a)(7) or because of the Company's failure to comply with Section
5.01(a)(iii) or 5.01(a)(iv).
Upon satisfaction of the conditions set forth herein and upon the
Company's request (and at the Company's expense), the Trustee shall acknowledge
in writing the discharge of those obligations that the Company has terminated.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07, 4.01, 4.04, 7.07, 7.08,
8.04, 8.05, and 8.06, and the Trustee's and the Paying Agent's Obligations in
Section 8.04 shall survive until the Securities have been paid in full.
Thereafter, the Company's Obligations in Sections 7.07 and 8.05 and the
Company's, Trustee's and Paying Agent's Obligations in Section 8.04 shall
survive.
Section 8.02. Conditions to Defeasance.
The Company may exercise its legal defeasance option or its covenant
defeasance option only if:
(1) the Company irrevocably deposits in trust with the Trustee money
or U.S. Government Obligations for the payment in full of the
principal of and any premium due on, the Securities, and any
accrued and unpaid interest,
62
as of the maturity date, the redemption date or the Purchase Date, as the case
may be;
(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing
their opinion that the payments of principal and interest when due
and without reinvestment of the deposited U.S. Government
Obligations plus any deposited money without investment will
provide cash at such times and in such amounts as will be
sufficient to pay principal of, and premium, if any, and interest
when due on all the Securities to maturity or redemption, as the
case may be;
(3) since the Company's irrevocable deposit provided for in Section
8.02(1) 91 days have passed;
(4) no Default has occurred and is continuing on the date of such
deposit and after giving effect to it;
(5) the deposit does not constitute a default under any other
agreement binding on the Company;
(6) the Company delivers to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit does not
constitute, or is qualified as, a regulated investment company
under the Investment Company Act of 1940, as amended;
(7) in the case of the legal defeasance option, the Company shall have
delivered to the Trustee an Opinion of Counsel stating that (i)
the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (ii) under applicable
federal income tax law, in either case, to the effect that, and
based thereon such Opinion of Counsel shall confirm that, the
Holders will not recognize income, gain or loss for federal income
tax purposes as a result of such 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 defeasance had
not occurred;
(8) in the case of the covenant defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders 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; and
63
(9) the Company delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent
to the defeasance and discharge of the Securities as this Article
8 contemplates have been satisfied.
Before or after a deposit, the Company may make arrangements satisfactory
to the Trustee for the redemption or purchase of Securities at a future date in
accordance with Article 3.
Section 8.03. Application of Trust Money.
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to this Article 8. It shall apply the deposited money
and the money from U.S. Government Obligations through the Paying Agent and in
accordance with this Indenture to the payment of principal of and interest on
the Securities.
Section 8.04. Repayment to Company.
After the Securities have been paid in full, the Trustee and the Paying
Agent shall promptly turn over to the Company any excess money or securities
they hold.
The Trustee and the Paying Agent shall pay to the Company upon written
request any money they hold for the payment of principal, premium or interest
that remains unclaimed for one year after the date upon which such payment shall
have become due; provided, however, that the Company shall have either caused
notice of such payment to be mailed to each Holder entitled thereto no less than
30 days prior to such repayment or within such period shall have published such
notice in a financial newspaper of widespread circulation published in The City
of New York (including, without limitation, The Wall Street Journal). After
payment to the Company, Holders entitled to the money must look to the Company
for payment as general creditors unless an applicable abandoned property law
designates another Person, and all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
Section 8.05. Indemnity for Government Obligations.
The Company shall pay and shall indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against deposited U.S. Government
Obligations or the principal and interest received on such U.S. Government
Obligations.
Section 8.06. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with this Article 8 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's obligations under this Indenture and the Securities
64
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article 8 until such time as the Trustee or Paying Agent is permitted to
apply all such money or U.S. Government Obligations in accordance with this
Article 8; provided, however, that if the Company has made any payment of
principal of, or premium, if any, or interest on any Securities because of the
reinstatement of its Obligations, the Company shall be subrogated to the
Holders' rights to receive such payment from the money or U.S. Government
Obligations the Trustee or Paying Agent holds.
ARTICLE 9
AMENDMENTS
Section 9 01. Amendments and Supplements Permitted Without Consent of Holders.
Notwithstanding Section 9.02 of this Indenture, the Company and the
Trustee may amend or supplement this Indenture or the Securities without the
consent of any Holder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
(c) to provide for the assumption by a Successor Corporation of the
Company's Obligations to the Holders in the event of a Disposition
pursuant to Article 5;
(d) to comply with the Commission's requirements to effect or maintain
the qualification of this Indenture under the TIA; or
(e) to make any change that does not materially adversely affect any
Holder's legal rights hereunder.
Upon the Company's request, after receipt by the Trustee of a resolution
of the Board of Directors authorizing the execution of any amended or
supplemental indenture and the documents described in Section 9.06, the Trustee
shall join with the Company in the execution of any amended or supplemental
indenture authorized or permitted by the terms of this Indenture and make any
further appropriate agreements and stipulations which may be therein contained,
but the Trustee shall not be obligated to enter into such amended or
supplemental indenture which affects its own rights, duties or immunities under
this Indenture or otherwise.
Section 9.02. Amendments and Supplements Requiring Consent of Holders.
Subject to Section 6.07, the Company and the Trustee may amend or
supplement this Indenture or the Securities with the written consent of the
Holders of at least a majority in principal amount of the then outstanding
Securities (including consents obtained in connection with a tender offer or
exchange offer for the Securities). Subject to Sections 6.04 and 6.07, the
65
Holders of a majority in principal amount of the Securities then outstanding
(including consents obtained in connection with a tender offer or exchange offer
for the Securities) may also waive any existing Default or Event of Default
(other than a payment Default) and its consequences or compliance in a
particular instance by the Company with any provision of this Indenture or the
Securities.
Upon the Company's request, after receipt by the Trustee of a resolution
of the Board of Directors authorizing the execution of any supplemental
indenture, evidence of the Holders' consent, and the documents described in
Section 9.06, the Trustee shall join with the Company in the execution of such
amended or supplemental indenture unless such amended or supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such amended or supplemental indenture.
It shall not be necessary for the consent of the Holders under this
Section 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 or waiver under this Section becomes effective, the
Company shall mail to each Holder affected thereby a notice briefly describing
the amendment, supplement or waiver. Any failure of the Company to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such amended or supplemental indenture or waiver. Without
the consent of each Holder affected, an amendment, supplement or waiver under
this Section may not
(1) reduce the principal amount of Securities whose Holders
must consent to an amendment, supplement or waiver;
(2) reduce the rate of or change the time for payment of
interest, including default interest as set forth in
Section 4.01, on any Security or alter the redemption or
purchase provisions with respect thereto;
(3) reduce the principal of or change the fixed maturity of any
Security;
(4) make any Security payable in money other than that stated
in the Security;
(5) make any change in Section 6.04 or 6.07 or in this sentence
of this Section 9.02; or
(6) waive a default in the payment of the principal of, or
premium, if any, or interest on, or redemption or purchase
payment with respect to, any Security (except a rescission
of acceleration of the Securities by the Holders of at
least a majority in aggregate principal amount of the then
66
outstanding Securities and a waiver of the payment default
that resulted from such acceleration).
Section 9.03. Compliance with TIA.
Every amendment or supplement to this Indenture or the Securities shall
be set forth in an amended supplemental indenture that complies with the TIA as
then in effect.
Section 9.04. Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent to
it by a Holder of a Security is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the same
Indebtedness as the consenting Holder's Security, even if notation of the
consent is not made on any Security. However, any such Holder or subsequent
Holder may revoke the consent as to his or her Security or portion of a Security
if the Trustee receives the notice of revocation before the date on which the
Trustee receives an Officer's Certificate certifying that the Holders of the
requisite principal amount of Securities have consented to the amendment or
waiver.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the holders of Securities entitled to consent to any
amendment or waiver. If a record date is fixed, then notwithstanding the
provisions of the immediately preceding paragraph, those Persons who were
holders of Securities at such record date (or their duly designated proxies),
and only those Persons, shall be entitled to consent to such amendment or waiver
or to revoke any consent previously given, whether or not such Persons continue
to be holders of Securities after such record date. No consent shall be valid or
effective for more than 90 days after such record date unless consents from
Holders of the principal amount of Securities required hereunder for such
amendment or waiver to be effective shall have also been given and not revoked
within such 90-day period.
After an amendment or waiver becomes effective it shall bind every
Holder, unless it is of the type described in any of clauses (1) through (6) of
Section 9.02. In such case the amendment or waiver shall bind each Holder who
has consented to it and every subsequent holder of a Security that evidences
the same debt as the consenting Holder's Security.
Section 9.05. Notation on or Exchange of Securities.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Security thereafter authenticated. The Company in
exchange for all Securities may Issue and the Trustee shall authenticate new
Securities that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or Issue a new Security shall
not affect the validity and effect of such amendment, supplement or waiver.
67
Section 9.06. Trustee Protected.
The Trustee shall sign any amendment or supplemental indenture authorized
pursuant to this Article 9 if the amendment does not adversely affect the
rights, duties, liabilities or immunities of the Trustee. If it does, the
Trustee may, but need not, sign it. In signing such amendment or supplemental
indenture, the Trustee shall be entitled to receive and, subject to Section
7.01, shall be fully protected in relying upon, an Officers' Certificate and
Opinion of Counsel as conclusive evidence that such amendment or supplemental
indenture is authorized or permitted by this Indenture, that it is not
inconsistent herewith, and that it will be valid and binding upon the Company in
accordance with its terms. The Company may not sign an amendment or supplemental
indenture until the Board of Directors approves it.
ARTICLE 10
MISCELLANEOUS
Section 10.01. Trustee Indenture Act Controls.
If any provision of this Indenture limits, qualifies, or conflicts with
the duties imposed by the operation of ss. 318(c) of the TIA, the imposed duties
shall control.
Section 10.02. Notices.
Any notice or communication by the Company or the Trustee to the other is
duly given if in writing and delivered in person, mailed by registered or
certified mail, postage prepaid, return receipt requested or delivered by
telecopier or overnight air courier guaranteeing next-day delivery to the
other's address:
If to the Company:
Jordan Industries, Inc.
ArborLake Centre
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
If to the Trustee:
First Trust National Association
000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, XX 00000
Attn: Corporate Trust Department
Telecopier No.: (000) 000-0000
68
The Company or the Trustee by notice to the other 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; the date receipt is acknowledged if mailed by registered or certified
mail; when answered back 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 to his or her address shown on the register kept by the Registrar. Failure
to mail a notice or communication to a Holder or any defect in it shall not
affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above within
the time prescribed, it is duly given, whether or not the addressee receives it.
If the Company mails a notice or communication to Holders, it shall mail a
copy to the Trustee and each Agent at the same time.
Section 10.03. Communication by Holders with Other Holders.
Holders may communicate pursuant to TIA ss. 312(b) with other Holders with
respect to their rights under this Indenture or the Securities. The Company, the
Trustee, the Registrar and any other Person shall have the protection of TIA ss.
312(c).
Section 10.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate (which shall include the statements set
forth in Section 10.05) 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 complied with; and
(b) an Opinion of Counsel (which shall include the statements set
forth in Section 10.05) stating that, in the opinion of such counsel, all
such conditions precedent provided for in this Indenture relating to the
proposed action have been complied with.
Section 10.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA ss. 314(a)(4)) shall include:
69
(1) a statement that the person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has made
such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether, in such Person's opinion, such
condition or covenant has been complied with.
Section 10.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
Section 10.07. Legal Holidays.
If a payment date is a Legal Holiday at a place of payment, payment may be
made at that place on the next succeeding day that is not a Legal Holiday, and
no interest shall accrue for the intervening period.
Section 10.08. No Recourse Against Others.
No director, officer, employee or stockholder of the Company shall have
any liability for any Obligations of the Company under the Securities, the
Registration Rights Agreement or the Indenture or for any Claim based on, in
respect of or by reason of such Obligations or their creation. Each Holder by
accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the Issuance of the Securities.
Section 10.09. Counterparts.
This Indenture may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement.
Section 10.10. Variable Provisions.
The Company initially appoints the Trustee as Paying Agent, Registrar and
authenticating agent.
70
The first certificate pursuant to Section 4.03 shall be for the fiscal
year ending on December 31, 1997.
Section 10.11. Governing Law.
The internal laws of the State of New York shall govern this Indenture and
the Securities, without regard to the conflict-of-laws provisions thereof.
Section 10.12. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or any of its Subsidiaries. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
Section 10.13. Successors.
All agreements of the Company in this Indenture and the Securities shall
bind its successor. All agreements of the Trustee in this Indenture shall bind
its successor.
Section 10.14. Severability.
If any provision in this Indenture or in the Securities shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
Section 10.15. Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and headings of the Articles
and Sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part hereof and shall in no way modify or
restrict any of the terms or provisions hereof.
71
Dated as of July 25, 1997 JORDAN INDUSTRIES, INC.
By:
----------------------------------
Name:
--------------------------------
Attest:
------------------------------------
(SEAL)
Dated as of July 25, 1997 FIRST TRUST NATIONAL ASSOCIATION,
as Trustee
By:
----------------------------------
Name:
--------------------------------
Attest:
------------------------------------
(SEAL)
SIGNATURES
72
EXHIBIT A
(Face of Security)
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TRUST
COMPANY (THE "DEPOSITORY") TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE
DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE
DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DEPOSITORY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR
SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DEPOSITORY), 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 NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS. NEITHER THIS NOTE NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION
OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH NOTE, PRIOR TO THE DATE WHICH IS TWO YEARS (OR SUCH
SHORTER PERIOD THAT MAY HEREAFTER BE PROVIDED UNDER RULE 144(K) AS PERMITTING
RESALES BY NON-AFFILIATES OF RESTRICTED SECURITIES WITHOUT RESTRICTION) AFTER
THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE
COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE (OR ANY
PREDECESSOR OF SUCH NOTE) 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 THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO FOREIGN PERSONS THAT OCCUR IN
OFFSHORE TRANSACTIONS AND WITHOUT DIRECTED SELLING EFFORTS WITHIN THE MEANINGS
OF SUCH TERMS AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT, (E) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(A)(l), (2),
(3) OR (7) UNDER THE SECURITIES ACT THAT IS PURCHASING THE NOTE FOR ITS OWN
ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION
WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER PURSUANT TO CLAUSE (D), (E) OR (F) TO
---------------
1 This paragraph should be included only if the Note is issued in global form.
A-1
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS NOTE IS COMPLETED AND
DELIVERED BY THE TRANSFEROR TO THE TRUSTEE.
A-2
JORDAN INDUSTRIES, INC.
l0 3/8% SENIOR NOTE
DUE 2007
No. $
CUSIP NO.
Jordan Industries, Inc., an Illinois corporation (the "Company"), as
obligor, for value received promises to pay to ___________ or registered
assigns, the principal sum of [ ] Dollars on August 1, 2007. Interest Payment
Dates: February 1 and August 1 and on the maturity date. Record Dates: January
15 and July 15 (whether or not a Business Day).
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
Dated:
JORDAN INDUSTRIES, INC.
By: __________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
Trustee's Certificate of Authentication:
This is one of the Notes referred to in the within-mentioned Indenture:
FIRST TRUST NATIONAL ASSOCIATION,
as Trustee
By:____________________________
Authorized Signature
A-3
(Back of Security)
10 3/8% SENIOR NOTE
DUE 2007
1. Interest. Jordan Industries, Inc., (the "Company") promises to
pay interest on the principal amount of the Notes at the rate and in the manner
specified below. Interest on the Notes will accrue at 1O 3/8% per annum from the
date this Note is issued until maturity and will be payable semiannually in cash
on February 1 and August 1 of each year, or if any such day is not a Business
Day on the next succeeding Business Day (each an "Interest Payment Date").
Interest on the Notes will accrue from the most recent date on which interest
has been paid or, if no interest has been paid, from July 25, 1997; provided
that the first Interest Payment Date shall be February 1, 1998. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment. The Company shall pay interest on the Notes
(except defaulted interest) to the Persons who are registered Holders of Notes
at the close of business on the record date for the next Interest Payment Date
even if such Notes are cancelled after such record date and on or before such
Interest Payment Date. Holders must surrender Notes to a Paying Agent to collect
principal payments on such Notes. The Company shall pay principal, premium, if
any, and interest in money of the United States that at the time of payment is
legal tender for payment of public and private debts. However, the Company may
pay principal, premium, if any, and interest by check payable in such money, and
any such check may be mailed to a Holder's registered address.
3. Paying Agent and Registrar. First Trust National Association (the
"Trustee") will initially act as the Paying Agent and Registrar. The Company may
appoint additional paying agents or co-registrars, and change the Paying Agent,
any additional paying agent, the Registrar or any co-registrar without prior
notice to any Holder. The Company or any of its Subsidiaries may act in any such
capacity.
4. Indenture. The Company issued the Notes under an Indenture dated
as of July 25, 1997 (the "Indenture") between the Company and the Trustee. The
terms of the Notes include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939 (the "TIA") (15
U.S. Code xx.xx. 77aaa-77bbbb). The Notes are subject to, and qualified by, all
such terms, certain of which are summarized herein, and Holders are referred to
the Indenture and the TIA for a statement of such terms (all capitalized terms
not defined herein shall have the meanings assigned than in the Indenture). The
Notes are unsecured general obligations of the Company limited to $120,000,000
in aggregate principal amount.
5. Optional Redemption. Except as described in paragraph 6 below,
the Notes may not be redeemed at the option of the Company prior to August 1,
2002. During the twelve (12) month period beginning August 1 of the years
indicated below, the Notes will be
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redeemable at the option of the Company, in whole or in part, at the redemption
prices (expressed as percentages of the principal amount) set forth below, plus
any accrued and unpaid interest to the date of redemption:
Year Percentage
---- ----------
2002 105.188 %
2003 102.594 %
2004 and thereafter 100.000 %
6. Mandatory Redemption. Subject to the Company's obligation to make
an offer to purchase Notes under certain circumstances pursuant to Section 4.13
and 4.14 of the Indenture (as described in paragraph 7 below), the Company is
not required to make any mandatory redemption, purchase or sinking fund payments
with respect to Securities.
7. Mandatory Offers to Purchase Securities. (a) Following the
occurrence of a Change of Control (the "Change of Control Trigger Date"), the
Company will be required to offer (a "Change of Control Offer") to purchase all
outstanding Securities at a purchase price equal to 101% of the principal amount
of such Securities, plus any accrued and unpaid interest to the date of
purchase.
(b) If the Company or any Restricted Subsidiary consummates one or
more Asset Sales and does not use all of the Net Proceeds from such Asset Sales
as provided in the Indenture, the Company will be required, under certain
circumstances, to utilize the Excess Proceeds from such Asset Sales to offer (an
"Asset Sale Offer") to purchase Notes at a purchase price equal to 100% of the
principal amount of the Notes, plus any accrued and unpaid interest to the date
of purchase. If the Excess Proceeds are insufficient to purchase all Notes
tendered pursuant to any Asset Sale Offer, the Trustee shall select the Notes to
be purchased in accordance with the terms of the Indenture.
(c) Holders may tender all or, subject to paragraph 8 below, any
portion of their Notes in a Change of Control or Asset Sale Offer (collectively,
an "Offer") by completing the form below entitled "OPTION OF HOLDER TO ELECT
PURCHASE."
(d) The Company will comply with Rule 14e-1 under the Securities
Exchange Act of 1934, as amended, and any other securities laws and regulations
to the extent applicable to any Offer.
8. Notice of Redemption or Purchase. Notice of an optional
redemption or an Offer will be mailed to each Holder at its registered address
at least 30 days but not more than 60 days before the date of redemption or
purchase. Notes may be redeemed or purchased in part, but only in whole
multiples of $1000 unless all Notes held by a Holder are to be redeemed or
purchased. On or after any date on which Notes are redeemed or purchased,
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interest ceases to accrue on the Notes or portions thereof called for redemption
or accepted for purchase on such date.
9. Denominations, Transfer, Exchange. The Notes are in registered
form without coupons in denominations of $1,000 and integral multiples thereof.
The transfer of Notes may be registered and Notes may be exchanged as provided
in the Indenture. Holders seeking to transfer or exchange their Notes may be
required, among other things, to furnish appropriate endorsements and transfer
documents and to pay any taxes and fees required by law or permitted by the
Indenture. The Registrar need not exchange or register the transfer of any Note
or portion of a Note selected for redemption or tendered pursuant to an Offer.
10. Persons Deemed Owners. The registered Holder of a Note may be
treated as its owner for all purposes.
11. Amendments and Waivers. Subject to certain exceptions, the
Indenture or the Notes may be amended with the consent of the Holders of at
least a majority in principal amount of the then outstanding Notes, and any
existing Default or Event of Default (except a payment default) 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, the Indenture and the
Notes may be amended to: cure any ambiguity, defect or inconsistency; provide
for uncertificated Notes in addition to or in place of certified Notes; provide
for the assumption by another corporation of the Company's obligations to the
Holders in the event of a merger or consolidation of the Company in which the
Company is not the surviving corporation or a sale of substantially all of the
Company's assets to such other corporation; comply with the Securities and
Exchange Commission's requirements to effect or maintain the qualification of
the Indenture under the TIA; or, make any change that does not materially
adversely effect any Holder's rights under the Indenture. Certain provisions of
the Indenture cannot be amended without the consent of each Holder affected
thereby.
12. Defaults and Remedies. Events of Default include: default for 30
days in payment of interest on the Notes; default in payment of principal of or
premium, if any on the Notes; failure by the Company for 30 days after notice to
it to comply with any of its other agreements or covenants in, or provisions of,
the Indenture or the Notes; certain defaults under and acceleration prior to
maturity, or failure to pay at maturity, of certain other Indebtedness; certain
final judgments that remain undischarged; and certain events of bankruptcy or
insolvency involving the Company or any Restricted Subsidiary that is a
Significant Subsidiary. If an Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of the Notes may
declare all the Notes to be immediately due and payable in an amount equal to
the principal amount of such Notes, plus any accrued and unpaid interest;
provided, however, that in the case of an Event of Default arising from certain
events of bankruptcy or insolvency, the principal amount of, and any accrued and
unpaid interest on, the Notes becomes due and payable immediately without
further action or notice. Subject to certain exceptions, Holders of a majority
in principal amount of the then outstanding Notes may direct the Trustee in its
exercise of any trust or power, provided that the Trustee will be under no
obligation to
A-6
exercise any of its rights or powers under the Indenture at the request of the
Holders unless such Holders have offered to the Trustee security and indemnity
satisfactory to it. Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee may withhold from Holder notice of any
continuing default (except a payment Default) if it determines that withholding
notice is in their interests. The Company must furnish an annual compliance
certificate to the Trustee.
13. Trustee Dealings with Company. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from and perform services
for the Company or any Affiliates, and may otherwise deal with the Company or
any Affiliates, as if it were not Trustee.
14. No Recourse Against Others. No director, officer, employee or
stockholder of the Company shall have any liability for any Obligations of the
Company under the Notes, the Indenture or the Registration Rights Agreement or
for any claim based on, in respect of, or by reason of such Obligations or the
creation of any such Obligation. Each Holder by accepting a Note waives and
releases all such liability, and such waiver and release is part of the
consideration for the issuance of the Notes.
15. Successor Substituted. Upon the consolidation or merger by the
Company with or into another corporation, or upon the sale, conveyance, lease or
other disposition of all or substantially all of its assets to another
corporation, in accordance with the Indenture, the corporation surviving any
such merger or consolation (if not the Company) or the corporation to which such
assets were sold or transferred to shall succeed to, and be substituted for, and
may exercise every right and power of the Company under the Indenture with the
same effect as if such surviving or other corporation had been named as the
Company in the Indenture.
16. Governing Law. This Note shall be governed by and construed in
accordance with the internal laws of the State of New York.
17. Authentication. This Note shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
18. 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).
19. 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 has directed the Trustee to use
CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Notes or as contained in any notice of redemption and reliance may be placed
only on the other identification numbers placed thereon.
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20. Holders' Compliance with Registration Rights Agreement. Each
Holder of a Note, by his acceptance thereof, acknowledges and agrees to the
provisions of the Registration Rights Agreement, dated as of July 25, 1997,
among the Company and the parties named on the signature page thereof (the
"Registration Rights Agreement"), including but not limited to the obligations
of the Holders with respect to a registration and the indemnification of the
Company and the Purchasers (as defined therein) to the extent provided therein.
The Company shall furnish to any Holder upon written request and
without charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to: Jordan Industries, Inc., ArborLake Centre, 0000 Xxxx
Xxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000.
A-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__________________________ as 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 other side of this Note)
Signature Guarantee*
* NOTICE: The signature must be guaranteed by an institution which is a member
of one of the following recognized signature guarantee programs:
(1) The Securities Transfer Agent Medallion Program (STAMP);
(2) The New York Stock Exchange Medallion Program (MSP);
(3) The Stock Exchange Medallion Program (SEMP).
A-9
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.13 of the Indenture, check the box: |_|
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.14 of the Indenture, check the box: |_|
If you elect to have only part of this Note purchased by the Company
pursuant to Section 4.13 or 4.14 of the Indenture, state the amount (multiples
of $1000 only):
$____________________________
Date:________________________ Your Signature:__________________________________
(Sign exactly as your name appears
on the face of this Note)
Signature Guarantee*
* NOTICE: The signature must be guaranteed by an institution which is a member
of one of the following recognized signature guarantee programs:
(1) The Securities Transfer Agent Medallion Program (STAMP);
(2) The New York Stock Exchange Medallion Program (MSP);
(3) The Stock Exchange Medallion Program (SEMP).
A-10
SCHEDULE OF EXCHANGES OF DEFINITIVE NOTES(2)
The following exchanges of a part of this Global Note for Definitive
Notes have been made:
Principal Amount of this
Amount of decrease in Amount of increase in Global Note following
Principal Amount of this Principal Amount of this such decrease (or in- Signature of autho-
Date of Exchange Global Note Global Note crease) rized officer of Trustee
----------------------------------------------------------------------------------------------------------------------------
------------------------
(2) This should be included only if the Note is issued in global form.
A-11
EXHIBIT B
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER OF NOTES
Re: [Series A] [Series B] 1O 3/8% Senior Notes due 2007 (the "Notes") of
Jordan Industries, Inc.
This Certificate relates to $______ principal amount of Notes held in *
|_| book-entry or * |_| definitive form by _______________________ (the
"Transferor").
The Transferor, by written order, has requested the Trustee:
|_| to deliver in exchange for its beneficial interest in the Global Note held
by the depository, a Note or Notes in definitive, registered form of
authorized denominations and an aggregate principal amount equal to its
beneficial interest in such Global Note (or the portion thereof indicated
above); or
|_| to exchange or register the transfer of a Note or Notes. In connection
with such request and in respect of each such Note, the Transferor does
hereby certify that Transferor is familiar with the indenture relating to
the above captioned Notes and the transfer of this Note does not require
registration under the Securities Act of 1933, as amended (the "Securities
Act"), because such Note:
|_| is being acquired for the Transferor's own account, without transfer;
|_| is being transferred pursuant to an effective registration statement;
|_| is being transferred to a "qualified institutional buyer" (as defined in
Rule 144A under the Securities Act), in reliance on such Rule 144A;
|_| is being transferred to an institutional "accredited investor" as defined
in Rule 501(a)(1), (2), (3) or (7) under the Securities Act;**
|_| is being transferred pursuant to an exemption from registration in
accordance with Rule 904 under the Securities Act;***
|_| is being transferred pursuant to Rule 144 under the Securities Act;*** or
|_| is being transferred pursuant to another exemption from the registration
requirements of the Securities Act (explain:_____________________________
____________________________________________________________________).***
________________________________
[INSERT NAME OF TRANSFEROR]
By:________________________
Date:______________________
* Check applicable box.
** If this box is checked, this certificate must be accompanied by a
transferee letter of representations.
*** If this box is checked, this certificate must be accompanied by an
opinion of counsel to the effect that such transfer is in
compliance with the Securities Act.
B-1
