Columbus XxXxxxxx Corporation
Issuer
10% Senior Secured Notes due 2010
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INDENTURE
Dated as of July 22, 2003
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U.S. Bank Trust National Association
Trustee
CROSS-REFERENCE TABLE
TIA Indenture
SECTION SECTION
------- -------
310(a)(1) ............................. 7.10
(a)(2) ............................. 7.10
(a)(3) ............................. N.A.
(a)(4) ............................. N.A.
(a)(5) ............................. 7.10
(b) ............................. 7.08; 7.10
(c) ............................. N.A.
311(a) ............................. 7.11
(b) ............................. 7.11
(c) ............................. N.A.
312(a) ............................. 2.05
(b) ............................. 13.03
(c) ............................. 13.03
313(a) ............................. 7.06
(b)(1) ............................. 7.06
(b)(2) ............................. 7.06
(c) ............................. 13.02
(d) ............................. 7.06
314(a) ............................. 4.02; 4.10; 13.02
(b) ............................. 11.02
(c)(1) ............................. 13.04
(c)(2) ............................. 13.04
(c)(3) ............................. 13.04
(d) ............................. 11.04
(e) ............................. 13.05
(f) ............................. N.A.
315(a) ............................. 7.01
(b) ............................. 7.05; 13.02
(c) ............................. 7.01
(d) ............................. 7.01
(e) ............................. 6.11
316(a)(last sentence) ................... 13.06
(a)(1)(A) ............................. 6.05
(a)(1)(B) ............................. 6.04
(a)(2) ............................. N.A.
(b) ............................. 6.07
(c) ............................. 9.04
317(a)(1) ............................. 6.08
(a)(2) ............................. 6.09
(b) ............................. 2.04
318(a) ............................. 13.01
(b) ............................. N.A.
(c) ............................. N.A.
N.A. means Not Applicable.
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of the Indenture.
TABLE OF CONTENTS
PAGE
----
Article 1
Definitions and Incorporation by Reference
SECTION 1.01 Definitions..............................................1
SECTION 1.02 Other Definitions.......................................38
SECTION 1.03 Incorporation by Reference of Trust
Indenture Act.......................................38
SECTION 1.04 Rules of Construction...................................39
SECTION 1.05 Designated Senior Indebtedness..........................39
Article 2
The Securities
SECTION 2.01 Form and Dating.........................................40
SECTION 2.02 Execution and Authentication............................40
SECTION 2.03 Registrar and Paying Agent..............................41
SECTION 2.04 Paying Agent To Hold Money in Trust.....................42
SECTION 2.05 Securityholder Lists....................................42
SECTION 2.06 Transfer and Exchange...................................42
SECTION 2.07 Replacement Securities..................................43
SECTION 2.08 Outstanding Securities..................................43
SECTION 2.09 Temporary Securities....................................44
SECTION 2.10 Cancellation............................................44
SECTION 2.11 Defaulted Interest......................................44
SECTION 2.12 CUSIP Numbers...........................................44
SECTION 2.13 Issuance of Additional Securities.......................45
Article 3
Redemption
SECTION 3.01 Notices to Trustee......................................45
SECTION 3.02 Selection of Securities to Be Redeemed..................46
SECTION 3.03 Notice of Redemption....................................46
SECTION 3.04 Effect of Notice of Redemption..........................47
SECTION 3.05 Deposit of Redemption Price.............................47
SECTION 3.06 Securities Redeemed in Part.............................47
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Article 4
Covenants
SECTION 4.01 Payment of Securities...................................48
SECTION 4.02 SEC Reports.............................................48
SECTION 4.03 Limitation on Indebtedness..............................49
SECTION 4.04 Limitation on Restricted Payments.......................53
SECTION 4.05 Limitation on Restrictions on
Distributions from Restricted
Subsidiaries........................................57
SECTION 4.06 Limitation on Sales of Assets and
Subsidiary Stock....................................59
SECTION 4.07 Limitation on Affiliate Transactions....................65
SECTION 4.08 Limitation on Line of Business..........................67
SECTION 4.09 Limitation on the Sale or Issuance
of Capital Stock of Restricted
Subsidiaries........................................67
SECTION 4.10 Change of Control.......................................68
SECTION 4.11 Limitation on Liens.....................................69
SECTION 4.12 Limitation on Sale/Leaseback Transactions...............71
SECTION 4.13 Future Guarantors.......................................72
SECTION 4.14 Impairment of Security Interest.........................72
SECTION 4.15 Amendment to Security Documents.........................72
SECTION 4.16 Compliance Certificate..................................72
SECTION 4.17 Further Instruments and Acts............................73
Article 5
Successor Company
SECTION 5.01 When Company May Merge or Transfer Assets...............74
Article 6
Defaults and Remedies
SECTION 6.01 Events of Default.......................................76
SECTION 6.02 Acceleration............................................79
SECTION 6.03 Other Remedies..........................................80
SECTION 6.04 Waiver of Past Defaults.................................80
SECTION 6.05 Control by Majority.....................................80
SECTION 6.06 Limitation on Suits.....................................80
SECTION 6.07 Rights of Holders to Receive Payment....................81
SECTION 6.08 Collection Suit by Trustee..............................81
SECTION 6.09 Trustee May File Proofs of Claim........................81
SECTION 6.10 Priorities..............................................82
SECTION 6.11 Undertaking for Costs...................................82
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SECTION 6.12 Waiver of Stay or Extension Laws........................83
Article 7
Trustee
SECTION 7.01 Duties of Trustee.......................................83
SECTION 7.02 Rights of Trustee.......................................85
SECTION 7.03 Individual Rights of Trustee............................85
SECTION 7.04 Trustee's Disclaimer....................................85
SECTION 7.05 Notice of Defaults......................................86
SECTION 7.06 Reports by Trustee to Holders...........................86
SECTION 7.07 Compensation and Indemnity..............................86
SECTION 7.08 Replacement of Trustee..................................87
SECTION 7.09 Successor Trustee by Merger.............................88
SECTION 7.10 Eligibility; Disqualification...........................89
SECTION 7.11 Preferential Collection of Claims
Against Company.....................................89
Article 8
Discharge of Indenture; Defeasance
SECTION 8.01 Discharge of Liability on Securities;
Defeasance..........................................89
SECTION 8.02 Conditions to Defeasance................................91
SECTION 8.03 Application of Trust Money..............................92
SECTION 8.04 Repayment to Company....................................92
SECTION 8.05 Indemnity for Government Obligations....................92
SECTION 8.06 Reinstatement...........................................93
Article 9
Amendments
SECTION 9.01 Without Consent of Holders..............................93
SECTION 9.02 With Consent of Holders.................................95
SECTION 9.03 Compliance with Trust Indenture Act.....................96
SECTION 9.04 Revocation and Effect of Consents
and Waivers...........................................96
SECTION 9.05 Notation on or Exchange of Securities...................97
SECTION 9.06 Trustee To Sign Amendments..............................97
SECTION 9.07 Payment for Consent.....................................97
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Article 10
Subsidiary Guarantees
SECTION 10.01 Guarantees..............................................98
SECTION 10.02 Limitation on Liability................................100
SECTION 10.03 Successors and Assigns.................................100
SECTION 10.04 No Waiver..............................................101
SECTION 10.05 Modification...........................................101
SECTION 10.06 Release of Subsidiary Guarantor........................101
SECTION 10.07 Contribution...........................................102
Article 11
Security Documents
SECTION 11.01 Collateral and Security Documents......................102
SECTION 11.02 Recordings and Opinions................................104
SECTION 11.03 Release of Collateral..................................104
SECTION 11.04 Permitted Releases Not To Impair Lien;
Trust Indenture Act Requirements...................106
SECTION 11.05 Certificates of the Trustee............................106
SECTION 11.06 Suits To Protect the Collateral........................107
SECTION 11.07 Authorization of Receipt of Funds by
the Trustee Under the Security
Documents..........................................107
SECTION 11.08 Purchaser Protected....................................107
SECTION 11.09 Powers Exercisable by Receiver or
Trustee............................................108
SECTION 11.10 Release upon Termination of the Company's
Obligations........................................108
SECTION 11.11 Collateral Agent.......................................108
SECTION 11.12 Designations...........................................109
Article 12
Application of Trust Moneys
SECTION 12.01 "Trust Moneys" Defined.................................110
SECTION 12.02 Retirement of Securities...............................111
SECTION 12.03 Withdrawals of Insurance Proceeds and
Condemnation Awards................................112
SECTION 12.04 Powers Exercisable Notwithstanding
Event of Default...................................114
SECTION 12.05 Powers Exercisable by Trustee or
Receiver...........................................115
SECTION 12.06 Disposition of Securities Retired......................115
SECTION 12.07 Investment and Use of Trust Moneys.....................115
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Article 13
Miscellaneous
SECTION 13.01 Trust Indenture Act Controls...........................116
SECTION 13.02 Notices................................................117
SECTION 13.03 Communication by Holders with Other
Holders............................................117
SECTION 13.04 Certificate and Opinion as to Conditions
Precedent..........................................118
SECTION 13.05 Statements Required in Certificate
or Opinion.........................................118
SECTION 13.06 When Securities Disregarded............................118
SECTION 13.07 Rules by Trustee, Paying Agent
and Registrar......................................119
SECTION 13.08 Legal Holidays.........................................119
SECTION 13.09 Governing Law..........................................119
SECTION 13.10 No Recourse Against Others.............................119
SECTION 13.11 Successors.............................................119
SECTION 13.12 Multiple Originals.....................................119
SECTION 13.13 Table of Contents; Headings............................120
Exhibit 1 - Form of Supplemental Indenture for
Future Guarantors
Rule 144A/Regulation S Appendix
Exhibit 1 - Form of Initial Security
Exhibit A - Form of Exchange Security or Private
Exchange Security
v
INDENTURE dated as of July 22, 2003, among
Columbus XxXxxxxx Corporation, a New York corporation
(the "Company"), the Subsidiary Guarantors from time
to time party hereto and U.S. Bank Trust National
Association, a United States corporation (the
"Trustee").
Each party agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of the Company's
Initial Securities, Exchange Securities and Private Exchange Securities
(collectively, the "Securities"):
ARTICLE 1
Definitions and Incorporation by Reference
SECTION 1.01 Definitions.
"Additional Assets" means (1) any property, plant, equipment
or other long-term tangible or intangible asset used in a Related Business; (2)
the Capital Stock of a Person that becomes a Domestic Restricted Subsidiary as a
result of the acquisition of such Capital Stock by the Company or a Subsidiary
Guarantor; or (3) Capital Stock constituting a minority interest in any Person
that at such time is a Domestic Restricted Subsidiary; PROVIDED, HOWEVER, that
any such Domestic Restricted Subsidiary described in clause (2) or (3) above is
primarily engaged in a Related Business.
"Additional Securities" means Securities issued under this
Indenture after the Issue Date and in compliance with Sections 2.13 and 4.03, it
being understood that any Securities issued in exchange for or replacement of
any Initial Security issued on the Issue Date shall not be an Additional
Security, including any such Securities issued pursuant to a Registration Rights
Agreement.
"Affiliate" of any specified Person means any other Person,
directly or indirectly, controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
2
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing. For
purposes of Sections 4.04, 4.06 and 4.07 only, "Affiliate" shall also mean any
beneficial owner of Capital Stock representing 5% or more of the total voting
power of the Voting Stock (on a fully diluted basis) of the Company or of rights
or warrants to purchase such Capital Stock (whether or not currently
exercisable) and any Person who would be an Affiliate of any such beneficial
owner pursuant to the first sentence hereof.
"Applicable Indebtedness" means:
(1) in respect of any asset that is the subject of an Asset
Disposition at a time when such asset is included in the Collateral,
Senior Indebtedness or Indebtedness of a Subsidiary or any other
non-debt obligation that, in each case, is secured at such time by
Collateral under a Lien that takes priority over the Lien in respect of
the Securities under the Security Documents; or
(2) in respect of any asset that is the subject of an Asset
Disposition at a time when such asset is not included in the Collateral
but is owned, directly or indirectly, by a Foreign Subsidiary the stock
of which is included in the Collateral, any Indebtedness or other
obligation referred to in clause (1) above, any Indebtedness of such
Foreign Subsidiary or any Indebtedness of any other Foreign Subsidiary
that is a Wholly Owned Subsidiary, PROVIDED that such Foreign
Subsidiary has not guaranteed unsecured Indebtedness of the Company or
a Subsidiary Guarantor; or
(3) in respect of any other asset, Senior Indebtedness.
"Applicable Senior Indebtedness" means:
(1) in respect of any asset that is the subject of an Asset
Disposition at a time when such asset is included in the Collateral,
Senior Indebtedness that is secured at such time by Collateral; or
3
(2) in respect of any asset that is the subject of an Asset
Disposition at a time when such asset is not included in the Collateral
but is owned, directly or indirectly, by a Foreign Subsidiary the stock
of which is included in the Collateral, Senior Indebtedness that is
secured at such time by Collateral; or
(3) in respect of any other asset, Senior Indebtedness.
"Asset Disposition" means any sale, lease, transfer or other
disposition (or series of related sales, leases, transfers or dispositions) by
the Company or any Restricted Subsidiary, including any disposition by means of
a merger, consolidation or similar transaction (each referred to for the
purposes of this definition as a "disposition"), of:
(1) any shares of Capital Stock of a Restricted Subsidiary
(other than directors' qualifying shares or shares required by
applicable law to be held by a Person other than the Company or a
Restricted Subsidiary);
(2) all or substantially all the assets of any division or
line of business of the Company or any Restricted Subsidiary; or
(3) any other assets of the Company or any Restricted
Subsidiary outside of the ordinary course of business of the Company or
such Restricted Subsidiary;
other than, in the case of clauses (1), (2) and (3) above, (A) a disposition by
a Restricted Subsidiary to the Company or by the Company or a Restricted
Subsidiary to a Restricted Subsidiary, (B) for purposes of Section 4.06 only,
(i) a disposition (other than a disposition of Collateral) that constitutes a
Restricted Payment (or would constitute a Restricted Payment but for the
exclusions from the definition thereof) and that is not prohibited by Section
4.04 and (ii) a disposition of all or substantially all the assets of the
Company in accordance with Section 5.01; (C) a disposition or dispositions of
assets (other than any assets that constitute Collateral) with an aggregate fair
market value not in excess of $1,000,000 in any calendar year; (D) a disposition
4
of cash or Temporary Cash Investments; (E) the creation of a Lien (but not the
sale or other disposition of the property subject to such Lien); and (F) sales
of accounts receivable and related assets of the type specified in the
definition of "Qualified Receivables Transaction" to a Receivables Subsidiary
for the fair market value thereof, including cash in an amount at least equal to
90% of the fair market value thereof.
For purposes of Section 4.06 only, the disposition of Capital
Stock of a Person will be treated as a disposition of all Collateral owned by
such Person if after giving effect to such disposition of such Capital Stock,
the Company and the Restricted Subsidiaries do not control such Person.
"Attributable Debt" in respect of a Sale/Leaseback Transaction
means, as at the time of determination, the present value (discounted at the
interest rate borne by the Securities, compounded annually) of the total
obligations of the lessee for rental payments during the remaining term of the
lease included in such Sale/Leaseback Transaction (including any period for
which such lease has been extended); PROVIDED, HOWEVER, that if such
Sale/Leaseback Transaction results in a Capital Lease Obligation, the amount of
Indebtedness represented thereby will be determined in accordance with the
definition of "Capital Lease Obligation".
"Average Life" means, as of the date of determination, with
respect to any Indebtedness, the quotient obtained by dividing (1) the sum of
the products of the numbers of years from the date of determination to the dates
of each successive scheduled principal payment of or redemption or similar
payment with respect to such Indebtedness multiplied by the amount of such
payment by (2) the sum of all such payments.
"Board of Directors" means the Board of Directors of the
Company or any committee thereof duly authorized to act on behalf of such Board.
"Business Day" means each day which is not a Legal Holiday.
"Capital Lease Obligation" means an obligation that is
required to be classified and accounted for as a capital lease for financial
5
reporting 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; and the Stated Maturity thereof
shall be the date of the last payment of rent or any other amount due under such
lease prior to the first date upon which such lease may be terminated by the
lessee without payment of a penalty. For purposes of Section 4.11, a Capital
Lease Obligation will be deemed to be secured by a Lien on the property being
leased.
"Capital Stock" of any Person means any and all shares,
interests (including partnership interests), rights to purchase, warrants,
options, participations or other equivalents of or interests in (however
designated) equity of such Person, including any Preferred Stock, but excluding
any debt securities convertible into or exchangeable for such equity.
"Change of Control" means the occurrence of any of the
following events:
(1) any "person" (as such term is used in Sections 13(d) and
14(d) of the Exchange Act) is or becomes the "beneficial owner" (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that
for purposes of this clause (1) such person shall be deemed to have
"beneficial ownership" of all shares that such person has the right to
acquire, whether such right is exercisable immediately or only after
the passage of time), directly or indirectly, of more than 35% of the
total voting power of the Voting Stock of the Company;
(2) individuals who on the Issue Date constituted the Board of
Directors (together with any new directors whose election or
appointment by such Board of Directors or whose nomination for election
by the shareholders of the Company was approved by a vote of 66?% of
the directors of the Company then still in office who were either
directors on the Issue Date or whose election or nomination for
election was previously so approved) cease for any reason to constitute
a majority of the Board of Directors then in office;
(3) the adoption of a plan relating to the liquidation or
dissolution of the Company; or
6
(4) the merger or consolidation of the Company with or into
another Person or the merger of another Person with or into the
Company, or the sale of all or substantially all the assets of the
Company (determined on a consolidated basis) to another Person, other
than a transaction following which (A) in the case of a merger or
consolidation transaction, holders of securities that represented 100%
of the Voting Stock of the Company immediately prior to such
transaction (or other securities into which such securities are
converted as part of such merger or consolidation transaction) own
directly or indirectly at least a majority of the voting power of the
Voting Stock of the surviving Person in such merger or consolidation
transaction immediately after such transaction and in substantially the
same proportion as before the transaction and (B) in the case of a sale
of assets transaction, each transferee becomes an obligor in respect of
the Securities and a Subsidiary of the transferor of such assets.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" means all the collateral provided for under and
described in the Security Documents.
"Collateral Agent" means the Trustee in its capacity as
"Collateral Agent" hereunder and under the Security Documents and any successor
thereto in such capacity.
"Collateral Agreement" means the Collateral Agreement, dated
as of July 22, 2003, among the Company, the Subsidiary Guarantors and the
Collateral Agent, as the same may be amended from time to time in accordance
with its terms and this Indenture.
"Company" means the party named as such in this Indenture
until a successor replaces it and, thereafter, means the successor and, for
purposes of any provision contained herein and required by the TIA, each other
obligor on the Securities.
"Consolidated Coverage Ratio" as of any date of determination
means the ratio of
7
(1) the aggregate amount of EBITDA for the period of the most
recent four consecutive fiscal quarters ending at least 45 days prior
to the date of such determination to
(2) Consolidated Interest Expense for such four fiscal
quarters;
PROVIDED, HOWEVER, that
(1) if the Company or any Restricted Subsidiary has Incurred
any Indebtedness since the beginning of such period that remains
outstanding or if the transaction giving rise to the need to calculate
the Consolidated Coverage Ratio is an Incurrence of Indebtedness, or
both, EBITDA and Consolidated Interest Expense for such period shall be
calculated after giving effect on a PRO FORMA basis to such
Indebtedness as if such Indebtedness had been Incurred on the first day
of such period;
(2) if the Company or any Restricted Subsidiary has repaid,
repurchased, defeased or otherwise discharged any Indebtedness since
the beginning of such period or if any Indebtedness is to be repaid,
repurchased, defeased or otherwise discharged (in each case other than
Indebtedness Incurred under any revolving credit facility unless such
Indebtedness has been permanently repaid and has not been replaced) on
the date of the transaction giving rise to the need to calculate the
Consolidated Coverage Ratio, EBITDA and Consolidated Interest Expense
for such period shall be calculated on a PRO FORMA basis as if such
discharge had occurred on the first day of such period and as if the
Company or such Restricted Subsidiary has not earned the interest
income actually earned during such period in respect of cash or
Temporary Cash Investments used to repay, repurchase, defease or
otherwise discharge such Indebtedness;
(3) if since the beginning of such period the Company or any
Restricted Subsidiary shall have made any Asset Disposition, EBITDA for
such period shall be reduced by an amount equal to EBITDA (if positive)
directly attributable to the assets which are the subject of such Asset
Disposition for such period, or increased by an amount equal to EBITDA
(if negative), directly attributable thereto for such period and
8
Consolidated Interest Expense for such period shall be reduced by an
amount equal to the Consolidated Interest Expense directly attributable
to any Indebtedness of the Company or any Restricted Subsidiary repaid,
repurchased, defeased or otherwise discharged with respect to the
Company and its continuing Restricted Subsidiaries in connection with
such Asset Disposition for such period (or, if the Capital Stock of any
Restricted Subsidiary is sold, the Consolidated Interest Expense for
such period directly attributable to the Indebtedness of such
Restricted Subsidiary to the extent the Company and its continuing
Restricted Subsidiaries are no longer liable for such Indebtedness
after such sale);
(4) if since the beginning of such period the Company or any
Restricted Subsidiary (by merger or otherwise) shall have made an
Investment in any Restricted Subsidiary (or any Person which becomes a
Restricted Subsidiary) or an acquisition of assets, including any
acquisition of assets occurring in connection with a transaction
requiring a calculation to be made hereunder, which constitutes all or
substantially all of an operating unit of a business, EBITDA and
Consolidated Interest Expense for such period shall be calculated after
giving PRO FORMA effect thereto (including the Incurrence of any
Indebtedness) as if such Investment or acquisition occurred on the
first day of such period; and
(5) if since the beginning of such period any Person (that
subsequently became a Restricted Subsidiary or was merged with or into
the Company or any Restricted Subsidiary since the beginning of such
period) shall have made any Asset Disposition, any Investment or
acquisition of assets that would have required an adjustment pursuant
to clause (3) or (4) above if made by the Company or a Restricted
Subsidiary during such period, EBITDA and Consolidated Interest Expense
for such period shall be calculated after giving PRO FORMA effect
thereto as if such Asset Disposition, Investment or acquisition
occurred on the first day of such period.
For purposes of this definition, whenever PRO FORMA effect is to be given to an
acquisition of assets, the amount of income or earnings relating thereto and the
amount of Consolidated Interest Expense associated with any Indebtedness
9
Incurred in connection therewith, the PRO FORMA calculations shall be determined
in good faith by a responsible financial or accounting Officer of the Company.
If any Indebtedness bears a floating rate of interest and is being given PRO
FORMA effect, the interest on such Indebtedness shall be calculated as if the
rate in effect on the date of determination had been the applicable rate for the
entire period (taking into account any Interest Rate Agreement applicable to
such Indebtedness if such Interest Rate Agreement has a remaining term in excess
of 12 months). If any Indebtedness is Incurred under a revolving credit facility
and is being given PRO FORMA effect, the interest on such Indebtedness shall be
calculated based on the average daily balance of such Indebtedness for the four
fiscal quarters subject to the PRO FORMA calculation to the extent that such
Indebtedness was incurred solely for working capital purposes.
"Consolidated Interest Expense" means, for any period, the
total interest expense of the Company and its consolidated Restricted
Subsidiaries, plus, to the extent not included in such total interest expense,
and to the extent incurred by the Company or its Restricted Subsidiaries,
without duplication:
(1) interest expense attributable to Capital Lease
Obligations;
(2) amortization of debt discount and debt issuance cost;
(3) capitalized interest;
(4) non-cash interest expense;
(5) commissions, discounts and other fees and charges owed
with respect to letters of credit and bankers' acceptance financing;
(6) net payments pursuant to Hedging Obligations;
(7) dividends accrued in respect of all Preferred Stock held
by Persons other than the Company or a Wholly Owned Subsidiary (other
than dividends payable solely in Capital Stock (other than Disqualified
Stock) of the Company); PROVIDED, HOWEVER, that such dividends will be
10
multiplied by a fraction, the numerator of which is one and the
denominator of which is one minus the effective combined tax rate of
the issuer of such Preferred Stock (expressed as a decimal) for such
period (as estimated by the chief financial officer of the Company in
good faith);
(8) interest incurred in connection with Investments in
discontinued operations;
(9) interest accruing on any Indebtedness of any other Person
to the extent such Indebtedness is Guaranteed by (or secured by the
assets of) the Company or any Restricted Subsidiary; and
(10) the cash contributions to any employee stock ownership
plan or similar trust to the extent such contributions are used by such
plan or trust to pay interest or fees to any Person (other than the
Company) in connection with Indebtedness Incurred by such plan or
trust.
"Consolidated Net Income" means, for any period, the net
income of the Company and its consolidated Subsidiaries; PROVIDED, HOWEVER, that
there shall not be included in such Consolidated Net Income:
(1) any net income of any Person (other than the Company) if
such Person is not a Restricted Subsidiary, except that:
(A) subject to the exclusion contained in clause (4)
below, the Company's equity in the net income of any such
Person for such period shall be included in such Consolidated
Net Income up to the aggregate amount of cash actually
distributed by such Person during such period to the Company
or a Restricted Subsidiary as a dividend or other distribution
(subject, in the case of a dividend or other distribution paid
to a Restricted Subsidiary, to the limitations contained in
clause (3) below); and
(B) the Company's equity in a net loss of any such
Person for such period shall be included in determining such
Consolidated Net Income;
11
(2) any net income (or loss) of any Person acquired by the
Company or a Subsidiary in a pooling of interests transaction for any
period prior to the date of such acquisition;
(3) any net income of any Restricted Subsidiary (other than a
Subsidiary Guarantor) if such Restricted Subsidiary is subject to
restrictions, directly or indirectly, on the payment of dividends or
the making of distributions by such Restricted Subsidiary, directly or
indirectly, to the Company, except that:
(A) subject to the exclusion contained in clause (4)
below, the Company's equity in the net income of any such
Restricted Subsidiary for such period shall be included in
such Consolidated Net Income up to the aggregate amount of
cash actually distributed by such Restricted Subsidiary during
such period to the Company or another Restricted Subsidiary as
a dividend or other distribution (subject, in the case of a
dividend or other distribution paid to another Restricted
Subsidiary, to the limitation contained in this clause); and
(B) the Company's equity in a net loss of any such
Restricted Subsidiary for such period shall be included in
determining such Consolidated Net Income;
(4) any gain (or loss) realized upon the sale or other
disposition of any assets of the Company, its consolidated Subsidiaries
or any other Person (including pursuant to any sale-and-leaseback
arrangement) which are not sold or otherwise disposed of in the
ordinary course of business and any gain (or loss) realized upon the
sale or other disposition of any Capital Stock of any Person;
(5) extraordinary gains or losses; and
(6) the cumulative effect of a change in accounting
principles;
in each case, for such period. Notwithstanding the foregoing, for the purpose of
Section 4.04 only, (i) there shall be excluded from Consolidated Net Income any
repurchases, repayments or redemptions of Investments, proceeds realized on the
12
sale of Investments or return of capital to the Company or a Restricted
Subsidiary to the extent such repurchases, repayments, redemptions, proceeds or
returns increase the amount of Restricted Payments permitted pursuant to Section
4.04(a)(3)(D).
"Credit Agent" means Fleet Capital Corporation, in its
capacity as administrative agent for the lenders pursuant to the Credit
Agreement as of the Issue Date, or any other Person otherwise designated "Credit
Agent" pursuant to the Intercreditor Agreement.
"Credit Agreement" means the Amended and Restated Credit and
Security Agreement, dated as of November 21, 2002, by and among the Company,
certain of its Subsidiaries, the lenders referred to therein, Fleet Capital
Corporation, as Administrative Agent, Fleet National Bank, as Issuing Lender,
Congress Financial Corporation (New England), as Co-Syndication Agent, Key Bank
N.A., as Co-Syndication Agent and Xxxxxxx Xxxxx Capital, as Documentation Agent,
together with the related documents thereto (including the term loans and
revolving loans thereunder, any guarantees and security documents), as amended,
extended, renewed, replaced, restated, supplemented or otherwise modified (in
whole or in part, and without limitation as to amount, terms, conditions,
covenants and other provisions) from time to time, and any agreement (and
related document) governing Indebtedness incurred to Refinance or replace, in
whole or in part, the borrowings and commitments then outstanding or permitted
to be outstanding under such Credit Agreement or a successor Credit Agreement.
"Currency Agreement" means any foreign exchange contract,
currency swap agreement or other similar agreement with respect to currency
values.
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Disqualified Stock" means, with respect to any Person, any
Capital Stock which by its terms (or by the terms of any security into which it
is convertible or for which it is exchangeable at the option of the holder) or
upon the happening of any event:
13
(1) matures or is mandatorily redeemable (other than
redeemable only for Capital Stock of such Person which is not itself
Disqualified Stock) pursuant to a sinking fund obligation or otherwise;
(2) is convertible or exchangeable at the option of the holder
for Indebtedness or Disqualified Stock; or
(3) is mandatorily redeemable or must be purchased upon the
occurrence of certain events or otherwise, in whole or in part;
in each case on or prior to the first anniversary of the Stated Maturity of the
Securities; PROVIDED, HOWEVER, that any Capital Stock that would not constitute
Disqualified Stock but for provisions thereof giving holders thereof the right
to require such Person to purchase or redeem such Capital Stock upon the
occurrence of an "asset sale" or "change of control" occurring prior to the
first anniversary of the Stated Maturity of the Securities shall not constitute
Disqualified Stock if (A) the "asset sale" or "change of control" provisions
applicable to such Capital Stock are not more favorable to the holders of such
Capital Stock than the terms applicable to the Securities in Sections 4.06 and
4.10 of this Indenture and (B) any such requirement only becomes operative after
compliance with such terms applicable to the Securities, including the purchase
of any Securities tendered pursuant thereto.
The amount of any Disqualified Stock that does not have a
fixed redemption, repayment or repurchase price will be calculated in accordance
with the terms of such Disqualified Stock as if such Disqualified Stock were
redeemed, repaid or repurchased on any date on which the amount of such
Disqualified Stock is to be determined pursuant to the Indenture; PROVIDED,
HOWEVER, that if such Disqualified Stock could not be required to be redeemed,
repaid or repurchased at the time of such determination, the redemption,
repayment or repurchase price will be the book value of such Disqualified Stock
as reflected in the most recent financial statements of such Person.
"Domestic Restricted Subsidiary" means a Restricted Subsidiary
that is incorporated or otherwise organized under the laws of the United States,
any State thereof or the District of Columbia.
14
"EBITDA" for any period means the sum of Consolidated Net
Income, plus the following to the extent deducted in calculating such
Consolidated Net Income:
(1) all income tax expense of the Company and its consolidated
Restricted Subsidiaries;
(2) Consolidated Interest Expense;
(3) depreciation and amortization expense of the Company and
its consolidated Restricted Subsidiaries (excluding amortization
expense attributable to a prepaid operating activity item that was paid
in cash in a prior period);
(4) all other non-cash charges of the Company and its
consolidated Restricted Subsidiaries (excluding any such non-cash
charge to the extent that it represents an accrual of or reserve for
cash expenditures in any future period); and
(5) solely for purposes of the calculation of Senior Leverage
Ratio, cash restructuring charges (a) incurred in the period from June
30, 2002 to November 21, 2002 in the amount of $840,000 and (b)
incurred in the period from November 21, 2002 to November 21, 2004 in
an aggregate amount not to exceed $4,500,000; provided, however, that
no adjustment shall be made hereunder for such charges with respect to
any single facility, plant or other property to the extent in excess of
$2,000,000;
in each case for such period. Notwithstanding the foregoing, the provision for
taxes based on the income or profits of, and the depreciation and amortization
and non-cash charges of, a Restricted Subsidiary shall be added to Consolidated
Net Income to compute EBITDA only to the extent (and in the same proportion,
including by reason of minority interests) that the net income or loss of such
Restricted Subsidiary was included in calculating Consolidated Net Income and
only if a corresponding amount would be permitted at the date of determination
to be dividended to the Company by such Restricted Subsidiary without prior
approval (that has not been obtained), pursuant to the terms of its charter and
all agreements, instruments, judgments, decrees, orders, statutes, rules and
governmental regulations applicable to such Restricted Subsidiary or its
stockholders.
15
"Exchange Act" means the U.S. Securities Exchange Act of 1934,
as amended.
"Existing Notes" means the Series A and Series B 8 1/2% Senior
Subordinated Notes due 2008 of the Company.
"Existing Notes Indenture" means the indenture dated as of
March 31, 1998 among the Company, the subsidiary guarantors party thereto and
State Street Bank and Trust Company, N.A., as trustee, under which the Existing
Notes were issued, as amended, modified or supplemented from time to time.
"First Lien Obligations" means (i) all Indebtedness Incurred
pursuant to and in compliance with Section 4.03(b)(1) and secured by a Lien
permitted under clause (7) of the definition of Permitted Liens that is
designated by the Company as first-lien Indebtedness, (ii) all other Obligations
(not constituting Indebtedness) of the Company or any Subsidiary Guarantor under
the agreements governing such Indebtedness and (iii) all other Obligations of
the Company or any Subsidiary Guarantor in respect of Hedging Obligations or
Obligations in respect of cash management services in connection with such
first-lien Indebtedness.
"Foreign Subsidiary" means any Restricted Subsidiary of the
Company that is not a Domestic Restricted Subsidiary.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect as of the Issue Date, including those set
forth in:
(1) the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public
Accountants;
(2) statements and pronouncements of the Financial Accounting
Standards Board;
(3) such other statements by such other entity as approved by
a significant segment of the accounting profession; and
(4) the rules and regulations of the SEC governing the
inclusion of financial statements (including PRO FORMA financial
statements) in periodic reports required to be filed pursuant to
16
Section 13 of the Exchange Act, including opinions and pronouncements
in staff accounting bulletins and similar written statements from the
accounting staff of the SEC.
All ratios and computations based on GAAP contained in this
Indenture shall be computed in conformity with GAAP.
"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Indebtedness of any Person
and any obligation, direct or indirect, contingent or otherwise, of such Person:
(1) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness of such Person (whether
arising by virtue of partnership arrangements, or by agreements to
keep-well, to purchase assets, goods, securities or services, to
take-or-pay or to maintain financial statement conditions or
otherwise); or
(2) entered into for the purpose of assuring in any other
manner the obligee of such Indebtedness of the payment thereof or to
protect such obligee against loss in respect thereof (in whole or in
part);
PROVIDED, HOWEVER, that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning. The term "Guarantor" shall mean any
Person Guaranteeing any obligation.
"Guarantee Agreement" means a supplemental indenture, in
substantially the form included as Exhibit 1 to this Indenture, pursuant to
which a Subsidiary Guarantor guarantees the Company's obligations with respect
to the Securities on the terms provided for in this Indenture.
"Hedging Obligations" of any Person means the obligations of
such Person pursuant to any Interest Rate Agreement or Currency Agreement.
"Holder" or "Securityholder" means the Person in whose name a
Security is registered on the Registrar's books.
17
"Incur" means issue, assume, Guarantee, incur or otherwise
become liable for; PROVIDED, HOWEVER, that any Indebtedness 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 Incurred by such
Person at the time it becomes a Restricted Subsidiary. The term "Incurrence"
when used as a noun shall have a correlative meaning.
Solely for purposes of determining compliance with Section
4.03:
(1) amortization of debt discount or the accretion of
principal with respect to a non-interest bearing or other discount
security;
(2) the payment of regularly scheduled interest in the form of
additional Indebtedness of the same instrument or the payment of
regularly scheduled dividends on Capital Stock in the form of
additional Capital Stock of the same class and with the same terms; and
(3) the obligation to pay a premium in respect of Indebtedness
arising in connection with the issuance of a notice of redemption or
the making of a mandatory offer to purchase such Indebtedness;
will not be deemed to be the Incurrence of Indebtedness.
"Indebtedness" means, with respect to any Person on any date
of determination (without duplication):
(1) the principal in respect of (A) indebtedness of such
Person for money borrowed and (B) indebtedness evidenced by notes,
debentures, bonds or other similar instruments for the payment of which
such Person is responsible or liable, including, in each case, any
premium on such indebtedness to the extent such premium has become due
and payable;
(2) all Capital Lease Obligations of such Person and all
Attributable Debt in respect of Sale/Leaseback Transactions entered
into by such Person;
(3) all obligations of such Person issued or assumed as the
deferred purchase price of property, all conditional sale obligations
18
of such Person and all obligations of such Person under any title
retention agreement (but excluding trade accounts payable arising in
the ordinary course of business);
(4) all obligations of such Person for the reimbursement of
any obligor on any letter of credit, bankers' acceptance or similar
credit transaction (other than obligations with respect to letters of
credit securing obligations (other than obligations described in
clauses (1) through (3) above) entered into in the ordinary course of
business of such Person to the extent such letters of credit are not
drawn upon or, if and to the extent drawn upon, such drawing is
reimbursed no later than the tenth Business Day following payment on
the letter of credit);
(5) the amount of all obligations of such Person with respect
to the redemption, repayment or other repurchase of any Capital Stock
of such Person or any Subsidiary of such Person or that are determined
by the value of such Capital Stock, the principal amount of such
Capital Stock to be determined in accordance with this Indenture;
(6) all obligations of the type referred to in clauses (1)
through (5) of other Persons and all dividends of other Persons for the
payment of which, in either case, such Person is responsible or liable,
directly or indirectly, as obligor, guarantor or otherwise, including
by means of any Guarantee;
(7) all obligations of the type referred to in clauses (1)
through (6) of other Persons secured by any Lien on any property or
asset of such Person (whether or not such obligation is assumed by such
Person), the amount of such obligation being deemed to be the lesser of
the value of such property or assets and the amount of the obligation
so secured; and
(8) to the extent not otherwise included in this definition,
Hedging Obligations of such Person.
Notwithstanding the foregoing, in connection with the purchase by the Company or
any Restricted Subsidiary of any business, the term "Indebtedness" will exclude
post-closing payment adjustments to which the seller may become entitled to the
extent such payment is determined by a final closing balance sheet or such
19
payment depends on the performance of such business after the closing; PROVIDED,
HOWEVER, that, at the time of closing, the amount of any such payment is not
determinable and, to the extent such payment thereafter becomes fixed and
determined, the amount is paid within 90 days thereafter.
The amount of Indebtedness of any Person at any date shall be
the outstanding balance at such date of all unconditional obligations as
described above and the maximum liability, upon the occurrence of the
contingency giving rise to the obligation, of any contingent obligations at such
date; PROVIDED, HOWEVER, that in the case of Indebtedness sold at a discount,
the amount of such Indebtedness at any time will be the accreted value thereof
at such time.
"Indenture" means this Indenture as amended or supplemented
from time to time.
"Independent Qualified Party" means an investment banking
firm, accounting firm or appraisal firm of national standing; PROVIDED, HOWEVER,
that such firm is not an Affiliate of the Company.
"Initial Purchasers" means Credit Suisse First Boston LLC and
Fleet Securities, Inc.
"Intercreditor Agreement" means the Intercreditor Agreement,
dated as of July 22, 2003, among the Trustee, in its capacity as Collateral
Agent, the Company, the Subsidiary Guarantors and Fleet Capital Corporation, as
Credit Agent, as the same may be amended from time to time in accordance with
its terms and this Indenture.
"Interest Rate Agreement" means any interest rate swap
agreement, interest rate cap agreement or other financial agreement or
arrangement with respect to exposure to interest rates.
"Investment" in any Person means any direct or indirect
advance, loan (other than advances to customers in the ordinary course of
business that are recorded as accounts receivable on the balance sheet of the
lender) or other extensions of credit (including by way of Guarantee or similar
arrangement) or capital contribution to (by means of any transfer of cash or
other property to others or any payment for property or services for the account
or use of others), or any purchase or acquisition of Capital Stock, Indebtedness
20
or other similar instruments issued by such Person. Except as otherwise provided
for herein, the amount of an Investment shall be its fair value at the time the
Investment is made and without giving effect to subsequent changes in value.
For purposes of the definition of "Unrestricted Subsidiary",
the definition of "Restricted Payment" and Section 4.04, "Investment" shall
include
(1) the portion (proportionate to the Company's equity
interest in such Subsidiary) of the fair market value of the net assets
of any Subsidiary of the Company at the time that such Subsidiary is
designated an Unrestricted Subsidiary; PROVIDED, however, that upon a
redesignation of such Subsidiary as a Restricted Subsidiary, the
Company shall be deemed to continue to have a permanent "Investment" in
an Unrestricted Subsidiary equal to an amount (if positive) equal to
(A) the Company's "Investment" in such Subsidiary at the time of such
redesignation less (B) the portion (proportionate to the Company's
equity interest in such Subsidiary) of the fair market value of the net
assets of such Subsidiary at the time of such redesignation; and
(2) any property transferred to or from an Unrestricted
Subsidiary shall be valued at its fair market value at the time of such
transfer, in each case as determined in good faith by the Board of
Directors.
"Issue Date" means July 22, 2003.
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions are not required to be open in the State of New York.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any conditional sale or other
title retention agreement or lease in the nature thereof).
"Mortgage" means a mortgage, deed of trust, deed to secure
debt, assignment of leases and rents, leasehold mortgage, land charge or other
security document granting a Lien on any Mortgaged Property to secure the
Security Obligations of the Company or the applicable Subsidiary Guarantor. Each
21
Mortgage shall be satisfactory in form and substance to the Collateral Agent.
"Mortgaged Property" means, initially, each parcel of real
property and the improvements thereto owned by the Company or any Subsidiary
Guarantor and identified on Schedule IV to the Collateral Agreement and includes
each other parcel of real property and improvements thereto with respect to
which a Mortgage is granted pursuant to this Indenture.
"Net Available Cash" from an Asset Disposition means cash
payments received therefrom (including any cash payments received by way of
deferred payment of principal pursuant to a note or installment receivable or
otherwise and proceeds from the sale or other disposition of any securities
received as consideration, but only as and when received, but excluding any
other consideration received in the form of assumption by the acquiring Person
of Indebtedness or other obligations relating to such properties or assets or
received in any other non-cash form), in each case net of:
(1) all legal, title and recording tax expenses, commissions
and other fees and expenses incurred, and all Federal, state,
provincial, foreign and local taxes required to be accrued as a
liability under GAAP, as a consequence of such Asset Disposition;
(2) all payments made on any Indebtedness which is secured by
any assets subject to such Asset Disposition, in accordance with the
terms of any Lien upon or other security agreement of any kind with
respect to such assets, or which must by its terms, or in order to
obtain a necessary consent to such Asset Disposition, or by applicable
law, be repaid out of the proceeds from such Asset Disposition;
(3) all distributions and other payments required to be made
to minority interest holders in Restricted Subsidiaries as a result of
such Asset Disposition;
(4) the deduction of appropriate amounts provided by the
seller as a reserve, in accordance with GAAP, against any liabilities
associated with the property or other assets disposed in such Asset
Disposition and retained by the Company or any Restricted Subsidiary
22
after such Asset Disposition; and
(5) any portion of the purchase price from an Asset
Disposition placed in escrow, whether as a reserve for adjustment of
the purchase price, for satisfaction of indemnities in respect of such
Asset Disposition or otherwise in connection with that Asset
Disposition; PROVIDED, HOWEVER, that upon the termination of that
escrow, Net Available Cash will be increased by any portion of funds in
the escrow that are released to the Company or any Restricted
Subsidiary.
"Net Cash Proceeds", with respect to any issuance or sale of
Capital Stock or Indebtedness, means the cash proceeds of such issuance or sale
net of attorneys' fees, accountants' fees, underwriters' or placement agents'
fees, discounts or commissions and brokerage, consultant and other fees actually
incurred in connection with such issuance or sale and net of taxes paid or
payable as a result thereof.
"Obligations" means with respect to any Indebtedness, all
obligations for principal, premium, interest, penalties, fees, indemnifications,
reimbursements, and other amounts payable pursuant to the documentation
governing such Indebtedness.
"Offering Circular" means the offering circular dated July 15,
2003, used in connection with the sale of the Initial Securities.
"Officer" means the Chief Executive Officer, the President,
any Vice President, the Treasurer or the Secretary of the Company.
"Officers' Certificate" means a certificate signed by two
Officers.
"Opinion of Counsel" means a written opinion from legal
counsel who is reasonably acceptable to the Trustee. The counsel may be an
employee of or counsel to the Company or the Trustee.
"Perfection Certificate" means the perfection certificate
delivered by the Company to the Collateral Agent on the Issue Date.
23
"Permitted Investment" means an Investment by the Company or
any Restricted Subsidiary in:
(1) the Company, a Restricted Subsidiary or a Person that
will, upon the making of such Investment, become a Restricted
Subsidiary; PROVIDED, HOWEVER, that the primary business of such
Restricted Subsidiary is a Related Business;
(2) another Person, if as a result of such Investment, such
other Person is merged or consolidated with or into, or transfers or
conveys all or substantially all its assets to, the Company or a
Restricted Subsidiary; PROVIDED, HOWEVER, that such Person's primary
business is a Related Business;
(3) cash and Temporary Cash Investments;
(4) receivables owing to the Company or any Restricted
Subsidiary if created or acquired in the ordinary course of business
and payable or dischargeable in accordance with customary trade terms;
PROVIDED, HOWEVER, that such trade terms may include such concessionary
trade terms as the Company or any such Restricted Subsidiary deems
reasonable under the circumstances;
(5) payroll, travel and similar advances to cover matters that
are expected at the time of such advances ultimately to be treated as
expenses for accounting purposes and that are made in the ordinary
course of business;
(6) loans or advances to employees made in the ordinary course
of business consistent with past practices of the Company or such
Restricted Subsidiary;
(7) stock, obligations or securities received in settlement of
debts created in the ordinary course of business and owing to the
Company or any Restricted Subsidiary or in satisfaction of judgments;
(8) any Person to the extent such Investment represents the
non-cash portion of the consideration received for an Asset Disposition
as permitted pursuant to Section 4.06;
24
(9) any Person where such Investment was acquired by the
Company or any of its Restricted Subsidiaries (a) in exchange for any
other Investment or accounts receivable held by the Company or any such
Restricted Subsidiary in connection with or as a result of a
bankruptcy, workout, reorganization or recapitalization of the issuer
of such other Investment or accounts receivable or (b) as a result of a
foreclosure by the Company or any of its Restricted Subsidiaries with
respect to any secured Investment or other transfer of title with
respect to any secured Investment in default;
(10) any Person to the extent such Investments consist of
prepaid expenses, negotiable instruments held for collection and lease,
utility and workers' compensation, performance and other similar
deposits made in the ordinary course of business by the Company or any
Restricted Subsidiary;
(11) any Person to the extent such Investments consist of
Hedging Obligations otherwise permitted under Section 4.03;
(12) Persons to the extent such Investments are in existence
on the Issue Date;
(13) any Investment by the Company or a Restricted Subsidiary
in a Receivables Subsidiary, or any Investment by a Receivables
Subsidiary in another Person, in each case in connection with a
Qualified Receivables Transaction; PROVIDED, HOWEVER, that such
Investment is in the form of a purchase money note or an equity
interest; and
(14) Persons to the extent such Investments, when taken
together with all other Investments made pursuant to this clause (14)
outstanding on the date such Investment is made, do not exceed $15.0
million.
"Permitted Liens" means, with respect to any Person:
(1) pledges or deposits by such Person under worker's
compensation laws, unemployment insurance laws or similar legislation,
or good faith deposits in connection with bids, tenders, contracts
(other than for the payment of Indebtedness) or leases to which such
25
Person is a party, or deposits to secure public or statutory
obligations of such Person or deposits of cash or United States
government bonds to secure surety or appeal bonds to which such Person
is a party, or deposits as security for contested taxes or import
duties or for the payment of rent, in each case Incurred in the
ordinary course of business;
(2) Liens imposed by law, such as carriers', warehousemen's
and mechanics' Liens, in each case for sums not yet due or being
contested in good faith by appropriate proceedings or other Liens
arising out of judgments or awards against such Person with respect to
which such Person shall then be proceeding with an appeal or other
proceedings for review and Liens arising solely by virtue of any
statutory or common law provision relating to banker's Liens, rights of
set-off or similar rights and remedies as to deposit accounts or other
funds maintained with a creditor depository institution; PROVIDED,
HOWEVER, that (A) such deposit account is not a dedicated cash
collateral account and is not subject to restrictions against access by
the Company in excess of those set forth by regulations promulgated by
the Federal Reserve Board and (B) such deposit account is not intended
by the Company or any Restricted Subsidiary to provide collateral to
the depository institution;
(3) Liens for property taxes not yet subject to penalties for
non-payment or which are being contested in good faith by appropriate
proceedings;
(4) Liens in favor of issuers of surety bonds or letters of
credit issued pursuant to the request of and for the account of such
Person in the ordinary course of its business; PROVIDED, HOWEVER, that
such letters of credit do not constitute Indebtedness;
(5) minor survey exceptions, minor encumbrances, easements or
reservations of, or rights of others for, licenses, rights-of-way,
sewers, electric lines, telegraph and telephone lines and other similar
purposes, or zoning or other restrictions as to the use of real
property or Liens incidental to the conduct of the business of such
Person or to the ownership of its properties which were not Incurred in
connection with Indebtedness and which do not in the aggregate
materially adversely affect the value of said properties or materially
26
impair their use in the operation of the business of such Person;
(6) Liens securing Indebtedness Incurred to finance the
construction, purchase or lease of, or repairs, improvements or
additions to, property, plant or equipment of such Person; PROVIDED,
HOWEVER, that the Lien may not extend to any other property owned by
such Person or any of its Restricted Subsidiaries at the time the Lien
is Incurred (other than assets and property affixed or appurtenant
thereto), and the Indebtedness (other than any interest thereon)
secured by the Lien may not be Incurred more than 180 days after the
later of the acquisition, completion of construction, repair,
improvement, addition or commencement of full operation of the property
subject to the Lien;
(7) Liens to secure Indebtedness Incurred pursuant to and in
compliance with Section 4.03(b)(1);
(8) Liens existing on the Issue Date (other than Liens subject
to clause (7) of this definition);
(9) Liens on property or shares of Capital Stock of another
Person at the time such other Person becomes a Subsidiary of such
Person; PROVIDED, HOWEVER, that the Liens may not extend to any other
property owned by such Person or any of its Restricted Subsidiaries
(other than assets and property affixed or appurtenant thereto);
(10) Liens on property at the time such Person or any of its
Subsidiaries acquires the property, including any acquisition by means
of a merger or consolidation with or into such Person or a Subsidiary
of such Person; PROVIDED, HOWEVER, that the Liens may not extend to any
other property owned by such Person or any of its Restricted
Subsidiaries (other than assets and property affixed or appurtenant
thereto);
(11) Liens securing Indebtedness or other obligations of a
Subsidiary of such Person owing to such Person or a Restricted
Subsidiary of such Person;
(12) Liens securing Hedging Obligations so long as such
Hedging Obligations relate to Indebtedness that is, and is permitted to
27
be under this Indenture, secured by a Lien on the same property
securing such Hedging Obligations;
(13) Liens to secure Indebtedness of a Foreign Subsidiary
Incurred pursuant to Section 4.03(b)(12); PROVIDED, HOWEVER, that such
Liens shall be limited to the property or assets of such Foreign
Subsidiary and shall in no event extend to any property or assets of
the Company or any Subsidiary Guarantor;
(14) Liens to secure any Refinancing (or successive
Refinancings) as a whole, or in part, of any Indebtedness secured by
any Lien referred to in the foregoing clause (6), (8), (9) or (10);
PROVIDED, HOWEVER, that (A) such new Lien shall be limited to all or
part of the same property and assets that secured or, under the written
agreements pursuant to which the original Lien arose, could secure the
original Lien (plus improvements and accessions to such property or
proceeds or distributions thereof) and (B) the Indebtedness secured by
such Lien at such time is not increased to any amount greater than the
sum of (i) the outstanding principal amount or, if greater, committed
amount of the Indebtedness described under clause (6), (8), (9) or (10)
at the time the original Lien became a Permitted Lien and (ii) an
amount necessary to pay any fees and expenses, including premiums,
related to such refinancing, refunding, extension, renewal or
replacement;
(15) Liens on accounts receivable and assets related thereto,
if any, in connection with a Qualified Receivables Transaction incurred
in compliance with Section 4.03(b)(11); and
(16) Liens upon the Collateral securing the Securities.
Notwithstanding the foregoing, "Permitted Liens" will not include any Lien
described in clause (6), (9) or (10) above to the extent such Lien applies to
any Additional Assets acquired directly or indirectly from Net Available Cash
pursuant to Section 4.06. For purposes of this definition, the term
"Indebtedness" shall be deemed to include interest on such Indebtedness.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
28
trust, unincorporated organization, government or any agency or political
subdivision thereof or any other entity.
"Preferred Stock", as applied to the Capital Stock of any
Person, means Capital Stock of any class or classes (however designated) which
is preferred as to the payment of dividends or distributions, or as to the
distribution of assets upon any voluntary or involuntary liquidation or
dissolution of such Person, over shares of Capital Stock of any other class of
such Person.
"principal" of a Security means the principal of the Security
plus the premium, if any, payable on the Security which is due or overdue or is
to become due at the relevant time.
"Public Equity Offering" means an underwritten primary public
offering of common stock of the Company pursuant to an effective registration
statement under the Securities Act.
"Qualified Receivables Transaction" means any transaction or
series of transactions entered into by the Company or any of its Restricted
Subsidiaries pursuant to which the Company or any of its Restricted Subsidiaries
sells, conveys or otherwise transfers pursuant to customary terms to (i) a
Receivables Subsidiary (in the case of a transfer by the Company or any of its
Restricted Subsidiaries) and (ii) any other Person (in the case of a transfer by
a Receivables Subsidiary), or grants a security interest in, any accounts
receivable (whether now existing or arising in the future) of the Company or any
of its Restricted Subsidiaries, and any assets related thereto, including all
collateral securing such accounts receivable, all contracts and all guarantees
or other obligations in respect of such accounts receivable, proceeds of such
accounts receivable and other assets which are customarily transferred or in
respect of which security interests are customarily granted in connection with
asset securitization transactions involving accounts receivable.
"Receivables Subsidiary" means a domestic Subsidiary of the
Company which engages in no activities other than in connection with the
financing of accounts receivable and which is designated by the Board of
Directors of the Company (as provided below) as a Receivables Subsidiary (a) no
portion of the Indebtedness or any other Obligations (contingent or otherwise)
29
of which (i) is Guaranteed by the Company or any of its Restricted Subsidiaries
(but excluding customary representations, warranties, covenants and indemnities
entered into in the ordinary course of business in connection with a Qualified
Receivables Transaction), (ii) is recourse to or obligates the Company or any of
its Restricted Subsidiaries in any way other than pursuant to customary
representations, warranties, covenants and indemnities entered into in
connection with a Qualified Receivables Transaction or (iii) subjects any
property or asset of the Company or any of its Restricted Subsidiaries, directly
or indirectly, contingently or otherwise, to the satisfaction thereof, other
than pursuant to customary representations, warranties, covenants and
indemnities entered into in the ordinary course of business in connection with a
Qualified Receivables Transaction, (b) with which neither the Company nor any of
its Restricted Subsidiaries has any material contract, agreement, arrangement or
understanding other than on terms no less favorable to the Company or such
Restricted Subsidiary than those that might be obtained at the time from Persons
who are not Affiliates of the Company, other than fees payable in the ordinary
course of business in connection with servicing accounts receivable of such
entity and (c) to which neither the Company nor any of its Restricted
Subsidiaries has any obligation to maintain or preserve such Subsidiary's
financial condition or cause such Subsidiary to achieve certain levels of
operating results. Any such designation by the Board of Directors of the Company
will be evidenced to the Trustee by filing with the Trustee a certified copy of
the resolution of the Board of Directors of the Company giving effect to such
designation and an Officer's Certificate certifying that such designation
complied with the foregoing conditions.
"Refinance" means, in respect of any Indebtedness, to
refinance, extend, renew, refund, repay, prepay, redeem, purchase, defease or
retire, or to issue other Indebtedness in exchange or replacement for, such
Indebtedness. "Refinanced" and "Refinancing" shall have correlative meanings.
"Refinancing Indebtedness" means Indebtedness that Refinances
any Indebtedness of the Company or any Restricted Subsidiary existing on the
Issue Date or Incurred in compliance with this Indenture, including Indebtedness
30
that Refinances Refinancing Indebtedness; PROVIDED, HOWEVER, that:
(1) such Refinancing Indebtedness has a Stated Maturity no
earlier than the Stated Maturity of the Indebtedness being Refinanced;
(2) such Refinancing Indebtedness has an Average Life at the
time such Refinancing Indebtedness is Incurred that is equal to or
greater than the Average Life of the Indebtedness being Refinanced;
(3) such Refinancing Indebtedness has an aggregate principal
amount (or if Incurred with original issue discount, an aggregate issue
price) that is equal to or less than the aggregate principal amount (or
if Incurred with original issue discount, the aggregate accreted value)
then outstanding or committed (plus fees and expenses, including any
premium and defeasance costs) under the Indebtedness being Refinanced;
and
(4) if the Indebtedness being Refinanced is subordinated in
right of payment to the Securities, such Refinancing Indebtedness is
subordinated in right of payment to the Securities at least to the same
extent as the Indebtedness being Refinanced;
PROVIDED FURTHER, HOWEVER, that Refinancing Indebtedness shall not include (A)
Indebtedness of a Subsidiary that is not a Subsidiary Guarantor that Refinances
Indebtedness of the Company or (B) Indebtedness of the Company or a Restricted
Subsidiary that Refinances Indebtedness of an Unrestricted Subsidiary.
"Registration Rights Agreement" means the Registration Rights
Agreement dated July 15, 2003, among the Company, the Subsidiary Guarantors and
the Initial Purchasers.
"Related Business" means any business in which the Company or
any of the Restricted Subsidiaries was engaged on the Issue Date and any
business related, ancillary or complementary to such business.
"Restricted Payment" with respect to any Person means:
31
(1) the declaration or payment of any dividends or any other
distributions of any sort in respect of its Capital Stock (including
any payment in connection with any merger or consolidation involving
such Person) or similar payment to the direct or indirect holders of
its Capital Stock (other than dividends or distributions payable solely
in its Capital Stock (other than Disqualified Stock) and dividends or
distributions payable solely to the Company or a Restricted Subsidiary,
and other than pro rata dividends or other distributions made by a
Subsidiary that is not a Wholly Owned Subsidiary to minority
stockholders (or owners of an equivalent interest in the case of a
Subsidiary that is an entity other than a corporation));
(2) the purchase, redemption or other acquisition or
retirement for value of any Capital Stock of the Company held by any
Person or of any Capital Stock of a Restricted Subsidiary held by any
Affiliate of the Company (other than a Restricted Subsidiary),
including in connection with any merger or consolidation and including
the exercise of any option to exchange any Capital Stock (other than
into Capital Stock of the Company that is not Disqualified Stock);
(3) the purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value, prior to scheduled maturity,
scheduled repayment or scheduled sinking fund payment of any
Subordinated Obligations of the Company or any Subsidiary Guarantor
(other than the purchase, repurchase, or other acquisition of
Subordinated Obligations purchased in anticipation of satisfying a
sinking fund obligation, principal installment or final maturity, in
each case due within one year of the date of such purchase, repurchase
or other acquisition); or
(4) the making of any Investment (other than a Permitted
Investment) in any Person.
"Restricted Subsidiary" means any Subsidiary of the Company
that is not an Unrestricted Subsidiary.
"Sale/Leaseback Transaction" means an arrangement relating to
property owned by the Company or a Restricted Subsidiary on the Issue Date or
32
thereafter acquired by the Company or a Restricted Subsidiary whereby the
Company or a Restricted Subsidiary transfers such property to a Person and the
Company or a Restricted Subsidiary leases it from such Person.
"SEC" means the U.S. Securities and Exchange Commission.
"Secured Parties" means (a) the Trustee, (b) the Collateral
Agent, (c) each Securityholder, (d) the beneficiaries of each indemnification
obligation undertaken by the Company or any Subsidiary Guarantor under any
Security Document and (e) the successors and assigns of each of the foregoing.
"Securities" means the Securities issued under this Indenture.
"Securities Act" means the U.S. Securities Act of 1933, as
amended.
"Security Documents" means the Collateral Agreement, the
Mortgages, any agreements pursuant to which assets are added to the Collateral
and any other instruments or documents entered into or delivered in connection
with any of the foregoing, as such agreements, instruments or documents may from
time to time be amended.
"Security Obligations" means (a) the due and punctual payment
by the Company of (i) the Obligations and (ii) all other monetary obligations of
the Company to any Secured Parties, in each case under this Indenture, the
Securities and each of the Security Documents, including obligations to pay
fees, expense reimbursement obligations and indemnification obligations, whether
primary, secondary, direct, contingent, fixed or otherwise (including, monetary
obligations incurred during the pendency of any bankruptcy, insolvency,
receivership, other similar proceeding, regardless of whether allowed or
allowable in such proceeding), (b) the due and punctual performance of all other
obligations of the Company under or pursuant to this Indenture, the Securities
and each of the Security Documents and (c) the due and punctual payment and
performance of all the obligations of each Subsidiary Guarantor under or
pursuant to the Indenture, the Subsidiary Guarantees and each of the Security
Documents.
33
"Senior Indebtedness" means with respect to any Person:
(1) Indebtedness of such Person, whether outstanding on the
Issue Date or thereafter Incurred; and
(2) all other Obligations of such Person (including interest
accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to such Person whether or not post-filing
interest is allowed in such proceeding) in respect of Indebtedness
described in clause (1) above,
unless, in the case of clauses (1) and (2), in the instrument creating or
evidencing the same or pursuant to which the same is outstanding it is provided
that such Indebtedness or other Obligations are subordinate in right of payment
to the Securities or the Subsidiary Guarantee of such Person, as the case may
be; PROVIDED, HOWEVER, that Senior Indebtedness shall not include:
(1) any obligation of such Person to the Company or any
Subsidiary;
(2) any liability for Federal, state, local or other taxes
owed or owing by such Person;
(3) any accounts payable or other liability to trade creditors
arising in the ordinary course of business (including guarantees
thereof or instruments evidencing such liabilities);
(4) any Indebtedness or other Obligation of such Person which
is subordinate or junior in any respect to any other Indebtedness or
other Obligation of such Person; or
(5) that portion of any Indebtedness which at the time of
Incurrence is Incurred in violation of this Indenture.
"Senior Leverage Ratio" means, as of any date of
determination, the ratio of (a) the consolidated Senior Indebtedness of the
Company and its Restricted Subsidiaries outstanding on such date to (b) the
aggregate amount of EBITDA for the period of the most recent four consecutive
fiscal quarters ending on or prior to such date.
34
"Significant Subsidiary" means any Restricted Subsidiary that
would be a "Significant Subsidiary" of the Company within the meaning of Rule
1-02 under Regulation S-X promulgated by the SEC.
"Specified Assets" means the assets primarily related to the
businesses of the Univeyor A/S and Societe D'Exploitation Des Raccords Gautier
Subsidiaries of the Company, the Larco Industrial Services, Ltd. Subsidiary of
Crane Equipment & Service, Inc., the American Lifts and Xxxx-Xxxxxx divisions of
Yale Industrial Products, Inc., and the Positech, Lister Chain & Forge and CM
Shredder divisions of the Company.
"Specified Permitted Liens" means Permitted Liens, other than
any Liens described in clause (11), (13) or (14) of the definition of Permitted
Liens.
"Stated Maturity" means, with respect to any security, the
date specified in such security as the fixed date on which the final payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the
happening of any contingency unless such contingency has occurred).
"Subordinated Obligation" means, with respect to a Person, any
Indebtedness of such Person (whether outstanding on the Issue Date or thereafter
Incurred) which is subordinate or junior in right of payment to the Securities
or a Subsidiary Guarantee of such Person, as the case may be, pursuant to a
written agreement to that effect.
"Subsidiary" means, with respect to any Person, any
corporation, association, partnership or other business entity of which more
than 50% of the total voting power of shares of Voting Stock is at the time
owned or controlled, directly or indirectly, by (1) such Person, (2) such Person
and one or more Subsidiaries of such Person or (3) one or more Subsidiaries of
such Person.
"Subsidiary Guarantors" means, collectively, Audubon Europe
S.ar.l., Audubon West, Inc., Crane Equipment & Service, Inc., Yale Industrial
Products, Inc. and each other Subsidiary of the Company that hereafter
guarantees the Securities pursuant to the terms of this Indenture. Each of the
35
foregoing individually is a "Subsidiary Guarantor".
"Subsidiary Guarantee" means a Guarantee by a Subsidiary
Guarantor of the Company's obligations with respect to the Securities.
"Temporary Cash Investments" means any of the following:
(1) any investment in direct obligations of the United States
of America or any agency thereof or obligations guaranteed by the
United States of America or any agency thereof;
(2) investments in demand and time deposit accounts,
certificates of deposit and money market deposits maturing within 180
days of the date of acquisition thereof issued by a bank or trust
company which is organized under the laws of the United States of
America, any State thereof or any foreign country recognized by the
United States of America, and which bank or trust company has capital,
surplus and undivided profits aggregating in excess of $50.0 million
(or the foreign currency equivalent thereof) and has outstanding debt
which is rated "A" (or such similar equivalent rating) or higher by at
least one nationally recognized statistical rating organization (as
defined in Rule 436 under the Securities Act) or any money-market fund
sponsored by a registered broker dealer or mutual fund distributor;
(3) repurchase obligations with a term of not more than 30
days for underlying securities of the types described in clause (1)
above entered into with a bank meeting the qualifications described in
clause (2) above;
(4) investments in commercial paper, maturing not more than 90
days after the date of acquisition, issued by a corporation (other than
an Affiliate of the Company) organized and in existence under the laws
of the United States of America or any foreign country recognized by
the United States of America with a rating at the time as of which any
investment therein is made of "P-1" (or higher) according to Xxxxx'x
Investors Service, Inc. or "A-1" (or higher) according to Standard &
Poor's Ratings Group; and
36
(5) investments in securities with maturities of six months or
less from the date of acquisition issued or fully guaranteed by any
state, commonwealth or territory of the United States of America, or by
any political subdivision or taxing authority thereof, and rated at
least "A" by Standard & Poor's Ratings Group or "A" by Xxxxx'x
Investors Service, Inc.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. xx.xx.
77aaa-77bbbb) as in effect on the date of this Indenture.
"Trustee" means the party named as such in this Indenture
until a successor replaces it 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.
"Uniform Commercial Code" means the New York Uniform
Commercial Code as in effect from time to time.
"Unrestricted Subsidiary" means:
(1) any Subsidiary of the Company that at the time of
determination shall be designated an Unrestricted Subsidiary by the
Board of Directors in the manner provided below; and
(2) any Subsidiary of an Unrestricted Subsidiary.
The Board of Directors may designate any Subsidiary of the Company (including
any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary
unless such Subsidiary or any of its Subsidiaries owns any Capital Stock or
Indebtedness of, or holds any Lien on any property of, the Company or any other
Subsidiary of the Company that is not a Subsidiary of the Subsidiary to be so
designated; PROVIDED, HOWEVER, that either (A) the Subsidiary to be so
designated has total assets of $1,000 or less or (B) if such Subsidiary has
assets greater than $1,000, such designation would be permitted under Section
4.04. The Board of Directors may designate any Unrestricted Subsidiary to be a
Restricted Subsidiary; PROVIDED, HOWEVER, that immediately after giving effect
37
to such designation (A) the Company could Incur $1.00 of additional Indebtedness
under Section 4.03(a) and (B) no Default shall have occurred and be continuing.
Any such designation by the Board of Directors shall be evidenced to the Trustee
by promptly filing with the Trustee a copy of the resolution of the Board of
Directors giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the foregoing provisions.
"U.S. Dollar Equivalent" means with respect to any monetary
amount in a currency other than U.S. dollars, at any time for determination
thereof, the amount of U.S. dollars obtained by converting such foreign currency
involved in such computation into U.S. dollars at the spot rate for the purchase
of U.S. dollars with the applicable foreign currency as published in THE WALL
STREET JOURNAL in the "Exchange Rates" column under the heading "Currency
Trading" on the date two Business Days prior to such determination.
Except as described in Section 4.03, whenever it is necessary
to determine whether the Company has complied with any provision in this
Indenture or a Default has occurred and an amount is expressed in a currency
other than U.S. dollars, such amount will be treated as the U.S. Dollar
Equivalent determined as of the date such amount is initially determined in such
currency.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable at the issuer's option.
"Voting Stock" of a Person means all classes of Capital Stock
of such Person then outstanding and normally entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers or
trustees thereof.
"Wholly Owned Subsidiary" means a Restricted Subsidiary all
the Capital Stock of which (other than directors' qualifying shares) is owned by
the Company or one or more other Wholly Owned Subsidiaries.
38
SECTION 1.02 OTHER DEFINITIONS.
Defined in
TERM Section
---- -------
"Affiliate Transaction"....................................... 4.07(a)
"Bankruptcy Law".............................................. 6.01
"Change of Control Offer"..................................... 4.10(b)
"covenant defeasance option".................................. 8.01(b)
"Custodian"................................................... 6.01
"Event of Default"............................................ 6.01
"Guaranteed Obligations"...................................... 10.01
"legal defeasance option"..................................... 8.01(b)
"Offer"....................................................... 4.06(c)
"Offer Amount"................................................ 4.06(d)(2)
"Offer Period"................................................ 4.06(d)(2)
"Paying Agent"................................................ 2.03
"Purchase Date"............................................... 4.06(d)(1)
"Registrar"................................................... 2.03
"Successor Company"........................................... 5.01(a)(1)
"Trust Moneys"................................................ 12.01(a)(1)
SECTION 1.03 INCORPORATION BY REFERENCE OF TRUST INDENTURE
ACT. This Indenture is subject to the mandatory provisions of the TIA which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"Commission" means the SEC;
"indenture securities" means the Securities and the Subsidiary
Guarantees;
"indenture security holder" means a Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the indenture securities means the Company, each
Subsidiary Guarantor and any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule have
39
the meanings assigned to them by such definitions.
SECTION 1.04 RULES OF CONSTRUCTION. Unless the context
otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in the
plural include the singular;
(6) unsecured Indebtedness shall not be deemed to be
subordinate or junior to secured Indebtedness merely by virtue of its
nature as unsecured Indebtedness;
(7) secured Indebtedness shall not be deemed to be subordinate
or junior to any other secured Indebtedness merely because it has a
junior priority with respect to the same collateral;
(8) the principal amount of any noninterest bearing or other
discount security at any date shall be the principal amount thereof
that would be shown on a balance sheet of the issuer dated such date
prepared in accordance with GAAP;
(9) the principal amount of any Preferred Stock shall be (A)
the maximum liquidation value of such Preferred Stock or (B) the
maximum mandatory redemption or mandatory repurchase price with respect
to such Preferred Stock, whichever is greater; and
(10) all references to the date the Securities were originally
issued shall refer to the Issue Date.
SECTION 1.05 DESIGNATED SENIOR INDEBTEDNESS. For purposes of
the Existing Notes Indenture, the Securities and the Subsidiary Guarantees shall
constitute "Designated Senior Debt" (as such term is
40
defined in the Existing Notes Indenture) of the Company and the Subsidiary
Guarantors, as the case may be.
ARTICLE 2
The Securities
SECTION 2.01 FORM AND DATING. Provisions relating to the
Initial Securities, the Private Exchange Securities and the Exchange Securities
are set forth in the Rule 144A/Regulation S Appendix attached hereto (the
"Appendix") which is hereby incorporated in, and expressly made part of, this
Indenture. The Initial Securities and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit 1 to the Appendix
which is hereby incorporated in, and expressly made a part of, this Indenture.
The Exchange Securities, the Private Exchange Securities and the Trustee's
certificate of authentication shall be substantially in the form of Exhibit A,
which is hereby incorporated in and expressly made a part of this Indenture. The
Securities may have notations, legends or endorsements required by law, stock
exchange rule, agreements to which the Company is subject, if any, or usage
(provided that any such notation, legend or endorsement is in a form acceptable
to the Company). Each Security shall be dated the date of its authentication.
The terms of the Securities set forth in the Appendix and Exhibit A are part of
the terms of this Indenture.
SECTION 2.02 EXECUTION AND AUTHENTICATION. Two Officers shall
sign the Securities for the Company by manual or facsimile signature. The
Company's seal shall be impressed, affixed, imprinted or reproduced on the
Securities and may be in facsimile form.
If an Officer whose signature is on a Security no longer holds
that office at the time the Trustee authenticates the Security, the Security
shall be valid nevertheless.
A Security shall not be valid until an authorized signatory of
the Trustee manually signs the certificate of authentication on the Security.
The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
41
On the Issue Date, the Trustee shall authenticate and deliver
$115.0 million of 10% Senior Secured Notes due 2010 and, at any time from time
to time thereafter, the Trustee shall authenticate and deliver Securities for
original issue in an aggregate principal amount specified in such order, in each
case upon a written order of the Company signed by two Officers or by an Officer
and either an Assistant Treasurer or an Assistant Secretary of the Company. Such
order shall specify the amount of the Securities to be authenticated and the
date on which the original issue of Securities is to be authenticated and, in
the case of an issuance of Additional Securities pursuant to Section 2.13 after
the Issue Date, shall certify that such issuance is in compliance with Section
4.03.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate the 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 any Registrar, Paying Agent or agent
for service of notices and demands.
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 have one or more co-registrars and one or more additional paying
agents. The term "Paying Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency agreement
with any Registrar, Paying Agent or co-registrar not a party to this Indenture,
which shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall notify
the Trustee of the name and address of any such agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 7.07. The
Company or any Wholly Owned Subsidiary incorporated or organized within The
42
United States of America may act as Paying Agent, Registrar, co-registrar or
transfer agent.
The Company initially appoints the Trustee as Registrar and
Paying Agent in connection with the Securities.
SECTION 2.04 PAYING AGENT TO HOLD MONEY IN TRUST. Prior to
each due date of the principal and interest on any Security, the Company shall
deposit with the Paying Agent a sum sufficient to pay such principal and
interest when so becoming due. The Company shall require each Paying Agent
(other than the Trustee) to agree in writing that the Paying Agent shall hold in
trust for the benefit of Securityholders or the Trustee all money held by the
Paying Agent for the payment of principal of or interest on the Securities and
shall notify the Trustee of any default by the Company in making any such
payment. If the Company or a Subsidiary acts as Paying Agent, it shall segregate
the money held by it as Paying Agent and hold it as a separate trust fund. The
Company at any time may require a Paying Agent to pay all money held by it to
the Trustee and to account for any funds disbursed by the Paying Agent. Upon
complying with this Section, the Paying Agent shall have no further liability
for the money delivered to the Trustee.
SECTION 2.05 SECURITYHOLDER 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 Securityholders. If the Trustee is not the
Registrar, the Company shall furnish to the Trustee, in writing at least five
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of Securityholders.
SECTION 2.06 TRANSFER AND EXCHANGE. The Securities shall be
issued in registered form and shall be transferable only upon the surrender of a
Security for registration of transfer. When a Security is presented to the
Registrar or a co-registrar with a request to register a transfer, the Registrar
shall register the transfer as requested if the requirements of this Indenture
and Section 8-401(1) of the Uniform Commercial Code are met. When Securities are
presented to the Registrar or a co-registrar with a request to exchange them for
43
an equal principal amount of Securities of other denominations, the Registrar
shall make the exchange as requested if the same requirements are met.
SECTION 2.07 REPLACEMENT SECURITIES. If a mutilated Security
is surrendered to the Registrar or if the Holder of a Security claims that the
Security has been lost, destroyed or wrongfully taken, the Company shall issue
and the Trustee shall authenticate a replacement Security if the requirements of
Section 8-405 of the Uniform Commercial Code are met and the Holder satisfies
any other reasonable requirements of the Trustee. If required by the Trustee or
the Company, such Holder shall furnish an indemnity bond sufficient in the
judgment of the Company and the Trustee to protect the Company, the Trustee, the
Paying Agent, the Registrar and any co-registrar from any loss which any of them
may suffer if a Security is replaced. The Company and the Trustee may charge the
Holder for their expenses in replacing a Security.
Every replacement Security is an additional Obligation of the
Company.
SECTION 2.08 OUTSTANDING SECURITIES. Securities outstanding at
any time are all Securities authenticated by the Trustee except for those
canceled by it, those delivered to it for cancellation and those described in
this Section as not outstanding. A Security does not cease to be outstanding
because the Company or an Affiliate of the Company holds the Security.
If a Security is replaced pursuant to Section 2.07, it ceases
to be outstanding unless the Trustee and the Company receive proof satisfactory
to them that the replaced Security is held by a BONA FIDE purchaser.
If the Paying Agent segregates and holds in trust, in
accordance with this Indenture, on a redemption date or maturity date money
sufficient to pay all principal and interest payable on that date with respect
to the Securities (or portions thereof) to be redeemed or maturing, as the case
may be, then on and after that date such Securities (or portions thereof) cease
to be outstanding and interest on them ceases to accrue.
44
SECTION 2.09 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 shall authenticate definitive Securities
and deliver them in exchange for temporary Securities.
SECTION 2.10 CANCELLATION. The Company at any time may deliver
Securities to the Trustee for cancellation. The Registrar and the Paying Agent
shall forward to the Trustee any Securities surrendered to them for registration
of transfer, exchange or payment. The Trustee and no one else shall cancel and
destroy (subject to the record retention requirements of the Exchange Act) all
Securities surrendered for registration of transfer, exchange, payment or
cancellation and deliver a certificate of such destruction to the Company unless
the Company directs the Trustee to deliver canceled Securities to the Company.
The Company may not issue new Securities to replace Securities it has redeemed,
paid or delivered to the Trustee for cancellation.
SECTION 2.11 DEFAULTED INTEREST. If the Company defaults in a
payment of interest on the Securities, the Company shall pay defaulted interest
(plus interest on such defaulted interest to the extent lawful) in any lawful
manner. The Company may pay the defaulted interest to the persons who are
Securityholders on a subsequent special record date. The Company shall fix or
cause to be fixed any such special record date and payment date to the
reasonable satisfaction of the Trustee and shall promptly mail to each
Securityholder a notice that states the special record date, the payment date
and the amount of defaulted interest to be paid.
SECTION 2.12 CUSIP NUMBERS. The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use) and, if so, the
Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to
Holders; PROVIDED, HOWEVER, that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
45
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers.
SECTION 2.13 ISSUANCE OF ADDITIONAL SECURITIES. After the
Issue Date, the Company shall be entitled, subject to its compliance with
Section 4.03, to issue Additional Securities under this Indenture in an
aggregate principal amount of no greater than $50.0 million, which Securities
shall have identical terms as the Initial Securities issued on the Issue Date,
other than with respect to the date of issuance and issue price. All the
Securities issued under this Indenture shall be treated as a single class for
all purposes of this Indenture.
With respect to any Additional Securities, the Company shall
set forth in a resolution of the Board of Directors and an Officers'
Certificate, a copy of each of which shall be delivered to the Trustee, the
following information:
(1) the aggregate principal amount of such Additional
Securities to be authenticated and delivered pursuant to this Indenture
and the provision of Section 4.03 that the Company is relying on to
issue such Additional Securities;
(2) the issue price, the issue date and the CUSIP number of
such Additional Securities; PROVIDED, HOWEVER, that no Additional
Securities may be issued unless such Additional Securities are fungible
with the Initial Securities for U.S. federal income tax purposes; and
(3) whether such Additional Securities shall be Initial
Securities or shall be issued in the form of Exchange Securities as set
forth in Exhibit A.
ARTICLE 3
Redemption
SECTION 3.01 NOTICES TO TRUSTEE. If the Company elects to
redeem Securities pursuant to paragraph 5 of the Securities, it shall notify the
Trustee in writing of the redemption date, the principal amount of Securities to
be redeemed and the paragraph of the Securities pursuant to which the redemption
will occur.
46
The Company shall give each notice to the Trustee provided for
in this Section at least 60 days before the redemption date unless the Trustee
consents to a shorter period. Such notice shall be accompanied by an Officers'
Certificate and an Opinion of Counsel from the Company to the effect that such
redemption will comply with the conditions herein. SECTION 3.02 SELECTION OF
SECURITIES TO BE REDEEMED. If fewer than all the Securities are to be redeemed,
the Trustee shall select the Securities to be redeemed PRO RATA or by lot or by
a method that complies with applicable legal and securities exchange
requirements, if any, and that the Trustee in its sole discretion shall deem to
be fair and appropriate and in accordance with methods generally used at the
time of selection by fiduciaries in similar circumstances. The Trustee shall
make the selection from outstanding Securities not previously called for
redemption. The Trustee may select for redemption portions of the principal of
Securities that have denominations larger than $1,000. Securities and portions
of them the Trustee selects shall be in principal amounts of $1,000 or a whole
multiple of $1,000. Provisions of this Indenture that apply to Securities called
for redemption also apply to portions of Securities called for redemption. The
Trustee shall notify the Company promptly of the Securities or portions of
Securities to be redeemed.
SECTION 3.03 NOTICE OF REDEMPTION. At least 30 days but not
more than 60 days before a date for redemption of Securities, the Company shall
mail a notice of redemption by first-class mail to each Holder of Securities to
be redeemed at such Holder's registered address.
The notice shall identify the Securities to be redeemed and
shall state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
47
(5) if fewer than all the outstanding Securities are to be
redeemed, the identification and principal amounts of the particular
Securities to be redeemed;
(6) that, unless the Company defaults in making such
redemption payment, interest on Securities (or portion thereof) called
for redemption ceases to accrue on and after the redemption date; and
(7) 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 give the notice of
redemption in the Company's name and at the Company's expense. In such event,
the Company shall provide the Trustee with the information required by this
Section.
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 and at the redemption price stated in the notice. Upon
surrender to the Paying Agent, such Securities shall be paid at the redemption
price stated in the notice, plus accrued interest to the redemption date
(subject to the right of Holders of record on the relevant record date to
receive interest due on the related interest payment date). Failure to give
notice or any defect in the notice to any Holder shall not affect the validity
of the notice to any other Holder.
SECTION 3.05 DEPOSIT OF REDEMPTION PRICE. Prior to the
redemption date, the Company shall deposit with the Paying Agent (or, if the
Company or a Subsidiary is the Paying Agent, shall segregate and hold in trust)
money sufficient to pay the redemption price of and accrued interest on all
Securities to be redeemed on that date other than Securities or portions of
Securities called for redemption which have been delivered by the Company to the
Trustee for cancellation.
SECTION 3.06 SECURITIES REDEEMED IN PART. Upon surrender of a
Security that is redeemed in part, the Company shall execute 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.
48
ARTICLE 4
Covenants
SECTION 4.01 PAYMENT OF SECURITIES. The Company shall promptly
pay the principal of and interest on the Securities on the dates and in the
manner provided in the Securities and in this Indenture. Principal and interest
shall be considered paid on the date due if on such date the Trustee or the
Paying Agent holds in accordance with this Indenture money sufficient to pay all
principal and interest then due.
The Company shall pay interest on overdue principal at the
rate specified therefor in the Securities, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
SECTION 4.02 SEC REPORTS. Whether or not the Company is
subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, so long as any Securities are outstanding, the Company shall file with the
SEC (subject to the next sentence) and provide the Trustee and Holders with such
annual reports and other reports as are specified in Sections 13 and 15(d) of
the Exchange Act and applicable to a U.S. corporation subject to such Sections,
such reports to be so filed and provided at the times specified for the filings
of such reports under such Sections, and containing all the information, audit
reports and exhibits required for such reports. If, at any time, the Company is
not subject to the periodic reporting requirements of the Exchange Act for any
reason, the Company will nevertheless continue filing the reports specified in
the preceding sentence with the SEC within the time periods required unless the
SEC will not accept such a filing. The Company agrees that it will not take any
action for the purpose of causing the SEC not to accept such filings. If,
notwithstanding the foregoing, the SEC will not accept such filings for any
reason, the Company shall post the reports specified in the preceding sentence
on its website within the time periods that would apply if the Company were
required to file those reports with the SEC.
At any time that any of the Company's Subsidiaries are
Unrestricted Subsidiaries, then the quarterly and annual financial information
required by the preceding paragraph will include a reasonably detailed
49
presentation, either on the face of the financial statements or in the footnotes
thereto, of the financial condition and results of operations of the Company and
its Restricted Subsidiaries separate from the financial condition and results of
operations of the Unrestricted Subsidiaries of the Company.
In addition, the Company shall furnish to the Holders of the
Securities and to prospective investors, upon the requests of such Holders, any
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act so long as the Securities are not freely transferable under the
Securities Act. The Company also shall comply with the other provisions of TIA
ss. 314(a).
SECTION 4.03 LIMITATION ON INDEBTEDNESS. (a) The Company shall
not, and shall not permit any Restricted Subsidiary to, Incur, directly or
indirectly, any Indebtedness; PROVIDED, HOWEVER, that the Company and the
Subsidiary Guarantors shall be entitled to Incur Indebtedness if, on the date of
such Incurrence and after giving effect thereto on a PRO FORMA basis, the
Consolidated Coverage Ratio exceeds 2.0 to 1.
(b) Notwithstanding the foregoing paragraph (a), the Company
and the Restricted Subsidiaries shall be entitled to Incur any or all of the
following Indebtedness:
(1) Indebtedness Incurred by the Company and the Subsidiary
Guarantors pursuant to the Credit Agreement; PROVIDED, HOWEVER, that,
after giving effect to any such Incurrence, the aggregate principal
amount of all Indebtedness Incurred under this clause (b)(1) and then
outstanding, taken together with the aggregate principal amount of all
Indebtedness Incurred pursuant to clause (11) of this Section 4.03(b)
and then outstanding, does not in the aggregate exceed the greater of
(A) $90.0 million less the sum of all principal payments with respect
to such Indebtedness pursuant to Section 4.06(a)(3)(A) hereof and (B)
the sum of (i) 50% of the book value of the inventory of the Company
and the Subsidiary Guarantors and (ii) 85% of the book value of the
accounts receivable of the Company and the Subsidiary Guarantors,
determined in each case in accordance with GAAP;
50
(2) Indebtedness owed to and held by the Company or a
Restricted Subsidiary; PROVIDED, HOWEVER, that (A) any subsequent
issuance or transfer of any Capital Stock which results in any such
Restricted Subsidiary ceasing to be a Restricted Subsidiary or any
subsequent transfer of such Indebtedness (other than to the Company or
a Restricted Subsidiary) shall be deemed, in each case, to constitute
the Incurrence of such Indebtedness by the obligor thereon, (B) if the
Company is the obligor on such Indebtedness, such Indebtedness is
expressly subordinated to the prior payment in full in cash of all
obligations with respect to the Securities and (C) if a Subsidiary
Guarantor is the obligor on such Indebtedness, such Indebtedness is
expressly subordinated to the prior payment in full in cash of all
obligations of such obligor with respect to its Subsidiary Guarantee;
(3) the Securities (other than any Additional Securities);
(4) Indebtedness outstanding on the Issue Date (other than
Indebtedness described in clause (1), (2) or (3) of this Section
4.03(b));
(5) Indebtedness of a Restricted Subsidiary Incurred and
outstanding on or prior to the date on which such Subsidiary was
acquired by the Company (other than Indebtedness Incurred in connection
with, or to provide all or any portion of the funds or credit support
utilized to consummate, the transaction or series of related
transactions pursuant to which such Subsidiary became a Subsidiary or
was acquired by the Company); PROVIDED, HOWEVER, that on the date of
such acquisition and after giving PRO FORMA effect thereto, the Company
would have been able to Incur at least $1.00 of additional Indebtedness
pursuant to Section 4.03(a);
(6) Refinancing Indebtedness in respect of Indebtedness
Incurred pursuant to Section 4.03(a) or pursuant to clause (3), (4),
(5) or this clause (6); PROVIDED, HOWEVER, that to the extent such
Refinancing Indebtedness directly or indirectly Refinances Indebtedness
of a Subsidiary Incurred pursuant to clause (5), such Refinancing
Indebtedness shall be Incurred only by such Subsidiary;
51
(7) Hedging Obligations consisting of (i) Interest Rate
Agreements directly related to Indebtedness permitted to be Incurred by
the Company and its Restricted Subsidiaries pursuant to this Indenture
or (ii) Currency Agreements entered into to manage the foreign exchange
exposure of the Company and its Restricted Subsidiaries in the ordinary
course of business and not for speculative purposes;
(8) obligations in respect of performance, bid and surety
bonds and completion guarantees provided by the Company or any
Restricted Subsidiary in the ordinary course of business or pursuant to
self-insurance obligations in the ordinary course of business and not
in connection with the borrowing of money or the obtaining of advances
or credit;
(9) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument drawn
against insufficient funds in the ordinary course of business;
PROVIDED, HOWEVER, that such Indebtedness is extinguished within two
Business Days of its Incurrence;
(10) Indebtedness consisting of the Subsidiary Guarantee of a
Subsidiary Guarantor and any Guarantee by a Subsidiary Guarantor of
Indebtedness Incurred pursuant to Section 4.03(a) or pursuant to clause
(1), (2), (3) or (4) of this Section 4.03(b) or pursuant to clause (6)
of this Section 4.03(b) to the extent the Refinancing Indebtedness
Incurred thereunder directly or indirectly Refinances Indebtedness
Incurred pursuant to Section 4.03(a) or pursuant to clause (3) or (4)
of this Section 4.03(b);
(11) Indebtedness Incurred by a Receivables Subsidiary
pursuant to a Qualified Receivables Transaction; PROVIDED, HOWEVER,
that, after giving effect to any such Incurrence, the aggregate
principal amount of all Indebtedness Incurred under this clause (b)(11)
and then outstanding, taken together with the aggregate principal
amount of all Indebtedness Incurred under clause (1) of this Section
4.03(b) and then outstanding, does not in the aggregate exceed the
greater of (A) $90.0 million less the sum of all principal payments
with respect to the Indebtedness Incurred under clause (1) of this
Section 4.03(b) pursuant to Section 4.06(a)(3)(A) hereof and (B) the
52
sum of (i) 50% of the book value of the inventory of the Company and
the Subsidiary Guarantors and (ii) 85% of the book value of the
accounts receivable of the Company and the Subsidiary Guarantors,
determined in each case in accordance with GAAP;
(12) Indebtedness Incurred by a Foreign Subsidiary solely for
the working capital purposes of such Foreign Subsidiary in an aggregate
principal amount which, when taken together with all other Indebtedness
of Foreign Subsidiaries Incurred pursuant to this clause (12) and
outstanding on the date of such Incurrence, does not exceed $15.0
million;
(13) Capital Lease Obligations in an amount which, when taken
together with all other Indebtedness Incurred pursuant to this clause
(13) and outstanding on the date of such Incurrence, does not exceed
$10.0 million; and
(14) Indebtedness of the Company or of any of its Restricted
Subsidiaries in an aggregate principal amount which, when taken
together with all other Indebtedness of the Company and its Restricted
Subsidiaries outstanding on the date of such Incurrence (other than
Indebtedness permitted by clauses (1) through (13) above or Section
4.03(a)) does not exceed $15.0 million.
(c) Notwithstanding the foregoing, neither the Company nor any
Subsidiary Guarantor shall Incur any Indebtedness pursuant to Section 4.03(b) if
the proceeds thereof are used, directly or indirectly, to Refinance any
Subordinated Obligations of the Company or any Subsidiary Guarantor unless such
Indebtedness shall be subordinated to the Securities or to the applicable
Subsidiary Guarantee to at least the same extent as such Subordinated
Obligations.
(d) For purposes of determining compliance with this Section
4.03, (1) any Indebtedness remaining outstanding under the Credit Agreement
after the application of the net proceeds from the sale of the Securities will
be treated as Incurred on the Issue Date under clause (1) of paragraph (b)
above, (2) in the event that an item of Indebtedness (or any portion thereof)
meets the criteria of more than one of the types of Indebtedness described
herein, the Company, in its sole discretion, shall classify such item of
53
Indebtedness (or any portion thereof) at the time of Incurrence and shall only
be required to include the amount and type of such Indebtedness in one of the
above clauses and (3) the Company shall be entitled to divide and classify an
item of Indebtedness in more than one of the types of Indebtedness described
herein.
(e) For purposes of determining compliance with any
restriction on the Incurrence of Indebtedness where the Indebtedness Incurred is
denominated in a currency other than the U.S. dollar, the amount of such
Indebtedness shall be the U.S. Dollar Equivalent determined on the date of the
Incurrence of such Indebtedness; PROVIDED, HOWEVER, that if any such
Indebtedness denominated in a different currency is subject to a Currency
Agreement with respect to U.S. dollars covering all principal, premium, if any,
and interest payable on such Indebtedness, the amount of such Indebtedness
expressed in U.S. dollars shall be as provided in such Currency Agreement. The
principal amount of any Refinancing Indebtedness Incurred in the same currency
as the Indebtedness being Refinanced shall be the U.S. Dollar Equivalent of the
Indebtedness Refinanced, except to the extent that (1) such U.S. Dollar
Equivalent was determined based on a Currency Agreement, in which case the
Refinancing Indebtedness shall be determined in accordance with the preceding
sentence and (2) the principal amount of the Refinancing Indebtedness exceeds
the principal amount of the Indebtedness being Refinanced, in which case the
U.S. Dollar Equivalent shall be determined on the date such Refinancing
Indebtedness is Incurred.
SECTION 4.04 LIMITATION ON RESTRICTED PAYMENTS. (a) The
Company shall not, and shall not permit any Restricted Subsidiary to, directly
or indirectly, make a Restricted Payment if at the time the Company or such
Restricted Subsidiary makes such Restricted Payment:
(1) a Default shall have occurred and be continuing (or would
result therefrom);
(2) the Company is not entitled to Incur an additional $1.00
of Indebtedness under Section 4.03(a); or
(3) the aggregate amount of such Restricted Payment and all
54
other Restricted Payments since the Issue Date would exceed the sum of
(without duplication):
(A) 50% of the Consolidated Net Income accrued during
the period (treated as one accounting period) from the
beginning of the fiscal quarter immediately following the
fiscal quarter during which the Issue Date occurs to the end
of the most recent fiscal quarter ending at least 45 days
prior to the date of such Restricted Payment (or, in case such
Consolidated Net Income shall be a deficit, minus 100% of such
deficit); PLUS
(B) 100% of the aggregate Net Cash Proceeds received
by the Company from the issuance or sale of its Capital Stock
(other than Disqualified Stock) subsequent to the Issue Date
(other than an issuance or sale to a Subsidiary of the Company
and other than an issuance or sale to an employee stock
ownership plan or to a trust established by the Company or any
of its Subsidiaries for the benefit of their employees) and
100% of any cash capital contribution to common equity
received by the Company from its shareholders subsequent to
the Issue Date; PLUS
(C) the amount by which Indebtedness of the Company
is reduced on the Company's balance sheet upon the conversion
or exchange subsequent to the Issue Date of any Indebtedness
of the Company convertible or exchangeable for Capital Stock
(other than Disqualified Stock) of the Company (less the
amount of any cash, or the fair value of any other property,
distributed by the Company upon such conversion or exchange);
PROVIDED, HOWEVER, that the foregoing amount shall not exceed
the Net Cash Proceeds received by the Company or any
Restricted Subsidiary from the sale of such Indebtedness
(excluding Net Cash Proceeds from sales to a Subsidiary of the
Company or to an employee stock ownership plan or to a trust
established by the Company or any of its Subsidiaries for the
benefit of their employees); PLUS
(D) an amount equal to the sum of (i) the net
reduction in the Investments (other than Permitted
Investments) made by the Company or
55
any Restricted Subsidiary in any Person resulting from
repurchases, repayments or redemptions of such Investments by
such Person, proceeds realized on the sale of such Investment
and proceeds representing the return of capital (excluding
dividends and distributions), in each case received by the
Company or any Restricted Subsidiary and (ii) to the extent
such Person is an Unrestricted Subsidiary, the portion
(proportionate to the Company's equity interest in such
Subsidiary) of the fair market value of the net assets of such
Unrestricted Subsidiary at the time such Unrestricted
Subsidiary is designated a Restricted Subsidiary; PROVIDED,
HOWEVER, that the foregoing sum shall not exceed, in the case
of any such Person or Unrestricted Subsidiary, the amount of
Investments (excluding Permitted Investments) previously made
(and treated as a Restricted Payment) by the Company or any
Restricted Subsidiary in such Person or Unrestricted
Subsidiary.
(b) The provisions of Section 4.04(a) shall not prohibit:
(1) any Restricted Payment made out of the Net Cash Proceeds
of the substantially concurrent sale of, or made by exchange for,
Capital Stock of the Company (other than Disqualified Stock and other
than Capital Stock issued or sold to a Subsidiary of the Company or an
employee stock ownership plan or to a trust established by the Company
or any of its Subsidiaries for the benefit of their employees) or a
substantially concurrent cash capital contribution received by the
Company from its shareholders; PROVIDED, HOWEVER, that (A) such
Restricted Payment shall be excluded in the calculation of the amount
of Restricted Payments and (B) the Net Cash Proceeds from such sale or
such cash capital contribution (to the extent so used for such
Restricted Payment) shall be excluded from the calculation of amounts
under Section 4.04(a)(3)(B);
(2) any purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value of Subordinated Obligations of the
Company or any Subsidiary Guarantor made by exchange for, or out of the
proceeds of the substantially concurrent sale of, Subordinated
56
Indebtedness of such Person which is permitted to be Incurred pursuant
to Section 4.03; PROVIDED, HOWEVER, that such purchase, repurchase,
redemption, defeasance or other acquisition or retirement for value
shall be excluded in the calculation of the amount of Restricted
Payments;
(3) dividends paid within 60 days after the date of
declaration thereof if at such date of declaration such dividend would
have complied with this Section 4.04; PROVIDED, HOWEVER, that at the
time of payment of such dividend, no other Default shall have occurred
and be continuing (or result therefrom); PROVIDED FURTHER, HOWEVER,
that such dividend shall be included in the calculation of the amount
of Restricted Payments;
(4) so long as no Default has occurred and is continuing, the
repurchase or other acquisition of shares of Capital Stock of the
Company or any of its Subsidiaries from employees, former employees,
directors or former directors of the Company or any of its Subsidiaries
(or permitted transferees of such employees, former employees,
directors or former directors), pursuant to the terms of the agreements
(including employment agreements) or plans (or amendments thereto)
approved by the Board of Directors under which such individuals
purchase or sell or are granted the option to purchase or sell, shares
of such Capital Stock; PROVIDED, HOWEVER, that the aggregate amount of
such repurchases and other acquisitions shall not exceed $500,000 in
any calendar year; PROVIDED FURTHER, HOWEVER, that such repurchases and
other acquisitions shall be excluded in the calculation of the amount
of Restricted Payments;
(5) payments of dividends on Disqualified Stock permitted to
be issued pursuant Section 4.03; PROVIDED, HOWEVER, that at the time of
payment of such dividend, no Default shall have occurred and be
continuing (or result therefrom); PROVIDED FURTHER that such dividends
shall be excluded in the calculation of the amount of Restricted
Payments;
(6) repurchases of Capital Stock deemed to occur upon exercise
of stock options if such Capital Stock represents a portion of the
exercise price of such options; PROVIDED, HOWEVER, that such Restricted
57
Payments shall be excluded in the calculation of the amount of
Restricted Payments;
(7) payments in respect of the repurchase or other retirement
prior to maturity of the Existing Notes; PROVIDED, HOWEVER, that (i)
any repurchase or retirement of Existing Notes pursuant to this clause
(7) shall be at a price per Existing Note less than the par value of
the Existing Notes, (ii) the Senior Leverage Ratio, calculated on a PRO
FORMA basis giving effect to the making of such payment, shall not
exceed 3.25 to 1.00 and (iii) the aggregate amount of all such payments
(including all payments made from Net Available Cash of Asset
Dispositions of Specified Assets pursuant to the last paragraph of
Section 4.06(a)) made pursuant to this clause (7) shall not exceed
$35.0 million; PROVIDED FURTHER, HOWEVER, that such payments shall be
included in the calculation of the amount of Restricted Payments;
(8) payments in respect of the repurchase of Existing Notes
from the proceeds of, and substantially concurrently with, the issuance
of Securities on the Issue Date, PROVIDED, HOWEVER, that such payments
to repurchase Existing Notes shall be excluded in the calculation of
the amount of Restricted Payments; or
(9) payments not otherwise permitted by clauses (1) through
(8) of this Section 4.04(b) in an amount which, when taken together
with all payments made pursuant to this clause (9), do not exceed $5.0
million; PROVIDED, HOWEVER, that such payments shall be included in the
calculation of the amount of Restricted Payments.
SECTION 4.05 LIMITATION ON RESTRICTIONS ON DISTRIBUTIONS FROM
RESTRICTED SUBSIDIARIES. The Company shall not, and shall not permit any
Restricted Subsidiary to, create or otherwise cause or permit to exist or become
effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to (a) pay dividends or make any other distributions on
its Capital Stock to the Company or a Restricted Subsidiary or pay any
Indebtedness owed to the Company, (b) make any loans or advances to the Company
or (c) transfer any of its property or assets to the Company, except:
58
(1) with respect to clauses (a), (b) and (c),
(A) any encumbrance or restriction pursuant to an
agreement in effect at or entered into on the Issue Date;
(B) any encumbrance or restriction with respect to a
Restricted Subsidiary pursuant to an agreement relating to any
Indebtedness Incurred by such Restricted Subsidiary on or
prior to the date on which such Restricted Subsidiary was
acquired by the Company (other than Indebtedness Incurred as
consideration in, or to provide all or any portion of the
funds or credit support utilized to consummate, the
transaction or series of related transactions pursuant to
which such Restricted Subsidiary became a Restricted
Subsidiary or was acquired by the Company) and outstanding on
such date;
(C) any encumbrance or restriction pursuant to an
agreement effecting a Refinancing of Indebtedness Incurred
pursuant to an agreement referred to in Section 4.05(1)(A) or
this clause (C) or contained in any amendment to an agreement
referred to in Section 4.05(1)(A) or this clause (C);
PROVIDED, HOWEVER, that the encumbrances and restrictions with
respect to such Restricted Subsidiary contained in any such
refinancing agreement or amendment are no less favorable to
the Holders, taken as a whole, than the encumbrances and
restrictions with respect to such Restricted Subsidiary
contained in such predecessor agreements;
(D) any encumbrance or restriction with respect to a
Restricted Subsidiary imposed pursuant to an agreement entered
into for the sale or disposition of all or substantially all
the Capital Stock or assets of such Restricted Subsidiary
pending the closing of such sale or disposition; and
(E) any encumbrance or restriction pursuant to the
terms of any agreement entered into by a Receivables
Subsidiary in connection with any Qualified Receivables
59
Transaction; PROVIDED, HOWEVER, that such encumbrance or
restriction applies only to a Receivables Subsidiary; and
(2) with respect to clause (c) only,
(A) any encumbrance or restriction consisting of
customary nonassignment provisions in leases governing
leasehold interests to the extent such provisions restrict the
transfer of the lease or the property leased thereunder;
(B) any encumbrance or restriction contained in
security agreements or mortgages securing Indebtedness of a
Restricted Subsidiary to the extent such encumbrance or
restriction restricts the transfer of the property subject to
such security agreements or mortgages; and
(C) any encumbrance or restriction with respect to
property acquired by the Company or a Restricted Subsidiary in
effect at the time of such acquisition, so long as such
restriction or encumbrance relates solely to the property
acquired and was not created in anticipation of such
acquisition.
SECTION 4.06 LIMITATION ON SALES OF ASSETS AND SUBSIDIARY
STOCK. (a) The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, consummate any Asset Disposition unless:
(1) the Company or such Restricted Subsidiary receives
consideration at the time of such Asset Disposition at least equal to
the fair market value (including as to the value of all non-cash
consideration), as determined in good faith by the Board of Directors,
of the shares and assets subject to such Asset Disposition;
(2) at least 75% of the consideration thereof received by the
Company or such Restricted Subsidiary is in the form of cash or cash
equivalents; and
(3) an amount equal to 100% of the Net Available Cash from
such Asset Disposition is applied by the Company (or such Restricted
Subsidiary, as the case may be):
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(A) FIRST, to the extent the Company elects (or is
required by the terms of any Applicable Indebtedness), to
prepay, repay, redeem or purchase Applicable Indebtedness (in
each case other than Indebtedness owed to the Company or an
Affiliate of the Company) within one year from the later of
the date of such Asset Disposition or the receipt of such Net
Available Cash;
(B) SECOND, to the extent of the balance of such Net
Available Cash after application in accordance with clause
(A), to the extent the Company elects, to acquire Additional
Assets (PROVIDED that if the assets that were the subject of
such Asset Disposition constituted Collateral, then such
Additional Assets shall be pledged at the time of their
acquisition to the Trustee (or to the Collateral Agent on its
behalf) as Collateral for the benefit of the Holders, subject
to Specified Permitted Liens and the Intercreditor Agreement)
in each case within one year from the later of the date of
such Asset Disposition or the receipt of such Net Available
Cash; and
(C) THIRD, to the extent of the balance of such Net
Available Cash after application in accordance with clauses
(A) and (B), to make an offer to the Holders of the Securities
(and to holders of other Applicable Senior Indebtedness of the
Company designated by the Company) to purchase Securities (and
such other Applicable Senior Indebtedness of the Company)
pursuant to and subject to the conditions contained in Section
4.06(c);
PROVIDED, HOWEVER, that in connection with any prepayment, repayment or purchase
of Indebtedness pursuant to clause (A) or (C) above, the Company or such
Restricted Subsidiary shall permanently retire such Indebtedness and shall cause
the related loan commitment (if any) to be permanently reduced in an amount
equal to the principal amount so prepaid, repaid or purchased.
Notwithstanding the foregoing provisions of this Section 4.06,
unless the Asset Disposition involves the disposition of Collateral, the Company
and the Restricted Subsidiaries will not be required to apply any Net Available
61
Cash in accordance with this Section 4.06(a) except to the extent that the
aggregate Net Available Cash from all Asset Dispositions which is not applied in
accordance with this Section 4.06(a) exceeds $5.0 million. Pending application
of Net Available Cash pursuant to Section 4.06(a), such Net Available Cash shall
be invested in Temporary Cash Investments (which, if the assets that were the
subject of such Asset Disposition constituted Collateral, then such Temporary
Cash Investments shall be pledged to the Trustee (or to the Collateral Agent on
its behalf) as Collateral for the benefit of the Holders, subject to Specified
Permitted Liens and the Intercreditor Agreement, pending such application) or
applied to temporarily reduce revolving credit indebtedness that is Applicable
Indebtedness.
Notwithstanding clause (a)(3) of this Section 4.06, in the
event of any Asset Disposition of Specified Assets, the Company may apply the
Net Available Cash of such disposition of Specified Assets to the repurchase or
retirement of Existing Notes pursuant to clause (b)(7) of Section 4.04;
PROVIDED, HOWEVER, that (i) the Consolidated Coverage Ratio, determined on a PRO
FORMA basis after giving effect to such Asset Disposition and the use of
proceeds therefrom pursuant to this paragraph, is greater than the Consolidated
Coverage Ratio in effect immediately prior to such Asset Disposition and (ii)
the aggregate amount of all Net Available Cash applied pursuant to this sentence
shall not exceed $35.0 million. To the extent that any Net Available Cash of
Asset Dispositions of Specified Assets are not applied or are not permitted to
be applied as set forth in the foregoing sentence, such Net Available Cash shall
be applied as set forth in clause (a)(3) of this Section 4.06.
(b) For the purposes of this Section 4.06, the following are
deemed to be cash or cash equivalents:
(1) the assumption of Indebtedness of the Company
(other than obligations in respect of Disqualified Stock of
the Company) or any Restricted Subsidiary (other than
obligations in respect of Disqualified Stock or Preferred
Stock of a Subsidiary Guarantor) and the release of the
Company or such Restricted Subsidiary from all liability on
such Indebtedness in connection with such Asset Disposition;
and
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(2) securities received by the Company or any
Restricted Subsidiary from the transferee that are promptly
converted by the Company or such Restricted Subsidiary into
cash, to the extent of the cash received in that conversion.
(c) In the event of an Asset Disposition that requires an
offer to purchase Securities (and other Applicable Senior Indebtedness of the
Company) pursuant to Section (a)(3)(C) above, the Company shall purchase
Securities tendered pursuant to an offer by the Company for the Securities (and
such other Applicable Senior Indebtedness of the Company) (the "Offer") at a
purchase price of 100% of their principal amount (or, in the event such other
Applicable Senior Indebtedness of the Company was issued with significant
original issue discount, 100% of the accreted value thereof) without premium,
plus accrued but unpaid interest (or, in respect of such other Applicable Senior
Indebtedness of the Company, such lesser price, if any, as may be provided for
by the terms of such Applicable Senior Indebtedness) in accordance with the
procedures (including prorating in the event of oversubscription) set forth in
Section 4.06(d); PROVIDED that the procedures for making an offer to holders of
other Applicable Senior Indebtedness will be as provided for by the terms of
such Applicable Senior Indebtedness. In each case, if the aggregate purchase
price of the Indebtedness tendered pursuant to the Offer exceeds the Net
Available Cash allotted to their purchase, the Company shall select the
Indebtedness to be purchased on a PRO RATA basis but in round denominations,
which in the case of the Securities will be denominations of $1,000 principal
amount or multiples thereof. The Company shall not be required to make such an
Offer if the Net Available Cash available therefor (after application of such
proceeds as provided in clauses (a)(3)(A) and (a)(3)(B) of this Section 4.06, or
as provided in the last paragraph of Section 4.06(a)), is less than $5.0 million
(which lesser amount shall be carried forward for purposes of determining
whether such an Offer is required with respect to the Net Available Cash from
any subsequent Asset Disposition). Upon completion of such an Offer, Net
Available Cash will be deemed to be reduced by the aggregate amount of such
Offer. If any Net Available Cash remains after the completion of any such Offer,
the Company may use such Net Available Cash for any purpose not otherwise
prohibited by the Indenture.
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(d) (1) Promptly, and in any event within 10 days after the
Company becomes obligated to make an Offer, the Company shall deliver to the
Trustee and send, by first-class mail to each Holder, a written notice stating
that the Holder may elect to have his Securities purchased by the Company either
in whole or in part (subject to prorating as described in Section 4.06(c) in the
event the Offer is oversubscribed) in integral multiples of $1,000 of principal
amount, at the applicable purchase price. The notice shall specify a purchase
date not less than 30 days nor more than 60 days after the date of such notice
(the "Purchase Date") and shall contain such information concerning the business
of the Company which the Company in good faith believes will enable such Holders
to make an informed decision (which at a minimum will include (A) the most
recently filed Annual Report on Form 10-K (including audited consolidated
financial statements) of the Company, the most recent subsequently filed
Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the Company
filed subsequent to such Quarterly Report, other than Current Reports describing
Asset Dispositions otherwise described in the offering materials (or
corresponding successor reports), (B) a description of material developments in
the Company's business subsequent to the date of the latest of such Reports, and
(C) if material, appropriate PRO FORMA financial information) and all
instructions and materials necessary to tender Securities pursuant to the Offer,
together with the information contained in clause (3).
(2) Not later than the date upon which written notice of an
Offer is delivered to the Trustee as provided above, the Company shall
deliver to the Trustee an Officers' Certificate as to (A) the amount of
the Offer (the "Offer Amount"), including information as to any other
Applicable Senior Indebtedness included in the Offer, (B) the
allocation of the Net Available Cash from the Asset Dispositions
pursuant to which such Offer is being made and (C) the compliance of
such allocation with the provisions of Section 4.06(a) and (c). On such
date, the Company shall also irrevocably deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust) in Temporary Cash Investments,
64
maturing on the last day prior to the Purchase Date or on the Purchase
Date if funds are immediately available by open of business, an amount
equal to the Offer Amount to be held for payment in accordance with the
provisions of this Section. If the Offer includes other Applicable
Senior Indebtedness, the deposit described in the preceding sentence
may be made with any other paying agent pursuant to arrangements
satisfactory to the Trustee. Upon the expiration of the period for
which the Offer remains open (the "Offer Period"), the Company shall
deliver to the Trustee for cancellation the Securities or portions
thereof which have been properly tendered to and are to be accepted by
the Company. The Trustee shall, on the Purchase Date, mail or deliver
payment (or cause the delivery of payment) to each tendering Holder in
the amount of the purchase price. In the event that the aggregate
purchase price of the Securities delivered by the Company to the
Trustee is less than the Offer Amount applicable to the Securities, the
Trustee shall deliver the excess to the Company immediately after the
expiration of the Offer Period for application in accordance with this
Section 4.06.
(3) Holders electing to have a Security purchased shall be
required to surrender the Security, with an appropriate form duly
completed, to the Company at the address specified in the notice at
least three Business Days prior to the Purchase Date. Holders shall be
entitled to withdraw their election if the Trustee or the Company
receives not later than one Business Day prior to the Purchase Date, a
telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Security which was delivered for
purchase by the Holder and a statement that such Xxxxxx is withdrawing
his election to have such Security purchased. Holders whose Securities
are purchased only in part shall be issued new Securities equal in
principal amount to the unpurchased portion of the Securities
surrendered.
(4) At the time the Company delivers Securities to the Trustee
which are to be accepted for purchase, the Company shall also deliver
an Officers' Certificate stating that such Securities are to be
accepted by the Company pursuant to and in accordance with the terms of
65
this Section. A Security shall be deemed to have been accepted for
purchase at the time the Trustee, directly or through an agent, mails
or delivers payment therefor to the surrendering Holder.
(e) The Company shall comply, to the extent applicable, with
the requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with the repurchase of Securities pursuant to
this Section 4.06. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section 4.06, the Company shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this Section 4.06 by virtue of its
compliance with such securities laws or regulations.
SECTION 4.07 LIMITATION ON AFFILIATE TRANSACTIONS. (a) The
Company shall not, and shall not permit any Restricted Subsidiary to, enter into
or permit to exist any transaction (including the purchase, sale, lease or
exchange of any property, employee compensation arrangements or the rendering of
any service) with, or for the benefit of, any Affiliate of the Company (an
"Affiliate Transaction") unless:
(1) the terms of the Affiliate Transaction are no less
favorable to the Company or such Restricted Subsidiary than those that
could be obtained at the time of the Affiliate Transaction in
arm's-length dealings with a Person who is not an Affiliate;
(2) if such Affiliate Transaction involves an amount in excess
of $5.0 million, the terms of the Affiliate Transaction are set forth
in writing and a majority of the non-employee directors of the Company
disinterested with respect to such Affiliate Transaction have
determined in good faith that the criteria set forth in clause (1) are
satisfied and have approved the relevant Affiliate Transaction as
evidenced by a resolution of the Board of Directors; and
(3) if such Affiliate Transaction involves an amount in excess
of $10.0 million, the Board of Directors shall also have received a
written opinion from an Independent Qualified Party to the effect that
such Affiliate Transaction is fair, from a financial standpoint, to the
66
Company and its Restricted Subsidiaries or is not less favorable to the
Company and its Restricted Subsidiaries than could reasonably be
expected to be obtained at the time in an arm's-length transaction with
a Person who was not an Affiliate.
(b) The provisions of Section 4.07(a) shall not prohibit:
(1) any Investment (other than a Permitted Investment) or
other Restricted Payment, in each case permitted to be made pursuant to
Section 4.04;
(2) any issuance of securities, or other payments, awards or
grants in cash, securities or otherwise pursuant to, or the funding of,
employment arrangements, stock options and stock ownership plans
approved by the Board of Directors;
(3) loans or advances to employees in the ordinary course of
business in accordance with the past practices of the Company or its
Restricted Subsidiaries, but in any event not to exceed $1.0 million in
the aggregate outstanding at any one time;
(4) the payment of reasonable fees to directors of the Company
and its Restricted Subsidiaries who are not employees of the Company or
its Restricted Subsidiaries;
(5) any transaction with a Restricted Subsidiary or joint
venture or similar entity which would constitute an Affiliate
Transaction solely because the Company or a Restricted Subsidiary owns
an equity interest in or otherwise controls such Restricted Subsidiary,
joint venture or similar entity;
(6) the issuance or sale of any Capital Stock (other than
Disqualified Stock) of the Company;
(7) indemnities of officers, directors and employees of the
Company or any Restricted Subsidiaries permitted or required by
charter, bylaw, contractual or statutory provisions; and
67
(8) any transaction with a Receivables Subsidiary pursuant to
a Qualified Receivables Transaction.
SECTION 4.08 LIMITATION ON LINE OF BUSINESS. The Company shall
not, and shall not permit any Restricted Subsidiary, to engage in any business
other than a Related Business.
SECTION 4.09 LIMITATION ON THE SALE OR ISSUANCE OF CAPITAL
STOCK OF RESTRICTED SUBSIDIARIES. The Company:
(1) shall not, and shall not permit any Restricted Subsidiary
to, sell, lease, transfer or otherwise dispose of any Capital Stock of
any Restricted Subsidiary to any Person (other than the Company or a
Restricted Subsidiary), and
(2) shall not permit any Restricted Subsidiary to issue any of
its Capital Stock (other than if necessary, shares of its Capital Stock
constituting directors' or other legally required qualifying shares) to
any Person (other than to the Company or a Restricted Subsidiary),
unless,
(A) immediately after giving effect to such issuance,
sale or other disposition, neither the Company nor any of its
Subsidiaries own any Capital Stock of such Restricted
Subsidiary; or
(B) immediately after giving effect to such issuance,
sale or other disposition, such Restricted Subsidiary would no
longer constitute a Restricted Subsidiary and any Investment
in such Person remaining after giving effect thereto is
treated as a new Investment by the Company and such Investment
would be permitted to be made under Section 4.04 if made on
the date of such issuance, sale or other disposition.
For purposes of this Section 4.09, the creation of a Lien on
any Capital Stock of a Restricted Subsidiary to secure Indebtedness of the
Company or any of its Restricted Subsidiaries will not be deemed to be a
violation of this Section 4.09; provided, HOWEVER, that any sale or other
68
disposition by the secured party of such Capital Stock following foreclosure of
its Lien will be subject to this Section 4.09.
SECTION 4.10 CHANGE OF CONTROL. (a) Upon the occurrence of a
Change of Control, each Holder shall have the right to require that the Company
repurchase such Xxxxxx's Securities at a purchase price in cash equal to 101% of
the principal amount thereof on the date of purchase plus accrued and unpaid
interest, if any, to the date of purchase (subject to the right of holders of
record on the relevant record date to receive interest due on the relevant
interest payment date), in accordance with the terms contemplated in Section
4.10(b).
(b) Within 30 days following any Change of Control, the
Company shall mail a notice to each Holder with a copy to the Trustee (the
"Change of Control Offer") stating:
(1) that a Change of Control has occurred and that such Holder
has the right to require the Company to purchase such Holder's
Securities at a purchase price in cash equal to 101% of the principal
amount thereof on the date of purchase, plus accrued and unpaid
interest, if any, to the date of purchase (subject to the right of
Holders of record on the relevant record date to receive interest on
the relevant interest payment date);
(2) the circumstances and relevant facts regarding such Change
of Control (including information with respect to PRO FORMA historical
income, cash flow and capitalization, in each case after giving effect
to such Change of Control);
(3) the purchase date (which shall be no earlier than 30 days
nor later than 60 days from the date such notice is mailed); and
(4) the instructions, as determined by the Company, consistent
with this Section 4.10, that a Holder must follow in order to have its
Securities purchased.
(c) Holders electing to have a Security purchased will be
required to surrender the Security, with an appropriate form duly completed, to
the Company at the address specified in the notice at least three Business Days
69
prior to the purchase date. Holders will be entitled to withdraw their election
if the Trustee or the Company receives not later than one Business Day prior to
the purchase date, a telegram, telex, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of the Security which was
delivered for purchase by the Holder and a statement that such Xxxxxx is
withdrawing his election to have such Security purchased.
(d) On the purchase date, all Securities purchased by the
Company under this Section shall be delivered by the Company to the Trustee for
cancellation, and the Company shall pay the purchase price plus accrued and
unpaid interest, if any, to the Holders entitled thereto.
(e) Notwithstanding the foregoing provisions of this Section,
the Company shall not be required to make a Change of Control Offer following a
Change of Control if a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements set forth
in this Section applicable to a Change of Control Offer made by the Company and
purchases all Securities validly tendered and not withdrawn under such Change of
Control Offer.
(f) The Company shall comply, to the extent applicable, with
the requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with the repurchase of Securities pursuant to
this Section 4.10. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section 4.10, the Company shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this Section 4.10 by virtue of its
compliance with such securities laws or regulations.
SECTION 4.11 LIMITATION ON LIENS. (a) The Company shall not,
and shall not permit any Restricted Subsidiary to, directly or indirectly, Incur
or permit to exist any Lien of any nature whatsoever on any of its properties
(including Capital Stock of a Restricted Subsidiary), whether owned at the Issue
Date or thereafter acquired, other than Permitted Liens.
(b) In the event that the Company or any Subsidiary Guarantor
Incurs or permits to exist any Lien upon any property or assets of the Company
70
or such Subsidiary Guarantor to secure any First Lien Obligations, the Company
or such Subsidiary Guarantor shall concurrently xxxxx x Xxxx (subject to the
terms of the Intercreditor Agreement and Specified Permitted Liens) in favor of
the Trustee (or the Collateral Agent on its behalf) and the Holders of the
Securities upon such property as security for the Security Obligations by (i)
executing Security Documents that grant the Trustee (or the Collateral Agent on
its behalf) a second-priority Lien upon such property for the benefit of the
Holders upon substantially the same terms as those that create such additional
security interests, but subject to the Intercreditor Agreement, and (ii) taking
all such actions (including the filing and recording of financing statements,
fixture filings, Mortgages and other documents) that may be required under any
applicable law, or which the Trustee may reasonably request to create and
perfect such second-priority Lien, all at the expense of the Company and the
Subsidiary Guarantors, including all reasonable fees and expenses of counsel
incurred by the Trustee and the Collateral Agent in connection therewith;
PROVIDED that the Company or such Subsidiary Guarantor shall not be required to
grant a second-priority Lien upon such property as security for the Securities
if (x) a second-priority Lien in such property cannot be granted under
applicable law or (y) such grant requires the consent of any third party (other
than any obligee on First Lien Obligations), which consent the Company or such
Subsidiary Guarantor is unable to obtain using reasonable best efforts.
In addition, the Company and each Subsidiary Guarantor shall,
with respect to each parcel of real property acquired by the Company or any
Subsidiary Guarantor after the Issue Date that secures the First Lien
Obligations, use reasonable best efforts to deliver to the Collateral Agent, for
the benefit of the Trustee and the Holders, and addressed to the Trustee or the
Collateral Agent, as applicable, the following, but only to the extent that the
following documents are required to be delivered to the Credit Agent:
(1) a fully executed, acknowledged, and recorded Mortgage
similar to that provided for the benefit of the Credit Agent except
that such mortgage or deed of trust shall be subject to the terms of
the Intercreditor Agreement;
71
(2) an opinion of local counsel in a form substantially
similar to the opinion provided for the benefit of the Credit Agent, or
otherwise reasonably acceptable to the Trustee;
(3) a fully-paid title insurance policy in a form
substantially similar to the title insurance policy delivered to the
Credit Agent (including such endorsements as the Credit Agent obtained
in its title insurance policy) with no exceptions other than (i)
Specified Permitted Liens and exceptions included under the title
insurance policy in favor of the Credit Agent, (ii) the Credit Agent's
existing Lien on such property and (iii) other changes reasonably
acceptable to the Trustee; and
(4) the most recent survey of each property together with
either (i) an updated survey certification from the applicable surveyor
stating that, based on a visual inspection of the property and the
knowledge of the surveyor, there has been no change in the facts
depicted in the survey or (ii) an affidavit from the Company and the
Subsidiary Guarantors stating that there has been no change, other
than, in each case, changes reasonably acceptable to the Trustee, in
the facts depicted in the survey, in each case, in forms substantially
similar to those delivered to the Credit Agent.
The Company shall provide each of the foregoing described in
clauses (1) through (4) above at its own expense and shall pay all reasonable
fees and expenses of counsel incurred by the Trustee and the Collateral Agent in
connection with each of the foregoing.
SECTION 4.12 LIMITATION ON SALE/LEASEBACK TRANSACTIONS. The
Company shall not, and shall not permit any Restricted Subsidiary to, enter into
any Sale/Leaseback Transaction with respect to any property unless (a) the
Company or such Restricted Subsidiary would be entitled to (1) Incur
Indebtedness in an amount equal to the Attributable Debt with respect to such
Sale/Leaseback Transaction pursuant to Section 4.03 and (2) create a Lien on
such property securing such Attributable Debt without securing the Securities
pursuant to Section 4.11, (b) the net proceeds received by the Company or any
Restricted Subsidiary in connection with such Sale/Leaseback Transaction are at
least equal to the fair market value (as determined by the Board of Directors)
72
of such property and (c) the Company applies the proceeds of such transaction in
compliance with Section 4.06.
SECTION 4.13 FUTURE GUARANTORS. The Company shall cause (i)
each Domestic Restricted Subsidiary created or acquired after the Issue Date and
(ii) each Foreign Subsidiary that enters into a Guarantee of any First Lien
Obligations after the Issue Date to, in each case, at the same time, execute and
deliver to the Trustee a Guarantee Agreement pursuant to which such Subsidiary
will Guarantee payment of the Securities on the same terms and conditions as
those set forth this Indenture and the Security Documents.
SECTION 4.14 IMPAIRMENT OF SECURITY INTEREST. The Company
shall not, and the Company shall not permit any of its Restricted Subsidiaries
to, take or knowingly or negligently omit to take, any action which action or
omission might or would have the result of materially impairing the security
interest with respect to the Collateral for the benefit of the Trustee and the
Holders of the Securities. The Company shall not, and shall not permit any of
its Restricted Subsidiaries to, grant to any Person other than the Credit Agent
or the Collateral Agent or the Trustee, for the benefit of the Trustee and the
Holders of the Securities and the other beneficiaries described in the Security
Documents, any interest whatsoever in any of the Collateral, other than
Specified Permitted Liens.
SECTION 4.15 AMENDMENT TO SECURITY DOCUMENTS. The Company
shall not amend, modify or supplement, or permit or consent to any amendment,
modification or supplement of, the Security Documents in any way that would be
adverse to the Holders of the Securities in any material respect, except as
permitted under Article 9.
SECTION 4.16 COMPLIANCE CERTIFICATE. 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 in the course of the performance by the
signers of their duties as Officers of the Company they would normally have
knowledge of any Default and whether or not the signers know of any Default that
occurred during such period. If they do, the certificate shall describe the
73
Default, its status and what action the Company is taking or proposes to take
with respect thereto. The Company also shall comply with TIA ss. 314(a)(4).
SECTION 4.17 FURTHER INSTRUMENTS AND ACTS. (a) Upon request of
the Trustee or the Collateral Agent, the Company will, and will cause each
Restricted Subsidiary to, execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture, including the execution of any and
all further documents, financing statements, agreements and instruments, and the
taking of all such further actions (including the filing and recording of
financing statements, fixture filings, mortgages, deeds of trust and other
documents), which may be required under any applicable law, to maintain the
perfection and priority of the Liens created or intended to be created by the
Security Documents, all at the expense of the Company. The Company also agrees
to provide (or cause to be provided) to the Trustee or the Collateral Agent,
from time to time upon request, evidence reasonably satisfactory to the Trustee
and the Collateral Agent as to the perfection and priority of the Liens created
or intended to be created by the Security Documents.
(b) In furtherance of and not in limitation of the foregoing
paragraph (a), within 60 days following the Issue Date, the Company will deliver
or cause to be delivered to the Collateral Agent (i) a pledge and security
agreement with respect to the pledge of 65% of the equity interests of Societe
d'Exploitation des Raccords Xxxxxxx, duly executed by the Company, as pledgor,
and including all necessary endorsements thereon, (ii) a pledge and security
agreement with respect to the pledge of 65% of the equity interests of Univeyor
A/S, duly executed by the Company, as pledgor, and including all necessary
endorsements thereon and (iii) a pledge and security agreement with respect to
the pledge of 65% of the equity interests of Yale Industrial Products GmbH, duly
executed by Audubon Europe S.ar.l., as pledgor, and including all necessary
endorsements thereon, in each of cases (i) through (iii), together with an
opinion of counsel qualified under the jurisdiction of organization of the
pledged entity to the effect that such pledge and security agreement creates in
favor of the Collateral Agent for the benefit of the Trustee and the Holders a
valid and enforceable security interest in the equity interests pledged thereby.
74
ARTICLE 5
Successor Company
SECTION 5.01 WHEN COMPANY MAY MERGE OR TRANSFER ASSETS. (a)
The Company shall not consolidate with or merge with or into, or convey,
transfer or lease, in one transaction or a series of transactions, directly or
indirectly, all or substantially all its assets to, any Person, unless:
(1) the resulting, surviving or transferee Person (the
"Successor Company") shall be a Person organized and existing under the
laws of the United States of America, any State thereof or the District
of Columbia and the Successor Company (if not the Company) shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, all the
obligations of the Company under the Securities and this Indenture;
(2) immediately after giving PRO FORMA effect to such
transaction (and treating any Indebtedness which becomes an obligation
of the Successor Company or any Subsidiary as a result of such
transaction as having been Incurred by such Successor Company or such
Subsidiary at the time of such transaction), no Default shall have
occurred and be continuing;
(3) immediately after giving PRO FORMA effect to such
transaction, the Successor Company would be able to Incur an additional
$1.00 of Indebtedness pursuant to Section 4.03(a);
(4) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if
any) comply with this Indenture; and
(5) 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
transaction and will be subject to Federal income tax on the same
75
amounts, in the same manner and at the same times as would have been
the case if such transaction had not occurred.
PROVIDED, HOWEVER, that clause (3) will not be applicable to (A) a Restricted
Subsidiary consolidating with, merging into or transferring all or part of its
properties and assets to the Company or (B) the Company merging with an
Affiliate of the Company solely for the purpose and with the sole effect of
reincorporating the Company in another jurisdiction.
For purposes of this Section 5.01, the sale, lease,
conveyance, assignment, transfer or other disposition of all or substantially
all of the properties and assets of one or more Subsidiaries of the Company,
which properties and assets, if held by the Company instead of such
Subsidiaries, would constitute all or substantially all of the properties and
assets of the Company on a consolidated basis, shall be deemed to be the
transfer of all or substantially all of the properties and assets of the
Company.
The Successor Company shall be the successor to the Company
and shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture, and the predecessor Company, except
in the case of a lease, shall be released from the obligation to pay the
principal of and interest on the Securities.
(b) The Company shall not permit any Subsidiary Guarantor to
consolidate with or merge with or into, or convey, transfer or lease, in one
transaction or a series of transactions, all or substantially all of its assets
to any Person unless:
(1) except in the case of a Subsidiary Guarantor that has been
disposed of in its entirety to another Person (other than to the
Company or an Affiliate of the Company), whether through a merger,
consolidation or sale of Capital Stock or assets, if in connection
therewith the Company provides an Officers' Certificate to the Trustee
to the effect that the Company will comply with its obligations under
Section 4.06 in respect of such disposition, the resulting, surviving
or transferee Person (if not such Subsidiary) shall be a Person
organized and existing under the laws of the jurisdiction under which
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such Subsidiary was organized or under the laws of the United States of
America, or any State thereof or the District of Columbia, and such
Person shall expressly assume, by a Guarantee Agreement, all the
obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(2) immediately after giving effect to such transaction or
transactions on a PRO FORMA basis (and treating any Indebtedness which
becomes an obligation of the resulting, surviving or transferee Person
as a result of such transaction as having been issued by such Person at
the time of such transaction), no Default shall have occurred and be
continuing; and
(3) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such Guarantee Agreement, if any,
complies with this Indenture.
ARTICLE 6
Defaults and Remedies
SECTION 6.01 EVENTS OF DEFAULT. An "Event of Default" occurs
if:
(1) the Company defaults in any payment of interest on any
Security when the same becomes due and payable, and such default
continues for a period of 30 days;
(2) the Company (A) defaults in the payment of the principal
of any Security when the same becomes due and payable at its Stated
Maturity, upon optional redemption, upon declaration of acceleration or
otherwise, or (B) fails to purchase Securities when required pursuant
to this Indenture or the Securities;
(3) the Company fails to comply with Section 5.01;
(4) the Company fails to comply with Section 4.02, 4.03, 4.04,
4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15 or
4.17(b) (other than a failure to purchase Securities when required
under Section 4.06 or 4.10) and such failure continues for 30 days
after the notice specified below;
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(5) the Company or any Subsidiary Guarantor fails to comply
with any of its agreements in the Securities, this Indenture or the
Security Documents (other than those referred to in clause (1), (2),
(3) or (4) above) and such failure continues for 60 days after the
notice specified below;
(6) Indebtedness of the Company, any Subsidiary Guarantor or
any Significant Subsidiary is not paid within any applicable grace
period after final maturity or is accelerated by the holders thereof
because of a default and the total amount of such Indebtedness unpaid
or accelerated exceeds $10.0 million, or its foreign currency
equivalent at the time;
(7) a Subsidiary Guarantor, the Company or any Significant
Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief
against it in an involuntary case;
(C) consents to the appointment of a Custodian of it
or for any substantial part of its property; or
(D) makes a general assignment for the benefit of its
creditors;
or takes any comparable action under any foreign laws relating to
insolvency;
(8) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against a Subsidiary Guarantor, the
Company or any Significant Subsidiary in an involuntary case;
(B) appoints a Custodian of a Subsidiary Guarantor,
the Company or any Significant Subsidiary or for any
substantial part of its property; or
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(C) orders the winding up or liquidation of a
Subsidiary Guarantor, the Company or any Significant
Subsidiary;
or any similar relief is granted under any foreign laws and the order
or decree remains unstayed and in effect for 60 days;
(9) any judgment or decree for the payment of money in excess
of $10.0 million or its foreign currency equivalent at the time is
entered against a Subsidiary Guarantor, the Company or any Significant
Subsidiary, remains outstanding for a period of 60 days following the
entry of such judgment or decree and is not discharged, waived or the
execution thereof stayed;
(10) any Subsidiary Guarantee ceases to be in full force and
effect (other than in accordance with the terms of such Subsidiary
Guarantee and this Indenture) or any Subsidiary Guarantor denies or
disaffirms its obligations under its Subsidiary Guarantee; or
(11) any security interest granted under the Security
Documents shall, at any time, fail or cease to be in full force and
effect for any reason other than the satisfaction in full of all
Obligations under this Indenture and discharge of this Indenture or the
release of such security interest in accordance with the provisions of
this Indenture, or any security interest created or purported to be
created thereunder shall be declared invalid or unenforceable or the
Company or any Subsidiary Guarantor shall assert, in any pleading in
any court of competent jurisdiction, that any such security interest is
invalid or unenforceable.
The foregoing will constitute Events of Default whatever the
reason for any such Event of Default and whether it is voluntary or involuntary
or is effected by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or
governmental body.
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The term "Bankruptcy Law" means Title 11, UNITED STATES CODE,
or any similar Federal or state law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator, custodian or
similar official under any Bankruptcy Law.
A Default under clauses (4) or (5) is not an Event of Default
until the Trustee or the holders of at least 25% in principal amount of the
outstanding Securities notify the Company of the Default and the Company does
not cure such Default within the time specified after receipt of such notice.
Such notice must specify the Default, demand that it be remedied and state that
such notice is a "Notice of Default".
The Company shall deliver to the Trustee, within 30 days after
the occurrence thereof, written notice in the form of an Officers' Certificate
of any Event of Default under clause (6), (9), (10) or (11) and any event which
with the giving of notice or the lapse of time would become an Event of Default
under clause (4) or (5), its status and what action the Company is taking or
proposes to take with respect thereto.
SECTION 6.02 ACCELERATION. If an Event of Default (other than
an Event of Default specified in Section 6.01(7) or (8) with respect to the
Company) occurs and is continuing, the Trustee by notice to the Company, or the
Holders of at least 25% in principal amount of the Securities by notice to the
Company and the Trustee, may declare the principal of and accrued but unpaid
interest on all the Securities to be due and payable. Upon such a declaration,
such principal and interest shall be due and payable immediately. If an Event of
Default specified in Section 6.01(7) or (8) with respect to the Company occurs,
the principal of and interest on all the 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 Securityholders. The Holders of a majority in principal
amount of the Securities by notice to the Trustee may rescind an acceleration
and its consequences if the rescission would not conflict with any judgment or
decree and if all existing Events of Default have been cured or waived except
nonpayment of principal or interest that has become due solely because of
acceleration. No such rescission shall affect any subsequent Default or impair
any right consequent thereto.
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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 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 Securityholder in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.04 WAIVER OF PAST DEFAULTS. The Holders of a
majority in principal amount of the Securities by notice to the Trustee may
waive an existing Default and its consequences except (a) a Default in the
payment of the principal of or interest on a Security (b) a Default arising from
the failure to redeem or purchase any Security when required pursuant to this
Indenture or (c) a Default in respect of a provision that under Section 9.02
cannot be amended without the consent of each Securityholder affected. When a
Default is waived, it is deemed cured, but no such waiver shall extend to any
subsequent or other Default or impair any consequent right.
SECTION 6.05 CONTROL BY MAJORITY. The Holders of a majority in
principal amount of the Securities may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture or,
subject to Section 7.01, that the Trustee determines is unduly prejudicial to
the rights of other Securityholders or would involve the Trustee in personal
liability; PROVIDED, HOWEVER, that the Trustee may take any other action deemed
proper by the Trustee that is not inconsistent with such direction. Prior to
taking any action hereunder, the Trustee shall be entitled to indemnification
satisfactory to it in its sole discretion against all losses and expenses caused
by taking or not taking such action.
SECTION 6.06 LIMITATION ON SUITS. Except to enforce the right
to receive payment of principal, premium (if any) or interest when due, no
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Securityholder may pursue any remedy with respect to this Indenture or the
Securities unless:
(1) the Holder gives to the Trustee written notice stating
that an Event of Default is continuing;
(2) the Holders of at least 25% in principal amount of the
Securities make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable
security or indemnity against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of security or
indemnity; and
(5) the Holders of a majority in principal amount of the
Securities do not give the Trustee a direction inconsistent with the
request during such 60-day period.
A Securityholder may not use this Indenture to prejudice the
rights of another Securityholder or to obtain a preference or priority over
another Securityholder.
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 interest on the Securities held by such
Holder, on or after the respective due dates expressed in the Securities, or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.
SECTION 6.08 COLLECTION SUIT BY TRUSTEE. If an Event of
Default specified in Section 6.01(1) or (2) occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount then due and owing (together with
interest on any unpaid interest to the extent lawful) and the amounts provided
for in Section 7.07.
SECTION 6.09 TRUSTEE MAY FILE PROOFS OF CLAIM. Subject to the
terms of the Intercreditor Agreement, the Trustee may file such proofs of claim
and other papers or documents as may be necessary or advisable in order to have
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the claims of the Trustee and the Securityholders allowed in any judicial
proceedings relative to the Company or any Subsidiary Guarantor, its creditors
or its property and, unless prohibited by law or applicable regulations, may
vote on behalf of the Holders in any election of a trustee in bankruptcy or
other Person performing similar functions, and any Custodian in any such
judicial proceeding is hereby authorized by each Holder to make payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and its counsel, and any other amounts due the Trustee under
Section 7.07.
SECTION 6.10 PRIORITIES. If the Trustee collects any money or
property pursuant to this Article 6, it shall pay out the money or property in
the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Securityholders for amounts due and unpaid on the
Securities for principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Securities for principal and interest, respectively; and
THIRD: to the Company.
The Trustee may fix a record date and payment date for any
payment to Securityholders pursuant to this Section. At least 15 days before
such record date, the Company shall mail to each Securityholder and the Trustee
a notice that states the record date, the payment date and amount to be paid.
SECTION 6.11 UNDERTAKING FOR COSTS. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any party
83
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 Securities.
SECTION 6.12 WAIVER OF STAY OR EXTENSION LAWS. The Company (to
the extent it may lawfully do so) shall not at any time insist upon, or plead,
or in any manner whatsoever claim or take the benefit or advantage of, any stay
or extension law wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this Indenture; and the Company
(to the extent that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law, and shall not hinder, delay or impede the
execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law had been enacted.
ARTICLE 7
Trustee
SECTION 7.01 DUTIES OF TRUSTEE. (a) If an Event of Default has
occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in
their exercise as a prudent Person would exercise or use under the circumstances
in the conduct of such Xxxxxx's own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, the Trustee shall examine the certificates and
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opinions to determine whether or not they conform to the requirements
of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful misconduct,
except that:
(1) this paragraph does not limit the effect of paragraph (b)
of this Section;
(2) 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
(3) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) 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) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
(f) Money held in trust by the Trustee need not be segregated
from other funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(h) Every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section and to the provisions of the TIA.
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SECTION 7.02 RIGHTS OF TRUSTEE. (a) The Trustee may rely on
any document believed by it to be genuine and to have been signed or presented
by the proper person. The Trustee need not investigate any fact or matter stated
in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
the Officers' Certificate or Opinion of Counsel.
(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; PROVIDED, HOWEVER, that the Trustee's conduct does not
constitute wilful misconduct or negligence.
(e) The Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to this Indenture and
the Securities shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it hereunder in
good faith and in accordance with the advice or opinion of such counsel.
SECTION 7.03 INDIVIDUAL RIGHTS OF TRUSTEE. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent, Registrar, co-registrar
or co-paying agent may do the same with like rights. However, the Trustee must
comply with 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, and it shall not be responsible for any
statement of the Company in the Indenture or in any document issued in
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connection with the sale of the Securities or in the Securities other than the
Trustee's certificate of authentication.
SECTION 7.05 NOTICE OF DEFAULTS. If a Default occurs and is
continuing and if it is known to the Trustee, the Trustee shall mail to each
Securityholder notice of the Default within 90 days after it occurs. Except in
the case of a Default in payment of principal of or interest on any Security
(including payments pursuant to the mandatory redemption provisions of such
Security, if any), 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 interests of Securityholders.
SECTION 7.06 REPORTS BY TRUSTEE TO HOLDERS. As promptly as
reasonably practicable after each June 15 beginning with the June 15 following
the date of this Indenture, and in any event prior to August 15 in each year,
the Trustee shall mail to each Securityholder a brief report dated as of June 15
that complies with TIA ss. 313(a). The Trustee also shall comply with TIA ss.
313(b).
A copy of each report at the time of its mailing to
Securityholders shall be filed with the SEC and each stock exchange (if any) on
which the Securities are listed. The Company agrees to notify promptly the
Trustee whenever the Securities become listed on any stock exchange and of any
delisting thereof.
SECTION 7.07 COMPENSATION AND INDEMNITY. The Company shall pay
to the Trustee from time to time reasonable compensation for its services. 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 out-of-pocket expenses incurred or made by it,
including costs of collection, in addition to the compensation for its services.
Such expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Trustee's agents, counsel, accountants and
experts. The Company shall indemnify the Trustee against any and all loss,
liability or expense (including attorneys' fees) incurred by it in connection
with the administration of this trust and the performance of its duties
hereunder. 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
87
relieve the Company of its obligations hereunder. The Company shall defend the
claim and the Trustee may have separate counsel and the Company shall pay the
fees and expenses of such counsel. The Company need not reimburse any expense or
indemnify against any loss, liability or expense incurred by the Trustee through
the Trustee's own wilful misconduct, negligence or bad faith.
To secure the Company's payment obligations in this Section,
the Trustee shall have a lien prior to the Securities on all money or property
held or collected by the Trustee other than money or property held in trust to
pay principal of and interest on particular Securities.
The Company's payment obligations pursuant to this Section
shall survive the discharge of this Indenture. When the Trustee incurs expenses
after the occurrence of a Default specified in Section 6.01(7) or (8) with
respect to the Company, the expenses are intended to constitute expenses of
administration under the Bankruptcy Law.
SECTION 7.08 REPLACEMENT OF TRUSTEE. The Trustee may resign at
any time by so notifying the Company. The Holders of a majority in principal
amount of the Securities may remove the Trustee by so notifying the Trustee and
may appoint a successor Trustee. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Company or by the
Holders of a majority in principal amount of the Securities and such Holders do
not reasonably promptly appoint a successor Trustee, or if a vacancy exists in
the office of Trustee for any reason (the Trustee in such event being referred
to herein as the retiring Trustee), the Company shall promptly appoint a
successor Trustee.
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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 Securityholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 7.07.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee or the
Holders of 10% in principal amount of the 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
Securityholder may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to
this Section, the Company's obligations under Section 7.07 shall continue for
the benefit of the retiring Trustee.
SECTION 7.09 SUCCESSOR TRUSTEE BY MERGER. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts created
by this Indenture any of the Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the
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full force which it is anywhere in the Securities or in this Indenture provided
that the certificate of the Trustee shall have.
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION. The Trustee shall
at all times satisfy the requirements of TIA ss. 310(a). The Trustee shall have
a combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition. The Trustee shall comply with TIA
ss. 310(b); PROVIDED, HOWEVER, that there shall be excluded from the operation
of TIA ss. 310(b)(1) any indenture or indentures under which other securities or
certificates of interest or participation in other securities of the Company are
outstanding if the requirements for such exclusion set forth in TIA ss.
310(b)(1) are met.
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST
COMPANY. The Trustee shall comply with TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated.
ARTICLE 8
Discharge of Indenture; Defeasance
SECTION 8.01 DISCHARGE OF LIABILITY ON SECURITIES; DEFEASANCE.
(a) When (1) the Company delivers to the Trustee all outstanding Securities
(other than Securities replaced pursuant to Section 2.07) for cancellation or
(2) all outstanding Securities have become due and payable, whether at maturity
or on a redemption date as a result of the mailing of a notice of redemption
pursuant to Article 3 hereof and the Company irrevocably deposits with the
Trustee funds sufficient to pay at maturity or upon redemption all outstanding
Securities, including interest thereon to maturity or such redemption date
(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 Section 8.01(c), cease to be of further effect. The
Trustee shall acknowledge satisfaction and discharge of this Indenture on demand
of the Company accompanied by an Officers' Certificate and an Opinion of Counsel
and at the cost and expense of the Company.
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(b) Subject to Sections 8.01(c) and 8.02, the Company at any
time may terminate (1) all its obligations under the Securities and this
Indenture ("legal defeasance option") or (2) its obligations under Sections
4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14,
4.15 and 4.17(b) and the operation of Sections 6.01(4), 6.01(6), 6.01(7),
6.01(8), 6.01(9), 6.01(10) and 6.01(11) (but, in the case of Sections 6.01(7)
and (8), with respect only to Significant Subsidiaries and Subsidiary
Guarantors) and the limitations contained in Sections 5.01(a)(3) ("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 with
respect thereto. If the Company exercises its covenant defeasance option,
payment of the Securities may not be accelerated because of an Event of Default
specified in Sections 6.01(4), 6.01(6), 6.01(7), 6.01(8), 6.01(9), 6.01(10) and
6.01(11) (but, in the case of Sections 6.01(7) and (8), with respect only to
Significant Subsidiaries and Subsidiary Guarantors) or because of the failure of
the Company to comply with Section 5.01(a)(3). If the Company exercises its
legal defeasance option or its covenant defeasance option, each Subsidiary
Guarantor, if any, shall be released from all its obligations with respect to
its Subsidiary Guarantee and the Security Documents.
Upon satisfaction of the conditions set forth herein and upon
request of the Company, the Trustee shall acknowledge in writing the discharge
of those obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 7.07 and 7.08 and in
this Article 8 shall survive until the Securities have been paid in full.
Thereafter, the Company's obligations in Sections 7.07, 8.04 and 8.05 shall
survive.
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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 of principal of
and interest on the Securities to maturity or redemption, 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 on 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 and interest
when due on all the Securities to maturity or redemption, as the case
may be;
(3) 123 days pass after the deposit is made and during the
123-day period no Default specified in Sections 6.01(7) or (8) with
respect to the Company occurs which is continuing at the end of the
period;
(4) the deposit does not constitute a default under any other
agreement binding on the Company;
(5) 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;
(6) in the case of the legal defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(A) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (B) since the date of this
Indenture there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such Opinion
of Counsel shall confirm that, the Securityholders 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
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amounts, in the same manner and at the same times as would have been
the case if such defeasance had not occurred;
(7) 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 Securityholders 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
(8) 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
contemplated by this Article 8 have been complied with.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption 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. The Trustee and the Paying
Agent shall promptly turn over to the Company upon request any excess money or
securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee
and the Paying Agent shall pay to the Company upon request any money held by
them for the payment of principal or interest that remains unclaimed for two
years, and, thereafter, Securityholders entitled to the money must look to the
Company for payment as general creditors.
SECTION 8.05 INDEMNITY FOR GOVERNMENT OBLIGATIONS. The Company
shall pay and shall indemnify the Trustee against any tax, fee or other charge
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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 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 interest on or principal of any Securities
because of the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Securities to receive such payment from the
money or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE 9
Amendments
SECTION 9.01 WITHOUT CONSENT OF HOLDERS. The Company, the
Subsidiary Guarantors and the Trustee may amend this Indenture, the Security
Documents, the Intercreditor Agreement or the Securities without notice to or
consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article 5;
(3) to provide for uncertificated Securities in addition to or
in place of certificated Securities; PROVIDED, HOWEVER, that the
uncertificated Securities are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code;
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(4) to add Guarantees with respect to the Securities,
including any Subsidiary Guarantees, or to secure the Securities;
(5) to add to the covenants of the Company or any Subsidiary
Guarantor for the benefit of the Holders or to surrender any right or
power herein conferred upon the Company or any Subsidiary Guarantor;
(6) to comply with any requirements of the SEC in connection
with qualifying, or maintaining the qualification of, this Indenture
under the TIA;
(7) to make any change that does not adversely affect the
rights of any Securityholder; or
(8) to make any amendment to the provisions of this Indenture
relating to the form, authentication, transfer and legending of
Securities; PROVIDED, HOWEVER, that (a) compliance with this Indenture
as so amended would not result in Securities being transferred in
violation of the Securities Act or any other applicable securities law
and (b) such amendment does not materially affect the rights of Holders
to transfer Securities.
In addition, notwithstanding Section 9.02, without the consent
of any Holder, any amendment, waiver or consent agreed to by the Credit Agent or
the holders of First Lien Obligations under any provision of any of the security
documents granting the first-priority Lien on any Collateral to secure the First
Lien Obligations will automatically apply to the comparable provision of the
comparable Security Document entered into in connection with the Securities,
PROVIDED that, if any such amendment, waiver or consent could reasonably be
expected to be adverse to the Holders or the interest of the Holders in the
Collateral, such amendment, waiver or consent will not be applicable to the
Security Documents entered into in connection with the Securities as provided
above unless First Lien Obligations (including commitments in respect thereof to
the extent that such commitments are subject only to reasonable and customary
funding conditions and are then available to be funded at the election of the
Company) of no less than $40.0 million secured by the first-priority Liens on
the Collateral are then outstanding. Notwithstanding the foregoing, no such
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amendment, waiver or consent may have the effect of releasing any Collateral,
except to the extent described in Section 11.03.
After an amendment under this Section becomes effective, the
Company shall mail to Securityholders a notice briefly describing such
amendment. The failure to give such notice to all Securityholders, or any defect
therein, shall not impair or affect the validity of an amendment under this
Section.
SECTION 9.02 WITH CONSENT OF HOLDERS. The Company, the
Subsidiary Guarantors and the Trustee may amend this Indenture, the Security
Documents, the Securities or the Intercreditor Agreement without notice to any
Securityholder but with the written consent of the Holders of at least a
majority in principal amount of the Securities then outstanding (including
consents obtained in connection with a tender offer or exchange for the
Securities). However, without the consent of each Securityholder affected
thereby, an amendment or waiver may not:
(1) reduce the amount of Securities whose Holders must consent
to an amendment;
(2) reduce the rate of or extend the time for payment of
interest on any Security;
(3) reduce the principal of or change the Stated Maturity of
any Security;
(4) reduce the amount payable upon the redemption of any
Security or change the time at which any Security may be redeemed
pursuant to Article 3 hereto or paragraph 5 of the Securities;
(5) make any Security payable in money other than that stated
in the Security;
(6) impair the right of any Holder to receive payment of
principal of and interest on such Xxxxxx's Securities on or after the
due dates therefor or to institute suit for the enforcement of any
payment on or with respect to such Xxxxxx's Securities;
(7) make any changes in the ranking or priority of any
Security that would adversely affect the Securityholders;
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(8) make any change in Section 6.04 or 6.07 or the second
sentence of this Section;
(9) make any change in, or release other than in accordance
with this Indenture, any Subsidiary Guarantee that would adversely
affect the Securityholders; or
(10) make any change in any Security Document, the
Intercreditor Agreement or the provisions in the Indenture dealing with
Security Documents, the Collateral or the application of proceeds of
the Collateral that would adversely affect the Holders, including,
except as otherwise explicitly set forth in this Indenture, the
Security Documents or the Intercreditor Agreement, any release of any
Collateral from the Lien of the Indenture and the Security Documents.
It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
After an amendment under this Section becomes effective, the
Company shall mail to Securityholders a notice briefly describing such
amendment. The failure to give such notice to all Securityholders, or any defect
therein, shall not impair or affect the validity of an amendment under this
Section.
SECTION 9.03 COMPLIANCE WITH TRUST INDENTURE ACT. Every
amendment to this Indenture or the Securities shall comply with the TIA as then
in effect.
SECTION 9.04 REVOCATION AND EFFECT OF CONSENTS AND WAIVERS. A
consent to an amendment or a waiver by a Holder of a Security shall bind the
Holder and every subsequent Holder of that Security or portion of the Security
that evidences the same debt as the consenting Holder's Security, even if
notation of the consent or waiver is not made on the Security. However, any such
Holder or subsequent Holder may revoke the consent or waiver as to such Holder's
Security or portion of the Security if the Trustee receives the notice of
revocation before the date the amendment or waiver becomes effective. After an
amendment or waiver becomes effective, it shall bind every Securityholder. An
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amendment or waiver becomes effective upon the execution of such amendment or
waiver by the Trustee.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Securityholders entitled to give their
consent or take any other action described above or required or permitted to be
taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were
Securityholders at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such Persons
continue to be Holders after such record date. No such consent shall be valid or
effective for more than 120 days after such record date.
SECTION 9.05 NOTATION ON OR EXCHANGE OF SECURITIES. If an
amendment changes the terms of a Security, the Trustee may require the Holder of
the Security to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security regarding the changed terms and return it to the
Holder. Alternatively, if the Company or the Trustee so determines, the Company
in exchange for the Security shall issue and the Trustee shall authenticate a
new Security that reflects the changed terms. Failure to make the appropriate
notation or to issue a new Security shall not affect the validity of such
amendment.
SECTION 9.06 TRUSTEE TO SIGN AMENDMENTS. The Trustee shall
sign any amendment 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 the Trustee shall be entitled to receive indemnity reasonably
satisfactory to it and to receive, and (subject to Section 7.01) shall be fully
protected in relying upon, an Officers' Certificate and an Opinion of Counsel
stating that such amendment is authorized or permitted by this Indenture.
SECTION 9.07 PAYMENT FOR CONSENT. Neither the Company nor any
Affiliate of the Company shall, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest, fee or otherwise, to any Holder
for or as an inducement to any consent, waiver or amendment of any of the terms
or provisions of this Indenture or the Securities unless such consideration is
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offered to be paid to all Holders that so consent, waive or agree to amend in
the time frame set forth in solicitation documents relating to such consent,
waiver or agreement.
ARTICLE 10
Subsidiary Guarantees
SECTION 10.01 GUARANTEES. Each Subsidiary Guarantor hereby
unconditionally and irrevocably guarantees, jointly and severally, to each
Holder and to the Trustee and its successors and assigns (a) the full and
punctual payment of principal of and interest on the Securities when due,
whether at maturity, by acceleration, by redemption or otherwise, and all other
monetary obligations of the Company under this Indenture and the Securities and
(b) the full and punctual performance within applicable grace periods of all
other obligations of the Company under this Indenture and the Securities (all
the foregoing being hereinafter collectively called the "Guaranteed
Obligations"). Each Subsidiary Guarantor further agrees that the Guaranteed
Obligations may be extended or renewed, in whole or in part, without notice or
further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor
will remain bound under this Article 10 notwithstanding any extension or renewal
of any Guaranteed Obligation.
Each Subsidiary Guarantor waives presentation to, demand of,
payment from and protest to the Company of any of the Guaranteed Obligations and
also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives
notice of any default under the Securities or the Guaranteed Obligations. The
obligations of each Subsidiary Guarantor hereunder shall not be affected by (1)
the failure of any Holder or the Trustee to assert any claim or demand or to
enforce any right or remedy against the Company or any other Person (including
any Subsidiary Guarantor) under this Indenture, the Securities or any other
agreement or otherwise; (2) any extension or renewal of any thereof; (3) any
rescission, waiver, amendment or modification of any of the terms or provisions
of this Indenture, the Securities or any other agreement; (4) the release of any
security held by any Holder or the Trustee for the Guaranteed Obligations or any
of them; (5) the failure of any Holder or the Trustee to exercise any right or
remedy against any other guarantor of the Guaranteed Obligations; or (6) except
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as set forth in Section 10.06, any change in the ownership of such Subsidiary
Guarantor.
Each Subsidiary Guarantor further agrees that its Subsidiary
Guarantee herein constitutes a guarantee of payment, performance and compliance
when due (and not a guarantee of collection) and waives any right to require
that any resort be had by any Holder or the Trustee to any security held for
payment of the Guaranteed Obligations.
Except as expressly set forth in Sections 8.01(b), 10.02 and
10.06, the obligations of each Subsidiary Guarantor hereunder shall not be
subject to any reduction, limitation, impairment or termination for any reason,
including any claim of waiver, release, surrender, alteration or compromise, and
shall not be subject to any defense of setoff, counterclaim, recoupment or
termination whatsoever or by reason of the invalidity, illegality or
unenforceability of the Guaranteed Obligations or otherwise. Without limiting
the generality of the foregoing, the obligations of each Subsidiary Guarantor
herein shall not be discharged or impaired or otherwise affected by the failure
of any Holder or the Trustee to assert any claim or demand or to enforce any
remedy under this Indenture, the Securities, the Security Documents or any other
agreement, by any waiver or modification of any thereof, by any default, failure
or delay, willful or otherwise, in the performance of the obligations, or by any
other act or thing or omission or delay to do any other act or thing which may
or might in any manner or to any extent vary the risk of such Subsidiary
Guarantor or would otherwise operate as a discharge of such Subsidiary Guarantor
as a matter of law or equity.
Each Subsidiary Guarantor further agrees that its Guarantee
herein shall continue to be effective or be reinstated, as the case may be, if
at any time payment, or any part thereof, of principal of or interest on any
Guaranteed Obligation is rescinded or must otherwise be restored by any Holder
or the Trustee upon the bankruptcy or reorganization of the Company or
otherwise.
In furtherance of the foregoing and not in limitation of any
other right which any Holder or the Trustee has at law or in equity against any
Subsidiary Guarantor by virtue hereof, upon the failure of the Company to pay
the principal of or interest on any Guaranteed Obligation when and as the same
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shall become due, whether at maturity, by acceleration, by redemption or
otherwise, or to perform or comply with any other Guaranteed Obligation, each
Subsidiary Guarantor hereby promises to and shall, upon receipt of written
demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the
Holders or the Trustee an amount equal to the sum of (A) the unpaid amount of
such Guaranteed Obligations, (B) accrued and unpaid interest on such Guaranteed
Obligations (but only to the extent not prohibited by law) and (C) all other
monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
Each Subsidiary Guarantor agrees that, as between it, on the
one hand, and the Holders and the Trustee, on the other hand, (i) the maturity
of the Guaranteed Obligations hereby may be accelerated as provided in Article 6
for the purposes of such Subsidiary Guarantor's Subsidiary Guarantee herein,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the Guaranteed Obligations guaranteed hereby, and
(ii) in the event of any declaration of acceleration of such Guaranteed
Obligations as provided in Article 6, such Guaranteed Obligations (whether or
not due and payable) shall forthwith become due and payable by such Subsidiary
Guarantor for the purposes of this Section.
Each Subsidiary Guarantor also agrees to pay any and all costs
and expenses (including reasonable attorneys' fees) incurred by the Trustee or
any Holder in enforcing any rights under this Section.
SECTION 10.02 LIMITATION ON LIABILITY. Any term or provision
of this Indenture to the contrary notwithstanding, the maximum aggregate amount
of the Guaranteed Obligations guaranteed hereunder by any Subsidiary Guarantor
shall not exceed the maximum amount that can be hereby guaranteed without
rendering this Indenture, as it relates to such Subsidiary Guarantor, voidable
under applicable law relating to fraudulent conveyance or fraudulent transfer or
similar laws affecting the rights of creditors generally.
SECTION 10.03 SUCCESSORS AND ASSIGNS. This Article 10 shall be
binding upon each Subsidiary Guarantor and its successors and assigns and shall
inure to the benefit of the successors and assigns of the Trustee and the
Holders and, in the event of any transfer or assignment of rights by any Holder
or the Trustee, the rights and privileges conferred upon that party in this
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Indenture and in the Securities shall automatically extend to and be vested in
such transferee or assignee, all subject to the terms and conditions of this
Indenture.
SECTION 10.04 NO WAIVER. Neither a failure nor a delay on the
part of either the Trustee or the Holders in exercising any right, power or
privilege under this Article 10 shall operate as a waiver thereof, nor shall a
single or partial exercise thereof preclude any other or further exercise of any
right, power or privilege. The rights, remedies and benefits of the Trustee and
the Holders herein expressly specified are cumulative and not exclusive of any
other rights, remedies or benefits which either may have under this Article 10
at law, in equity, by statute or otherwise.
SECTION 10.05 MODIFICATION. No modification, amendment or
waiver of any provision of this Article 10, nor the consent to any departure by
any Subsidiary Guarantor therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Trustee, and then such waiver or
consent shall be effective only in the specific instance and for the purpose for
which given. No notice to or demand on any Subsidiary Guarantor in any case
shall entitle such Subsidiary Guarantor to any other or further notice or demand
in the same, similar or other circumstances.
SECTION 10.06 RELEASE OF SUBSIDIARY GUARANTOR. A Subsidiary
Guarantor will be released from its obligations under this Article 10 (other
than any obligation that may have arisen under Section 10.07):
(1) upon the sale (including any sale pursuant to any exercise
of remedies by a holder of Indebtedness of the Company or of such
Subsidiary Guarantor) or other disposition (including by way of
consolidation or merger) of a Subsidiary Guarantor;
(2) upon the sale or disposition of all or substantially all
the assets of such Subsidiary Guarantor;
(3) upon the designation of such Subsidiary Guarantor as an
Unrestricted Subsidiary in accordance with the terms of this Indenture
unless any of the Collateral is then owned by such Subsidiary
Guarantor;
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(4) at such time as such Subsidiary Guarantor does not have
any Obligations outstanding that required such Subsidiary Guarantor to
enter into a Guarantee Agreement pursuant to clause (ii) of Section
4.13, and the Company provides an Officer's Certificate to the Trustee
certifying that no such Indebtedness is outstanding and that the
Company elects to have such Subsidiary Guarantor released; or
(5) upon defeasance of the Securities or discharge of this
Indenture pursuant to Article 8;
PROVIDED, HOWEVER, that in the case of clauses (1) and (2) above, (i) such sale
or other disposition is made to a Person other than the Company or a Subsidiary
of the Company, (ii) such sale or disposition is otherwise permitted by this
Indenture and (iii) the Company provides an Officers' Certificate to the Trustee
to the effect that the Company will comply with its obligations under Section
4.06. At the request of the Company, the Trustee shall execute and deliver an
appropriate instrument evidencing such release.
SECTION 10.07 CONTRIBUTION. Each Subsidiary Guarantor that
makes a payment under its Subsidiary Guarantee shall be entitled upon payment in
full of all Guaranteed Obligations under this Indenture to a contribution from
each other Subsidiary Guarantor in an amount equal to such other Subsidiary
Guarantor's PRO RATA portion of such payment based on the respective net assets
of all the Subsidiary Guarantors at the time of such payment determined in
accordance with GAAP.
ARTICLE 11
Security Documents
SECTION 11.01 COLLATERAL AND SECURITY DOCUMENTS. The due and
punctual payment of the principal of and interest (including Additional
Interest, if any) on the Securities when and as the same shall be due and
payable, whether on an interest payment date, at maturity, by acceleration,
repurchase, redemption or otherwise, and interest on the overdue principal of
and interest (including Additional Interest, if any) on the Securities and
performance of all other Security Obligations of the Company and the Subsidiary
Guarantors to the Securityholders, the Trustee or the Collateral Agent under
this Indenture, the Securities and the Security Documents, according to the
terms hereunder or thereunder, are secured as provided in the Security
Documents, which define the terms of the Liens that secure the Security
Obligations, subject to the terms of the Intercreditor Agreement. The Trustee
and the Company hereby acknowledge and agree that the Trustee or the Collateral
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Agent, as the case may be, holds the Collateral in trust for the benefit of the
Trustee and the Holders, in each case pursuant to the terms of the Security
Documents. Each Holder, by accepting a Security, consents and agrees to the
terms of the Security Documents (including the provisions providing for
foreclosure and release of Collateral) and the Intercreditor Agreement as the
same may be in effect or may be amended from time to time in accordance with
their terms and this Indenture, and authorizes and directs the Collateral Agent
to enter into the Security Documents and the Intercreditor Agreement and to
perform its obligations and exercise its rights thereunder in accordance
therewith; PROVIDED, HOWEVER, that if any of the provisions of the Security
Documents limit, qualify or conflict with the duties imposed by the provisions
of the TIA, the TIA shall control. The Company shall deliver to the Trustee (if
it is not itself then the Collateral Agent) copies of all documents delivered to
the Collateral Agent pursuant to the Security Documents, and will do or cause to
be done all such acts and things as may be required by the next sentence of this
Section 11.01, to assure and confirm to the Trustee and the Collateral Agent the
security interest in the Collateral contemplated hereby, by the Security
Documents or any part thereof, as from time to time constituted, so as to render
the same available for the security and benefit of this Indenture and of the
Securities secured hereby, according to the intent and purposes herein
expressed. The Company shall take, and shall cause its Subsidiaries to take, any
and all actions reasonably required to cause the Security Documents to create
and maintain, as security for the Security Obligations of the Company and the
Subsidiary Guarantors hereunder, a valid and enforceable perfected Lien and
security interest in and on all of the Collateral (subject to the terms of the
Intercreditor Agreement), in favor of the Collateral Agent for the benefit of
the Trustee and the Holders, second in priority to any and all security
interests at any time granted in the Collateral to secure the First Lien
Obligations.
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SECTION 11.02 RECORDINGS AND OPINIONS. (a) The Company and the
Subsidiary Guarantors shall furnish to the Collateral Agent and the Trustee (if
the Trustee is not then the Collateral Agent) on or before June 15 in each year
beginning with June 15, 2004, an Opinion of Counsel dated as of such date,
either:
(1) to the effect that, in the opinion of such counsel, such
action has been taken with respect to the recordings, registerings,
filings, re-recordings, re-registerings and re-filings of this
Indenture, the Security Documents and all financing statements,
continuation statements or other instruments of further assurance as is
necessary to maintain and perfect the Lien of this Indenture or any
Security Documents in the Collateral and reciting with respect to the
security interests in such Collateral the details of such action or
referencing to prior Opinions of Counsel in which such details are
given, and stating that all financing statements and continuation
statements have been executed and filed that are necessary fully to
preserve and protect the rights of the Holders and the Trustee
hereunder and under the Security Documents with respect to such Lien;
or
(2) to the effect that, in the opinion of such counsel, no
such action is necessary to maintain and perfect such Lien.
(b) The Company will otherwise comply with the provisions of
TIA ss. 314(b) and (d).
SECTION 11.03 RELEASE OF COLLATERAL. (a) Subject to
subsections (b) and (c) of this Section 11.03, Collateral may be released from
the Lien and security interest created by the Security Documents at any time or
from time to time in accordance with the provisions of the Security Documents,
the Intercreditor Agreement or as provided hereby. Upon the request of the
Company pursuant to an Officer's Certificate certifying that all conditions
precedent hereunder have been met, the Company and the Subsidiary Guarantors
will be entitled to a release of assets included in the Collateral from the
Liens securing the Securities, and the Collateral Agent and the Trustee (if the
Trustee is not then the Collateral Agent) shall release the same from such Liens
at the Company's sole cost and expense, under one or more of the following
circumstances:
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(1) if all other Liens on that asset securing First Lien
Obligations (including all commitments thereunder) are released;
PROVIDED that after giving effect to the release, First Lien
Obligations (including commitments in respect thereof to the extent
that such commitments are subject only to reasonable and customary
funding conditions and are then available to be funded at the election
of the Company) of no less than $40.0 million secured by the
first-priority Liens on the remaining Collateral remain outstanding;
(2) to enable the Company or any Subsidiary Guarantor to sell,
exchange or otherwise dispose of any of the Collateral as permitted or
not prohibited under Section 4.06;
(3) if the Company provides substitute collateral with at
least an equivalent fair value, as determined in good faith by the
Board of Directors;
(4) if any Subsidiary that is a Subsidiary Guarantor is
released from its Subsidiary Guarantee in accordance with this
Indenture, that Subsidiary's assets will also be released; or
(5) pursuant to an amendment or waiver in accordance with
Article 9 of this Indenture.
Upon receipt of such Officers' Certificate and any necessary
or proper instruments of termination, satisfaction or release prepared by the
Company, the Collateral Agent shall execute, deliver or acknowledge such
instruments or releases to evidence the release of any Collateral permitted to
be released pursuant to this Indenture or the Security Documents.
(b) Except as otherwise provided in the Intercreditor
Agreement, no Collateral may be released from the Lien and security interest
created by the Security Documents unless the Officers' Certificate required by
this Section 11.03, dated not more than 30 days prior to the date of the
application for such release, has been delivered to the Collateral Agent and the
Trustee (if the Trustee is not then the Collateral Agent).
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(c) At any time when a Default or Event of Default has
occurred and is continuing and the maturity of the Securities has been
accelerated (whether by declaration or otherwise) and the Trustee (if not then
the Collateral Agent) has delivered a notice of acceleration to the Collateral
Agent, no release of Collateral pursuant to the provisions of this Indenture or
the Security Documents will be effective as against the Holders, except as
otherwise provided in the Intercreditor Agreement.
SECTION 11.04 PERMITTED RELEASES NOT TO IMPAIR LIEN; TRUST
INDENTURE ACT REQUIREMENTS. The release of any Collateral from the terms hereof
and of the Security Documents or the release of, in whole or in part, the Liens
created by the Security Documents, will not be deemed to impair the Lien on the
Collateral in contravention of the provisions hereof if and to the extent the
Collateral or Liens are released pursuant to the applicable Security Documents
and pursuant to the terms of this Article 11. The Trustee and each of the
Holders acknowledge that a release of Collateral or a Lien strictly in
accordance with the terms of the Security Documents and of this Article 11 will
not be deemed for any purpose to be an impairment of the Lien on the Collateral
in contravention of the terms of this Indenture. To the extent applicable, the
Company and each obligor on the Securities shall cause TIA ss. 313(b), relating
to reports, and TIA ss. 314(d), relating to the release of property or
securities from the Lien hereof and of the Security Documents, to be complied
with. Any certificate or opinion required by ss. 314(d) of the TIA may be made
by an officer of the Company, except in cases which ss. 314(d) of the TIA
requires that such certificate or opinion be made by an independent person,
which person shall be an independent engineer, appraiser or other expert
selected or approved by the Trustee and the Collateral Agent in the exercise of
reasonable care.
SECTION 11.05 CERTIFICATES OF THE TRUSTEE. In the event that
the Company wishes to release Collateral in accordance with this Indenture and
the Security Documents at a time when the Trustee is not itself also the
Collateral Agent and the Company has delivered the certificates and documents
required by the Security Documents and Section 11.03 hereof, the Trustee will
determine whether it has received all documentation required by TIA ss. 314(d)
in connection with such release and, based on such determination, will deliver a
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certificate to the Collateral Agent setting forth such determination.
SECTION 11.06 SUITS TO PROTECT THE COLLATERAL. Subject to the
provisions of Article 7 hereof and the Intercreditor Agreement, the Trustee in
its sole discretion and without the consent of the Holders, on behalf of the
Holders, may or may direct the Collateral Agent to take all actions it deems
necessary or appropriate in order to:
(a) enforce any of the terms of the Security Documents; and
(b) collect and receive any and all amounts payable in respect
of the Security Obligations of the Company hereunder.
Subject to the provisions of the Security Documents and the
Intercreditor Agreement, the Trustee shall have power to institute and to
maintain such suits and proceedings as it may deem expedient to prevent any
impairment of the Collateral by any acts which may be unlawful or in violation
of any of the Security Documents or this Indenture, and such suits and
proceedings as the Trustee, in its sole discretion, may deem expedient to
preserve or protect its interests and the interests of the Holders in the
Collateral (including power to institute and maintain suits or proceedings to
restrain the enforcement of or compliance with any legislative or other
governmental enactment, rule or order that may be unconstitutional or otherwise
invalid if the enforcement of, or compliance with, such enactment, rule or order
would impair the Lien on the Collateral or be prejudicial to the interests of
the Holders or the Trustee).
SECTION 11.07 AUTHORIZATION OF RECEIPT OF FUNDS BY THE TRUSTEE
UNDER THE SECURITY DOCUMENTS. Subject to the provisions of the Intercreditor
Agreement, the Trustee is authorized to receive any funds for the benefit of the
Holders distributed under the Security Documents, and to make further
distributions of such funds to the Holders according to the provisions of this
Indenture.
SECTION 11.08 PURCHASER PROTECTED. In no event shall any
purchaser in good faith of any property purported to be released hereunder be
bound to ascertain the authority of the Collateral Agent or the Trustee to
execute the release or to inquire as to the satisfaction of any conditions
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required by the provisions hereof for the exercise of such authority or to see
to the application of any consideration given by such purchaser or other
transferee; nor shall any purchaser or other transferee of any property or
rights permitted by this Article 11 to be sold be under any obligation to
ascertain or inquire into the authority of the Company or the applicable
Subsidiary Guarantor to make any such sale or other transfer.
SECTION 11.09 POWERS EXERCISABLE BY RECEIVER OR TRUSTEE. In
case the Collateral shall be in the possession of a receiver or trustee,
lawfully appointed, the powers conferred in this Article 11 upon the Company or
a Subsidiary Guarantor with respect to the release, sale or other disposition of
such property may be exercised by such receiver or trustee, and an instrument
signed by such receiver or trustee shall be deemed the equivalent of any similar
instrument of the Company or a Subsidiary Guarantor or of any officer or
officers thereof required by the provisions of this Article 11; and if the
Trustee shall be in the possession of the Collateral under any provision of this
Indenture, then such powers may be exercised by the Trustee.
SECTION 11.10 RELEASE UPON TERMINATION OF THE COMPANY'S
OBLIGATIONS. In the event that the Company delivers to the Trustee, in form and
substance acceptable to it, an Officers' Certificate certifying that all the
obligations under this Indenture, the Securities and the Security Documents have
been satisfied and discharged by complying with the provisions of Article 8 and
Section 7.07 or by the payment in full of the Company's obligations under the
Securities, this Indenture and the Security Documents, and all such obligations
have been so satisfied, the Trustee shall deliver to the Company and the
Collateral Agent a notice stating that the Trustee, on behalf of the Holders,
disclaims and gives up any and all rights it has in or to the Collateral (other
than with respect to funds held by the Trustee pursuant to Article 8), and any
rights it has under the Security Documents, and upon receipt by the Collateral
Agent of such notice, the Collateral Agent shall be deemed not to hold a Lien in
the Collateral on behalf of the Trustee.
SECTION 11.11 COLLATERAL AGENT.
(a) The Trustee shall initially act as Collateral Agent and
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shall be authorized to appoint co-Collateral Agents as necessary in its sole
discretion. Except as otherwise explicitly provided herein or in the Security
Documents or the Intercreditor Agreement, neither the Collateral Agent nor any
of its respective officers, directors, employees or agents shall be liable for
failure to demand, collect or realize upon any of the Collateral or for any
delay in doing so or shall be under any obligation to sell or otherwise dispose
of any Collateral upon the request of any other Person or to take any other
action whatsoever with regard to the Collateral or any part thereof. The
Collateral Agent shall be accountable only for amounts that it actually receives
as a result of the exercise of such powers, and neither the Collateral Agent nor
any of its officers, directors, employees or agents shall be responsible for any
act or failure to act hereunder, except for its own willful misconduct, gross
negligence or bad faith.
(b) The Trustee, as Collateral Agent, is authorized and
directed to (i) enter into the Security Documents, (ii) enter into the
Intercreditor Agreement, (iii) bind the Holders on the terms as set forth in the
Security Documents and the Intercreditor Agreement and (iv) perform and observe
its obligations under the Security Documents and the Intercreditor Agreement.
(c) If the Company (i) Incurs First Lien Obligations at any
time when no intercreditor agreement is in effect or at any time when
Indebtedness constituting First Lien Obligations entitled to the benefit of an
existing Intercreditor Agreement is concurrently retired, and (ii) delivers to
the Collateral Agent an Officers' Certificate so stating and requesting the
Collateral Agent to enter into an Intercreditor Agreement in favor of a
designated agent or representative for the holders of the Indebtedness so
incurred, the Collateral Agent shall (and is hereby authorized and directed to)
enter into such Intercreditor Agreement, bind the Holders on the terms set forth
therein, and perform and observe its obligations thereunder.
SECTION 11.12 DESIGNATIONS. Except as provided in the next
sentence, for purposes of the provisions hereof and the Intercreditor Agreement
requiring the Company to designate Indebtedness for the purposes of the term
"First Lien Indebtedness" or any other such designations hereunder or under the
Intercreditor Agreement, any such designation shall be sufficient if the
relevant designation is set forth in writing, signed on behalf of the Company by
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an Officer and delivered to the Trustee, the Collateral Agent and the Credit
Agent. For all purposes hereof and the Intercreditor Agreement, the Company
hereby designates the Obligations pursuant to the Credit Agreement as in effect
on the Issue Date as "First Lien Indebtedness."
ARTICLE 12
Application of Trust Moneys
SECTION 12.01 "TRUST MONEYS" DEFINED. All cash or cash
equivalents received by the Trustee or the Collateral Agent on behalf of the
Trustee, in each case, consistent with and not in contravention of the
Intercreditor Agreement:
(1) upon the release of Collateral from the Lien of this
Indenture and the Security Documents, including all moneys received in
respect of the principal of all purchase money, governmental and other
obligations;
(2) as compensation for, or proceeds of sale of, any part of
the Collateral taken by eminent domain or purchased by, or sold
pursuant to an order of, a governmental authority or otherwise disposed
of; or
(3) as proceeds of insurance upon any part of the Collateral
(other than any liability insurance proceeds payable to the Trustee or
the Collateral Agent for any loss, liability or expense incurred by
it);
(all such moneys being herein sometimes called "Trust Moneys"), shall be held by
the Trustee (or the Collateral Agent as the agent of the Trustee) for the
benefit of the Holders of Securities as a part of the Collateral, shall be held
in United States dollars or U.S. dollar denominated obligations, and, upon any
entry upon or sale of the Collateral or any part thereof pursuant to Article 6
hereof or the Security Documents, in each case, subject to the Intercreditor
Agreement, said Trust Moneys shall be applied, subject to the Intercreditor
Agreement, in accordance with Section 4.02 of the Collateral Agreement; but,
prior to any such entry or sale, all or any part of the Trust Moneys may be
withdrawn, and shall be released, paid or applied by the Trustee or the
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Collateral Agent, as appropriate, from time to time as provided in Sections
12.02 to 12.05, inclusive, and may be applied by the Trustee as provided in
Section 12.07(b).
SECTION 12.02 RETIREMENT OF SECURITIES. Subject to the terms
of the Intercreditor Agreement, the Trustee shall, or shall direct, as
appropriate, the Collateral Agent to deliver to the Trustee Trust Moneys to,
apply Trust Moneys from time to time to the payment of the principal of and
interest on any Securities, at final maturity or to the redemption thereof or
the purchase thereof upon tender or in the open market or at private sale or
upon any exchange or in any one or more of such ways, including pursuant to a
redemption under Article 3 or a required purchase pursuant to Section 4.06, as
the Company shall request, upon receipt by the Trustee of the following:
(1) a resolution of the Board of Directors directing the
application pursuant to this Section of a specified amount of Trust
Moneys (denominated in U.S. dollars) and in case any such moneys are to
be applied to payment, designating any Securities so to be paid and, in
case any such moneys are to be applied to the purchase of any
Securities, prescribing the method of purchase, the price or prices to
be paid and the maximum principal amount of any Securities to be
purchased and any other provisions of this Indenture governing such
purchase;
(2) additional cash (denominated in U.S. dollars) to the
extent necessary to fund the entire payment amount or purchase price,
which cash shall be held by the Trustee in trust for such purpose;
(3) an Officers' Certificate, dated not more than five days
prior to the date of the relevant application, stating
(A) that no Default exists; and
(B) that all conditions precedent and covenants
herein provided for relating to such application of Trust
Moneys have been complied with; and
(4) an Opinion of Counsel stating that the documents and the
cash or cash equivalents, if any, which have been or are therewith
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delivered to and deposited with the Trustee conform to the requirements
of this Indenture and that all conditions precedent herein provided for
relating to such application of Trust Moneys have been complied with.
Upon compliance with the foregoing provisions of this Section,
the Trustee shall apply Trust Moneys available therefor as directed and
specified by such resolution, up to, but not exceeding, the principal amount of
the Securities to be so paid, redeemed or purchased.
A resolution of the Board of Directors expressed to be
irrevocable directing the application of Trust Moneys under this Section to the
payment of the principal of particular Securities shall for all purposes of this
Indenture be deemed the equivalent of the deposit of money with the Trustee in
trust for such purpose. Such Trust Moneys and any cash deposited with the
Trustee pursuant to subsection (2) of this Section shall not, after compliance
with the foregoing provisions of this Section, be deemed to be part of the
Collateral or Trust Moneys.
SECTION 12.03 WITHDRAWALS OF INSURANCE PROCEEDS AND
CONDEMNATION AWARDS. (a) To the extent that any Trust Moneys consist of either
(i) the proceeds of insurance upon any part of the Collateral or (ii) any award
for or the proceeds from any of the Collateral being taken by eminent domain,
expropriation or other similar governmental taking or a requisition for title or
sold pursuant to the exercise by any governmental authority of any right which
it may then have to purchase, or to designate a purchaser or to order a sale of
any part of the Collateral, such Trust Moneys may be withdrawn by the Company or
the applicable Subsidiary Guarantor and shall be paid by the Trustee upon a
request by the Company to the Trustee by the proper officer or officers of the
Company or the applicable Subsidiary Guarantor to reimburse the Company or the
applicable Subsidiary Guarantor for expenditures made, or to pay costs incurred,
by the Company or the applicable Subsidiary Guarantor to repair, rebuild or
replace the property destroyed, damaged or taken upon receipt by the Trustee of
the following:
(1) an Officers' Certificate dated not more than 30 days prior
to the date of the application for the withdrawal and payment of such
Trust Moneys, setting forth:
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(A) that expenditures have been made, or costs
incurred, or will be incurred simultaneous with such
withdrawal of Trust Moneys, by the Company or the applicable
Subsidiary Guarantor in a specified amount for the purpose of
making certain repairs, rebuildings and replacements of the
Collateral, which shall be briefly described;
(B) that no part of such expenditures, in any
previous or then pending application, has been or is being
made the basis for the withdrawal of any Trust Moneys pursuant
to this Section 12.03;
(C) that no part of such expenditures or costs has
been paid out of either the proceeds of insurance upon any
part of the Collateral not required to be paid to the Trustee
or the Collateral Agent, as appropriate, under the Security
Documents or any award for or the proceeds from any of the
Collateral being taken not required to be paid to the Trustee
or the Collateral Agent, as appropriate, under the Security
Documents, as the case may be;
(D) that there is no outstanding indebtedness or
other obligation, other than costs for which payment is being
requested, known to the Company, after due inquiry, for the
purchase price or construction of such repairs, rebuildings or
replacements, or for labor, wages, materials or supplies in
connection with the making thereof, which, if unpaid, might
become the basis of a vendor's, mechanics', laborer's,
materialmen's, statutory or other similar Lien upon any of
such repairs, rebuildings or replacement, which Xxxx might, in
the opinion of the signers of such certificate, materially
impair the security afforded by such repairs, rebuildings or
replacement; and
(E) that no Default or Event of Default shall have
occurred and be continuing.
(b) To the extent applicable, in connection with any withdraw
of Trust Moneys pursuant to Section 12.03(a), the Company and each obligor shall
cause ss. 314 of the TIA relating to the release of property or securities from
the Lien hereof and of the Security Documents to be complied with. Any
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certificate or opinion required by ss. 314 of the TIA may be made by an officer
of the Company, except in cases in which the TIA requires that such certificate
or opinion be made by an independent person.
(c) Upon compliance with the foregoing provisions of this
Section, the Trustee shall pay on Company request an amount of Trust Moneys of
the character aforesaid equal to the amount of the expenditures or costs stated
in the Officers' Certificate required by paragraph (A) of subsection (1) of this
Section 12.03. Subject to the Intercreditor Agreement, unless the Collateral
Agent and Trustee shall otherwise agree, all insurance relating to the
Collateral must name the Collateral Agent and Trustee as an insured, but without
liability for premiums, calls or assessments, and all amounts of whatsoever
nature payable under any insurance (to the extent covering the Collateral) must
be payable to the Collateral Agent and Trustee for distribution, first to itself
and thereafter to the Company or the relevant Subsidiary Guarantor, as owner of
such Collateral or others as their interests may appear. All amounts payable
under any insurance with respect to Collateral involving any damage to
Collateral not constituting an actual or constructive or an agreed or
compromised total loss, the insurers may pay directly for the repair, salvage or
other charges involved or, if the Company or the relevant Subsidiary Guarantor
shall have first fully repaired the damage or paid all of the salvage or other
charges, may pay the Company or the relevant Subsidiary Guarantor as
reimbursement therefor; PROVIDED, HOWEVER, that if such amounts (including any
franchise or deductible) are in excess of $1,000,000, the insurers shall,
subject to the Intercreditor Agreement, make such payment to the Collateral
Agent and Trustee. Subject to the Intercreditor Agreement, all payments of
insurance in respect of Collateral shall be made to the Collateral Agent and the
Trustee if an Event of Default shall have occurred or any event which with the
giving of notice or the lapse of time, or both, would constitute an Event of
Default.
SECTION 12.04 POWERS EXERCISABLE NOTWITHSTANDING EVENT OF
DEFAULT. Subject to the Intercreditor Agreement, in case an Event of Default
shall have occurred and shall be continuing, the Company, while in possession of
the Collateral (other than cash, cash equivalents, securities and other personal
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property held by, or required to be deposited or pledged with, the Trustee
hereunder or under the Security Documents), may do any of the things enumerated
in Sections 12.02 and 12.03 if the Trustee in its discretion, or the Holders of
a majority in aggregate principal amount of the outstanding Securities, by
appropriate action of such Holders, shall consent to such action, in which event
any certificate filed under any of such Sections shall omit the statement to the
effect that no Event of Default has occurred and is continuing. This Section
12.04 shall not apply, however, during the continuance of an Event of Default of
the type specified in Section 6.01(1) or 6.01(2).
SECTION 12.05 POWERS EXERCISABLE BY TRUSTEE OR RECEIVER.
Subject to the Intercreditor Agreement, in case the Collateral (other than any
cash, cash equivalents, securities and other personal property held by, or
required to be deposited or pledged with, the Trustee or the Collateral Agent
hereunder or under the Security Documents) shall be in the possession of a
receiver or trustee lawfully appointed, the powers hereinbefore in this Article
12 conferred upon the Company and the Subsidiary Guarantors with respect to the
withdrawal or application of Trust Moneys may be exercised by such receiver or
trustee, in which case a certificate signed by such receiver or trustee shall be
deemed the equivalent of any Officers' Certificate required by this Article 12.
If the Trustee or the Collateral Agent shall be in possession of any of the
Collateral hereunder or under the Security Documents, such powers may be
exercised by the Trustee or the Collateral Agent, as applicable, in its sole
discretion.
SECTION 12.06 DISPOSITION OF SECURITIES RETIRED. All
Securities received by the Trustee and for whose purchase Trust Moneys are
applied under this Article 12, if not otherwise canceled, shall be promptly
canceled and destroyed by the Trustee. Upon destruction of any Securities, the
Trustee shall issue a certificate of destruction to the Company.
SECTION 12.07 INVESTMENT AND USE OF TRUST MONEYS. (a) Subject
to the Intercreditor Agreement, all or any part of any Trust Moneys held by the
Trustee hereunder (except such as may be held for the account of any particular
Securities) or by the Collateral Agent on behalf of the Trustee, shall from time
to time at the direction of the Company be invested or reinvested in Temporary
Cash Investments. Unless a Default occurs and is continuing, any interest on
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such Temporary Cash Investments (in excess of any accrued interest paid at the
time of purchase) which may be received by the Trustee or the Collateral Agent,
as appropriate, shall be paid periodically to the Company. Such Temporary Cash
Investments shall be held by the Trustee as a part of the Collateral, subject to
the same provisions hereof as the cash used by it to purchase such cash
equivalents. The Trustee shall not be liable or responsible for any loss
resulting from such investments or sales except only for its own negligent
action, its own negligent failure to act or its own willful misconduct in
complying with this Section 12.07.
(b) If the Company or any Subsidiary Guarantor shall fail to
perform any of its covenants in this Indenture or under any Security Document,
the Trustee may (but shall not be required to), direct the Collateral Agent to,
at any time and from time to time, use, apply and advance any Trust Moneys held
by it under this Article 12 or make advances to effect performance of any such
covenant on behalf of the Company or such Subsidiary Guarantor as contemplated
by this Indenture or the Security Documents; PROVIDED, HOWEVER, that the Trustee
or the Collateral Agent, as appropriate, shall not be required to make any such
advances from its own funds; provided FURTHER, HOWEVER, that all moneys so used
or advanced by the Trustee, together (in the case of funds advanced by the
Trustee) with interest at the rate borne by the Securities shall be repaid by
the Company or the applicable Subsidiary Guarantor upon demand and such advances
shall be secured under the Security Documents prior to the Securities. For
repayment of all such advances the Trustee shall have the right to use and apply
any Trust Moneys at any time held by it under Article 12, but no such use of
Trust Moneys or advance shall relieve the Company or such Subsidiary Guarantor
from any Default.
ARTICLE 13
Miscellaneous
SECTION 13.01 TRUST INDENTURE ACT CONTROLS. If any provision
of this Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
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SECTION 13.02 NOTICES. Any notice or communication shall be in
writing and delivered in person or mailed by first-class mail addressed as
follows:
if to the Company or any Subsidiary Guarantor:
Xxxxxxxx XxXxxxxx Corporation
000 Xxxx Xxxxx Xxxxxxx Xxxxxxx
Xxxxxxx, Xxx Xxxx 00000-1197
Attention: Chief Financial Officer
with a copy to:
Xxxxxxx Xxxx LLP
Xxx X&X Xxxxx, Xxxxx 0000
Xxxxxxx, Xxx Xxxx 00000-2391
Attention: Xxxxxx X. Xxxxxxxx, Esq.
if to the Trustee:
U.S. Bank Trust National Association
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
The Company, any Subsidiary Guarantor or the Trustee by notice
to the other may designate additional or different addresses for subsequent
notices or communications.
Any notice or communication mailed to a Securityholder shall
be mailed to the Securityholder at the Securityholder's address as it appears on
the registration books of the Registrar and shall be sufficiently given if so
mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder
or any defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 13.03 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA ss. 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, any Subsidiary Guarantor, the Trustee, the Registrar
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and anyone else shall have the protection of TIA ss. 312(c).
SECTION 13.04 CERTIFICATE AND OPINION AS TO CONDITIONS
PRECEDENT. Upon any request or application by the Company to the Trustee to take
or refrain from taking any action under this Indenture, the Company shall
furnish to the Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 13.05 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a covenant or
condition provided for in this Indenture shall include:
(1) a statement that the individual 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 individual, 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 or not, in the opinion of such
individual, such covenant or condition has been complied with.
SECTION 13.06 WHEN SECURITIES DISREGARDED. In determining
whether the Holders of the required principal amount of Securities have
concurred in any direction, waiver or consent, Securities owned by the Company
119
or by any Person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company shall be disregarded and
deemed not to be outstanding, except that, for the purpose 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. Also, subject to the foregoing, only Securities outstanding at the
time shall be considered in any such determination.
SECTION 13.07 RULES BY TRUSTEE, PAYING AGENT AND REGISTRAR.
The Trustee may make reasonable rules for action by or a meeting of
Securityholders. The Registrar and the Paying Agent may make reasonable rules
for their functions.
SECTION 13.08 LEGAL HOLIDAYS. If a payment date is a Legal
Holiday, payment shall be made on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period. If a regular
record date is a Legal Holiday, the record date shall not be affected.
SECTION 13.09 GOVERNING LAW. This Indenture and the Securities
shall be governed by, and construed in accordance with, the laws of the State of
New York.
SECTION 13.10 NO RECOURSE AGAINST OTHERS. A director, officer,
employee or stockholder, as such, of the Company or any Subsidiary Guarantor
shall not have any liability for any obligations of the Company under the
Securities or this Indenture or of such Subsidiary Guarantor under its
Subsidiary Guarantee, the Security Documents or this Indenture or for any claim
based on, in respect of or by reason of such obligations or their creation. By
accepting a Security, each Securityholder shall waive and release all such
liability. The waiver and release shall be part of the consideration for the
issue of the Securities.
SECTION 13.11 SUCCESSORS. All agreements of the Company in
this Indenture and the Securities shall bind its successors. All agreements of
the Trustee in this Indenture shall bind its successors.
SECTION 13.12 MULTIPLE ORIGINALS. The parties may sign any
number of copies of this Indenture. Each signed copy shall be an original, but
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all of them together represent the same agreement. One signed copy is enough to
prove this Indenture.
SECTION 13.13 TABLE OF CONTENTS; HEADINGS. The table of
contents, cross-reference sheet and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not
intended to be considered a part hereof and shall not modify or restrict any of
the terms or provisions hereof.
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IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
COLUMBUS XXXXXXXX CORPORATION,
By /s/ Xxxxxx X. Xxxxxxxxxx, Xx.
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxxx, Xx.
Title: Executive Vice President and
Chief Financial Officer
AUDUBON EUROPE S.AR.L.,
By /s/ Xxxxxx X. Xxxxxxxxxx, Xx.
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxxx, Xx.
Title: Manager - A Category
AUDUBON WEST, INC.,
By /s/ Xxxxxx X. Xxxxxxxxxx, Xx.
----------------------------------
Name: Xxxxxx X. Xxxxxxxxxx, Xx.
Title: Vice President and Treasurer
CRANE EQUIPMENT & service, inc.,
By /s/ Xxxxxx X. Xxxxxxxxxx, Xx.
----------------------------------
Name: Xxxxxx X. Xxxxxxxxxx, Xx.
Title: Vice President and Treasurer
YALE INDUSTRIAL PRODUCTS, INC.,
By /s/ Xxxxxx X. Xxxxxxxxxx, Xx.
----------------------------------
Name: Xxxxxx X. Xxxxxxxxxx, Xx.
Title: Vice President and Treasurer
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U.S. BANK TRUST NATIONAL
ASSOCIATION,
By /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Trust Officer
EXHIBIT 1
[FORM OF SUPPLEMENTAL INDENTURE TO BE
DELIVERED BY ADDITIONAL SUBSIDIARY GUARANTORS]
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated
as of [ ] among [ ] (the "Additional Subsidiary Guarantor"), a [ ] corporation
and a subsidiary of Columbus XxXxxxxx Corporation, a New York corporation (or
its permitted successor) (the "Company"), the other Subsidiary Guarantors (the
"Existing Subsidiary Guarantors") and U.S. Bank Trust National Association, a
[?], as Trustee under the Indenture (the "Trustee").
W I T N E S S E T H :
WHEREAS, the Company and the Subsidiary Guarantors have
heretofore executed and delivered to the Trustee an Indenture (the "Indenture"),
dated as of July 22, 2003, providing for the issuance of 10% Senior Secured
Notes due 2010 (the "Securities");
WHEREAS, [Section 4.13]/[Section 5.01(b)] of the Indenture
provides that under certain circumstances the Company will cause the Additional
Subsidiary Guarantor to execute and deliver to the Trustee a Guarantee Agreement
pursuant to which the Additional Subsidiary Guarantor will Guarantee payment of
the Securities on the same terms and conditions as those set forth in Article 10
of the Indenture; and
WHEREAS, pursuant to Section 9.01(4) of the Indenture, the
Trustee, the Company and the Existing Subsidiary Guarantors are authorized to
execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for good
and valuable consideration, the receipt of which is hereby acknowledged, the
Company, the Additional Subsidiary Guarantor, the Existing Subsidiary Guarantors
and the Trustee mutually covenant and agree for the equal and ratable benefit of
the Holders of the Securities as follows:
SECTION 1. CAPITALIZED TERMS. Capitalized terms used herein
but not defined shall have the meanings assigned to them in the Indenture.
2
SECTION 2. GUARANTEES. [a] The Additional Subsidiary Guarantor
hereby agrees, jointly and severally with all other Subsidiary Guarantors, to
guarantee the Issuers' obligations under the Securities on the terms and subject
to the conditions set forth in Article 10 of the Indenture and to be bound by
all other applicable provisions of the Indenture (including Article 11).
[(b) If, in connection with any payment made under or with
respect to the Subsidiary Guarantee of the Additional Subsidiary Guarantor, the
Additional Subsidiary Guarantor is required to withhold or deduct any amount for
or on account of any present or future tax, duty, levy, impost, assessment or
other governmental charge (including penalties, interest and other liabilities
related thereto)(hereinafter "Taxes") imposed or levied by or on behalf of the
government of [ ]1 or any political subdivision or any authority or agency
therein or thereof having power to tax, or within any other jurisdiction in
which the Additional Subsidiary Guarantor is organized or is otherwise resident
for tax purposes or any jurisdiction from or through which payment is made (each
a "Relevant Taxing Jurisdiction"), such Additional Subsidiary Guarantor will be
required to pay such additional amounts ("Additional Amounts") as may be
necessary so that the net amount received by Holders (including Additional
Amounts) after such withholding or deduction will not be less than the amount
the Holders would have received if such Taxes had not been withheld or deducted;
PROVIDED, HOWEVER, that no Additional Amounts will be payable with respect to a
payment made to a Holder which is subject to Taxes by reason of its being
connected with the Relevant Taxing Jurisdiction (other than by the mere
ownership or holding of Securities outside [ ]2 or the receipt of payments in
respect of the Subsidiary Guarantee of the Additional Subsidiary Guarantor.
(c) Upon request, the Additional Subsidiary Guarantor shall
provide the Trustee with official receipts or other documentation satisfactory
----------
1 Provide applicable jurisdiction of incorporation or organization.
2 Provide applicable jurisdiction of incorporation or organization.
3
to the Trustee evidencing the payment of the Taxes with respect to which
Additional Amounts are paid.]3
SECTION 3. RATIFICATION OF INDENTURE; SUPPLEMENTAL INDENTURES
PART OF INDENTURE. Except as expressly amended hereby, the Indenture is in all
respects ratified and confirmed and all the terms, conditions and provisions
thereof shall remain in full force and effect. This Supplemental Indenture shall
form a part of the Indenture for all purposes, and every holder of Securities
heretofore or hereafter authenticated and delivered shall be bound hereby.
SECTION 4. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
SECTION 5. TRUSTEE MAKES NO REPRESENTATION. The Trustee makes
no representation as to the validity or sufficiency of this Supplemental
Indenture.
SECTION 6. COUNTERPARTS. The parties may sign any number of
copies of this Supplemental Indenture. Each signed copy shall be an original,
but all of them together represent the same agreement.
SECTION 7. EFFECT OF HEADINGS. The Section headings herein are
for convenience only and shall not effect the construction of this Supplemental
Indenture.
----------
3 Include if the Additional Subsidiary Guarantor is incorporated or organized
under the laws of a jurisdiction outside the United States of America.
4
IN WITNESS WHEREOF, the parties have caused this Supplemental
Indenture to be duly executed as of the date first written above.
COLUMBUS XXXXXXXX CORPORATION,
By /s/ Xxxxxx X. Xxxxxxxxxx, Xx.
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxxx, Xx.
Title: Executive Vice President and
Chief Financial Officer
[SUBSIDIARY GUARANTORS],
By /s/ Xxxxxx X. Xxxxxxxxxx, Xx.
----------------------------------
Name: Xxxxxx X. Xxxxxxxxxx, Xx.
Title: Vice President and Treasurer
[ADDITIONAL SUBSIDIARY GUARANTOR],
By /s/ Xxxxxx X. Xxxxxxxxxx, Xx.
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxxx, Xx.
Title: Manager - A Category
U.S. BANK TRUST NATIONAL
ASSOCIATION,
By /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Trust Officer
Rule 144A/REGULATION S APPENDIX
PROVISIONS RELATING TO INITIAL SECURITIES,
PRIVATE EXCHANGE SECURITIES AND EXCHANGE SECURITIES
1. DEFINITIONS
1.1 DEFINITIONS
For the purposes of this Appendix the following terms shall have the
meanings indicated below:
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Temporary Regulation S Global Security or beneficial
interest therein, the rules and procedures of the Depository for such a
Temporary Regulation S Global Security, to the extent applicable to such
transaction and as in effect from time to time.
"Definitive Security" means a certificated Initial Security or
Exchange Security or Private Exchange Security bearing, if required, the
appropriate restricted securities legend set forth in Section 2.3(e).
"Depository" means The Depository Trust Company, its nominees
and their respective successors.
"Distribution Compliance Period", with respect to any
Securities, means the period of 40 consecutive days beginning on and including
the later of (i) the day on which such Securities are first offered to Persons
other than distributors (as defined in Regulation S under the Securities Act) in
reliance on Regulation S and (ii) the issue date with respect to such
Securities.
"Exchange Securities" means (1) the 10% Senior Secured Notes
due 2010 issued pursuant to the Indenture in connection with a Registered
Exchange Offer pursuant to a Registration Rights Agreement and (2) Additional
Securities, if any, issued pursuant to a registration statement filed with the
SEC under the Securities Act.
"Initial Purchasers" means (1) with respect to the Initial
Securities issued on the Issue Date, Credit Suisse First Boston LLC and Fleet
Securities, Inc. and (2) with respect to each issuance of Additional Securities,
2
the Persons purchasing or underwriting such Additional Securities under the
related Purchase Agreement.
"Initial Securities" means (1) $115,000,000 aggregate
principal amount of 10% Senior Secured Notes due 2010 issued on the Issue Date
and (2) Additional Securities, if any, issued in a transaction exempt from the
registration requirements of the Securities Act.
"Private Exchange" means the offer by the Company, pursuant to
a Registration Rights Agreement, to the Initial Purchasers to issue and deliver
to each such Initial Purchaser, in exchange for the Initial Securities held by
such Initial Purchaser as part of the initial distribution of such Initial
Securities, a like aggregate principal amount of Private Exchange Securities.
"Private Exchange Securities" means any 10% Senior Secured
Notes due 2010 issued in connection with a Private Exchange.
"Purchase Agreement" means (1) with respect to the Initial
Securities issued on the Issue Date, the Purchase Agreement dated July 15, 2003,
among the Company, the Subsidiary Guarantors and the Initial Purchasers and (2)
with respect to each issuance of Additional Securities, the purchase agreement
or underwriting agreement among the Company and the Persons purchasing or
underwriting such Additional Securities.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Registered Exchange Offer" means the offer by the Company,
pursuant to a Registration Rights Agreement, to certain Holders of Initial
Securities, to issue and deliver to such Holders, in exchange for the Initial
Securities, a like aggregate principal amount of Exchange Securities registered
under the Securities Act.
"Registration Rights Agreement" means (1) with respect to the
Initial Securities issued on the Issue Date, the Registration Rights Agreement
dated July 15, 2003 among the Company, the Subsidiary Guarantors and the Initial
Purchasers and (2) with respect to each issuance of Additional Securities issued
in a transaction exempt from the registration requirements of the Securities
Act, the registration rights agreement, if any, among the Company and the
3
Persons purchasing such Additional Securities under the related Purchase
Agreement.
"Rule 144A Securities" means all Securities offered and sold
to QIBs in reliance on Rule 144A.
"Securities Act" means the Securities Act of 1933.
"Securities Custodian" means the custodian with respect to a
Global Security (as appointed by the Depository), or any successor Person
thereto, and shall initially be the Trustee.
"Shelf Registration Statement" means the registration
statement issued by the Company in connection with the offer and sale of Initial
Securities or Private Exchange Securities pursuant to a Registration Rights
Agreement.
"Transfer Restricted Securities" means Securities that bear or
are required to bear a legend relating to restrictions on transfer relating to
the Securities Act set forth in Section 2.3(e).
1.2 OTHER DEFINITIONS
DEFINED IN
TERM SECTION:
---- -------
Agent Members 2.1(b)
Global Security 2.1(a)
Permanent Regulation S Global Security 2.1(a)
Regulation S 2.1(a)
Rule 144A 2.1(a)
Rule 144A Global Security 2.1(a)
Temporary Regulation S Global Security 2.1(a)
2. THE SECURITIES
2.1 (a) FORM AND DATING. The Initial Securities will be offered and
sold by the Company pursuant to a Purchase Agreement. The Initial Securities
will be resold initially only to (i) QIBs in reliance on Rule 144A under the
Securities Act ("Rule 144A") and (ii) Persons other than U.S. Persons (as
defined in Regulation S) in reliance on Regulation S under the Securities Act
("Regulation S"). Initial Securities may thereafter be transferred to, among
4
others, QIBs and purchasers in reliance on Regulation S, subject to the
restrictions on transfer set forth herein. Initial Securities initially resold
pursuant to Rule 144A shall be issued initially in the form of one or more
permanent global Securities in definitive, fully registered form (collectively,
the "Rule 144A Global Security"), and Initial Securities initially resold
pursuant to Regulation S shall be issued initially in the form of one or more
temporary global securities in fully registered form (collectively, the
"Temporary Regulation S Global Security"), in each case without interest coupons
and with the global securities legend and the applicable restricted securities
legend set forth in Exhibit 1 hereto, which shall be deposited on behalf of the
purchasers of the Initial Securities represented thereby with the Securities
Custodian and registered in the name of the Depository or a nominee of the
Depository, duly executed by the Company and authenticated by the Trustee as
provided in this Indenture. Except as set forth in this Section 2.1(a),
beneficial ownership interests in the Temporary Regulation S Global Security
will not be exchangeable for interests in the Rule 144A Global Security, a
permanent global security (the "Permanent Regulation S Global Security", and
together with the Temporary Regulation S Global Security, the "Regulation S
Global Security") or any other Security prior to the expiration of the
Distribution Compliance Period and then, after the expiration of the
Distribution Compliance Period, may be exchanged for interests in a Rule 144A
Global Security or the Permanent Regulation S Global Security only upon
certification in form reasonably satisfactory to the Trustee that beneficial
ownership interests in such Temporary Regulation S Global Security are owned
either by non-U.S. persons or U.S. persons who purchased such interests in a
transaction that did not require registration under the Securities Act.
Beneficial interests in Temporary Regulation S Global Securities may be
exchanged for interests in Rule 144A Global Securities if (1) such exchange
occurs in connection with a transfer of Securities in compliance with Rule 144A
and (2) the transferor of the beneficial interest in the Temporary Regulation S
Global Security first delivers to the Trustee a written certificate (in a form
satisfactory to the Trustee) to the effect that the beneficial interest in the
Temporary Regulation S Global Security is being transferred to a Person (a) who
the transferor reasonably believes to be a QIB, (b) purchasing for its own
account or the account of a QIB in a transaction meeting the requirements of
5
Rule 144A, and (c) in accordance with all applicable securities laws of the
States of the United States and other jurisdictions.
Beneficial interests in a Rule 144A Global Security may be
transferred to a Person who takes delivery in the form of an interest in a
Regulation S Global Security, whether before or after the expiration of the
Distribution Compliance Period, only if the transferor first delivers to the
Trustee a written certificate (in the form provided in the Indenture) to the
effect that such transfer is being made in accordance with Rule 903 or 904 of
Regulation S or Rule 144 (if applicable).
The Rule 144A Global Security, the Temporary Regulation S
Global Security and the Permanent Regulation S Global Security are collectively
referred to herein as "Global Securities". The aggregate principal amount of the
Global Securities may from time to time be increased or decreased by adjustments
made on the records of the Trustee and the Depository or its nominee as
hereinafter provided.
(b) BOOK-ENTRY PROVISIONS. This Section 2.1(b) shall apply
only to a Global Security deposited with or on behalf of the
Depository.
The Company shall execute and the Trustee shall, in accordance
with this Section 2.1(b), authenticate and deliver initially one or more Global
Securities that (a) shall be registered in the name of the Depository for such
Global Security or Global Securities or the nominee of such Depository and (b)
shall be delivered by the Trustee to such Depository or pursuant to such
Depository's instructions or held by the Trustee as custodian for the
Depository.
Members of, or participants in, the Depository ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Security held on their behalf by the Depository or by the Trustee as the
custodian of the Depository or under such Global Security, and the Company, the
Trustee and any agent of the Company or the Trustee shall be entitled to treat
the Depository as the absolute owner of such Global Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the
Company, the Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by
6
the Depository or impair, as between the Depository and its Agent Members, the
operation of customary practices of such Depository governing the exercise of
the rights of a holder of a beneficial interest in any Global Security.
(c) CERTIFICATED SECURITIES. Except as provided in this
Section 2.1 or Section 2.3 or 2.4, owners of beneficial interests in
Global Securities shall not be entitled to receive physical delivery of
Definitive Securities.
2.2 AUTHENTICATION
The Trustee shall authenticate and deliver: (1) on the Issue
Date, an aggregate principal amount of $115,000,000 10% Senior Secured Notes Due
2010, (2) any Additional Securities for an original issue in an aggregate
principal amount specified in the written order of the Company pursuant to
Section 2.02 of the Indenture and (3) Exchange Securities or Private Exchange
Securities for issue only in a Registered Exchange Offer or a Private Exchange,
respectively, pursuant to a Registration Rights Agreement, for a like principal
amount of Initial Securities, in each case upon a written order of the Company
signed by two Officers or by an Officer and either an Assistant Treasurer or an
Assistant Secretary of the Company. Such order shall specify the amount of the
Securities to be authenticated and the date on which the original issue of
Securities is to be authenticated and, in the case of any issuance of Additional
Securities pursuant to Section 2.13 of the Indenture, shall certify that such
issuance is in compliance with Section 4.03 of the Indenture.
2.3 TRANSFER AND EXCHANGE
(a) TRANSFER AND EXCHANGE OF DEFINITIVE SECURITIES. When
Definitive Securities are presented to the Registrar with a request:
(x) to register the transfer of such Definitive
Securities; or
(y) to exchange such Definitive Securities for an equal
principal amount of Definitive Securities of other
authorized denominations,
7
the Registrar shall register the transfer or make the exchange as requested if
its reasonable requirements for such transaction are met; PROVIDED, HOWEVER,
that the Definitive Securities surrendered for transfer or exchange:
(i) shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the Company
and the Registrar, duly executed by the Holder thereof or its attorney
duly authorized in writing; and
(ii) if such Definitive Securities are required to bear a
restricted securities legend, they are being transferred or exchanged
pursuant to an effective registration statement under the Securities
Act, pursuant to Section 2.3(b) or pursuant to clause (A), (B) or (C)
below, and are accompanied by the following additional information and
documents, as applicable:
(A) if such Definitive Securities are being delivered
to the Registrar by a Holder for registration in the name of
such Holder, without transfer, a certification from such
Holder to that effect; or
(B) if such Definitive Securities are being
transferred to the Company, a certification to that effect; or
(C) if such Definitive Securities are being
transferred (x) pursuant to an exemption from registration in
accordance with Rule 144A, Regulation S or Rule 144 under the
Securities Act; or (y) in reliance upon another exemption from
the requirements of the Securities Act: (i) a certification to
that effect (in the form set forth on the reverse of the
Security) and (ii) if the Company so requests, an opinion of
counsel or other evidence reasonably satisfactory to it as to
the compliance with the restrictions set forth in the legend
set forth in Section 2.3(e)(i).
(b) RESTRICTIONS ON TRANSFER OF A DEFINITIVE SECURITY FOR A
BENEFICIAL INTEREST IN A GLOBAL SECURITY. A Definitive Security may not be
exchanged for a beneficial interest in a Rule 144A Global Security or a
Permanent Regulation S Global Security except upon satisfaction of the
requirements set forth below. Upon receipt by the Trustee of a Definitive
8
Security, duly endorsed or accompanied by appropriate instruments of transfer,
in form satisfactory to the Trustee, together with:
(i) certification, in the form set forth on the reverse of the
Security, that such Definitive Security is either (A) being transferred
to a QIB in accordance with Rule 144A or (B) is being transferred after
expiration of the Distribution Compliance Period by a Person who
initially purchased such Security in reliance on Regulation S to a
buyer who elects to hold its interest in such Security in the form of a
beneficial interest in the Permanent Regulation S Global Security; and
(ii) written instructions directing the Trustee to make, or to
direct the Securities Custodian to make, an adjustment on its books and
records with respect to such Rule 144A Global Security (in the case of
a transfer pursuant to clause (b)(i)(A)) or Permanent Regulation S
Global Security (in the case of a transfer pursuant to clause
(b)(i)(B)) to reflect an increase in the aggregate principal amount of
the Securities represented by the Rule 144A Global Security or
Permanent Regulation S Global Security, as applicable, such
instructions to contain information regarding the Depository account to
be credited with such increase,
then the Trustee shall cancel such Definitive Security and cause, or direct the
Securities Custodian to cause, in accordance with the standing instructions and
procedures existing between the Depository and the Securities Custodian, the
aggregate principal amount of Securities represented by the Rule 144A Global
Security or Permanent Regulation S Global Security, as applicable, to be
increased by the aggregate principal amount of the Definitive Security to be
exchanged and shall credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in the Rule 144A Global
Security or Permanent Regulation S Global Security, as applicable, equal to the
principal amount of the Definitive Security so canceled. If no Rule 144A Global
Securities or Permanent Regulation S Global Securities, as applicable, are then
outstanding, the Company shall issue and the Trustee shall authenticate, upon
written order of the Company in the form of an Officers' Certificate of the
Company, a new Rule 144A Global Security or Permanent Regulation S Global
Security, as applicable, in the appropriate principal amount.
9
(c) TRANSFER AND EXCHANGE OF GLOBAL SECURITIES.
(i) The transfer and exchange of Global Securities or
beneficial interests therein shall be effected through the Depository,
in accordance with this Indenture (including applicable restrictions on
transfer set forth herein, if any) and the procedures of the Depository
therefor. A transferor of a beneficial interest in a Global Security
shall deliver to the Registrar a written order given in accordance with
the Depository's procedures containing information regarding the
participant account of the Depository to be credited with a beneficial
interest in the Global Security. The Registrar shall, in accordance
with such instructions, instruct the Depository to credit to the
account of the Person specified in such instructions a beneficial
interest in the Global Security and to debit the account of the Person
making the transfer the beneficial interest in the Global Security
being transferred.
(ii) If the proposed transfer is a transfer of a beneficial
interest in one Global Security to a beneficial interest in another
Global Security, the Registrar shall reflect on its books and records
the date and an increase in the principal amount of the Global Security
to which such interest is being transferred in an amount equal to the
principal amount of the interest to be so transferred, and the
Registrar shall reflect on its books and records the date and a
corresponding decrease in the principal amount of the Global Security
from which such interest is being transferred.
(iii) Notwithstanding any other provisions of this Appendix
(other than the provisions set forth in Section 2.4), a Global Security
may not be transferred as a whole except by the Depository to a nominee
of the Depository or by a nominee of the Depository to the Depository
or another nominee of the Depository or by the Depository or any such
nominee to a successor Depository or a nominee of such successor
Depository.
(iv) In the event that a Global Security is exchanged for
Definitive Securities pursuant to Section 2.4 of this Appendix, prior
10
to the consummation of a Registered Exchange Offer or the effectiveness
of a Shelf Registration Statement with respect to such Securities, such
Securities may be exchanged only in accordance with such procedures as
are substantially consistent with the provisions of this Section 2.3
(including the certification requirements set forth on the reverse of
the Securities intended to ensure that such transfers comply with Rule
144A, Regulation S or another applicable exemption under the Securities
Act, as the case may be) and such other procedures as may from time to
time be adopted by the Company.
(d) RESTRICTIONS ON TRANSFER OF TEMPORARY REGULATION S GLOBAL
SECURITIES. During the Distribution Compliance Period, beneficial ownership
interests in Temporary Regulation S Global Securities may only be sold, pledged
or transferred in accordance with the Applicable Procedures and only (i) to the
Company, (ii) in an offshore transaction in accordance with Regulation S (other
than a transaction resulting in an exchange for an interest in a Permanent
Regulation S Global Security), (iii) pursuant to an effective registration
statement under the Securities Act, in each case in accordance with any
applicable securities laws of any State of the United States.
(e) LEGEND.
(i) Except as permitted by the following paragraphs (ii),
(iii) and (iv), each Security certificate evidencing the Global
Securities (and all Securities issued in exchange therefor or in
substitution thereof), in the case of Securities offered otherwise than
in reliance on Regulation S, shall bear a legend in substantially the
following form:
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS
SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION
5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
11
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE
COMPANY THAT (A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED
OR OTHERWISE TRANSFERRED, ONLY (I) TO THE COMPANY, (II) IN THE
UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES
IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (III) OUTSIDE THE UNITED STATES IN
AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (IV) PURSUANT TO EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE) OR (V) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I)
THROUGH (V), IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL,
AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS
REFERRED TO IN (A) ABOVE.
Each certificate evidencing a Security offered in reliance on
Regulation S shall, in lieu of the foregoing, bear a legend in
substantially the following form:
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION ORIGINALLY EXEMPT FROM REGISTRATION UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
MAY NOT BE TRANSFERRED IN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, ANY U.S. PERSON EXCEPT PURSUANT TO AN
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND ALL APPLICABLE STATE SECURITIES LAWS. TERMS
USED ABOVE HAVE THE MEANINGS GIVEN TO THEM IN REGULATION S
UNDER THE SECURITIES ACT.
Each Definitive Security shall also bear the following
additional legend:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO
THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER
12
INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO
CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS.
(ii) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security represented by a
Global Security) pursuant to Rule 144 under the Securities Act, the
Registrar shall permit the transferee thereof to exchange such Transfer
Restricted Security for a certificated Security that does not bear the
legend set forth above and rescind any restriction on the transfer of
such Transfer Restricted Security, if the transferor thereof certifies
in writing to the Registrar that such sale or transfer was made in
reliance on Rule 144 (such certification to be in the form set forth on
the reverse of the Security).
(iii) After a transfer of any Initial Securities or Private
Exchange Securities pursuant to and during the period of the
effectiveness of a Shelf Registration Statement with respect to such
Initial Securities or Private Exchange Securities, as the case may be,
all requirements pertaining to legends on such Initial Security or such
Private Exchange Security will cease to apply, the requirements
requiring any such Initial Security or such Private Exchange Security
issued to certain Holders be issued in global form will cease to apply,
and a certificated Initial Security or Private Exchange Security or an
Initial Security or Private Exchange Security in global form, in each
case without restrictive transfer legends, will be available to the
transferee of the Holder of such Initial Securities or Private Exchange
Securities upon exchange of such transferring Holder's certificated
Initial Security or Private Exchange Security or directions to transfer
such Holder's interest in the Global Security, as applicable.
(iv) Upon the consummation of a Registered Exchange Offer with
respect to the Initial Securities, all requirements pertaining to such
Initial Securities that Initial Securities issued to certain Holders be
issued in global form will still apply with respect to Holders of such
Initial Securities that do not exchange their Initial Securities, and
Exchange Securities in certificated or global form, in each case
13
without the restricted securities legend set forth in Exhibit 1 hereto
will be available to Holders that exchange such Initial Securities in
such Registered Exchange Offer.
(v) Upon the consummation of a Private Exchange with respect
to the Initial Securities, all requirements pertaining to such Initial
Securities that Initial Securities issued to certain Holders be issued
in global form will still apply with respect to Holders of such Initial
Securities that do not exchange their Initial Securities, and Private
Exchange Securities in global form with the global securities legend
and the applicable restricted securities legend set forth in Exhibit 1
hereto will be available to Holders that exchange such Initial
Securities in such Private Exchange.
(f) CANCELLATION OR ADJUSTMENT OF GLOBAL SECURITY. At such
time as all beneficial interests in a Global Security have either been exchanged
for Definitive Securities, redeemed, purchased or canceled, such Global Security
shall be returned to the Depository for cancellation or retained and canceled by
the Trustee. At any time prior to such cancellation, if any beneficial interest
in a Global Security is exchanged for certificated Securities, redeemed,
purchased or canceled, the principal amount of Securities represented by such
Global Security shall be reduced and an adjustment shall be made on the books
and records of the Trustee (if it is then the Securities Custodian for such
Global Security) with respect to such Global Security, by the Trustee or the
Securities Custodian, to reflect such reduction.
(g) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or obligation to
any beneficial owner of a Global Security, a member of, or a
participant in the Depository or other Person with respect to the
accuracy of the records of the Depository or its nominee or of any
participant or member thereof, with respect to any ownership interest
in the Securities or with respect to the delivery to any participant,
member, beneficial owner or other Person (other than the Depository) of
any notice (including any notice of redemption) or the payment of any
amount, under or with respect to such Securities. All notices and
14
communications to be given to the Holders and all payments to be made
to Holders under the Securities shall be given or made only to or upon
the order of the registered Holders (which shall be the Depository or
its nominee in the case of a Global Security). The rights of beneficial
owners in any Global Security shall be exercised only through the
Depository subject to the applicable rules and procedures of the
Depository. The Trustee may rely and shall be fully protected in
relying upon information furnished by the Depository with respect to
its members, participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to
any transfer of any interest in any Security (including any transfers
between or among Depository participants, members or beneficial owners
in any Global Security) other than to require delivery of such
certificates and other documentation or evidence as are expressly
required by, and to do so if and when expressly required by, the terms
of this Indenture, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.
2.4 CERTIFICATED SECURITIES
(a) A Global Security deposited with the Depository or with
the Trustee as Securities Custodian for the Depository pursuant to Section 2.1
shall be transferred to the beneficial owners thereof in the form of Definitive
Securities in an aggregate principal amount equal to the principal amount of
such Global Security, in exchange for such Global Security, only if such
transfer complies with Section 2.3 hereof and (i) the Depository notifies the
Company that it is unwilling or unable to continue as Depository for such Global
Security and the Depository fails to appoint a successor depositary or if at any
time such Depository ceases to be a "clearing agency" registered under the
Exchange Act and, in either case, a successor Depository is not appointed by the
Company within 90 days of such notice, or (ii) an Event of Default has occurred
and is continuing or (iii) the Company, in its sole discretion, notifies the
15
Trustee in writing that it elects to cause the issuance of Definitive Securities
under this Indenture.
(b) Any Global Security that is transferable to the beneficial
owners thereof pursuant to this Section 2.4 shall be surrendered by the
Depository to the Trustee located at its principal corporate trust office in the
Borough of Manhattan, The City of New York, to be so transferred, in whole or
from time to time in part, without charge, and the Trustee shall authenticate
and deliver, upon such transfer of each portion of such Global Security, an
equal aggregate principal amount of Definitive Securities of authorized
denominations. Any portion of a Global Security transferred pursuant to this
Section 2.4 shall be executed, authenticated and delivered only in denominations
of $1,000 principal amount and any integral multiple thereof and registered in
such names as the Depository shall direct. Any Definitive Security delivered in
exchange for an interest in the Transfer Restricted Security shall, except as
otherwise provided by Section 2.3(e) hereof, bear the applicable restricted
securities legend and definitive note legend set forth in Exhibit 1 hereto.
(c) Subject to the provisions of Section 2.4(b) hereof, the
registered Holder of a Global Security shall be entitled to grant proxies and
otherwise authorize any Person, including Agent Members and Persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities.
(d) In the event of the occurrence of one of the events
specified in Section 2.4(a) hereof, the Company shall promptly make available to
the Trustee a reasonable supply of Definitive Securities in definitive, fully
registered form without interest coupons.
EXHIBIT 1 to Rule 144A/REGULATION S APPENDIX
[FORM OF FACE OF INITIAL SECURITY]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
NEW YORK, NEW YORK, 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 IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[[FOR REGULATION S GLOBAL SECURITY ONLY] UNTIL 40 DAYS AFTER
THE LATER OF COMMENCEMENT OR COMPLETION OF THE OFFERING, AN OFFER OR SALE OF
SECURITIES WITHIN THE UNITED STATES BY A DEALER (AS DEFINED IN THE SECURITIES
ACT) MAY VIOLATE THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT IF SUCH
OFFER OR SALE IS MADE OTHERWISE THAN IN ACCORDANCE WITH RULE 144A THEREUNDER.]
[Restricted Securities Legend for Securities Offered
Otherwise than in Reliance on Regulation S]
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND THIS SECURITY MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY
NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM
2
THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE
COMPANY THAT (A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED, ONLY (I) TO THE COMPANY, (II) WITHIN THE UNITED STATES TO A PERSON
WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (III) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (IV) PURSUANT
TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) OR (V) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (V) IN ACCORDANCE WITH
ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE
HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF
THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
[Restricted Securities Legend for Securities Offered in
Reliance on Regulation S.]
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION ORIGINALLY EXEMPT FROM REGISTRATION UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE TRANSFERRED IN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON EXCEPT
PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND ALL APPLICABLE STATE SECURITIES LAWS. TERMS USED ABOVE HAVE
THE MEANINGS GIVEN TO THEM IN REGULATION S UNDER THE SECURITIES ACT.
[Temporary Regulation S Global Security Legend]
EXCEPT AS SET FORTH BELOW, BENEFICIAL OWNERSHIP INTERESTS IN
THIS TEMPORARY REGULATION S GLOBAL SECURITY WILL NOT BE EXCHANGEABLE FOR
INTERESTS IN THE PERMANENT REGULATION S GLOBAL SECURITY OR ANY OTHER SECURITY
REPRESENTING AN INTEREST IN THE SECURITIES REPRESENTED HEREBY WHICH DO NOT
CONTAIN A LEGEND CONTAINING RESTRICTIONS ON TRANSFER, UNTIL THE EXPIRATION OF
THE "40-DAY DISTRIBUTION COMPLIANCE PERIOD" (WITHIN THE MEANING OF RULE
903(b)(2) OF REGULATION S UNDER THE SECURITIES ACT) AND THEN ONLY UPON
3
CERTIFICATION IN FORM REASONABLY SATISFACTORY TO THE TRUSTEE THAT SUCH
BENEFICIAL INTERESTS ARE OWNED EITHER BY NON-U.S. PERSONS OR U.S. PERSONS WHO
PURCHASED SUCH INTERESTS IN A TRANSACTION THAT DID NOT REQUIRE REGISTRATION
UNDER THE SECURITIES ACT. DURING SUCH 40-DAY DISTRIBUTION COMPLIANCE PERIOD,
BENEFICIAL OWNERSHIP INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL SECURITY
MAY ONLY BE SOLD, PLEDGED OR TRANSFERRED (I) TO THE COMPANY, (II) OUTSIDE THE
UNITED STATES IN A TRANSACTION IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER
THE SECURITIES ACT, OR (III) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (III) IN ACCORDANCE WITH
ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. HOLDERS OF
INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL SECURITY WILL NOTIFY ANY
PURCHASER OF THIS SECURITY OF THE RESALE RESTRICTIONS REFERRED TO ABOVE, IF THEN
APPLICABLE.
AFTER THE EXPIRATION OF THE DISTRIBUTION COMPLIANCE PERIOD,
BENEFICIAL INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL SECURITY MAY BE
EXCHANGED FOR INTERESTS IN A RULE 144A GLOBAL SECURITY ONLY IF (1) SUCH EXCHANGE
OCCURS IN CONNECTION WITH A TRANSFER OF THE SECURITIES IN COMPLIANCE WITH RULE
144A AND (2) THE TRANSFEROR OF THE REGULATION S GLOBAL SECURITY FIRST DELIVERS
TO THE TRUSTEE A WRITTEN CERTIFICATE (IN THE FORM ATTACHED TO THIS CERTIFICATE)
TO THE EFFECT THAT THE REGULATION S GLOBAL SECURITY IS BEING TRANSFERRED (A) TO
A PERSON WHO THE TRANSFEROR REASONABLY BELIEVES TO BE A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A, (B) TO A PERSON WHO IS PURCHASING FOR ITS
OWN ACCOUNT OR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, AND (C) IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS.
BENEFICIAL INTERESTS IN A RULE 144A GLOBAL SECURITY MAY BE
TRANSFERRED TO A PERSON WHO TAKES DELIVERY IN THE FORM OF AN INTEREST IN THE
REGULATION S GLOBAL SECURITY, WHETHER BEFORE OR AFTER THE EXPIRATION OF THE
40-DAY DISTRIBUTION COMPLIANCE PERIOD, ONLY IF THE TRANSFEROR FIRST DELIVERS TO
THE TRUSTEE A WRITTEN CERTIFICATE (IN THE FORM ATTACHED TO THIS CERTIFICATE) TO
THE EFFECT THAT SUCH TRANSFER IS BEING MADE IN ACCORDANCE WITH RULE 903 OR 904
OF REGULATION S OR RULE 144 (IF AVAILABLE).
[Definitive Securities Legend]
4
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO
THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH
TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH
THE FOREGOING RESTRICTIONS.
5
No. $
------------- -----------
10% Senior Secured Notes due 2010
Xxxxxxxx XxXxxxxx Corporation, a New York corporation,
promises to pay to , or registered assigns, the principal sum of
----------------
Dollars on August 1, 2010.
-----------
Interest Payment Dates: February 1 and August 1.
Record Dates: January 15 and July 15.
Additional provisions of this Security are set forth on the
other side of this Security.
Dated:
COLUMBUS XXXXXXXX CORPORATION
By
---------------------------------------
Name:
Title:
By
---------------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
U.S. Bank TRUST National Association
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
By
-----------------------------------------
Authorized Signatory
6
[FORM OF REVERSE SIDE OF INITIAL SECURITY]
10% Senior Secured Note due 2010
1. INTEREST
Columbus XxXxxxxx Corporation, a New York corporation (such
corporation, and its successors and assigns under the Indenture hereinafter
referred to, being herein called the "Company"), promises to pay interest on the
principal amount of this Security at the rate per annum shown above; PROVIDED,
HOWEVER, that if a Registration Default (as defined in the Registration Rights
Agreement) occurs, additional interest will accrue on this Security at a rate of
0.50% per annum (increasing by an additional 0.50% per annum after each
consecutive 90-day period that occurs after the date on which such Registration
default occurs up to a maximum additional interest rate of 2.00%) from and
including the date on which any such Registration Default shall occur to but
excluding the date on which all Registration Defaults have been cured. The
Company will pay interest semiannually on February 1 and August 1 of each year,
commencing February 1, 2004. Interest on the Securities will accrue from the
most recent date to which interest has been paid or, if no interest has been
paid, from July 22, 2003. Interest will be computed on the basis of a 360-day
year of twelve 30-day months. The Company will pay interest on overdue principal
at the rate borne by this Security plus 1.0% per annum, and it will pay interest
on overdue installments of interest at the same rate to the extent lawful.
2. METHOD OF PAYMENT
The Company will pay interest on the Securities (except
defaulted interest) to the Persons who are registered holders of Securities at
the close of business on the January 15 or July 15 next preceding the interest
payment date even if Securities are canceled after the record date and on or
before the interest payment date. Holders must surrender Securities to a Paying
Agent to collect principal payments. The Company will pay principal and interest
in money of the United States that at the time of payment is legal tender for
payment of public and private debts. Payments in respect of the Securities
represented by a Global Security (including principal, premium and interest)
will be made by wire transfer of immediately available funds to the accounts
specified by the Depository. The Company will make all payments in respect of a
certificated Security (including principal, premium and interest) by mailing a
7
check to the registered address of each Holder thereof; PROVIDED, HOWEVER, that
payments on a certificated Security will be made by wire transfer to a U.S.
dollar account maintained by the payee with a bank in the United States if such
Holder elects payment by wire transfer by giving written notice to the Trustee
or the Paying Agent to such effect designating such account no later than 30
days immediately preceding the relevant due date for payment (or such other date
as the Trustee may accept in its discretion).
3. PAYING AGENT AND REGISTRAR
Initially, U.S. Bank Trust National Association, a [?] (the
"Trustee"), will act as Paying Agent and Registrar. The Company may appoint and
change any Paying Agent, Registrar or co-registrar without notice. The Company
or any of its domestically incorporated Wholly Owned Subsidiaries may act as
Paying Agent, Registrar or co-registrar.
4. INDENTURE
The Company issued the Securities under an Indenture dated as
of July 22, 2003 ("Indenture"), among the Company, the Subsidiary Guarantors and
the Trustee. The terms of the Securities include those stated in the Indenture
and those made part of the Indenture by reference to the Trust Indenture Act of
1939 (15 U.S.C. xx.xx. 77aaa-77bbbb) (the "Act"). Terms defined in the Indenture
and not defined herein have the meanings ascribed thereto in the Indenture. The
Securities are subject to all such terms, and Securityholders are referred to
the Indenture and the Act for a statement of those terms.
The Securities are general secured obligations of the Company.
The Company shall be entitled, subject to its compliance with Section 4.03 of
the Indenture, to issue up to $50.0 million aggregate principal amount of
Additional Securities pursuant to Section 2.13 of the Indenture. The Initial
Securities issued on the Issue Date, any Additional Securities and all Exchange
Securities or Private Exchange Securities issued in exchange therefor will be
treated as a single class for all purposes under the Indenture. The Indenture
contains covenants that limit the ability of the Company and its subsidiaries to
8
incur additional indebtedness; pay dividends or distributions on, or redeem or
repurchase capital stock; make investments; issue or sell capital stock of
subsidiaries; engage in transactions with affiliates; create liens on assets;
transfer or sell assets; guarantee indebtedness; restrict dividends or other
payments of subsidiaries; consolidate, merge or transfer all or substantially
all of its assets and the assets of its subsidiaries; engage in sale/leaseback
transactions; amend the Security Documents relating to the Collateral; and
materially impair the security interest in the Collateral. These covenants are
subject to important exceptions and qualifications.
5. OPTIONAL REDEMPTION
Except as set forth below, the Company shall not be entitled
to redeem the Securities.
On and after August 1, 2007, the Company shall be entitled at
its option on one or more occasions to redeem all or a portion of the Securities
upon not less than 30 nor more than 60 days' notice, at the redemption prices
(expressed in percentages of principal amount on the redemption date), plus
accrued interest to the redemption date (subject to the right of Holders of
record on the relevant record date to receive interest due on the relevant
interest payment date), if redeemed during the 12-month period commencing on
August 1 of the years set forth below:
Redemption
PERIOD Price
------ -----
2007 105.000%
2008 102.500%
2009 100.000%
In addition, prior to August 1, 2006, the Company shall be
entitled at its option on one or more occasions to redeem Securities (which
includes Additional Securities, if any) in an aggregate principal amount not to
exceed 35% of the aggregate principal amount of the Securities (which includes
Additional Securities, if any) originally issued at a redemption price
(expressed as a percentage of principal amount) of 110.000%, plus accrued and
unpaid interest to the redemption date, with the net cash proceeds from one or
more Public Equity Offerings; PROVIDED, HOWEVER, that (1) at least 65% of such
9
aggregate principal amount of Securities (which includes Additional Securities,
if any) remains outstanding immediately after the occurrence of each such
redemption (other than Securities held, directly or indirectly, by the Company
or its Affiliates); and (2) each such redemption occurs within 90 days after the
date of the related Public Equity Offering.
Notwithstanding the foregoing, the Company may at any time and
from time to time purchase Securities in the open market or otherwise.
6. NOTICE OF REDEMPTION
Notice of redemption will be mailed at least 30 days but not
more than 60 days before the redemption date to each Holder of Securities to be
redeemed at his registered address. Securities in denominations larger than
$1,000 principal amount may be redeemed in part but only in whole multiples of
$1,000. If money sufficient to pay the redemption price of and accrued interest
on all Securities (or portions thereof) to be redeemed on the redemption date is
deposited with the Paying Agent on or before the redemption date and certain
other conditions are satisfied, on and after such date interest ceases to accrue
on such Securities (or such portions thereof) called for redemption.
7. PUT PROVISIONS
Upon a Change of Control, any Holder of Securities will have
the right to cause the Company to repurchase all or any part of the Securities
of such Holder at a repurchase price equal to 101% of the principal amount of
the Securities to be repurchased plus accrued interest to the date of repurchase
(subject to the right of holders of record on the relevant record date to
receive interest due on the related interest payment date) as provided in, and
subject to the terms of, the Indenture.
8. GUARANTEE
The payment by the Company of the principal of, and premium
and interest on, the Securities is fully and unconditionally guaranteed on a
joint and several senior secured basis by each of the Subsidiary Guarantors to
the extent set forth in the Indenture.
10
9. SECURITY
The Securities will be secured by a second-priority security
interest (subject to Specified Permitted Liens) in the Collateral. The
Collateral consists of 100% of the capital stock of, or other equity interests
in, existing and future domestic subsidiaries and Audubon Europe S.ar.l. and 65%
of the capital stock of, or other equity interests in, existing and future
first-tier foreign subsidiaries (other than Audubon Europe S.ar.l.), and
substantially all of the other assets, in each case that are held by the Company
or the Subsidiary Guarantors.
The Trustee and the Collateral Agent, as the case may be, hold
the Collateral in trust for the benefit of the Trustee and the Holders, in each
case pursuant to the Security Documents and the Intercreditor Agreement. Each
Holder, by accepting this Security, consents and agrees to the terms of the
Security Documents (including the provisions providing for the foreclosure and
release of Collateral) and the Intercreditor Agreement as the same may be in
effect or may be amended from time to time in accordance with their terms and
the Indenture and authorizes and directs the Collateral Agent to enter into the
Security Documents and the Intercreditor Agreement, and to perform its
obligations and exercise its rights thereunder in accordance therewith.
10. DENOMINATIONS; TRANSFER; EXCHANGE
The Securities are in registered form without coupons in
denominations of $1,000 principal amount and whole multiples of $1,000. A Holder
may transfer or exchange Securities in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes and fees required by law
or permitted by the Indenture. The Registrar need not register the transfer of
or exchange any Securities selected for redemption (except, in the case of a
Security to be redeemed in part, the portion of the Security not to be redeemed)
or any Securities for a period of 15 days before a selection of Securities to be
redeemed or 15 days before an interest payment date.
11
11. PERSONS DEEMED OWNERS
The registered Holder of this Security may be treated as the
owner of it for all purposes.
12. UNCLAIMED MONEY
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back to
the Company at its request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only to
the Company and not to the Trustee for payment.
13. DISCHARGE AND DEFEASANCE
Subject to certain conditions, the Company at any time shall
be entitled to terminate some or all of its obligations under the Securities and
the Indenture if the Company deposits with the Trustee money or U.S. Government
Obligations for the payment of principal and interest on the Securities to
redemption or maturity, as the case may be.
14. AMENDMENT, WAIVER
Subject to certain exceptions set forth in the Indenture, (a)
the Indenture, the Security Documents, the Intercreditor Agreement and the
Securities may be amended with the written consent of the Holders of at least a
majority in principal amount outstanding of the Securities and (b) any default
or noncompliance with any provision may be waived with the written consent of
the Holders of a majority in principal amount outstanding of the Securities.
Subject to certain exceptions set forth in the Indenture, without the consent of
any Securityholder, the Company, the Subsidiary Guarantors and the Trustee shall
be entitled to amend the Indenture, the Security Documents, the Intercreditor
Agreement or the Securities to cure any ambiguity, omission, defect or
inconsistency, or to comply with Article 5 of the Indenture, or to provide for
uncertificated Securities in addition to or in place of certificated Securities,
or to add guarantees with respect to the Securities, including Subsidiary
Guarantees, or to secure the Securities, or to add additional covenants or
surrender rights and powers conferred on the Company or the Subsidiary
Guarantors, or to comply with any requirement of the SEC in connection with
12
qualifying the Indenture under the Act, or to make any change that does not
adversely affect the rights of any Securityholder, or to make amendments to
provisions of the Indenture relating to the form, authentication, transfer and
legending of the Securities.
15. DEFAULTS AND REMEDIES
Under the Indenture, Events of Default include (a) default for
30 days in payment of interest on the Securities; (b) default in payment of
principal on the Securities at maturity, upon redemption pursuant to paragraph 5
of the Securities, upon acceleration or otherwise, or failure by the Company to
redeem or purchase Securities when required; (c) failure by the Company or any
Subsidiary Guarantor to comply with other agreements in the Indenture or the
Securities, in certain cases subject to notice and lapse of time; (d) certain
accelerations (including failure to pay within any grace period after final
maturity) of other Indebtedness of the Company if the amount accelerated (or so
unpaid) exceeds $10.0 million; (e) certain events of bankruptcy or insolvency
with respect to the Company, the Subsidiary Guarantors and the Significant
Subsidiaries; (f) certain judgments or decrees for the payment of money in
excess of $10.0 million; (g) certain defaults with respect to Subsidiary
Guarantees; and (h) certain defaults relating to the Collateral under the
Security Documents. If an Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in principal amount of the Securities may declare
all the Securities to be due and payable immediately. Certain events of
bankruptcy or insolvency are Events of Default which will result in the
Securities being due and payable immediately upon the occurrence of such Events
of Default.
Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may refuse to
enforce the Indenture or the Securities unless it receives indemnity or security
satisfactory to it. Subject to certain limitations, Holders of a majority in
principal amount of the Securities may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Securityholders notice of any
continuing Default (except a Default in payment of principal or interest) if it
determines that withholding notice is in the interest of the Holders.
13
16. TRUSTEE DEALINGS WITH THE COMPANY
Subject to certain limitations imposed by the Act, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee.
17. NO RECOURSE AGAINST OTHERS
A director, officer, employee or stockholder, as such, of the
Company or the Trustee shall not have any liability for any obligations of the
Company under the Securities or the Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. By accepting a
Security, each Securityholder waives and releases all such liability. The waiver
and release are part of the consideration for the issue of the Securities.
18. AUTHENTICATION
This Security shall not be valid until an authorized signatory
of the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
19. ABBREVIATIONS
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship
and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to
Minors Act).
20. 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 Securities and has directed the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Securityholders. No
representation is made as to the accuracy of such numbers either as printed on
the Securities or as contained in any notice of redemption and reliance may be
14
placed only on the other identification numbers placed thereon.
21. HOLDERS' COMPLIANCE WITH REGISTRATION RIGHTS AGREEMENT.
Each Holder of a Security, by acceptance hereof, acknowledges
and agrees to the provisions of the Registration Rights Agreement, including the
obligations of the Holders with respect to a registration and the
indemnification of the Company to the extent provided therein.
22. GOVERNING LAW.
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
The Company will furnish to any Securityholder upon written
request and without charge to the Security holder a copy of the Indenture which
has in it the text of this Security in larger type. Requests may be made to:
Xxxxxxxx XxXxxxxx Corporation
000 Xxxx Xxxxx Xxxxxxx Xxxxxxx
Xxxxxxx, Xxx Xxxx 00000-1197
Attention: Corporate Secretary
15
--------------------------------------------------------------------------------
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Security
------------------------
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 Security.
In connection with any transfer of any of the Securities evidenced by this
certificate occurring prior to the expiration of the period referred to in Rule
144(k) under the Securities Act after the later of the date of original issuance
of such Securities and the last date, if any, on which such Securities were
owned by the Company or any Affiliate of the Company, the undersigned confirms
that such Securities are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
[ ] to the Company; or
(1) [ ] pursuant to an effective registration statement under the
Securities Act of 1933; or
(2) [ ] inside the United States to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act of
16
1933) that purchases for its own account or for the account of
a qualified institutional buyer to whom notice is given that
such transfer is being made in reliance on Rule 144A, in each
case pursuant to and in compliance with Rule 144A under the
Securities Act of 1933; or
(3) [ ] outside the United States in an offshore transaction within
the meaning of Regulation S under the Securities Act in
compliance with Rule 904 under the Securities Act of 1933; or
(4) [ ] pursuant to the exemption from registration provided by Rule
144 under the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register
any of the Securities evidenced by this certificate in the name of any
person other than the registered holder thereof; PROVIDED, HOWEVER,
that if box (4) is checked, the Trustee shall be entitled to require,
prior to registering any such transfer of the Securities, such legal
opinions, certifications and other information as the Company has
reasonably requested to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act of 1933, such as the
exemption provided by Rule 144 under such Act.
------------------------
Signature
Signature Guarantee:
--------------------------------- -------------------------
Signature must be guaranteed Signature
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
17
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
--------------------------------------------------------------------------------
18
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such information
regarding the Company as the undersigned has requested pursuant to Rule 144A or
has determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Dated:
----------------- ------------------------------
Notice: To be executed by
an executive officer
19
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global
Security have been made:
Date of Amount of decrease Amount of increase Principal amount of Signature of
Exchange in Principal amount in Principal amount this Global Security authorized officer
of this Global of this Global following such of Trustee or
Security Security decrease or increase Securities Custodian
20
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.06 or 4.10 of the Indenture, check the box:
[ ]
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 4.06 or 4.10 of the Indenture,
state the amount in principal amount: $________________
Dated: Your Signature:
------------------------ -----------------------
(Sign exactly as your
name appears on the
other side of this
Security.)
Signature Guarantee:
---------------------------------------------------------
(Signature must be guaranteed)
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
EXHIBIT A
FORM OF FACE OF EXCHANGE SECURITY
OR PRIVATE EXCHANGE SECURITY*/**/
------------------------------------
*/ If the Security is to be issued in global form add the Global Securities
Legend from Exhibit 1 to Appendix A and the attachment from such Exhibit 1
captioned "[TO BE ATTACHED TO GLOBAL SECURITIES] - SCHEDULE OF INCREASES OR
DECREASES IN GLOBAL SECURITY".
**/ If the Security is a Private Exchange Security issued in a Private Exchange
to an Initial Purchaser holding an unsold portion of its initial allotment, add
the Restricted Securities Legend from Exhibit 1 to Appendix A and replace the
Assignment Form included in this Exhibit A with the Assignment Form included in
such Exhibit 1.
2
No. $
------------- ----------
10% Senior Secured Notes due 2010
Columbus XxXxxxxx Corporation, a New York corporation,
promises to pay to , or registered assigns,
---------
the principal sum of Dollars on August
---------------------
1, 2010.
Interest Payment Dates: February 1 and August 1.
Record Dates: January 15 and July 15.
Additional provisions of this Security are set forth on the other side
of this Security.
Dated:
Columbus XxXxxxxx Corporation
by
-------------------------------------
Name:
Title:
by
-------------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
U.S. BANK TRUST NATIONAL
ASSOCIATION
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
by
------------------------------------
Authorized Signatory
3
FORM OF REVERSE SIDE OF EXCHANGE SECURITY
OR PRIVATE EXCHANGE SECURITY
10% Senior Secured Note due 2010
1. INTEREST
Columbus XxXxxxxx Corporation, a New York corporation (such
corporation, and its successors and assigns under the Indenture hereinafter
referred to, being herein called the "Company"), promises to pay interest on the
principal amount of this Security at the rate per annum shown above[; PROVIDED,
HOWEVER, THAT IF A REGISTRATION DEFAULT (AS DEFINED IN THE REGISTRATION RIGHTS
AGREEMENT) OCCURS, ADDITIONAL INTEREST WILL ACCRUE ON THIS SECURITY AT A RATE OF
0.50% PER ANNUM (INCREASING BY AN ADDITIONAL 0.50% PER ANNUM AFTER EACH
CONSECUTIVE 90-DAY PERIOD THAT OCCURS AFTER THE DATE ON WHICH SUCH REGISTRATION
DEFAULT OCCURS UP TO A MAXIMUM ADDITIONAL INTEREST RATE OF 2.00%) FROM AND
INCLUDING THE DATE ON WHICH ANY SUCH REGISTRATION DEFAULT SHALL OCCUR TO BUT
EXCLUDING THE DATE ON WHICH ALL REGISTRATION DEFAULTS HAVE BEEN CURED.]4 The
Company will pay interest semiannually on February 1 and August 1 of each year,
commencing August 1, 2004. Interest on the Securities will accrue from the most
recent date to which interest has been paid or, if no interest has been paid,
from July 22, 2003. Interest will be computed on the basis of a 360-day year of
twelve 30-day months. The Company will pay interest on overdue principal at the
rate borne by this Security plus 1.0% per annum, and it will pay interest on
overdue installments of interest at the same rate to the extent lawful.
2. METHOD OF PAYMENT
The Company will pay interest on the Securities (except defaulted
interest) to the Persons who are registered holders of Securities at the close
of business on the January 15 or July 15 next preceding the interest payment
date even if Securities are canceled after the record date and on or before the
----------
4 Insert if at the date of issuance of the Exchange Security or Private
Exchange Security (as the case may be) any Registration Default has occurred
with respect to the related Initial Securities during the interest period in
which such date of issuance occurs.
4
interest payment date. Holders must surrender Securities to a Paying Agent to
collect principal payments. The Company will pay principal and interest in money
of the United States that at the time of payment is legal tender for payment of
public and private debts. Payments in respect of the Securities represented by a
Global Security (including principal, premium and interest) will be made by wire
transfer of immediately available funds to the accounts specified by The
Depository Trust Company. The Company will make all payments in respect of a
certificated Security (including principal, premium and interest) by mailing a
check to the registered address of each Holder thereof; PROVIDED, HOWEVER, that
payments on a certificated Security will be made by wire transfer to a U.S.
dollar account maintained by the payee with a bank in the United States if such
Holder elects payment by wire transfer by giving written notice to the Trustee
or the Paying Agent to such effect designating such account no later than 30
days immediately preceding the relevant due date for payment (or such other date
as the Trustee may accept in its discretion).
3. PAYING AGENT AND REGISTRAR
Initially, U.S. Bank Trust National Association, a [?] (the "Trustee"),
will act as Paying Agent and Registrar. The Company may appoint and change any
Paying Agent, Registrar or co-registrar without notice. The Company or any of
its domestically incorporated Wholly Owned Subsidiaries may act as Paying Agent,
Registrar or co-registrar.
4. INDENTURE
The Company issued the Securities under an Indenture dated as of July
22, 2003 ("Indenture"), among the Company, the Subsidiary Guarantors and the
Trustee. The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939
(15 U.S.C. xx.xx. 77aaa-77bbbb) as in effect on the date of the Indenture (the
"Act"). Terms defined in the Indenture and not defined herein have the meanings
ascribed thereto in the Indenture. The Securities are subject to all such terms,
and Securityholders are referred to the Indenture and the Act for a statement of
those terms.
5
The Securities are general secured obligations of the Company. The
Company shall be entitled, subject to its compliance with Section 4.03 of the
Indenture, to issue up to $50.0 million aggregate principal amount of Additional
Securities pursuant to Section 2.13 of the Indenture. The Initial Securities
issued on the Issue Date, any Additional Securities and all Exchange Securities
or Private Exchange Securities issued in exchange therefor will be treated as a
single class for all purposes under the Indenture. The Indenture contains
covenants that limit the ability of the Company and its subsidiaries to incur
additional indebtedness; pay dividends or distributions on, or redeem or
repurchase capital stock; make investments; issue or sell capital stock of
subsidiaries; engage in transactions with affiliates; create liens on assets;
transfer or sell assets; guarantee indebtedness; restrict dividends or other
payments of subsidiaries; consolidate, merge or transfer all or substantially
all of its assets and the assets of its subsidiaries; engage in sale/leaseback
transactions; amend the Security Documents relating to the Collateral; and
materially impair the security interest in the Collateral. These covenants are
subject to important exceptions and qualifications.
5. OPTIONAL REDEMPTION
Except as set forth below, the Company shall not be entitled to redeem
the Securities.
On and after August 1, 2007, the Company shall be entitled at its
option on one or more occasions to redeem all or a portion of the Securities
upon not less than 30 nor more than 60 days' notice, at the redemption prices
(expressed in percentages of principal amount, on the redemption date) plus
accrued interest to the redemption date (subject to the right of Holders of
record on the relevant record date to receive interest due on the relevant
interest payment date),
if redeemed during the 12-month period commencing on August 1 of the
years set forth below:
Redemption
PERIOD Price
------ -----
2007 105.000%
2008 102.500%
2009 100.000%
6
In addition, prior to August 1, 2006, the Company shall be entitled at
its option on one or more occasions to redeem Securities (which includes
Additional Securities, if any) in an aggregate principal amount not to exceed
35% of the aggregate principal amount of the Securities (which includes
Additional Securities, if any) originally issued at a redemption price
(expressed as a percentage of principal amount) of 110.000%, plus accrued and
unpaid interest to the redemption date, with the net cash proceeds from one or
more Public Equity Offerings; PROVIDED, HOWEVER, that (1) at least 65% of such
aggregate principal amount of Securities (which includes Additional Securities,
if any) remains outstanding immediately after the occurrence of each such
redemption (other than Securities held, directly or indirectly, by the Company
or its Affiliates); and (2) each such redemption occurs within 90 days after the
date of the related Public Equity Offering.
Notwithstanding the foregoing, the Company may at any time and from
time to time purchase Securities in the open market or otherwise.
6. NOTICE OF REDEMPTION
Notice of redemption will be mailed at least 30 days but not more than
60 days before the redemption date to each Holder of Securities to be redeemed
at his registered address. Securities in denominations larger than $1,000
principal amount may be redeemed in part but only in whole multiples of $1,000.
If money sufficient to pay the redemption price of and accrued interest on all
Securities (or portions thereof) to be redeemed on the redemption date is
deposited with the Paying Agent on or before the redemption date and certain
other conditions are satisfied, on and after such date interest ceases to accrue
on such Securities (or such portions thereof) called for redemption.
7. PUT PROVISIONS
Upon a Change of Control, any Holder of Securities will have the right
to cause the Company to repurchase all or any part of the Securities of such
Holder at a repurchase price equal to 101% of the principal amount of the
Securities to be repurchased plus accrued interest to the date of repurchase
(subject to the right of holders of record on the relevant record date to
7
receive interest due on the related interest payment date) as provided in, and
subject to the terms of, the Indenture.
8. GUARANTEE
The payment by the Company of the principal of, and premium and
interest on, the Securities is fully and unconditionally guaranteed on a joint
and several senior secured basis by each of the Subsidiary Guarantors to the
extent set forth in the Indenture.
9. SECURITY
The Securities will be secured by a second-priority security interest
(subject to Specified Permitted Liens) in the Collateral. The Collateral
consists of 100% of the capital stock of, or other equity interests in, existing
and future domestic subsidiaries and Audubon Europe S.ar.l. and 65% of the
capital stock of, or other equity interests in, existing and future first-tier
foreign subsidiaries (other than Audubon Europe S.ar.l.), and substantially all
of the other assets, in each case that are held by the Company or the Subsidiary
Guarantors.
The Trustee and the Collateral Agent, as the case may be, hold the
Collateral in trust for the benefit of the Trustee and the Holders, in each case
pursuant to the Security Documents and the Intercreditor Agreement. Each Holder,
by accepting this Security, consents and agrees to the terms of the Security
Documents (including the provisions providing for the foreclosure and release of
Collateral) and the Intercreditor Agreement as the same may be in effect or may
be amended from time to time in accordance with their terms and the Indenture
and authorizes and directs the Collateral Agent to enter into the Security
Documents and the Intercreditor Agreement, and to perform its obligations and
exercise its rights thereunder in accordance therewith.
10. DENOMINATIONS; TRANSFER; EXCHANGE
The Securities are in registered form without coupons in denominations
of $1,000 principal amount and whole multiples of $1,000. A Holder may transfer
or exchange Securities in accordance with the Indenture. The Registrar may
require a Holder, among other things, to furnish appropriate endorsements or
transfer documents and to pay any taxes and fees required by law or permitted by
8
the Indenture. The Registrar need not register the transfer of or exchange any
Securities selected for redemption (except, in the case of a Security to be
redeemed in part, the portion of the Security not to be redeemed) or any
Securities for a period of 15 days before a selection of Securities to be
redeemed or 15 days before an interest payment date.
11. PERSONS DEEMED OWNERS
The registered Holder of this Security may be treated as the owner of
it for all purposes.
12. UNCLAIMED MONEY
If money for the payment of principal or interest remains unclaimed for
two years, the Trustee or Paying Agent shall pay the money back to the Company
at its request unless an abandoned property law designates another Person. After
any such payment, Holders entitled to the money must look only to the Company
and not to the Trustee for payment.
13. DISCHARGE AND DEFEASANCE
Subject to certain conditions, the Company at any time shall be
entitled to terminate some or all of its obligations under the Securities and
the Indenture if the Company deposits with the Trustee money or U.S. Government
Obligations for the payment of principal and interest on the Securities to
redemption or maturity, as the case may be.
14. AMENDMENT; WAIVER
Subject to certain exceptions set forth in the Indenture, (1) the
Indenture, the Security Documents, the Intercreditor Agreement and the
Securities may be amended with the written consent of the Holders of at least a
majority in principal amount outstanding of the Securities and (2) any default
or noncompliance with any provision may be waived with the written consent of
the Holders of a majority in principal amount outstanding of the Securities.
Subject to certain exceptions set forth in the Indenture, without the consent of
any Securityholder, the Company the Subsidiary Guarantors and the Trustee shall
be entitled to amend the Indenture, the Security Documents, the Intercreditor
9
Agreement or the Securities to cure any ambiguity, omission, defect or
inconsistency, or to comply with Article 5 of the Indenture, or to provide for
uncertificated Securities in addition to or in place of certificated Securities,
or to add guarantees with respect to the Securities, including Subsidiary
Guarantees, or to secure the Securities, or to add additional covenants or
surrender rights and powers conferred on the Company or the Subsidiary
Guarantors, or to comply with any requirement of the SEC in connection with
qualifying the Indenture under the Act, or to make any change that does not
adversely affect the rights of any Securityholder, or to make amendments to
provisions of the Indenture relating to the form, authentication, transfer and
legending of the Securities.
15. DEFAULTS AND REMEDIES
Under the Indenture, Events of Default include (a) default for 30 days
in payment of interest on the Securities; (b) default in payment of principal on
the Securities at maturity, upon redemption pursuant to paragraph 5 of the
Securities, upon acceleration or otherwise, or failure by the Company to redeem
or purchase Securities when required; (c) failure by the Company or any
Subsidiary Guarantor to comply with other agreements in the Indenture or the
Securities, in certain cases subject to notice and lapse of time; (d) certain
accelerations (including failure to pay within any grace period after final
maturity) of other Indebtedness of the Company if the amount accelerated (or so
unpaid) exceeds $10.0 million; (e) certain events of bankruptcy or insolvency
with respect to the Company, the Subsidiary Guarantors and the Significant
Subsidiaries; (f) certain judgments or decrees for the payment of money in
excess of $10.0 million; (g) certain defaults with respect to Subsidiary
Guarantees; and (h) certain defaults relating to the Collateral under the
Security Documents. If an Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in principal amount of the Securities may declare
all the Securities to be due and payable immediately. Certain events of
bankruptcy or insolvency are Events of Default which will result in the
Securities being due and payable immediately upon the occurrence of such Events
of Default.
Securityholders may not enforce the Indenture or the Securities except
as provided in the Indenture. The Trustee may refuse to enforce the Indenture or
10
the Securities unless it receives indemnity or security satisfactory to it.
Subject to certain limitations, Holders of a majority in principal amount of the
Securities may direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Securityholders notice of any continuing Default
(except a Default in payment of principal or interest) if it determines that
withholding notice is in the interest of the Holders.
16. TRUSTEE DEALINGS WITH THE COMPANY
Subject to certain limitations imposed by the Act, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with and collect obligations owed
to it by the Company or its Affiliates and may otherwise deal with the Company
or its Affiliates with the same rights it would have if it were not Trustee.
17. NO RECOURSE AGAINST OTHERS
A director, officer, employee or stockholder, as such, of the Company
or the Trustee shall not have any liability for any obligations of the Company
under the Securities or the Indenture or for any claim based on, in respect of
or by reason of such obligations or their creation. By accepting a Security,
each Securityholder waives and releases all such liability. The waiver and
release are part of the consideration for the issue of the Securities.
18. AUTHENTICATION
This Security shall not be valid until an authorized signatory
of the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
19. ABBREVIATIONS
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship
and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to
Minors Act).
11
20. 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 Securities and has directed the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Securityholders. No
representation is made as to the accuracy of such numbers either as printed on
the Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
[21. HOLDERS' COMPLIANCE WITH REGISTRATION RIGHTS AGREEMENT
Each Holder of a Security, by acceptance hereof, acknowledges
and agrees to the provisions of the Registration Rights Agreement, including the
obligations of the Holders with respect to a registration and the
indemnification of the Company to the extent provided therein.]5
22. GOVERNING LAW
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
The Company will furnish to any Securityholder upon written
request and without charge to the Security holder a copy of the Indenture which
has in it the text of this Security in larger type. Requests may be made to:
Xxxxxxxx XxXxxxxx Corporation
000 Xxxx Xxxxx Xxxxxxx Xxxxxxx
Xxxxxxx, Xxx Xxxx 00000-1197
Attention: Corporate Secretary
----------
5 Delete if this Security is not being issued in exchange for an Initial
Security.
12
--------------------------------------------------------------------------------
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Security 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 Security.
--------------------------------------------------------------------------------
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.06 or 4.10 of the Indenture, check the box:
[ ]
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 4.06 or 4.10 of the Indenture,
state the amount in principal amount: $_______________
Dated: Your Signature:
-------------------- --------------------------------
(Sign exactly as your name
appears on the other side
of this Security.)
Signature Guarantee: -------------------------------------------------
(Signature must be guaranteed)
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
