THIS INDENTURE is made as of the 1st day of December,
2000, by and among ALL STAR GAS CORPORATION, a Missouri corporation (the
"Company"), each of the Subsidiary Guarantors (as hereinafter defined) and STATE
STREET BANK AND TRUST COMPANY (the "Trustee").
BACKGROUND
WHEREAS, the Company, each of the Subsidiary Guarantors
and Shawmut Bank Connecticut, National Association, as Trustee ("SBC") have
heretofore executed and delivered an Indenture, dated as of June 29, 1994 (the
"Old Indenture"), providing for the issuance of 12 7/8% Senior Secured Notes due
2004 (the "Old Notes");
WHEREAS, the Trustee succeeded SBC as trustee under the
Old Indenture;
WHEREAS, in March 2000, the Company offered to purchase
all of the outstanding $127,200,000 principal amount of the Old Notes for a
purchase price of $100,000,000 or $786 per $1,000 principal amount of the Old
Notes, without any further accrual of interest;
WHEREAS, in May 2000, the Company amended and extended
its offer to May 26, 2000 to permit the Company to purchase, on a pro rata
basis, 60% of the outstanding Old Notes for a purchase price of $60,000,000 or
$786 per $1,000 principal amount of the Old Notes, without any further accrual
of interest;
WHEREAS, on May 26, 2000, the Company successfully
completed the partial tender offer to acquire 60% of the Old Notes and received
consents, from 100% of the holders of the outstanding Old Notes not owned by the
Company, to amend the Old Indenture to permit the Company to redeem the
remaining principal amount of the Old Notes outstanding at $786 per $1,000
principal without any accrual of interest, or $40,000,000, by July 31, 2000;
WHEREAS, as of July 31, 2000, the Company did not enter
into a definitive agreement for the sale of certain of its assets, the proceeds
of which were to be used in part to redeem the Old Notes, and, accordingly, the
Company was unable to pay the Old Notes when due and is currently in default
thereunder;
WHEREAS, in light of the default under the Old Notes,
the holders of the Old Notes have determined that it is in their best interests
to waive any and all rights to which they were otherwise entitled under the Old
Notes and all ancillary documents executed in connection therewith in exchange
for new notes to be governed by a new indenture, security agreement, pledge
agreements and limited recourse guarantee in order to provide the Company with
additional time to pay its outstanding obligations;
WHEREAS, in connection with the Offer to Exchange,
dated November 2, 2000, the Company offered to exchange an aggregate principal
amount of $50,880,000 of its 11% Senior Secured Notes due 2003 for a like
principal amount of its issued and outstanding Old Notes from the registered
holders thereof (the "Offer to Exchange");
1
WHEREAS, the Senior Secured Notes due 2003 will
evidence the same class of debt as the Old Notes and will be issued pursuant to,
and entitled to the benefits of, this Indenture.
NOW, THEREFORE, in consideration of the foregoing and
the agreements set forth below, each party hereby, intending to be legally
bound, agrees as follows for the benefit of the other parties and for the equal
and ratable benefit of the holders of the Company's Senior Secured Notes due
2003:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions.
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"Accreted Value" means as of any date (the "specified
date") with respect to each $1,000 face amount of Securities, the following
amount:
(i) if the specified date is one of the
following dates (each an "accrual date"), the amount set forth opposite such
date below:
Accrual Date Accreted Value
------------ --------------
February 28, 2001.............. $ 839.70
June 30, 2001.................. 871.80
December 31, 2001.............. 903.80
June 30, 2002.................. 935.90
December 31, 2002.............. 967.90
June 30, 2003.................. $1,000.00
and
(ii) if the specified date occurs between two
accrual dates, the sum of (A) the accreted value for the accrual date
immediately preceding the specified date and (B) an amount equal to the product
of (i) the accreted value for the immediately following accrual date less the
accreted value for the immediately preceding accrual date and (ii) a fraction,
the numerator of which is the number of days (not to exceed 180 days) from the
immediately preceding accrual date to the specified date, using a 360 day year
of twelve 30 day months, and the denominator of which is 180; and
(iii) if the specified date occurs after June
30, 2003, $1,000.
"Acquired Indebtedness" means Indebtedness of a Person
existing at the time at which such Person became a Subsidiary and not incurred
in connection with, or in contemplation of, such Person becoming a Subsidiary.
Acquired Indebtedness shall be deemed to be Incurred on the date the acquired
Person becomes a Subsidiary.
"Acquisition Indebtedness" means Indebtedness of a
Restricted Subsidiary incurred in connection with the acquisition of property or
assets related to the Line of Business which will be owned and used by the
Company or a Restricted Subsidiary, which Indebtedness is without recourse to
the Company or any Restricted Subsidiary other than the Restricted Subsidiary
issuing such Acquisition Indebtedness.
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"Additional Assets" means (i) any property or assets
related to the Line of Business which will be owned and used by the Company or a
Restricted Subsidiary, (ii) the Capital Stock of a Person that becomes a
Restricted Subsidiary as a result of the acquisition of such Capital Stock by
the Company or another Restricted Subsidiary or (iii) Capital Stock constituting
a minority interest in any Person that at such time is a Restricted Subsidiary.
"Affiliate" of any specified Person mean 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 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 Section 3.11 only, "Affiliate" shall also mean any
beneficial owner of 5% or more of the total Voting Shares (on a Fully Diluted
Basis) of the Company or of rights or warrants to purchase such 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. For purposes of
Section 3.3, "Affiliate" shall also mean any Person of which the Company owns 5%
or more of any class of Capital Stock or rights to acquire 5% or more of any
class of Capital Stock and any Person who would be an Affiliate of any such
Person pursuant to the first sentence hereof.
"Agent" means any Registrar, Paying Agent or
co-registrar.
"Asset Sale" means any sale, transfer or other
disposition (including by way of merger, consolidation or Sale/Leaseback
Transactions, but excluding (except as provided for in the last paragraph of
Section 3.12(b)) those permitted by Article IV hereof) in one or a series of
transactions by the Company or any Restricted Subsidiary to any Person other
than the Company or any Wholly Owned Subsidiary, of (i) all or any of the
Capital Stock of the Company or any Restricted Subsidiary, (ii) all or
substantially all of the assets of any operating unit, or line of business of
the Company or any Restricted Subsidiary or (iii) any other property or assets
or rights to acquire property or assets of the Company or any Restricted
Subsidiary outside of the ordinary course of business of the Company or such
Restricted Subsidiary.
"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).
"Average Life" means, as of the date of determination,
with respect to any Indebtedness or Preferred Stock, the quotient obtained by
dividing (i) the sum of the products of (A) the numbers of years from the date
of determination to the dates of each successive scheduled principal payment of
such Indebtedness or scheduled redemption or similar payment with respect to
such Indebtedness or Preferred Stock multiplied by (B) the amount of such
payment by (ii) the sum of all such payments.
"Board of Directors" means the Board of Directors of
the Company or any authorized committee thereof.
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"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Business Day" means each day which is not a Legal
Holiday.
"Capital Stock" means any and all shares, interests,
participations or other equivalents (however designated) of capital stock of a
corporation or any and all equivalent ownership interests in a Person (other
than a corporation).
"Capitalized Lease" means, as applied to any Person,
any lease of any property (whether real, personal or mixed) of which the
discounted present value of the rental obligations of such Person as lessee, in
conformity with GAAP, is required to be capitalized on the balance sheet of such
Person, 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
the lease may be terminated by the lessee without payment of a penalty; and
"Capitalized Lease Obligations" means the rental obligations, as aforesaid,
under such lease.
"Change of Control" means the occurrence of any of the
following events: (i) at any time after the occurrence of a Public Market, any
"person" (as such term is used in Sections 13(d) and 14(d) of the Exchange Act),
other than the Management Group or an underwriter engaged in a firm commitment
underwriting on behalf of the Company, is or becomes the "beneficial owner" (as
such term is used in Rules 13d-3 and 13d-5 under the Exchange Act, except that
for purposes of this clause (i) a 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 30% of the total Voting Shares of the Company; (ii)
during any period of two consecutive years, individuals who at the beginning of
such period constituted the Board of Directors together with any new directors
whose election by the Board of Directors or whose nomination for election by the
stockholders was approved by a vote of at least 66-2/3% of the directors of such
person then still in office who were either directors at the beginning of such
period or whose election or nomination for election was previously so approved
cease for any reason to constitute a majority of the Board of Directors then in
office; (iii) a majority of the Company's and its Restricted Subsidiaries'
assets are sold, leased, exchanged or otherwise transferred to any Person or
group of Persons acting in concert; (iv) the Company is liquidated or dissolved
or adopts a plan of liquidation; (v) prior to the occurrence of a Public Market,
the Management Group ceases in the aggregate to beneficially own, directly or
indirectly, at least 50% in the aggregate of the total voting power of the
Voting Shares of the Company; or (vi) at any time prior to the occurrence of a
Change of Control pursuant to clauses (i) to (v) of this definition as a result
of which a Change of Control Offer was made, (A) the failure of the Company for
a period of greater than 90 days in any 12 month period to continuously maintain
on its Board of Directors at least two Outside Directors, (B) the failure of the
Company for a period of greater than 90 days in any 12 month period to
continuously maintain an audit committee of its Board of Directors consisting
solely of Outside Directors or (C) the Board of Directors consists of greater
than seven members. Upon the occurrence of any of the events in item (vi) the
Company shall immediately notify the Trustee of such occurrence.
"Code" means the Internal Revenue Code of 1986, as
amended.
"Collateral" means the collateral securing the
Obligations of the Company hereunder as defined in the Security Documents.
4
"Collateral Agent" means State Street Bank and Trust
Company, as provided for in the Security Documents until a successor replaces it
and thereafter means the successor.
"Company" means the party named as such in this
Indenture until a successor replaces it pursuant to the terms and conditions of
this Indenture and thereafter means the successor.
"Consolidated Coverage Ratio" as of any date of
determination means the ratio of (i) the aggregate amount of EBITDA for a period
of the most recent four consecutive fiscal quarters to (ii) the Consolidated
Interest Expense for such four fiscal quarters; provided, however, that if the
Company or any Restricted Subsidiary 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, both EBITDA and Consolidated Interest Expenses for
such period shall be calculated after giving effect on a pro forma basis to (x)
such new Indebtedness as if such Indebtedness had been Incurred on the first day
of such period and (y) the repayment, redemption, repurchase, defeasance or
discharge of any Indebtedness repaid, redeemed, repurchased, defeased or
discharged with the proceeds of such new Indebtedness as if such repayment,
redemption, repurchase, defeasance or discharge had been made on the first day
of such period; provided, further, that if within the period during which EBITDA
or Consolidated Interest Expense is measured, the Company or any of its
Consolidated Restricted Subsidiaries shall have made any Asset Sales, (x) the
EBITDA for such period shall be reduced by an amount equal to the EBITDA (if
positive) directly attributable to the assets or Capital Stock which are the
subject of such Asset Sales for such period, or increased by an amount equal to
the EBITDA (if negative), directly attributable thereto for such period and (y)
the Consolidated Interest Expense for such period shall be reduced by an amount
equal to the Consolidated Interest Expense directly attributable to any
Indebtedness for which neither the Company nor any of its Consolidated
Restricted Subsidiaries shall continue to be liable a result of any such Asset
Sale or which is repaid, re-deemed, defeased, discharged or otherwise retired in
connection with or with the proceeds of the assets or Capital Stock which are
the subject of such Asset Sales for such period; and provided, further, that if
the Company or any Consolidated Restricted Subsidiary shall have made any
acquisition of assets or Capital Stock (occurring by merger or otherwise) since
the beginning of such period (including any acquisition of assets or Capital
Stock occurring in connection with a transaction causing a calculation to be
made hereunder) the EBITDA and Consolidated Interest Expense for such period
shall be calculated, after giving pro forma effect thereto (and without regard
to clause (iv) of the proviso to the definition of "Consolidated Net Income"),
as if such acquisition of assets or Capital Stock took place on the first day of
such period. For all purposes of this definition, if the date of determination
occurs prior to the completion of the first four full fiscal quarters following
the Issue Date, then "EBITDA" and "Consolidated Interest Expense" shall be
calculated after giving effect on a pro forma basis to the Offering as if the
Offering occurred on the first day of the four full fiscal quarters that were
completed preceding such date of determination.
"Consolidated Current Liabilities," as of the date of
determination, means the aggregate amount of liabilities of the Company and its
Consolidated Restricted Subsidiaries which may properly be classified as current
liabilities (including taxes accrued as estimated), after eliminating (i) all
inter-company items between the Company and any Subsidiary and (ii) all current
maturities of long-term Indebtedness, all as determined in accordance with GAAP.
5
"Consolidated Income Tax Expense" means, for any
period, as applied to the Company, the provision for local, state, federal or
foreign income taxes on a Consolidated basis for such period determined in
accordance with GAAP.
"Consolidated Interest Expense" means, for any period,
as applied to the Company, the sum of (a) the total interest expense of the
Company and its Consolidated Restricted Subsidiaries for such period as
determined in accordance with GAAP, including, without limitation, (i)
amortization of original issue discount on any Indebtedness and the interest
portion of any deferred payment obligation, calculated in accordance with the
effective interest method of accounting, and amortization of debt issuance costs
(other than issuance costs with regard to the Offering), (ii) accrued interest,
(iii) noncash interest payments, (iv) commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers' acceptance
financing, (v) interest actually paid by the Company or any such Subsidiary
under any guarantee of Indebtedness or other obligation of any other Person, and
(vi) net costs associated with Interest Rate Agreements (including amortization
of discounts) and Currency Agreements, plus (b) all but the principal component
of rentals in respect of Capitalized Lease Obligations paid, accrued, or
scheduled to be paid or accrued by the Company or its Consolidated Restricted
Subsidiaries, plus (c) one third of all Operating Lease Obligations paid,
accrued and/or scheduled to be paid by the Company and its Consolidated
Restricted Subsidiaries, plus (d) amortization of capitalized interest, plus (e)
dividends paid in respect of Preferred Stock of the Company or any Consolidated
Restricted Subsidiary held by Persons other than the Company or a Wholly Owned
Subsidiary, plus (f) cash contributions to any employee stock ownership plan to
the extent such contributions are used by such employee stock ownership plan to
pay interest or fees to any person (other than the Company or a Restricted
Subsidiary) in connection with loans incurred by such employee stock ownership
plan to purchase Capital Stock of the Company.
"Consolidated Net Income (Loss)" means, for any period,
as applied to the Company, the Consolidated net income (loss) of the Company and
its Consolidated Restricted Subsidiaries for such period, determined in
accordance with GAAP, adjusted by excluding (without duplication), to the extent
included in such net income (loss), the following: (i) all extraordinary gains
or losses; (ii) any net income of any Person if such Person is not a Restricted
Subsidiary, except that (A) the Company's equity in the net income of any such
Person for such period shall be included in Consolidated Net Income (Loss) 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 and (B) the equity of the Company or a Restricted Subsidiary in a
net loss of any such Person for such period shall be included in determining
Consolidated Net Income (Loss); (iii) the net income of any Restricted
Subsidiary to the extent that the declaration or payment of dividends or similar
distributions by such Restricted Subsidiary of such income is not at the time
thereof permitted, directly or indirectly, by operation of the terms of its
charter or by-laws or any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation applicable to such Restricted
Subsidiary or its stockholders; (iv) any net income (or loss) of any Person
combined with the Company or any of its Restricted Subsidiaries on a "pooling of
interests" basis attributable to any period prior to the date of such
combination; (v) any gain or loss realized upon the sale or other disposition of
any property, plant or equipment of the Company or its Restricted Subsidiaries
(including pursuant to any Sale/Leaseback Transaction) which is not sold or
otherwise disposed of in the ordinary course of business and any gain (but not
loss) realized upon the sale or other disposition by the Company or any
Restricted Subsidiary of any Capital Stock of any Person; and (vi) the
cumulative effect of a change in accounting principles; and further adjusted by
subtracting from such net income the tax liability of any parent of the Company
to the extent of payments made to such parent by the Company pursuant to any tax
sharing agreement or other arrangement for such period.
6
"Consolidated Net Tangible Assets" means, as of any
date of determination, as applied to the Company, the total amount of assets
(less accumulated depreciation or amortization, allowances for doubtful
receivables, other applicable reserves and other properly deductible items)
which would appear on a Consolidated balance sheet of the Company and its
Consolidated Restricted Subsidiaries, determined on a Consolidated basis in
accordance with GAAP, and after giving effect to purchase accounting and after
deducting therefrom, to the extent otherwise included, the amounts of: (i)
Consolidated Current Liabilities; (ii) minority interests in Consolidated
Subsidiaries held by Persons other than the Company or a Restricted Subsidiary;
(iii) excess of cost over Fair Value of assets of businesses acquired, as
determined in good faith by the Board of Directors and evidenced by a Board
Resolution; (iv) any revaluation or other write-up in value of assets subsequent
to December 31, 1999 as a result of a change in the method in valuation in
accordance with GAAP; (v) unamortized debt discount and expenses and other
unamortized deferred charges, goodwill, patents, trademarks, service marks,
trade names, copyrights, licenses, organization or developmental expenses and
other intangible items; (vi) treasury stock; and (vii) any cash set apart and
held in a sinking or other analogous fund established for the purpose of
redemption or other retirement of Capital Stock to the extent such obligation is
not reflected in Consolidated Current Liabilities.
"Consolidated Net Worth" means, at any date of
determination, as applied to the Company, stockholders' equity as set forth on
the most recently available Consolidated balance sheet of the Company and its
Consolidated Restricted Subsidiaries (which shall be as of a date nor more than
60 days prior to he date of such computation), less any amounts attributable to
Redeemable Stock or Exchangeable Stock, the cost of treasury stock and the
principal amount of any promissory notes receivable from the sale of Capital
Stock of the Company or any Subsidiary.
"Consolidation" means, with respect to any Person, the
consolidation of accounts of such Person and each of its subsidiaries if and to
the extent the accounts of such Person and such subsidiaries are consolidated in
accordance with GAAP. The term "Consolidated" shall have a correlative meaning.
"Currency Agreement" means any foreign exchange
contract, currency swap agreement or other similar agreement or arrangement
designed to protect the Company or any Restricted Subsidiary against
fluctuations in currency values to or under which the Company or any Restricted
Subsidiary is a party or a beneficiary on the Issue Date or becomes a party or
beneficiary thereafter.
"Default" means any event which is, or after notice or
passage of time or both would be, an Event of Default.
"Depositary" means the Depositary Trust Company, its
nominees, and their respective successors until a successor Depositary shall
have become such pursuant to the applicable provisions of this Indenture and
thereafter "Depositary" shall mean or include each Person who is then a
Depositary hereunder.
"Defaulted Interest" means any interest on any Security
which is payable, but is not punctually paid or duly provided for on any
Interest Payment Date.
"EBITDA" means, for any period, as applied to the
Company, the sum of Consolidated Net Income (Loss) (but without giving effect to
adjustments, accruals, deductions or entries resulting from purchase accounting,
extraordinary losses or gains and any gains or losses from any Asset Sales),
plus the following to the extent included in calculating Consolidated Net Income
(Loss): (a) Consolidated Income Tax Expense, (b) Consolidated Interest Expense,
(c) depreciation expense and (d) amortization expense, in
7
each case for such period; provided that, if the Company has any Subsidiary that
is not a Wholly Owned Subsidiary, EBITDA shall be reduced (to the extent not
otherwise reduced by GAAP) by an amount equal to (A) the consolidated net income
(loss) of such Subsidiary (to the extent included in Consolidated Net Income
(Loss)) multiplied by (B) the quotient of (1) the number of shares of
outstanding common stock of such Subsidiary not owned on the last day of such
period by the Company or any Wholly Owned Subsidiary of the Company divided by
(2) the total number of shares of outstanding common stock of such Subsidiary on
the last day of such period.
"Exchange Act" means the Securities Exchange Act of
1934, as amended from time to time.
"Exchangeable Stock" means any Capital Stock which by
its terms is exchangeable or convertible at the option of any Person other than
the Company into another security (other than Capital Stock of the Company which
is not Redeemable Stock).
"Fair Value" of any property shall means its fair
market value as of a date not more than 90 days prior to the date of the
certificate relating thereto, such fair market value to be determined in any
case as if such property were free of Liens securing Indebtedness, if any.
"Foreign Asset Sale" means an Asset Sale in respect of
the Capital Stock or assets of a Foreign Subsidiary or a Restricted Subsidiary
of the type described in Section 936 of the Code to the extent that the proceeds
of such Asset Sale are received by a person subject in respect of such proceeds
to the tax laws of a jurisdiction other than the United States of America or any
State thereof or the District of Columbia.
"Foreign Subsidiary" means a Restricted Subsidiary that
is incorporated in a jurisdiction other than the United States of America or a
State thereof or the District of Columbia.
"Fully Diluted Basis" means after giving effect to the
exercise of any outstanding options, warrants or rights to purchase Voting
Shares and the conversion or exchange of any securities convertible into or
exchangeable for Voting Shares.
"GAAP" means generally accepted accounting principles
in the United States of America as in effect from time to time and, to the
extent optional, adopted by the Company on the Issue Date, consistently applied,
including, without limitation, those set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board.
"Guarantee" means, as applied to any obligation,
contingent or otherwise, of any Person, (i) a guarantee, direct or indirect, in
any manner, of any part or all of such obligation (other than by endorsement of
negotiable instruments for collection in the ordinary course of business) and
(ii) an agreement, direct or indirect, contingent or otherwise, the practical
effect of which is to insure in any way the payment or performance (or payment
of damages in the event of nonperformance) of any part or all of such
obligation, including the payment of amounts drawn down under letters of credit.
"Holder" or "Securityholder" means the Person in whose
name a Security is registered on the Registrar's books.
8
"Incur" means, as applied to any obligation, to create,
incur, issue, assume, Guarantee or in any other manner become liable with
respect to, contingently or otherwise, such obligation, and "Incurred,"
"Incurrence" and "Incurring" shall each have a correlative meaning; provided,
however, that any Indebtedness or Capital Stock of a Person existing at the time
such Person becomes (after the Issue Date) a Subsidiary (whether by merger,
consolidate, acquisition or otherwise) shall be deemed to be Incurred by such
Subsidiary at the time it becomes a Subsidiary; and provided, further, that any
amendment, modification or waiver of any provision of any document pursuant to
which Indebtedness was previously Incurred shall not be deemed to be an
Incurrence of Indebtedness as long as (i) such amendment, modification or waiver
does not (A) increase the principal or premium thereof or interest rate thereon,
(B) change to an earlier date the Stated Maturity thereof or the date of any
scheduled or required principal payment thereon or the time or circumstances
under which such Indebtedness may or shall be redeemed, (C) if such Indebtedness
is contractually subordinated in right of payment to the Securities, modify or
affect, in any manner adverse to the Holders, such subordination, (D) if the
Company is the obligor thereon, provide that a Restricted Subsidiary shall be an
obligor, or (E) violate, or cause the Indebtedness to violate, the provisions of
Sections 3.4, 3.5 or 3.7 and (ii) such Indebtedness would, after giving effect
to such amendment, modification or waiver as if it were an Incurrence, comply
with clause (i) of the proviso to the definition of "Refinancing Indebtedness."
"Indebtedness" of any Person means, without
duplication, (i) the principal of and premium (if any such premium is then due
and owing) 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; (ii)
all Capitalized Lease Obligations of such Person; (iii) all obligations of such
Person Incurred as the deferred purchase price of property, all conditional sale
obligations of such Person and all obligations of such Person under any title
retention agreement; (iv) all obligations of such Person for the reimbursement
of any obligor on any letter of credit, banker's acceptance or similar credit
transaction (other than obligations with respect to letters of credit securing
obligations (other than obligations described in (i) through (iii) 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
receipt by such Person of a demand for reimbursement following payment on the
letter of credit); (v) the amount of all obligations of such Person with respect
to the scheduled redemption, repayment or other repurchase of any Redeemable
Stock and, in the case of any Subsidiary, with respect to any Preferred Stock
(but excluding in each case any accrued dividends); (vi) all obligations 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; (vii) all
liabilities or other obligations, contingent or otherwise, purchased or assumed
or with respect to which such Person shall otherwise become liable or
responsible in connection with the purchase, acquisition or assumption of
property, services or business operations to the extent reflected on the balance
sheet of such Person in accordance with GAAP; (viii) contractual obligations to
repurchase goods sold or distributed; (ix) all obligations of such Person in
respect of Interest Rate Agreements and Currency Agreements; and (x) all
obligations of the type referred to in clauses (i) through (ix) 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 or the amount of
the obligation so secured; provided, however, that Indebtedness shall not
include trade accounts payable arising in the ordinary course of business. The
amount of Indebtedness of any Person on any date shall be, with respect to
unconditional obligations, the outstanding balance on such date of all such
obligations as described above and, with respect to any contingent obligations
(other than pursuant to clause (vii) above, which shall be included to the
extent reflected on the
9
balance sheet of such Person in accordance with GAAP) on such date, the maximum
liability determined by such Person's board of directors or similar governing
body, in good faith, as, in light of the facts and circumstances existing at the
time, reasonably likely to be Incurred upon the occurrence of the contingency
giving rise to such obligation.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Securities.
"Interest Rate Agreement" means any interest rate
protection agreement, interest rate future agreement, interest rate option
agreement, interest rate swap agreement, interest rate cap agreement, interest
rate collar agreement, interest rate hedge agreement or other similar agreement
or arrangement designed to protect against fluctuations in interest rates to or
under which the Company or any of its Restricted Subsidiaries is a party or
beneficiary on the Issue Date or becomes a party or beneficiary thereafter.
"Investment" means, with respect to any Person, any
direct or indirect advance, loan (other than advances to customers who are not
Affiliates in the ordinary course of business that are recorded as accounts
receivable on the balance sheet of such Person or its Subsidiaries) or other
extension of credit or capital contribution to (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 other investment in any other Person, or any
purchase or acquisition by such Person of any Capital Stock, bonds, notes,
debentures or other securities or assets issued or owned by any other Person
(whether by merger, consolidation, amalgamation, sale of assets or otherwise).
For purposes of the definition of "Unrestricted Subsidiary" and the provisions
set forth in Section 3.3, (i) "Investment" shall include the portion
(proportionate to the Company's equity interest in such Subsidiary) of the fair
market value of the net assets of any Restricted Subsidiary at the time that
such Restricted Subsidiary is designated an Unrestricted Subsidiary and shall
exclude the fair market value of the net assets of any Unrestricted Subsidiary
at the time that such Unrestricted Subsidiary is designated a Restricted
Subsidiary and (ii) any property transferred to or from an Unrestricted
Subsidiary shall be valued at its fair market value at the time of such
transfer, in each case as determined by the Board of Directors in good faith and
evidenced by a Board Resolution, provided that if such fair market value, as
determined by the Board of Directors, exceeds $2,500,000 then the Company shall
also receive the written opinion of an independent nationally recognized
investment banking firm that such valuation of the Board of Directors is fair
from a financial point of view.
"Issue Date" means the date on which the Securities are
originally issued under this Indenture.
"Lien" means any mortgage, lien, pledge, charge,
hypothecation, assignment, claim, option, priority, preferential arrangement of
any kind or nature or other security interest or encumbrance of any kind or
nature (including any conditional sale or other title retention agreement and
any lease in the nature thereof).
"Xxxxxxx Entity" means Xxxx X. Xxxxxxx, Xx., Xxxxxxx X.
Xxxxxxx, any member of their family and any Person of which any of the foregoing
Persons are Affiliates, including but not limited to the Xxxx X. Xxxxxxx, Xx.
Revocable Trust dated January 24, 1992 and the Xxxxxxx X. Xxxxxxx Revocable
Trust dated January 24, 1992.
10
"Line of Business" means the sale and distribution of
propane gas and operations related thereto.
"Management Group" means, collectively, those
individuals who beneficially own, directly or indirectly, Voting Shares of the
Company or any successor thereto immediately following the consummation of the
Offering and the transactions related thereto and are members of management of
the Company of any Subsidiaries of the Company (or the estate or any beneficiary
of any such individual or any immediate family member of any such individual or
any trust established for the benefit of any such individual or immediate family
member).
"Mortgages" means any Mortgages executed by the Company
from time to time in favor of the Trustee pursuant to Section 3.19, as such
Mortgages may be amended, supplemented and/or restated from time to time.
"Net Available Cash" means, with respect to any Asset
Sale, the cash or cash equivalent payments received by the Company or a
Subsidiary in connection with such Asset Sale (including any cash received by
way of deferred payment of principal pursuant to a note or installment
receivable or otherwise, but only as or when received and also including the
proceeds of other property received when converted to cash or cash equivalents)
net of the sum of, without duplication, (i) all reasonable legal, title and
recording tax expenses, reasonable commissions, and other reasonable fees and
expenses incurred directly relating to such Asset Sale, (ii) provision for all
local, state, federal and foreign taxes expected to be paid (whether or not such
taxes are actually paid or payable) as a consequence of such Asset Sale without
regard to the Consolidated results of the Company and its Subsidiaries, (iii)
payments made to repay Indebtedness which is secured by any assets subject to
such Asset Sale 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 by applicable law, be repaid out of the proceeds from such Asset Sale, and
(iv) reasonable amounts reserved by the Company or any Subsidiary of the Company
receiving proceeds of such Asset Sale against any liabilities associated with
such Asset Sale, including without limitation, indemnification obligations
provided that, such amounts shall be applied as described in Section 3.12 no
later than the fifth anniversary of such Asset Sale if not previously paid to
satisfy such liabilities and provided further that such amounts shall not exceed
10% of the payments received by the Company or a Subsidiary in connection with
such Asset Sale.
"Obligations" means for any Person all principal,
premium, interest, penalties, expenses, fees, indemnifications, reimbursements,
damages and other liabilities payable under the documentation governing any
Indebtedness of such Person.
"Offering" means the Offer to Exchange.
"Officer" means the Chairman, the President, any Vice
President, the Chief Operating Officer or the Chief Financial Officer, if any,
the Treasurer, the Secretary, any Assistant Treasurer, any Assistant Secretary
or the Controller of the Company, if any.
"Officers' Certificate" means a certificate signed by
two Officers, one of whom must be the President, the Treasurer or a Vice
President of the Company. Each Officers' Certificate (other than certificates
provided pursuant to TIA Section 314(a)(4)) shall include the statements
provided for in TIA Section 314(e).
11
"Operating Lease Obligations" means any obligation of
the Company and its Restricted Subsidiaries on a Consolidated basis Incurred or
assumed under or in connection with any lease of real or personal property
which, in accordance with GAAP, is not required to be classified and accounted
for as a capital lease.
"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Trustee. The counsel, if so acceptable, may be
an employee of or counsel to the Company or the Trustee.
"Outside Director" means any Person who is a member of
the Board of Directors who is not (i) an employee or Affiliate of the Company,
any Subsidiary of the Company, (ii) any Xxxxxxx Entity, or (iii) a Person who
has engaged in a transaction with the Company or any Subsidiary or the Company
that would be required to be disclosed under Item 13 of Form 10-K if such Person
were a director of a registrant under the Securities Exchange Act of 1934, as
amended.
"Person" means any individual, corporation,
partnership, limited liability company, joint venture, association, joint-stock
company, trust, unincorporated organization, government or any agency or
political subdivision thereof or any other entity.
"Pledge Agreements" means that certain Pledge
Agreement, dated as of the date hereof, by the Company in favor of the Trustee,
in the form attached hereto as Exhibit C, as amended, supplemented and/or
restated from time to time, and those certain Limited Recourse Pledge
Agreements, dated as of the date hereof, by one or more Xxxxxxx Entities in
favor of the Trustee, in the form attached hereto as Exhibit D, as amended,
supplemented and/or restated from time to time.
"Preferred Stock", as applied to the Capital Stock of
any corporation, means Capital Stock of any class or classes (however
designated) which is preferred as to the payment of dividends, or as to the
distribution or dissolution of such corporation, over shares of Capital Stock of
any other class of such corporation.
"Principal" means, with respect to the Securities, the
Accreted Value of the Securities.
"Public Equity Offering" means an underwritten primary
public offering of equity securities of the Company pursuant to an effective
registration statement under the Securities Act.
"Public Market" shall be deemed to have occurred if (x)
a Public Equity Offering has been consummated and (y) at least 25% (for purposes
of the definition of "Change of Control") or 20% (for purposes of paragraph 5 of
the Securities attached hereto) of the total issued and outstanding common stock
of the Company has been distributed by means of an effective registration
statement under the Securities Act or sales pursuant to Rule 144 under the
Securities Act.
"Redeemable Stock" means any class or series of Capital
Stock of any Person that (a) by its terms, by the terms of any security into
which it is convertible or exchangeable or otherwise is, or upon the happening
of an event or passage of time would be, required to be redeemed (in whole or in
part) on or prior to the first anniversary of the Stated Maturity of the
Securities, (b) is redeemable at the option of the holder thereof at any time on
or prior to the first anniversary of the Stated Maturity of the Securities
12
or (c) is convertible into or exchangeable for Capital Stock referred to in
clause (a) or clause (b) above or debt securities at any time prior to the first
anniversary of the Stated Maturity of the Securities.
"Refinancing Indebtedness" means Indebtedness that
refunds, refinances, replaces, renews, repays or extends (including pursuant to
any defeasance or discharge mechanism) (collectively, "refinances," and
"refinanced" shall have a correlative meaning) any Indebtedness of the Company
or a Restricted Subsidiary existing on the Issue Date or Incurred in compliance
with the Indenture (including Indebtedness of the Company that refinances
Indebtedness of any Restricted Subsidiary and Indebtedness of any Restricted
Subsidiary that refinances Indebtedness of another Restricted Subsidiary)
including Indebtedness that refinances Refinancing Indebtedness; provided,
however, that (i) 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 on terms at least as favorable to the Holders
as those contained in the documentation governing the Indebtedness being
refinanced, (ii) the Refinancing Indebtedness shall be scheduled to mature
either (a) no earlier than the Indebtedness being refinanced or (b) after the
Stated Maturity of the Securities, (iii) the 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 and
(iv) such Refinancing Indebtedness shall have an aggregate principal amount (or
if issued with original issue discount, an aggregate issue price) that is equal
to or less than the aggregate principal amount (or if issued with original issue
discount, the aggregate accreted value) then outstanding (plus fees and
expenses, including any premium and defeasance costs) under the Indebtedness
being refinanced.
"Restricted Subsidiary" means any Subsidiary of the
Company that is not designated an Unrestricted Subsidiary by the Board of
Directors in accordance with this Indenture.
"Sale/Leaseback Transaction" means an arrangement
relating to property now owned or hereafter acquired whereby the Company or a
subsidiary transfers such property to a Person and leases it back from such
Person, other than leases for a term of not more than 36 months or between the
Company and a Wholly Owned Subsidiary or between Wholly Owned Subsidiaries.
"SEC" means the Securities and Exchange Commission.
"Securities" means all series of the Senior Secured
Notes Due 2003 that are issued under and pursuant to the terms of this
Indenture, as amended or supplemented from time to time.
"Securities Act" means the Securities Act of 1933, as
amended from time to time.
"Security Agreement" means any Security Agreements
executed by the Company from time to time in favor of the Trustee pursuant to
Section 3.19, as such Security Agreements may be amended, supplemented and/or
restated from time to time.
"Security Documents" means the Security Agreement, the
Pledge Agreements, Mortgages and any other documents and instruments executed in
connection with any of the foregoing.
"Stated Maturity" means, with respect to any
obligation, the date specified in such obligation as the fixed date on which the
principal of (and premium, if any) or interest on such obligation is due and
payable, including pursuant to any mandatory redemption provision (but excluding
any provision
13
providing for the repurchase of such obligation at the option of the holder
thereof upon the happening of any contingency).
"Subordinated Indebtedness" means any Indebtedness of
the Company which is contractually subordinated or junior in right of payment to
the Securities or any other Indebtedness of the Company.
"Subordinated Notes" means the Company's 9%
Subordinated Debentures due 2007 and the Company's 9% Accruing Subordinated
Debentures due 2007.
"Subsidiary" means any direct or indirect Wholly Owned
Subsidiary of the Company or any Wholly Owned Subsidiary of a Wholly Owned
Subsidiary of the Company.
"Subsidiary Guarantees" means the unconditional
guarantees by the respective Subsidiary Guarantors of the due and punctual
payment of principal, premium, if any, and interest on the Securities when and
as the same shall become due and payable and in the coin or currency in which
the same are payable, whether at Stated Maturity, by declaration of
acceleration, call for redemption, purchase or otherwise.
"Subsidiary Guarantor" means each of the Persons listed
on Schedule I attached hereto, each Person that becomes a Restricted Subsidiary
of the Company after the Issue Date and each other Person that becomes a
Subsidiary Guarantor under this Indenture by executing a supplement to this
Indenture pursuant to which such Person jointly and severally unconditionally
guarantees the Securities on a senior basis.
"Tax Liabilities" means approximately $9,947,843 in
income taxes payable incurred in connection with the sale of certain of the
Company's assets during the fiscal year ending June 30, 2000.
"Tax Liens" means any lien imposed upon Company or any
of its Subsidiaries on account of the Tax Liabilities.
"TIA" means the Trust Indenture Act of 1939 (15
U.S.C.ss.ss.77aaa-77bbbb) as in effect on the date first above written.
"Trustee" means the party named as such above until a
successor replaces it and thereafter means the successor.
"Trust Officer" means any officer of the Trustee
assigned by the Trustee to administer its corporate trust matters or to whom any
corporate trust matter is referred because of that officer's knowledge of, or
familiarity with, the particular subject.
"Uniform Commercial Code" means the New York Uniform
Commercial Code as in effect from time to time.
"Unrestricted Subsidiary" means (i) any Subsidiary that
at the time of determination shall be designated an Unrestricted Subsidiary by
the Board of Directors in the manner provided below and (ii) any subsidiary of
an Unrestricted Subsidiary. The Board of Directors may designate any Subsidiary
14
(including any newly acquired or newly formed Subsidiary) to be an Unrestricted
Subsidiary unless such Subsidiary owns any Capital Stock of, or owns or holds
any Liens on any property of, the Company or any other Subsidiary that is not a
subsidiary of the Subsidiary to be so designated; provided, that either (A) the
Subsidiary to be so designated has total assets of $1,000 or less or (B) if such
Subsidiary has assets greater than $1,000, that such designation would be
permitted pursuant to Section 3.3. The Board of Directors may designate any
Unrestricted Subsidiary to be a Restricted Subsidiary of the Company; provided,
however, that immediately after giving effect to such designation (x) the
Company could Incur $1.00 of additional Indebtedness pursuant to Section 3.4 and
(y) no Default or Event of Default shall have occurred and be continuing. Any
such designation by the Board of Directors shall be evidenced to the respective
Trustee by promptly filing with the respective Trustee a copy of the Board
Resolution giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the foregoing provisions.
"U.S. Government Obligations" means securities that are
(i) direct obligations of the United States of America for the payment of which
its full faith and credit is pledged or (ii) obligations of a Person controlled
or supervised by and acting as an agency or instrumentality of the United States
of America the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, which, in either case
under clauses (i) or (ii) are not callable or redeemable before the maturity
thereof.
"Voting Shares" with respect to any corporation, means
the Capital Stock having the general voting power under ordinary circumstances
to elect at least a majority of the board of directors of such corporation
(irrespective of whether or not at the time Capital Stock of any other class or
classes of such corporation shall have or might have voting power by reason of
the happening of any contingency).
"Wholly Owned Subsidiary" means a Subsidiary (other
than an Unrestricted Subsidiary) all the Capital Stock of which (other than
directors' qualifying shares) is owned by the Company or another Wholly Owned
Subsidiary.
SECTION 1.2 Other Definitions.
-----------------
Term Defined in Section
---- ------------------
"Application Period".........................3.12
"Asset Sale Offer"...........................3.12
"Asset Sale Offer Amount"....................3.12
"Asset Sale Purchase Date"...................3.12
"Bankruptcy Law".............................5.1
"Change of Control Offer"....................3.8
"Change of Control Purchase Date"............3.8
"Custodian"................................. 5.1
"Event of Default".......................... 5.1
"Excess Cash"............................... 3.20
"Global Securities"..........................2.1
"Legal Holiday".............................11.7
"Notice of Default"......................... 5.1
"Offer Period"...............................3.12
"Paying Agent"...............................2.3
"Registrar"..................................2.3
"Successor Corporation"......................4.1
15
SECTION 1.3 Incorporation by Reference of Trust Indenture Act.
-------------------------------------------------
Whenever this Indenture refers to a provision of the
TIA, the provision is incorporated by reference in and made a part of this
Indenture.
The following TIA terms used in this Indenture have the
following meanings:
"Commission" means the SEC;
"indenture securities" means the Securities;
"indenture security holder" means a Holder or Security
Holder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means
the Trustee; and
"obligor" on the indenture securities means the
Company.
All other terms used in this Indenture that are defined
by the TIA, defined by TIA reference to another statute or defined by SEC rule
under the TIA have the meanings assigned to them.
SECTION 1.4 Rules of Construction.
---------------------
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) "generally accepted accounting principles"
means, and any accounting term not otherwise defined has the meaning assigned to
it and shall be construed in accordance with, GAAP;
(c) "or" is not exclusive;
--
(d) words in the singular include the plural, and
in the plural include the singular;
(e) provisions apply to successive events and
transactions;
(f) "including" means including, without limitation;
(g) unsecured debt shall not be deemed to be
subordinate or junior to secured debt merely by virtue of its nature as
unsecured debt;
16
(h) the principal amount of any non-interest
bearing or other discount security (other than the Securities) 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 generally accepted accounting
principles and accretion of principal on such security shall be deemed to be the
Incurrence of Indebtedness; and
(i) the principal amount (if any) of any Preferred
Stock shall be the greatest of (i) the stated value, (ii) the redemption price
or (iii) the liquidation preference of such Preferred Stock.
ARTICLE II
THE SECURITIES
SECTION 2.1 Form and Dating.
---------------
The Securities and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A annexed hereto,
which is part of this Indenture. The Securities may have notations, legends or
endorsements required by law, stock exchange rule or usage and shall have
endorsed thereon the Subsidiary Guarantee executed by the Subsidiary Guarantors
as provided in Article XII. Each Security shall be dated the date of its
authentication.
The terms and provisions contained in the form of
Security annexed hereto as Exhibit A shall constitute, and are expressly made, a
part of this Indenture. To the extent applicable, the Company, each Subsidiary
Guarantor and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby.
The Securities shall be issued initially in the form of
one or more permanent global Securities in registered form (the "Global
Securities"), deposited with, or on behalf of, the Depositary, duly executed by
the Company and authenticated by the Trustee as hereinafter provided. Each
Global Security shall bear such legend as may be required or reasonably
requested by the Depositary. Each Global Security shall have endorsed thereon
the Subsidiary Guarantee executed by the Subsidiary Guarantors.
The definitive Securities shall be typed, printed,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner permitted by the rules of any securities
exchange on which the Securities may be listed, all as determined by the
officers executing such Securities, as evidenced by their execution of such
Securities.
SECTION 2.2 Execution and Authentication.
----------------------------
Two Officers shall sign the Securities for the Company
by manual or facsimile signature. The Company's seal shall be reproduced on the
Securities and the Subsidiary Guarantee of the Subsidiary Guarantors shall be
endorsed thereon.
If an Officer whose signature is on a Security no
longer holds that office at the time the Security is authenticated, the Security
shall nevertheless be valid.
17
A Security shall not be valid until authenticated by
the manual signature of an authorized signatory of the Trustee. The signature
shall be conclusive evidence that the Security has been authenticated under this
Indenture.
The Trustee shall authenticate Securities for original
issue up to the aggregate principal amount stated in paragraph 4 of Exhibit A
upon a written order of the Company signed by two Officers. 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. The aggregate principal
amount of Securities outstanding at any time may not exceed that amount except
as provided in Section 2.7.
The Trustee shall initially act as authenticating agent
and may subsequently appoint another Person acceptable to the Company as
authenticating agent to authenticate Securities. Unless limited by the terms of
such appointment, an authenticating agent may authenticate Securities whenever
the Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company or an Affiliate of the Company.
Provided that the authentication agent has entered into an agreement with the
Company concerning the authentication agent's duties, the Trustee shall not be
liable for any act or any failure of the authenticating agent to perform any
duty either required herein or authorized herein to be performed by such person
in accordance with this Indenture.
The Securities shall be issued only in registered form
without coupons and only in denominations of $1,000 and integral multiples
thereof.
SECTION 2.3 Registrar and Paying Agent.
--------------------------
The Company shall maintain an office or agency where
Securities may be presented for registration of transfer or for exchange
("Registrar") and an office or agency where Securities may be presented for
payment ("Paying Agent"). The Registrar shall keep a register of the Securities
and of their transfer and exchange. The Company may appoint one or more
co-registrars and one or more additional paying agents. The term "Paying Agent"
includes any additional paying agent.
The Company shall enter into an appropriate agency agreement
with any Registrar, Paying Agent or co-registrar not a party to this Indenture.
The agreement shall implement the provisions of this Indenture that relate to
such Agent. The Company shall promptly notify the Trustee of the name and
address of any such Agent and any change in the address of such agent. If the
Company fails to maintain a Registrar or Paying Agent, the Trustee shall act as
such and shall be entitled to appropriate compensation therefor pursuant to
Section 6.7. The Company or any Subsidiary or Affiliate of the Company may act
as Paying Agent, Registrar, co-registrar or transfer agent; provided, however,
that the Company shall not act as Paying Agent during such time as an Event of
Default shall have occurred and be continuing.
The Company initially appoints the Trustee as Registrar
and Paying Agent in connection with the Securities.
SECTION 2.4 Paying Agent To Hold Money in Trust.
-----------------------------------
On or prior to 12:00 noon (New York City time) on each
due date of the principal and interest on any Security (including any redemption
date fixed under the terms of such Security or this
18
Indenture) the Company shall deposit with the Paying Agent a sum of money
sufficient to pay such principal and interest in funds available when such
becomes 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 (whether such money
has been paid to it by the Company or any other obligor on the Securities,
including any Subsidiary Guarantor) and shall notify the Trustee of any default
by the Company (or any other obligor on the Securities, including any Subsidiary
Guarantor) in making any such payment. If the Company or a Subsidiary or an
affiliate of the Company acts as Paying Agent, it shall segregate the money held
by it as Paying Agent and hold it as a separate trust fund for the benefit of
the Securityholders. If the Company defaults in its obligation to deposit funds
for the payment of principal and interest the Trustee may, during the
continuation of such default, require a Paying Agent to pay all money held by it
to the Trustee. The Company at any time may require a Paying Agent to pay all
money held by it to the Trustee and to account for any Funds disbursed by it.
Upon doing so, the Paying Agent (other than the Company or a Subsidiary or
Affiliate of the Company) shall have no further liability for the money
delivered to the Trustee.
SECTION 2.5 Securityholder Lists.
--------------------
The Trustee shall preserve in as current a form as
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 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 the Securityholders, and the Company shall otherwise
comply with TIA ss. 312(a).
SECTION 2.6 Transfer and Exchange.
---------------------
The Securities 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 Section 8-401(1) of the Uniform Commercial Code are met and, if
so required by the Trustee, the Company or any Subsidiary Guarantor, if the
Security presented is accompanied by a written instrument of transfer in form
satisfactory to the Trustee, the Company and each of the Subsidiary Guarantors,
duly executed by the regis tered owner or by his or her attorney duly authorized
in writing. When Securities are presented to the Registrar or a co-registrar
with a request to exchange them for an equal principal amount of Securities of
other denominations, the Registrar shall make the exchange as requested if the
same requirements are met. To permit registration of transfers and exchanges,
the Company shall execute and the Trustee shall authenticate Securities endorsed
thereon with the Subsidiary Guarantee of the Subsidiary Guarantors at the
Registrar's or co-registrar's request. No service charge shall be made for any
registration of transfer or exchange cf the Securities, but the Company may
require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such
transfer taxes or similar governmental charge payable upon exchange pursuant to
Section 2.10 or 8.5 of this Indenture). The Company shall not be required to
make and the Registrar need not register transfers or exchanges of Securities
selected for redemption (except, in the case of Securities to be redeemed in
part, the portion thereof not to be redeemed) or for a period of 15 days before
a selection of Securities to be redeemed or 15 days before an interest payment
date.
19
Prior to the due presentation for registration of
transfer of any Security, the Company, each of the Subsidiary Guarantors, the
Trustee, the Paying Agent, the Registrar or any co-registrar may deem and treat
the person in whose name a Security is registered as the absolute owner of such
Security for the purpose of receiving payment of principal of and interest on
such Security and for all other purposes whatsoever, whether or not such
Security is overdue, and none of the Company, the Trustee, the Paying Agent, the
Registrar or any co-registrar shall be affected by notice to the contrary.
Notwithstanding any other provisions of this Section
2.6, unless and until it is exchanged in whole or in part for Securities in
definitive registered form, a Global Security representing all or a portion of
the Securities may not be transferred except as a whole by the Depositary to a
nominee of such Depositary or by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by such Depositary or any such nominee
to a successor Depositary or a nominee of such successor Depositary.
If the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for the Global Securities or if at
any time the Depositary shall no longer be eligible under the next sentence of
this paragraph, the Company shall appoint a successor Depositary with respect to
the Securities. Each Depositary appointed pursuant to this Section 2.6 must, at
the time of its appointment and at all times while it serves as Depositary, be a
clearing agency registered under the Exchange Act and any other applicable
statute or regulation. The Company will execute, and the Trustee will
authenticate and deliver upon a written order of the Company signed by two
Officers, Securities in definitive registered form with the Subsidiary Guarantee
of the Subsidiary Guarantors endorsed thereon in any authorized denominations
representing such Securities in exchange for such Global Security or Securities
if (i) the Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for the Global Securities or if at any time the
Depositary shall no longer be eligible to serve as Depositary and a successor
Depositary for the Securities is not appointed by the Company within 60 days
after the Company receives such notice or becomes aware of such ineligibility or
(ii) an Event of Default has occurred and is continuing.
The Company may at any time and in its sole discretion
determine that the Securities shall no longer be represented by a Global
Security or Securities. In such event the Company will execute, and the Trustee
will authenticate and deliver upon a written order of the Company signed by two
Officers, Securities with the Subsidiary Guarantee of the Subsidiary Guarantors
endorsed thereon in exchange for such Global Security or Securities.
Upon the exchange of a Global Security for Securities
in definitive registered form without coupons, in authorized denominations, such
Global Security shall be canceled by the Trustee. Securities in definitive
registered form issued in exchange for a Global Security pursuant to this
Section 2.6 shall be registered in such names and in such authorized
denominations as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to or as
directed by the Persons in whose names such Securities are so registered.
All Securities issued upon any transfer or exchange
pursuant to the terms of this Indenture will evidence the same debt and will be
entitled to the same benefits under this Indenture as the Securities surrendered
upon such transfer or exchange.
20
SECTION 2.7 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 and the Holder furnishes to the Company, each Subsidiary
Guarantor and the Trustee evidence to their satisfaction of such loss,
destruction or wrongful taking, the Company shall issue and the Trustee shall,
in the absence of notice to the Company or the Trustee that such Security has
been acquired by a bona fide purchaser, authenticate a replacement Security with
the Subsidiary Guarantee of the Subsidiary Guarantors endorsed thereon if the
requirements of Section 8-405 of the Uniform Commercial Code are met and if
there is delivered to the Company, each Subsidiary Guarantor and the Trustee
such security or indemnity as may be required to save each of them harmless,
satisfactory to the Company or the Trustee, as the case may be. The Company,
each Subsidiary Guarantor and the Trustee may charge the Holder for their
expenses in replacing a Security.
Every replacement Security is an additional obligation
of the Company and shall be entitled to the benefits of this Indenture.
SECTION 2.8 Outstanding Securities.
----------------------
The Securities outstanding at any time are all the
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.
If a Security is replaced pursuant to Section 2.7, 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 all the principal and interest on any Securities are
considered paid under Section 3.1, such Securities cease to be outstanding under
this Indenture and interest on such Securities shall cease to accrue.
If the Paying Agent (other than the Company or a
Subsidiary or an Affiliate of the Company) holds in accordance with this
Indenture on a redemption date or maturity date money sufficient to pay all
principal and interest due on that date then on and after that date such
Securities cease to be outstanding and interest on them ceases to accrue (unless
there shall be a default in such payment).
If a Security is called for redemption, the Company and
the Trustee need not treat the Security as outstanding in determining whether
Holders of the required principal amount of Securities have concurred in any
direction, waiver or consent.
Subject to Section 2.9, a Security does not cease to be
outstanding because the Company or an Affiliate thereof holds the Security.
SECTION 2.9 Determination of Holders' Action.
--------------------------------
In determining whether the Holders of the required
principal amount of Securities have concurred in any direction, amendment,
waiver or consent, Securities owned by or pledged to the Company, any Subsidiary
Guarantor, any other obligor upon the Securities or any Affiliate of the
Company, any Subsidiary Guarantor or such other obligor shall be disregarded and
deemed not to be outstanding, except that for the purposes of determining
whether the Trustee shall be protected in relying on any such direction, waiver
or consent, only Securities which a Trust Officer of the Trustee knows are so
owned or pledged shall be so disregarded.
21
SECTION 2.10 Temporary Securities.
--------------------
Until definitive Securities are ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary Securities
having endorsed thereon temporary Subsidiary Guarantees executed by the
Subsidiary Guarantors. Temporary Securities shall be substantially in the form
of definitive Securities but may have variations that the Company considers
appropriate for temporary Securities and having duly endorsed thereon the
Subsidiary Guarantees which shall be substantially in the form of definitive
Subsidiary Guarantees but which may have variations that the Company believes
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee, upon the written order of the Company signed by
two Officers, shall authenticate definitive Securities in exchange for temporary
Securities. Until such exchange, temporary Securities shall be entitled to the
same rights, benefits and privileges as definitive Securities.
SECTION 2.11 Cancellation.
------------
The Company at any time may deliver Securities to the
Trustee for cancellation. The Registrar and Paying Agent shall forward to the
Trustee any Securities surrendered to them for registration of transfer,
exchange or payment. The Trustee shall cancel all Securities surrendered for
registration of transfer, exchange, payment or cancellation and shall destroy
the same or otherwise dispose of canceled Securities as the Company directs by
written order signed by two Officers. The Company may not issue new Securities
to replace Securities that it has paid or delivered to the Trustee for
cancellation.
SECTION 2.12 Defaulted Interest.
------------------
Except as may otherwise be set forth herein, if the
Company defaults in a payment of interest on the Securities, it shall pay
defaulted interest, plus any interest payable on the defaulted interest to the
extent permitted by law, in any lawful manner. It may pay the defaulted interest
to the Persons who are Securityholders on a subsequent special record date which
date shall be at least five Business Days prior to the payment date. The Company
shall fix the special record date and payment date. At least 15 days before the
special record date, the Company (or the Trustee, in the name of and at the
expense of the Company) shall mail to Securityholders a notice that states the
special record date, payment date and amount of interest to be paid.
ARTICLE III
COVENANTS
SECTION 3.1 Payment of Securities.
---------------------
The Company shall pay the principal of and interest on
the Securities on the dates and in the manner provided in the Securities. The
Company shall pay interest on overdue principal at the rate borne by the
Securities; it shall pay interest on overdue installments of interest at the
rate borne by the Securities to the extent lawful. Principal and interest shall
be considered paid on the date due (including a redemption date)
22
if the Trustee or the Paying Agent (other than the Company or a Subsidiary or an
Affiliate of the Company) has received from or on behalf of the Company on or
prior to 12:00 noon (New York City time) on that date money sufficient to pay
all principal and interest then due.
SECTION 3.2 Maintenance of Office or Agency.
-------------------------------
The Company shall maintain in the Borough of Manhattan,
the City of New York, an office or agency where Securities may be surrendered
for registration of transfer or exchange or for presentation for payment and
where notices and demands to or upon the Company or any Subsidiary Guarantor in
respect of the Securities any Subsidiary Guarantee endorsed thereon and this
Indenture may be served. The Company and the Subsidiary Guarantors will give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company or any Subsidiary
Guarantor shall fail to maintain any such required office or agency or to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the address of the Trustee set
forth in Section 11.2 of this Indenture.
The Company may also from time to time designate one or
more other offices or agencies where the Securities may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in the Borough of Manhattan, the City of New York, for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
The Company hereby initially designates the office of
State Street Bank and Trust Company, N.A. in the Borough of Manhattan, the City
of New York, as such office of the Company in accordance with Section 2.3.
SECTION 3.3 Limitation on Restricted Payments.
---------------------------------
The Company shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly, (i) declare or pay any
dividend on or make any distribution or similar payment of any sort in respect
of its or their Capital Stock (including any payment in connection with any
merger or consolidation involving the Company or any Restricted Subsidiary) to
the direct or indirect holders of its or their Capital Stock (other than
dividends or distributions payable solely to the Company or a Restricted
Subsidiary), (ii) purchase, redeem, defease or otherwise acquire or retire for
value any of its or their Capital Stock or of any direct or indirect parent of
the Company or exercise any option to exchange any of its or their Capital Stock
that by its terms is exchangeable solely at the option of the Company or a
Restricted Subsidiary, as the case may be, (other than into Capital Stock of the
Company or a Restricted Subsidiary, as the case may be, which is neither
Exchangeable Stock nor Redeemable Stock), (iii) purchase, repurchase, redeem,
defease or otherwise acquire or retire for value, prior to scheduled maturity or
scheduled repayment thereof or scheduled sinking fund payment thereon, any
Subordinated Indebtedness (other than the purchase, repurchase, or other
acquisition of Subordinated Indebtedness 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 acquisition) or (iv) make any investment in
any Unrestricted Subsidiary or any Affiliate of the Company other than a
Restricted Subsidiary or a Person which will become a Restricted Subsidiary as a
result of any such Investment (each such payment described in clauses (i)-(iv)
of this paragraph, a "Restricted Payment").
23
SECTION 3.4 Limitation on Incurrence of Indebtedness.
----------------------------------------
The Company shall not, and shall not permit any
Restricted Subsidiary to, without the prior written consent of the Trustee,
directly or indirectly, Incur any Indebtedness, except as follows:
(a) Indebtedness as set forth on Schedule
3.4(a) hereto or Refinancing Indebtedness thereof;
(b) In addition to the Indebtedness
permitted in clause (a) of this Section 3.4, secured Indebtedness in an
aggregate principal amount not to exceed $5,500,000; provided that not more than
an aggregate of $3,000,000 of such Indebtedness may be incurred in any twelve
month period; provided further that the aggregate principal amount of
Indebtedness outstanding pursuant to clauses (a) and (b) of this Section 3.4
shall not at any time exceed $12,000,000;
(c) Indebtedness of the Company or any
Subsidiary in connection with the Tax Liabilities;
(d) Indebtedness in respect of the
Securities in an aggregate principal amount not to exceed $50,880,000 excluding
interest accrued in connection therewith;
(e) Indebtedness in respect of the
Subordinated Notes, provided that the aggregate outstanding principal amount of
such Indebtedness shall not at any time exceed $12,000,000; and
(f) Acquisition Indebtedness in an
aggregate principal amount not to exceed $1,000,000 annually; provided that (i)
such Acquisition Indebtedness is payable to the seller of the assets or stock
acquired by the Company in connection with such Acquisition Indebtedness and
(ii) such Acquisition Indebtedness is secured only by the assets or stock
acquired by the Company in connection with such Acquisition Indebtedness;
provided further that the aggregate outstanding principal amount of such
Acquisition Indebtedness shall not at any time exceed $3,000,000.
SECTION 3.5 Limitation on Payment Restrictions Affecting Subsidiaries.
---------------------------------------------------------
The Company shall not, and shall not permit any
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 (i) pay dividends to or make any other distributions on its
Capital Stock, or pay any Indebtedness or other obligations owed to the Company
or any other Restricted Subsidiary, (ii) make any Investments in the Company or
any other Restricted Subsidiary or (iii) transfer any of its property or assets
to the Company or any other Restricted Subsidiary; provided, however, that the
foregoing shall not apply to:
(a) any encumbrance or restriction existing pursuant
to this Indenture or any other agreement or instrument as in effect on the Issue
Date;
(b) any encumbrance or restriction with respect to a
Subsidiary pursuant to any agreement relating to any Acquired Indebtedness;
provided, however, that such encumbrance or restriction was not Incurred in
connection with or in contemplation of such Subsidiary becoming a Subsidiary;
24
(c) any encumbrance or restriction pursuant to an
agreement effecting a refinancing, renewal, extension or replacement of
Indebtedness referred to in clause (a) or (b) above or contained in any
amendment or modification with respect to such Indebtedness; provided, however,
that the encumbrances and restrictions contained in any such agreement,
amendment or modification are no less favorable in any material respect with
respect to the matters referred to in clauses (i), (ii) and (iii) above than the
encumbrances and restrictions with respect to the Indebtedness being refinanced,
renewed, extended, replaced, amended or modified;
(d) in the case of clause (iii) above, customary
non-assignment provisions of any leases governing a leasehold interest or of any
supply, license or other agreement entered into in the ordinary course of
business of the Company or any Subsidiary;
(e) any restrictions with respect to a Subsidiary
imposed pursuant to an agreement entered into and permitted hereunder for the
sale or disposition of all or substantially all of the Capital Stock or assets
of such Subsidiary pending the closing of such sale or disposition; or
(f) any encumbrance or restriction existing by
reason of applicable law.
Nothing contained in this Section 3.5 shall prohibit
the sale of assets that secure Indebtedness of the Company or its Subsidiaries.
SECTION 3.6 Limitation on Sale/Leaseback Transactions.
-----------------------------------------
The Company shall not, and shall not permit any
Restricted Subsidiary to, enter into any Sale/Leaseback Transaction unless (i)
the Company or such Subsidiary would be entitled to create a Lien on such
property securing Indebtedness in an amount equal to the Attributable Debt with
respect to such transaction without equally and ratably securing the Securities
pursuant to Section 3.7 or (ii) the net proceeds of such sale are at least equal
to the Fair Value (as determined by the Board of Directors) of such property and
the Company or such Subsidiary shall apply or cause to be applied an amount in
cash equal to the net proceeds of such sale, within 30 days of the effective
date of any such arrangement, to make an offer to purchase the Securities at not
less than 100% of their Accreted Value, plus accrued interest (if any) pursuant
to and subject to the conditions of Sections 3.12(c) and (d), provided, however,
that the company or any Restricted Subsidiary may enter into a Sale/Leaseback
Transaction as long as the Attributable Debt with respect to such Sale/Leaseback
Transaction and all other Sale/Leaseback Transactions entered into pursuant to
this proviso does not exceed 5% of Consolidated Net Tangible Assets as
determined based on the Consolidated balance sheet of the Company as of the end
of the most recent fiscal quarter for which financial statements are available.
SECTION 3.7 Limitation on Liens.
-------------------
Except as provided for under Article X, 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 or their properties (including, without limitation, Capital Stock), whether
owned on the Issue Date or thereafter acquired, other than the following Liens
(the "Permitted Liens"):
25
(a) pledges or deposits made by such Person under
workers' compensation unemployment insurance laws or similar legislation, or
good faith deposits in connection with bids, tenders, contracts (other than for
payment of Indebtedness) or 1eases to which such Person is a party, or deposits
to secure statutory or regulatory obligations of such Person or deposits of cash
of United States Government bonds to secure surety, appeal or performance 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;
(b) Liens imposed by law such as carriers',
warehousemen's and mechanics' Liens, in each case, arising in the ordinary
course of business and with respect to amounts not yet due or being contested in
good faith by appropriate legal proceedings promptly instituted and diligently
conducted and for which a reserve or other appropriate provision, if any, as
shall be required in conformity with GAAP shall have been made; or other Liens
arising out of judgments or awards against such Person with respect to which
such Person shall then be diligently prosecuting appeal or other proceedings for
review;
(c) Liens for property taxes not yet subject to
penalties for non-payment or which are being contested in good faith and by
appropriate legal proceedings promptly instituted and diligently conducted and
for which a reserve or other appropriate provision, if any, as shall be required
in conformity with GAAP shall have been made;
(d) minor survey exceptions, minor encumbrances,
easements or reservations of, or rights of others for, 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 properties 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 or other
extensions of credit and which do not in the aggregate materially adversely
affect the value of said properties or materially impair their use in the
operation of the business of such Person;
(e) Liens securing Indebtedness Incurred pursuant to
Section 3.4(a) and (b);
(f) Liens upon any asset of the Company or any
Restricted Subsidiary existing on the Issue Date including, but not limited to,
Liens existing on the Issue Date or thereafter pursuant to the Security
Documents;
(g) Liens on property (excluding Capital Stock) of a
Person at the time such Person becomes a Subsidiary; provided, however, that any
such Lien may not extend to any other property owned by the Company or any
Restricted Subsidiary;
(h) Liens on property at the time the Company or a
Subsidiary acquires the property in accordance with Section 3.4(f), including
any acquisition by means of a merger or consolidation with or into the Company
or a Subsidiary; provided, however, that such Liens are not incurred in
connection with, or in contemplation of, such merger or consolidation; and
provided, further, that any such Lien may not extend to any other property owned
by the Company or any Restricted Subsidiary;
(i) Liens securing Indebtedness or other obligations of
a Subsidiary owing to the Company or a Wholly Owned Subsidiary;
(j) Liens incurred by a Person other than the Company
or any Subsidiary on assets that are the subject of a Capitalized Lease
Obligation to which the Company or a Subsidiary is a party; provided, however,
that any such Lien may not secure Indebtedness of the Company or any Subsidiary
(except by virtue of clause (x) of the definition of "Indebtedness") and may not
extend to any other property owned by the Company or any Restricted Subsidiary;
26
(k) Liens to secure any refinancing, refunding,
extension, renewal or replacement (or successive refinancings, refundings,
extensions, renewals or replacements) as a whole, or in part, of any
Indebtedness secured by any Lien referred to in the foregoing clauses (e), (f),
(g), and (h); provided, however, that (x) such new Lien shall be limited to all
or part of the same property that secured the original Lien (plus improvements
on such property) and (y) the Indebtedness secured by such Lien at such time is
not increased (other than by an amount necessary to pay fees and expenses,
including premiums, related to the refinancing, refunding, extension, renewal or
replacement of such indebtedness); and
(l) Liens imposed on account of the Tax
Liabilities.
SECTION 3.8 Change of Control.
-----------------
In the event of a Change of Control, the Company shall
make an offer to purchase (the "Change of Control Offer") the Securities then
outstanding at a purchase price equal to one hundred percent (100%) of the
Accreted Value thereof plus accrued interest to the Change of Control Purchase
Date (as defined below) on the terms set forth in this Section. The date on
which the Company shall purchase the Securities pursuant to this Section (the
"Change of Control Purchase Date") shall be no earlier than 30 days, nor later
than 60 days, after the notice referred to below is mailed, unless a longer
period shall be required by law. The Company shall notify the Trustee in writing
promptly after the occurrence of any Change of Control of the Company's
obligation to offer to purchase the Securities.
Notice of a Change of Control Offer shall be mailed by
the Company to the Holders of the Securities at their last registered address
(with a copy to the Trustee and the Paying Agent) within thirty (30) days after
a Change in Control has occurred. The Change of Control offer shall remain open
from the time of mailing until five (5) Business Days before the Change of
Control Purchase Date. The notice shall contain all instructions and materials
necessary to enable such Holders to tender (in whole or in part) the Securities
pursuant to the Change of Control Offer. The notice, which shall govern the
terms of the Change of Control Offer, shall state:
(a) that the Change of Control Offer is being made
pursuant to this Section;
(b) the purchase price and the Change of Control
Purchase Date;
(c) that any Security not surrendered or accepted
for payment will continue to accrue interest;
(d) that any security accepted for payment pursuant
to the Change of Control Offer shall cease to accrue interest after the Change
of Control Purchase Date if payment is made;
27
(e) that any Holder electing to have a Security
purchased (in whole or in part) pursuant to a Change of Control Offer will be
required to surrender the Security, with the form entitled "Option of Holder to
Elect Purchase" on the reverse of the Security completed, to the Paying Agent at
the address specified in the notice (or otherwise make effective delivery of the
Security pursuant to book-entry procedures and the related rules of the
applicable depositories) at least five Business Days before the Change of
Control Purchase Date; and
(f) that any Holder will be entitled to withdraw
his or her election if the Paying Agent receives, not later than three Business
Days prior to the Change of Control Purchase Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Security the Holder delivered for purchase and a statement that
such Holder is withdrawing his or her election to have the Security purchased.
On the Change of Control Purchase Date, the Company
shall (i) accept for payment the Securities, or portions thereof, surrendered
and properly tendered and not withdrawn, pursuant to the Change of Control
Offer, (ii) deposit with the Paying Agent money sufficient to pay the purchase
price plus accrued interest of all the Securities or portions thereof, so
accepted and (iii) deliver to the Trustee the Securities so accepted together
with an Officers' Certificate stating that such Securities have been accepted
for payment by the Company. The Paying Agent shall promptly mail or deliver to
Holders of Securities so accepted payment in an amount equal to the purchase
price. Holders whose Securities are purchased only in part will be issued new
Securities equal in principal amount to the unpurchased portion of the
Securities surrendered.
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. To the extent that the provisions of any securities
laws or regulations conflict with provisions of this Section, the Company shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this Section by virtue thereof.
SECTION 3.9 Compliance Certificate.
----------------------
The Company shall, within 120 days after the close of
each fiscal year following the issuance of the Securities, file with the Trustee
an Officers' Certificate, with one of the Officers executing the same being the
principal executive officer, the principal financial officer or the principal
accounting officer of the Company, covering the period from the date of issuance
of the Securities to the end of the fiscal year in which the Securities were
issued, in the case of the first such certificate, and covering the preceding
fiscal year in the case of each subsequent certificate, and stating whether or
not, to the knowledge of each such executing officer, the Company and each
Subsidiary Guarantor has complied with and performed and fulfilled all
conditions and covenants on its part contained in this Indenture and is not in
default in the performance or observance of any of the terms, provisions and
conditions contained in this Indenture, and, if any such signer has obtained
knowledge of any default by the Company in the performance, observance or
fulfillment of any such condition, covenant, term or provision specifying each
such default and the nature thereof. For the purpose of this Section 3.9,
compliance shall be determined without regard to any grace period or requirement
of notice provided pursuant to the terms of this Indenture.
SECTION 3.10 SEC Reports and Financial Reporting.
-----------------------------------
The Company shall, to the extent required by
TIA ss.314(a), file with the Trustee, within 15 days after the filing with the
SEC, copies of the annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the SEC may by
rules and regulations prescribe) which
28
the Company is required to file with the SEC pursuant to Section 13 or 15(d) of
the Exchange Act. In the event the Company is at any time no longer subject to
the reporting requirements of Section 13 or 15(d) of the Exchange Act, it shall,
for so long as the Securities remain outstanding, file with the Trustee and the
SEC and mail to each Securityholder at such Securityholder's registered address,
within 15 days after the Company would have been required to file such documents
with the SEC, copies of the annual reports and of the information, documents and
other reports which the Company would have been required to file with the SEC if
the Company had continued to be subject to such Sections 13 or 15(d). The
Company also shall comply with the other provisions of TIA ss. 314(a). As of the
date hereof, the Company's and its Subsidiaries' Consolidated financial
condition is set forth on Schedule 3.10 hereto, which contains an audited
summary of the Company's annual Consolidated financial condition (including a
balance sheet and statements of profit and loss and cash flows) for the fiscal
year ending June 30, 2000.
SECTION 3.11 Transactions with Affiliates.
----------------------------
The Company shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly, enter into, permit to exist,
renew or extend any transaction or series of transactions (including, without
limitation, the sale, purchase, exchange or lease of any assets or property or
the rendering of any services) with any Affiliate of the Company or any Xxxxxxx
Entity unless (i) the terms of such transaction or series of transactions are
(A) no less favorable to the Company or such Restricted Subsidiary, as the case
may be, than would be obtainable in a comparable transaction or series of
related transactions in arm's-length dealings with an unrelated third party and,
in the case of a transaction or series of transactions involving payments or
consideration in excess of $100,000 approved by a majority of the Outside
Directors, and (B) set forth in writing if such transaction or series of
transactions involves aggregate payments or consideration in excess of $250,000,
and (ii) with respect to a transaction or series of transactions involving
aggregate payments or consideration in excess of $1,000,000, such transaction or
series of transactions has been determined, in the written opinion of an
independent nationally recognized investment banking firm, to be fair, from a
financial point of view, to the Company or such Restricted Subsidiary. The
foregoing provisions do not prohibit (i) the payment of reasonable fees to
directors of the Company and its Subsidiaries or (ii) any transaction between
the Company and a Wholly Owned Subsidiary or between Wholly Owned Subsidiaries
otherwise permitted by the terms of this Indenture. Any transaction which has
been determined, in the written opinion of an independent nationally recognized
investment banking firm, to be fair, from a financial point of view, to the
Company or the applicable Restricted Subsidiary shall be deemed to be in
compliance with this Section 3.11.
SECTION 3.12 Sales of Assets.
---------------
(a) Except in the ordinary course of Company's business
and to replace obsolete equipment, and as set forth on Schedule 3.12, the
Company shall not, and shall not permit, any Restricted Subsidiary to,
consummate any Asset Sale unless (i) the Company or such Restricted Subsidiary
receives consideration at the time of such Asset Sale at least equal to the fair
market value, as determined in good faith by the Board of Directors, of the
shares or assets subject to such Asset Sale, (ii) at least 85% of the
consideration thereof received by the Company or such Restricted Subsidiary is
in the form of Additional Assets or cash or cash equivalents which cash
equivalents are promptly converted into cash by the Person receiving such
payment and (iii) an amount equal to 100% of the Net Available Cash is applied
by the Company (or such Subsidiary, as the case may be) as set forth herein. The
Company shall not permit any Unrestricted Subsidiary to make any Asset Sale
unless such Unrestricted Subsidiary receives consideration at the time of such
Asset Sale at least equal to the fair market value of the shares or assets so
disposed of as determined in good faith by the Board of Directors.
29
(b) Within sixty (60) days (such 60 days being the
"Application Period") following the consummation of an Asset Sale, excluding
Asset Sales in the ordinary course of Company's business, to replace obsolete
equipment and as set forth on Schedule 3.12, the Company or such Restricted
Subsidiary shall apply the Net Available Cash from such Asset Sale as follows:
(i) first, to reduce or eliminate the balance of the Tax Liabilities; and (ii)
second, to the extent of the balance of such Net Available Cash after
application in accordance with clause (i), to make an offer to purchase the
Securities at not less than 100% of their Accreted Value, plus accrued interest
(if any) pursuant to and subject to the conditions of Section 3.12(c); provided,
however, that in connection with any prepayment, repayment or purchase of
Indebtedness pursuant to clause (ii) above, the Company or such Restricted
Subsidiary shall retire such Indebtedness and cause the related loan commitment
(if any) to be permanently reduced in an amount equal to the principal amount so
prepaid, repaid or purchased.
As soon as practicable, but in any event within ten
(10) days after the last day of each month, the Company shall furnish to the
Trustee (with sufficient copies for each Holder) an Asset Sale Certificate in
the form of Exhibit E signed by the President or Executive Vice President of the
Company.
To the extent that any or all of the Net Available Cash
of any Foreign Asset Sale is prohibited or delayed by applicable local law from
being repatriated to the United States, the portion of such Net Available Cash
so affected shall not be required to be applied at the time provided above, but
may be retained by the applicable Restricted Subsidiary so long, but only so
long, as the applicable local law will not permit repatriation to the United
States (the Company hereby agreeing to promptly take or cause the applicable
Restricted Subsidiary to promptly take all actions required by the applicable
local law to permit such repatriation). Once such repatriation of any of such
affected Net Available Cash is permitted under the applicable local law, such
repatriation shall be immediately effected and such repatriated Net Available
Cash will be applied in the manner set forth in this Section as if such Asset
Sale had occurred on the date of such repatriation.
To the extent that the Board of Directors determines,
in good faith, that repatriation of any or all of the Net Available Cash of any
Foreign Asset Sale would have a material adverse tax consequence to the Company,
the Net Available Cash so affected may be retained outside of the United States
by the applicable Restricted Subsidiary for so long as such material adverse tax
consequence would continue.
Notwithstanding the foregoing, this Section shall not
apply to, or prevent any sale of assets, property, or Capital Stock of
Subsidiaries to the extent that the fair market value (as determined in good
faith by the Board of Directors) of such asset, property or Capital Stock,
together with the fair market value of all other assets, property, or Capital
Stock of Subsidiaries sold, transferred or otherwise disposed of in Asset Sales
during the twelve month period preceding the date of such sale, does not exceed
5% of Consolidated Net Tangible Assets as determined as of the end of the most
recent fiscal quarter, and no violation of this Section shall be deemed to have
occurred as a consequence thereof.
In the event of the transfer of substantially all (but
not all) of the property and assets of the Company as an entirety to a Person in
a transaction permitted under Article IV, the Successor Corporation shall be
deemed to have sold the properties and assets of the Company not so transferred
for purposes of this Section 3.12, and shall comply with this Section 3.12 with
respect to such deemed sale as if it were an Asset Sale.
30
(c) Subject to the last sentence of this paragraph,
in the event of an Asset Sale that requires the purchase of Securities pursuant
to clause (ii) of the first paragraph of Section 3.12(b), the Company will be
required to purchase Securities tendered pursuant to an offer by the Company for
the Securities (the "Asset Sale Offer") at a purchase price of not less than
100% of their Accreted Value plus accrued interest to the Asset Sale Purchase
Date in accordance with the procedures (including prorationing in the event of
oversubscription) set forth in Section 3.12(d).
(d) (1) Promptly, and in any event prior to
the 60th day after the later of the date of each Asset Sale as to which the
Company must make an Asset Sale Offer or the receipt of Net Available Cash
therefrom, the Company shall be obligated to 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 prorationing as hereinafter described in the event the Asset Sale
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 "Asset
Sale Purchase Date") and shall contain the information required in a notice for
a Change of Control Offer, to the extent applicable.
(2) Not later than the date upon which
written notice of an Asset Sale Offer is delivered to the Trustee as provided in
Section 3.12(d)(1), the Company shall deliver to the Trustee an Officers'
Certificate as to the amount of the Asset Sale Offer (the "Asset Sale Offer
Amount"), (ii) the allocation of the Net Available Cash from the Asset Sales
pursuant to which such Asset Sale Offer is being made and (iii) the compliance
of such allocation with Section 3.12(a). On such date, the Company shall also
deposit with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust) funds in an amount equal to the Asset Sale
Offer Amount to be held for payment in accordance with the provisions of this
Section. Upon the expiration of the period for which the Asset Sale Offer
remains open (the "Offer Period"), the Company shall deliver, or cause to be
delivered, to the Trustee the Securities or portions thereof which have been
properly tendered to and are to be accepted by the Company. The Paying Agent
shall, on the Asset Sale Purchase Date, mail or deliver payment to each
tendering Holder in the amount of the purchase price. In the event that the
aggregate purchase price of the Securities delivered, or caused to be delivered,
by the Company to the Trustee is less than the Asset Sale Offer Amount, the
Paying Agent shall deliver the excess to the Company immediately after the
expiration of the Offer Period.
(3) Holders electing to have a Security
purchased will be required to surrender the Security, with the form entitled
"Option of Holder to Elect Purchase" on the reverse of the Security duly
completed, to the Company or the Paying Agent, as specified in, and at the
address specified in, the notice at least ten Business Days prior to the Asset
Sale Purchase Date. Holders will be entitled to withdraw their election if the
Trustee or the Paying Agent receives, not later than three Business Days prior
to the Asset Sale 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 Holder is withdrawing his election to have such Security purchased. If at
the expiration of the Offer Period the aggregate principal amount of Securities
surrendered by Holders exceeds the Asset Sale Offer Amount, the Company shall
select the Securities to be purchased on a pro rata basis (with such adjustments
as may be deemed appropriate by the Company so that only Securities in
denominations of $1,000, or integral multiples thereof, shall be purchased).
Holders whose Securities are purchased only in part will be issued new
Securities equal in principal amount to the unpurchased portion of the
Securities surrendered.
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(4) At the time the Company delivers
Securities to the Trustee which are to be accepted for purchase, the Company
will 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 this
Section. A Security shall be deemed to have been accepted for purchase at the
time the Paying Agent, 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. To the extent that the provisions of any
securities laws or regulations conflict with provisions of this Section, the
Company shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations under this Section by
virtue thereof.
SECTION 3.13 Corporate Existence.
-------------------
Except as permitted under Article IV, the Company shall
do or cause to be done all things necessary to preserve and keep in full force
and effect its corporate existence and the corporate existence of each
Restricted Subsidiary in accordance with the respective organizational documents
of the Company and of each Restricted Subsidiary and the rights (charter and
statutory), licenses and franchises of the Company and the Restricted
Subsidiaries necessary or appropriate to carry out their businesses; provided,
however, that the Company shall not be required to preserve any such right,
license or franchise, or the corporate existence of any Restricted Subsidiary if
the preservation thereof is no longer desirable in the conduct of the business
of the Company and the Restricted Subsidiaries taken as a whole; and provided,
further, that any Restricted Subsidiary may consolidate with, merge into, or
sell, convey, transfer, lease or otherwise dispose of all or part of its
property and assets to the Company or any Wholly Owned Subsidiary to the extent
otherwise permitted under this Indenture.
SECTION 3.14 Payment of Taxes and Other Claims.
---------------------------------
Except as set forth on Schedule 3.14, the Company shall
pay or discharge, or cause to be paid or discharged, before any material penalty
accrues thereon all material taxes, assessments and governmental charges levied
or imposed upon the Company or any Restricted Subsidiary or upon the income,
profits or property of the Company or any Restricted Subsidiary; provided,
however, that the Company shall not be required to pay or discharge, or cause to
be paid or discharged, any such tax, assessment, charge or claim the amount,
applicability or validity of which is being contested in good faith by
appropriate proceedings and for which adequate reserves, if the same shall be
required in accordance with GAAP, have been made.
SECTION 3.15 Notice of Defaults and Other Events.
-----------------------------------
Except for Indebtedness evidenced by the Tax
Liabilities and the event of default existing on the Issue Date relating to
Indebtedness evidenced by the Subordinated Notes, in the event that any
Indebtedness of the Company or any Subsidiary having an outstanding principal
amount of $5,000,000 or more individually or $10,000,000 or more in the
aggregate has been or could be declared due and payable before its maturity
because of the occurrence of any event of default under such Indebtedness
(including any Default or Event of Default under this Indenture), the Company,
promptly after it becomes aware thereof, will give written notice thereof to the
Trustee.
32
SECTION 3.16 Maintenance of Properties and Insurance.
---------------------------------------
The Company shall cause all properties used or useful
in the conduct of its business or the business of each Restricted Subsidiary and
material to the Company and the Restricted Subsidiaries taken as a whole to be
maintained and kept in normal condition, repair and working order and supplied
with all necessary equipment; provided, however, that nothing in this Section
3.16 shall prevent the Company or any Restricted Subsidiary from discontinuing
the use, operation or maintenance of any of such properties or disposing of any
of them, if such discontinuance or disposal is, in the judgment of an officer
(or other employee of the Company or any Restricted Subsidiary) of the Company
or such Restricted Subsidiary having managerial responsibility for any such
property, appropriate.
The Company shall provide or cause to be provided, for
itself and the Restricted Subsidiaries, insurance (including appropriate
self-insurance) against loss or damage of the kinds customarily insured against
by corporations similarly situated and owning like properties, including, but
not limited to, product liability insurance and public liability insurance with
reputable insurers or with the government of the United States of America, or an
agency or instrumentality thereof, of such kinds, and in such amounts, with such
deductibles and by such methods as the Company in good faith shall determine to
be reasonable and appropriate under the circumstances.
SECTION 3.17 Limitation on Issuance of Capital Stock and Incurrence
of Indebtedness of Restricted Subsidiaries.
------------------------------------------------------
The Company shall not permit any Restricted Subsidiary,
directly or indirectly, to issue or sell, and shall not permit any Person other
than the Company or a Wholly Owned Subsidiary to own (except to the extent that
any such Person may own on the Issue Date), any shares of such Restricted
Subsidiary's Capital Stock (including options, warrants or other rights to
purchase shares of Capital Stock) except, to the extent otherwise permitted by
this Indenture, (i) to the Company or another Restricted Subsidiary that is a
Wholly Owned Subsidiary of the Company, or (ii) if, immediately after giving
effect to such issuance and sale, such Restricted Subsidiary would no longer
constitute a Restricted Subsidiary for purposes of this Indenture. The Company
shall not permit any Restricted Subsidiary, directly or indirectly, to Incur
Indebtedness other than pursuant to Section 3.4.
SECTION 3.18 Limitation on Changes in the Nature of the Business.
---------------------------------------------------
The Company and its Subsidiaries shall not engage in
any line of business other than the Line of Business for any period of time in
excess of 270 consecutive days for any such unrelated line of business.
SECTION 3.19 Additional Collateral.
---------------------
Promptly upon the Trustee's request at the direction of
a majority of the Holders from time to time, the Company shall, and shall cause
each Restricted Subsidiary to, grant to the Trustee, for the ratable benefit of
the Holders, in addition to any security interests previously granted to the
Trustee, for the ratable benefit of the Holders, a continuing security interest
in and Lien upon all of the Company's and each Restricted Subsidiary's right,
title and interest in and to any and all assets of the Company and each
Restricted Subsidiary, including any real and personal property, designated by
the Trustee. The Company shall, and shall cause each Restricted Subsidiary to,
use its best efforts to assist the Trustee and the Holders in obtaining and
perfecting such security interests and Liens, including, by (a) executing and
delivering one or more Security Agreements and Mortgages and all such other
documents and instruments, including furnishing Opinions of Counsel (other than
as to the priority of such security interests and Liens), requested by the
33
Trustee in connection therewith and (b) obtaining any third-party consents that
may be necessary or required in connection therewith. All expenses incurred by
the Company, the Restricted Subsidiaries, the Trustee and the Holders (including
reasonable legal fees and expenses of the foregoing) in connection with the
granting, documentation and perfection of the security interests pursuant to
this Section 3.19 shall be borne by the Company in an amount not to exceed
$75,000 in the aggregate.
SECTION 3.20 Sales of Capital Stock.
----------------------
The Company shall be permitted to sell Capital Stock to
any Person provided that at least eighty percent (80%) of the proceeds therefrom
are used to redeem the Securities in accordance with Article IX. Notwithstanding
the foregoing, to the extent that any such sale of Capital Stock constitutes a
Change of Control, the provisions of Section 3.8 shall govern the Company's
obligations with respect to such Change of Control.
ARTICLE IV
CONSOLIDATION, MERGER AND SALE
SECTION 4.1 Merger and Consolidation of Company.
-----------------------------------
The Company shall not, in a single transaction or
through a series of related transactions, consolidate with or merge with or into
any other corporation or sell, assign, convey, transfer or lease or otherwise
dispose of a majority of its properties and assets to any Person or group of
affiliated Persons unless:
(a) either the Company shall be the continuing Person,
or the Person (if other than the Company) formed by such consolidation or into
which the Company is merged or to which the properties and assets of the Company
as an entirety are transferred (the "Successor Corporation"), shall be a
corporation organized and existing under the laws of the United States or any
State thereof or the District of Columbia and shall expressly assume, by an
indenture supplemental hereto executed and delivered to the Trustee, in form and
substance satisfactory to the Trustee, all the obligations of the Company under
this Indenture and the Securities;
(b) immediately before and immediately after giving
effect to such transaction on a pro forma basis (and treating any Indebtedness
which becomes an obligation of the Company (or the Successor Corporation if the
Company is not the continuing obligor under the Indenture) or any Restricted
Subsidiary as a result of such transaction as having been Incurred by such
Person at the time of such transaction), no Default shall have occurred and be
continuing;
(c) the Company shall have delivered, or caused to be
delivered, to the Trustee an Officers' Certificate and, as to legal matters, an
Opinion of Counsel, each in form and substance satisfactory to the Trustee, each
stating that such consolidation, merger or transfer and such supplemental
indenture comply with this Section and that all conditions precedent herein
provided for relating to such transaction have been complied with;
(d) immediately after giving effect to such transaction
on a pro forma basis and treating any Indebtedness which becomes an obligation
of the Company (or the Successor Corporation if the Company is not the
continuing obligor under this Indenture) or a Restricted Subsidiary in
connection with or as a result of such
34
transaction as having been Incurred by such Person at the time of such
transaction, the Consolidated Coverage Ratio of the Company (or the Successor
Corporation if the Company is not the continuing obligor under this Indenture)
is at least 1:1; provided that, if the Consolidated Coverage Ratio before giving
effect to such transaction is within the range set forth in column (A) below,
then the pro forma Consolidated Coverage Ratio of the Company or the Successor
Corporation, as the case may be, shall be at least equal to the lesser of (1)
the ratio determined by multiplying the percentage set forth in column (B) below
by the Consolidated Coverage Ratio of the Company prior to such transaction and
(2) the ratio set forth in column (C) below:
(A) (B) (C)
--- --- ---
1.11:1 to 1.99:1 90% 1.50:1
2.00:1 to 2.99:1 80% 2.10:1
3.00:1 to 3.99:1 70% 2.40:1
4.00:1 or more 60% 2.50:1
and
(e) immediately after giving effect to such transaction
on a pro forma basis (and treating any Indebtedness which becomes an obligation
of the Company (or the Successor Corporation if the Company is not the
continuing obligor under this Indenture) or a Restricted Subsidiary in
connection with or as a result of such transaction as having been Incurred by
such Person at the time of such transaction), the Company (or the Successor
Corporation if the Company is not the continuing obligor under this Indenture)
shall have Consolidated Net Worth in an amount which is not less than the
Consolidated Net Worth immediately prior to such transaction.
Notwithstanding the foregoing paragraphs (b) and (d),
any Restricted Subsidiary may consolidate with, merge into or transfer all or
part of its properties and assets to the Company or any Wholly Owned Subsidiary
or Wholly Owned Subsidiaries and no violation of this Section shall be deemed to
have occurred as a consequence thereof, as long as the requirements of
paragraphs (a) and (c) are satisfied in connection therewith.
SECTION 4.2 Successor Substituted.
---------------------
Upon any such consolidation or merger, or any
conveyance, transfer, or disposition of a majority of the properties or assets
of the Company in accordance with Section 4.1, but not in the case of a lease,
the Successor Corporation shall succeed to and be substituted for the Company
under this Indenture and the Securities, and the Company shall thereupon be
released from all obligations hereunder and under the Securities and the
Company, as the predecessor corporation, may thereupon or at any time thereafter
be dissolved, wound up or liquidated. The Successor Corporation thereupon may
cause to be signed, and may issue either in its own name or in the name of the
Company, all or any of the Securities issuable hereunder which theretofore shall
not have been signed by the Company and delivered to the Trustee; and, upon the
order of the Successor Corporation instead of the Company and subject to all the
terms, conditions and limitations prescribed in this Indenture, the Trustee
shall authenticate and shall deliver any Securities which the Successor
Corporation thereafter shall cause to be signed and delivered to the Trustee for
that purpose. All the Securities so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Securities theretofore or
thereafter issued in accordance with the terms of this Indenture as though all
such Securities had been issued at the date of the execution hereof. In the case
of any consolidation, merger or transfer described above, such changes in form
(but not in substance) may be made in the Securities thereafter to be issued as
may be appropriate.
35
ARTICLE V
DEFAULTS AND REMEDIES
SECTION 5.1 Events of Default.
-----------------
An "Event of Default" means any of the following events
occurring subsequent to the date hereof and unless otherwise permitted
hereunder:
(a) default in the payment of interest on any Security
when the same becomes due and payable, and such default continues for a period
of 30 days;
(b) default in the payment of the principal of any
Security when the same becomes due and payable at maturity or otherwise or a
failure to redeem or purchase Securities when required pursuant to this
Indenture or the Securities;
(c) default in performance of any other covenants or
agreements in the Securities, this Indenture or the Security Documents and the
default continues for 30 days after the date on which written notice of such
default is given to the Company by the Trustee or the Collateral Agent or to the
Company and the Trustee by Holders of at least 25% in principal amount of the
Securities then outstanding hereunder;
(d) except for any default existing on the Issue Date
relating to the Subordinated Notes and any instruments pertaining to the Tax
Liabilities, there shall have occurred either (a) a default by the Company or
any Subsidiary under any instrument under which there is or may be secured or
evidenced any Indebtedness of the Company or any Subsidiary of the Company
(other than the Securities) having an outstanding principal amount of $2,000,000
(or its foreign currency equivalent) or more individually or $5,000,000 (or its
foreign currency equivalent) or more in the aggregate that has caused the
holders thereof to declare such Indebtedness to be due and payable prior to its
Stated Maturity or (b) a default by the Company or any Subsidiary in the payment
when due of any portion of the principal under any such instrument, and such
unpaid portion exceeds $2,000,000 (or its foreign currency equivalent)
individually or $5,000,000 (or its foreign currency equivalent) in the aggregate
and is not paid, or such default is not cured or waived, within any grace period
applicable thereto;
(e) except on account of the Tax Liabilities, any final
judgment or order (not covered by insurance) for the payment of money shall be
rendered against the Company or any Subsidiary in an amount in excess of
$2,000,000 (or its foreign currency equivalent) individually or $5,000,000 (or
its foreign currency equivalent) in the aggregate for all such final judgments
or orders against all such Persons (treating any deductibles, self-insurance or
retention as not so covered) and shall not be discharged, and there shall be any
period of 30 consecutive days following entry of the final judgment or order in
excess of $2,000,000 (or its foreign currency equivalent) individually or that
causes the aggregate amount for all such final judgments or orders outstanding
against all such Persons to exceed $5,000,000 (or its foreign currency
equivalent) during which a stay of enforcement of such final judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect;
36
(f) the Company or any Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for
relief against it in an involuntary case,
(iii) consents to the appointment of a
Custodian of it or for all or substantially all of its property, or
(iv) makes a general assignment for the
benefit of its creditors,
or takes any comparable action under any foreign laws relating to insolvency;
(g) a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that:
(i) is for relief against the Company or
any Subsidiary in an involuntary case,
(ii) appoints a Custodian of the Company or
any Subsidiary or for all or substantially all of its property, or
(iii) orders the winding up or liquidation
of the Company or any Subsidiary,
or any similar relief is granted under any foreign laws; and the order or decree
remains unstayed and in effect for 60 days;
(h) except as permitted by this Indenture, the
Trustee fails to have a perfected security interest in the Collateral;
(i) except as permitted by the terms hereof and
the Securities, the cessation of effectiveness of any Subsidiary Guarantee as
against any Subsidiary Guarantor, or the finding by any judicial proceeding that
any such Subsidiary Guarantee is, as to any Subsidiary Guarantor, unenforceable
or invalid, or the written denial or disaffirmation by any Subsidiary Guarantor
of its obligations under its Subsidiary Guarantee; and
(j) except as permitted by the terms hereof and
the Securities, the cessation of effectiveness of any material Security
Document, or the finding by any judicial proceeding that any material Security
Document is unenforceable or invalid, or the written denial or disaffirmation by
the Company or a Xxxxxxx Entity, as applicable, of its obligations under the
Security Documents.
The term "Bankruptcy Law" means Title 11 of the U.S.
Code or any similar Federal or State law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator or similar
official under any Bankruptcy Law.
Any notice of Default given by the Trustee or
Securityholders under this Section must specify the Default, demand that it be
remedied and state that the notice is a "Notice of Default."
37
The Company shall deliver to the Trustee, within 30
days after the occurrence thereof, written notice of any event which with the
giving of notice or the lapse of time or both would become an Event of Default
under clause (c), (d), (e), (g), (h), (i) or (j) hereof.
Subject to the provisions of Section 6.1 and 6.2, the
Trustee shall not be charged with knowledge of any Event of Default unless
written notice thereof shall have been given to the Trustee as specified in
Section 11.2 by the Company, the Paying Agent, the Collateral Agent, any Holder
or an agent of any Holder.
Notwithstanding anything above to the contrary, nothing
contained in the Offer to Exchange shall be construed so as to create any other
Event of Default other than those as set forth herein, nor impact the
determination as to whether an Event of Default has occurred.
SECTION 5.2 Acceleration.
------------
If an Event of Default (other than an Event of Default
specified in clause (f) and (g) of Section 5.1 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 interest on all the
Securities to be due and payable. Upon such declaration the principal amount at
maturity and interest shall be due and payable immediately. If an Event of
Default specified in clause (f) or (g) of Section 5.1 with respect to the
Company occurs, the principal amount at maturity 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 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 the acceleration. No such rescission shall affect
any subsequent or other Default or Event of Default or impair any consequent
right.
SECTION 5.3 Other Remedies.
--------------
If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy to collect the payment of principal
amount at maturity and 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. All remedies are cumulative to the extent permitted by law.
SECTION 5.4 Waiver of Defaults.
------------------
The Holders of a majority in principal amount of the
Securities by notice to the Trustee may waive any Default or Event of Default
and its consequences except (a) a Default in the payment of the principal of or
interest on any Security or (b) a Default or Event of Default in respect of a
provision that under Section 8.2 cannot be amended without the consent of each
Securityholder affected. When a Default or Event of Default is waived, it is
deemed cured, but no such waiver shall extend to any subsequent or other Default
or Event of Default or impair any consequent right.
38
SECTION 5.5 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 exercising any trust or power
conferred on it. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture, or, subject to Section 6.1, 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 reasonably satisfactory to it
against all risk, losses and expenses caused by taking or not taking such
action. Subject to Section 6.1, the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Indenture at the
request or direction of the Securityholders pursuant to this Indenture, unless
such Securityholders shall have provided to the Trustee security or indemnity
reasonably satisfactory to it against the costs, expenses and liabilities which
might be incurred in compliance with such request or direction.
SECTION 5.6 Limitation on Suits.
-------------------
A Securityholder may pursue a remedy with respect to
this Indenture or the Securities only if:
(a) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(b) the Holders of at least 25% in principal amount of
the Securities make a written request to the Trustee to pursue the remedy;
(c) such Holder or Holders offer to the Trustee
security reasonably satisfactory to it or indemnity against any loss, liability
or expense;
(d) the Trustee does not comply with the request within
60 days after receipt of the request and the offer of security or indemnity; and
(e) 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 5.7 Rights of Holders To Receive Payment.
------------------------------------
Notwithstanding any other provision of this Indenture,
the right of any Holder of a Security to receive payment of principal and
interest on the Security, on or after the respective due dates expressed in the
Security, or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent of
the Holder.
39
SECTION 5.8 Collection Suit by Trustee.
--------------------------
If an Event of Default specified in Section 5.1(a) or
(b) 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 of
principal and interest remaining unpaid (together with interest on such unpaid
interest to the extent lawful) and the amounts provided for in Section 6.7.
SECTION 5.9 Trustee May File Proofs of Claim.
--------------------------------
The Trustee may file such proofs of claim and other
papers or documents and take such other actions including participating as a
member or otherwise in any committees of creditors appointed in the matter as
may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the amounts provided in Section 6.7) and the
Securityholders allowed in any judicial proceedings relative to the Company, 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 6.7. To the extent that the payment of any such amount
due to the Trustee under Section 6.7 out of the estate in any such proceeding
shall be denied for any reason, payment of the same shall be secured by a Lien
on, and shall be paid out of, any and all distributions, dividends, money,
securities and other properties which the Holders of the Securities may be
entitled to receive in such proceeding whether in liquidation or under any plan
of reorganization or arrangement or otherwise.
SECTION 5.10 Priorities.
----------
If the Trustee collects any money pursuant to this
Article, it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 6.7;
Second: to Securityholders for amounts due and unpaid
on the Securities for principal, premium, if any, and interest, ratably, without
preference or priority of any kind, according to the amounts due and payable on
the Securities for principal 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 give written notice to each Securityholder
and the Trustee of the record date, the payment date and amount to be paid.
SECTION 5.11 Undertaking for Costs.
---------------------
In any suit for the enforcement of any right or remedy
under this Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion
40
may assess reasonable costs, including reasonable attorneys' fees, against any
party litigant in the suit, having due regard to the merits and good faith of
the claims or defenses made by the party litigant. This Section does not apply
to a suit by the Trustee, a suit by a Holder pursuant to Section 5.7, or a suit
by Holders of more than 10% in principal amount of the Securities.
SECTION 5.12 Waiver of Stay or Extension Laws.
--------------------------------
The Company and each Subsidiary Guarantor (to the
extent that each of them 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 and each Subsidiary Guarantor (to the extent that each of them 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 VI
TRUSTEE
SECTION 6.1 Duties of Trustee.
-----------------
(a) If an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture, the Securities and the Security Documents, 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 his own affairs.
(b) Except during the continuance of an Event of
Default:
(i) The Trustee need perform only those duties that
are specifically set forth in this Indenture, the Securities and the Security
Documents and no others and no implied covenants or obligations shall be read
into this Indenture, the Securities or the Security Documents against the
Trustee.
(ii) In the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this Indenture,
the Securities or the Security Documents. However, the Trustee shall examine the
certificates and opinions to determine whether or not they conform to the
requirements of this Indenture, the Securities or the Security Documents, as the
case may be.
(c) The Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) This paragraph does not limit the effect of
paragraph (b) of this Section.
(ii) The Trustee shall not be liable for any error
of judgment made in good faith by a Trust Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts.
41
(iii) The Trustee shall not be liable with respect
to any action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 5.2, 5.4 or 5.5.
(iv) No provision of this Indenture, the Securities
or the Security Documents shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder or thereunder, or in the exercise of any of its rights or
powers, hereunder or thereunder, unless it receives indemnity satisfactory to it
against any risk, loss, liability or expense.
(d) Every provision of this Indenture, the Securities
or the Security Documents that in any way relates to the Trustee is subject to
paragraphs (a), (b) and (c) of this Section.
(e) The Trustee, in its capacity as Trustee and
Registrar and Paying Agent, shall not be liable to the Company, the
Securityholders or any other Person for interest on any money received by it,
including, but not limited to, money with respect to principal of or interest on
the Securities, except as the Trustee may agree 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.
SECTION 6.2 Rights of Trustee.
-----------------
(a) The Trustee may rely on any document reasonably
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 any such 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 except for the Trustee's conduct that constitutes
wilful misconduct, negligence or bad faith.
(e) The Trustee may consult with counsel, and the
advice or opinion of such counsel as to matters of law shall be full and
complete authorization and protection from liability in respect of any action
taken, omitted or suffered by it hereunder in good faith and in accordance with
the advice of such counsel.
(f) The Trustee shall not be obligated to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture or any other paper or document.
42
SECTION 6.3 Individual Rights of Trustee.
----------------------------
The Trustee in its individual or any other capacity may
become the owner or pledgee of Securities and may otherwise deal with the
Company or an Affiliate with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights. However, the Trustee is
subject to Sections 6.10 and 6.11.
SECTION 6.4 Trustee's Disclaimer.
--------------------
The Trustee makes no representation as to the validity
or adequacy of this Indenture, the Security Documents, the Subsidiary Guarantees
or the Securities, it shall not be accountable for the Company's use of the
proceeds from the Securities, it shall not be responsible for the use or
application of any money received by the Paying Agent (other than the Trustee)
and it shall not be responsible for any statement in the Securities other than
the Trustee's authentication thereof.
SECTION 6.5 Notice of Defaults.
------------------
If a Default or an Event of Default occurs and is
continuing and if it is known to the Trustee, the Trustee shall mail to
Securityholders a notice of the Default or Event of Default within 90 days of
notification of such occurrence. Except in the case of a Default in any payment
on any Security, the Trustee may withhold the notice if and so long as its board
of directors, its executive committee or a trust committee of its directors
and/or a committee of its Trust Officers in good faith determines that
withholding the notice is in the interests of Securityholders.
SECTION 6.6 Reports by Trustee to Holders.
-----------------------------
Within 60 days after each reporting date stated in
Section 11.10, the Trustee shall mail to Securityholders a brief report dated as
of each such reporting date that complies with TIA ss. 313(a) if required by
that Section. 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 on which the
Securities are listed. The Company shall promptly notify the Trustee when the
Securities are listed on any stock exchange and of any delisting thereof.
SECTION 6.7 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 disbursements, expenses and advances incurred by it. Such expenses
shall include the reasonable compensation and out-of-pocket disbursements and
expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee for, and hold
it harmless against, any loss, liability and expenses including reasonable
attorneys, fees, disbursements and expenses, incurred by it in connection with
the administration of this trust and the performance of its duties hereunder and
under the Security Documents including the costs and expenses of defending
itself against or investigating any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder and thereunder.
The Trustee shall notify the Company promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Company shall not relieve the
Company of its obligations hereunder. The Company shall defend the claim and the
Trustee shall cooperate in the defense. The Trustee may have separate counsel
and the Company shall pay the reasonable fees and expenses of such counsel. The
Company need not pay for any settlement made without its consent; provided
however, that the consent of the Company shall not be required if the Company
has instituted proceedings to be adjudicated a bankrupt or insolvent, or is
otherwise subject to proceedings under any Bankruptcy Law, or has consented to
the appointment of a Custodian for the Company or of any substantial part of its
property, or has made an assignment for the benefit of creditors, or has
admitted in writing its inability to pay its debts generally as they become due,
or has taken corporate action in furtherance of any such action.
43
The Company need not reimburse any expense or indemnify
against any loss or liability incurred by the Trustee through negligence or bad
faith.
To secure the Company's payment obligations in this
Section, the Trustee shall have a Lien prior to the Securities on all money or
property held or collected by the Trustee, except that held in trust to pay
principal and interest on particular Securities.
When the Trustee incurs expenses or renders services
after an Event of Default specified in Section 5.1(f) or (g) occurs, the
expenses and the compensation for the services are intended to constitute
expenses of administration under any Bankruptcy Law.
The Company's obligations under this Section 6.7 and
any Lien arising hereunder shall survive the resignation or removal of the
Trustee, the satisfaction and discharge of the Company's obligations pursuant to
Article VII of this Indenture or the termination of this Indenture or the
Security Documents.
SECTION 6.8 Replacement of Trustee.
----------------------
The resignation or removal of the Trustee and
appointment of a successor Trustee shall become effective only upon the
successor Trustee's acceptance of appointment as provided in this Section.
The Trustee may resign at any time by so notifying the
Company. The Holders of a majority in principal amount of the Securities may, by
written notice to the Trustee, remove the Trustee by so notifying the Trustee
and the Company. The Company, by notice to the Trustee, shall remove the Trustee
if:
(a) the Trustee fails to comply with Section 6.10;
(b) the Trustee is adjudged a bankrupt or an insolvent;
(c) a receiver or public officer takes charge of the
Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, the Company shall promptly
appoint a successor Trustee. Within one year after the successor Trustee takes
office, the Holders of a majority in principal amount of the Securities may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
44
If a successor Trustee does not take office within 60
days after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of at least 10% in principal amount of the Securities may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 6.10, any
Securityholder may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance
of its appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture, the Securities and the Security Documents. The successor
Trustee shall mail a notice of itssuccession 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 6.7.
SECTION 6.9 Successor Trustee by Merger, etc.
--------------------------------
If the Trustee consolidates, merges or converts into,
or transfers all or substantially all of its corporate trust business to,
another corporation, the successor corporation without any further act shall be
the successor Trustee.
SECTION 6.10 Eligibility; Disqualification.
-----------------------------
This Indenture shall always have a Trustee who
satisfies the requirements of TIA ss. 310(a)(1). The Trustee shall always 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). Nothing herein shall prevent the Trustee from filing with the SEC
the application referred to in the second-to-last paragraph of TIA ss. 310(b).
SECTION 6.11 Preferential Collection of Claims Against Company.
-------------------------------------------------
The Trustee shall comply with TIA ss. 311(a), except
with respect to any creditor relationship listed in TIA ss. 311(b). A Trustee
who has resigned or been removed is subject to TIA ss. 311(a) to the extent
indicated.
SECTION 6.12 Paying Agents.
-------------
The Company shall cause each Paying Agent other than
the Trustee to execute and deliver to it and the Trustee an instrument in which
such agent shall agree with the Trustee, subject to the provisions of this
Section 6.12:
(a) that it will hold all sums held by it as agent for
the payment of principal of, or interest on, the Securities (whether such sums
have been paid to it by the Company or by any obligor on the Securities) in
trust for the benefit of Holders of the Securities;
(b) that it will at any time during the continuance of
any Event of Default specified in Section 5.1, upon written request from the
Trustee, deliver to the Trustee all sums so held in trust by it;
45
(c) that it will give the Trustee written notice within
one (1) Business Day of any failure of the Company (or by any obligor on the
Securities) in the payment of any installment of the principal of, or interest
on, the Securities when the same shall be due and payable; and
(d) that it will comply with the provisions of the TIA
applicable to it.
ARTICLE VII
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 7.1 Discharge of Liability on Securities; Defeasance.
------------------------------------------------
If (i) the Company delivers to the Trustee all
outstanding Securities (other than Securities replaced pursuant to Section 2.7)
for cancellation or (ii) all outstanding Securities have become due and payable
and the Company or a Subsidiary Guarantor irrevocably deposits with the Trustee
as trust funds solely for the benefit of the Holders for that purpose funds
sufficient to pay at maturity the principal of and all accrued interest on all
outstanding Securities (other than Securities replaced pursuant to Section 2.7),
and if in either case the Company or a Subsidiary Guarantor pays all other sums
payable hereunder by the Company, then, subject to Sections 7.2 and 7.7, this
Indenture shall cease to be of further effect. The Trustee shall acknowledge
satisfaction and discharge of this Indenture on written demand of the Company
accompanied by an Officers' Certificate and an Opinion of Counsel and at the
cost and expense of the Company.
SECTION 7.2 Termination of Company's Obligations.
------------------------------------
Except as otherwise provided in this Section 7.2, the
Company may terminate its obligations under the Securities and this Indenture
if:
(i) the Securities mature within one year or all of
them are to be called for redemption within one year under arrangements
satisfactory to the Trustee for giving the notice of redemption, (ii) the
Company irrevocably deposits in trust with the Trustee or Paying Agent (other
than the Company or a Subsidiary or Affiliate of the Company) during such
one-year period, under the terms of an irrevocable trust agreement in form and
substance satisfactory to the Trustee, as trust funds solely for the benefit of
the Holders for that purpose, money or U.S. Government Obligations sufficient
(in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee), without consideration of any reinvestment of such interest, to pay
principal and interest on the Securities to maturity or redemption, as the case
may be, and to pay all other sums payable by it hereunder, (iii) no Default
shall have occurred and be continuing on the date of such deposit, (iv) such
deposit will not result in or constitute a Default or result in a breach or
violation of, or constitute a default under, any other agreement or instrument
to which the Company is a party or by which it is bound and (v) the Company has
delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in
each case stating that all conditions precedent provided for herein relating to
the satisfaction and discharge of this Indenture have been complied with;
provided that the Trustee or Paying Agent shall have been irrevocably instructed
to apply such money or the proceeds of such U.S. Government Obligations to the
payment of such principal and interest with respect to the Securities.
46
With respect to the foregoing, the Company's
obligations in Sections 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 2.12, 3.1, 3.2, 6.7, 6.8,
7.5, 7.6 and 7.7 shall survive until the Securities are no longer outstanding.
Thereafter, only the Company's obligations in Sections 6.7, 6.8, 7.6 and 7.7
shall survive. After any such irrevocable deposit, the Trustee upon request
shall acknowledge in writing the discharge of the Company's obligations under
the Securities and this Indenture except for those surviving obligations
specified above.
SECTION 7.3 Defeasance and Discharge of Indenture.
-------------------------------------
The Company will be deemed to have paid and will be
discharged from any and all obligations in respect of the Securities on the
123rd day after the date of the deposit referred to in clause (i) of this
Section 7.3, and the provisions of this Indenture will no longer be in effect
with respect to the Securities, and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same, except as to (a) rights
of registration of transfer and exchange, (b) substitution of mutilated,
defaced, destroyed, lost or stolen Securities pursuant to Section 2.7, (c)
rights of Holders to receive payments of principal thereof and interest thereon,
(d) the Company's obligations under Sections 3.2 and 6.7, (e) the rights,
obligations and immunities of the Trustee hereunder and (f) the rights of the
Holders as beneficiaries of this Indenture with respect to the property so
deposited with the Trustee payable to all or any of them; provided that the
following conditions shall have been satisfied:
(i) with reference to this Section 7.3, the
Company has irrevocably deposited or caused to be irrevocably deposited with the
Trustee (or another trustee satisfying the requirement of Section 6.10) or
Paying Agent (other than the Company or a Subsidiary or Affiliate of the
Company) and conveyed all right, title and interest for the benefit of the
Holders, under the terms of an irrevocable trust agreement in form and substance
satisfactory to the Trustee as trust funds in trust, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders, in and to,
(A) money in an amount, (B) U.S. Government Obligations that, through the
payment of interest and principal in respect thereof in accordance with their
terms, will provide, not later than one day before the due date of any payment
referred to in this clause (i), money in an amount or (C) a combination thereof
in an amount sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, without consideration of the
reinvestment of such interest and after payment of all federal, state and local
taxes or other fees, charges and assessments in respect thereof payable by the
Trustee or Paying Agent, the principal of and interest on the outstanding
Securities when due; provided that the Trustee or Paying Agent shall have been
irrevocably instructed to apply such money or the proceeds of such U.S.
Government Obligations to the payment of such principal and interest with
respect to the Securities;
(ii) such deposit will not result in or
constitute a Default or result in a breach or violation of, or constitute a
default under, any other agreement or instrument to which the Company is a party
or by which it is bound;
(iii) no Default shall have occurred and be
continuing on the date of such deposit or during the period ending on the 123rd
day after such date of deposit;
(iv) the Company shall have delivered to the
Trustee (A) either (1) a ruling directed to the Trustee received from the
Internal Revenue Service to the effect that the Holders will not recognize
income, gains or loss for federal income tax purposes as a result of the
Company's exercise of its option, under this Section 7.3 and will be subject to
federal income tax on the same amount and in the same manner and at the same
47
times as would have been the case if such option had not been exercised or (2)
an Opinion of Counsel (who must not be an employee of the Company) to the same
effect as the ruling described in clause (1) accompanied by a ruling to that
effect published by the Internal Revenue Service, unless there has been a change
in the applicable federal income tax law since the date of this Indenture such
that a ruling from the Internal Revenue Service is no longer required and (B) an
Opinion of Counsel to the effect that (1) the creation of the defeasance trust
does not violate the Investment Company Act of 1940, (2) after the passage of
123 days following the deposit (except, with respect to any trust funds for the
account of any Holder who may be deemed to be an "insider" for purposes of Title
11 of the United States Bankruptcy Code, after one year following the deposit),
the trust funds will not be subject to the effect of Xxxxxxx 000 xx xxx Xxxxxx
Xxxxxx Bankruptcy Code or Section 15 of the New York Debtor and Creditor Law in
a case commenced by or against the Company under either such statute, and either
(x) the trust funds will no longer remain the property of the Company (and
therefore, will not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally) or (y) if a court were to rule under any such law in any case or
proceeding that the trust funds remained property of the Company, (I) assuming
such trust funds remained in the possession of the Trustee prior to such court
ruling to the extent not paid to Holders, the Trustee will hold, for the benefit
of the Holders, a valid and perfected first priority security interest in such
trust funds that is not avoidable in bankruptcy or otherwise except for the
effect of Section 552(b) of the United States Bankruptcy Code on interest on the
trust funds accruing after the commencement of a case under such statute and
(II) the Holders will be entitled to receive adequate protection of their
interests in such trust funds if such trust funds are used in such case or
proceeding; and
(v) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the defeasance contemplated
by this Section 7.3 have been complied with.
Notwithstanding the foregoing, prior to the end of the
123-day period referred to in clause (iv)(B)(2) above, none of the Company's
obligations under this Indenture shall be discharged. Subsequent to the end of
such 123-day period with respect to this Section 7.3, the Company's obligations
in Sections 2.2, 2.3, 2.4. 2.5, 2.6, 2.7, 2.12, 3.1, 3.2, 6.7, 6.8, 7.6 and 7.7
shall survive until the securities are no longer outstanding. Thereafter, only
the Company's obligations in Sections 6.7, 7.6, and 7.7 shall survive. If and
when a ruling from the Internal Revenue Service or Opinion of Counsel referred
to in clause (iv)(A) above is able to be provided specifically without regard
to, and not in reliance upon, the continuance of the Company's obligations under
Section 3.1, then the Company's obligations under such Section 3.1 shall cease
upon delivery to the Trustee of such ruling or Opinion of Counsel and compliance
with the other conditions precedent provided for herein relating to the
defeasance contemplated by this Section 7.3.
After any such irrevocable deposit, the Trustee upon
request shall acknowledge in writing the discharge of the Company's obligations
under the Securities and this Indenture except for those surviving obligations
in the immediately preceding paragraph.
SECTION 7.4 Defeasance of Certain Obligations.
---------------------------------
The Company may omit to comply with any term, provision
or condition set forth in clauses (d) and (e) of Section 4.1 and Sections 3.3
through 3.19, and clause (c) of Section 5.1 with respect to clauses (d) and (e)
of Section 4.1 and Sections 3.3 through 3.19, and clauses (d) and (e) of Section
5.1 shall be deemed not to be Events of Default, in each case with respect to
the outstanding Securities if:
48
(i) with reference to this Section 7.4, the
Company has irrevocably deposited or caused to be irrevocably deposited with the
Trustee (or another trustee satisfying the requirements of Section 6.10) or
Paying Agent (other than the Company or a Subsidiary or Affiliate of the
Company) and conveyed all right, title and interest for the benefit of the
Holders, under the terms of an irrevocable trust agreement in form and substance
satisfactory to the Trustee as trust funds in trust, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders, in and to,
(A) money in an amount, (B) U.S. Government obligations that, through the
payment of interest and principal in respect thereof in accordance with their
terms, will provide, not later than one day before the due date of any payment
referred to in this clause (i), money in an amount or (C) a combination thereof
in an amount, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, without consideration of the
reinvestment of interest and after payment of all federal, state and local taxes
or other fees, charges and assessments in respect thereof payable by the Trustee
or Paying Agent, the principal of and interest on the outstanding Securities
when due; provided that the Trustee or Paying Agent shall have been irrevocably
instructed to apply such money or the proceeds of such U.S. Government
Obligations to the payment of such principal and interest with respect to the
Securities;
(ii) such deposit will not result in or
constitute a Default or result in a breach or violation of, or constitute a
default under, any other agreement or instrument to which the Company is a party
or by which it is bound;
(iii) no Default shall have occurred and be
continuing on the date of such deposit;
(iv) the Company has delivered to the Trustee
an Opinion of Counsel who is not employed by the Company to the effect that (A)
the creation of the defeasance trust does not violate the Investment Company Act
of 1940, (B) the Holders have a valid first-priority security interest in the
trust funds, (C) the Holders will not recognize income, gain or loss for federal
income tax purposes as a result of such deposit and defeasance of certain
obligations and will be subject to federal income tax on the same amount and in
the same manner and at the same times as would have been the case if such
deposit and defeasance had not occurred and (D) after the passage of 123 days
following the deposit (except, with respect to any trust funds for the account
of any Holder who may be deemed to be an "insider" for purposes of the United
States Bankruptcy Code, after one year following the deposit), the trust funds
will not be subject to the effect of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy
Code or Section 15 of the New York Debtor and Creditor Law in a case commenced
by or against the Company under wither such statute, and either (1) the trust
funds will no longer remain the property of the Company (and therefore, will not
be subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally) or (2) if
a court were to rule under any such law in any case or proceeding that the trust
funds remained property of the Company, (x) assuming such trust funds remained
in the possession of the Trustee prior to such court ruling to the extent not
paid to Holders, the Trustee will hold, for the benefit of the Holders, a valid
and perfected first priority security interest in such trust funds that is not
avoidable in bankruptcy or otherwise except for the effect of Section 552(b) of
the United States Bankruptcy Code on interest on the trust funds accruing after
the commencement of a case under such statute and (y) the Holders will be
entitled to receive adequate protection of their interests in such trust funds
if such trust funds are used in such case or proceeding; and
49
(v) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the defeasance contemplated
by this Section 7.4 have been complied with.
SECTION 7.5 Application of Trust Money.
--------------------------
Subject to Section 7.7 of this Indenture, the Trustee
or Paying Agent shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Section 7.2, 7.3 or 7.4 of this Indenture, as the
case may be, and shall apply the deposited money and the money from U.S.
Government Obligations in accordance with this Indenture to the payment of
principal of and interest on the Securities. The Trustee shall be under no
obligation to invest such money or U.S. Government Obligations except as it may
agree with the Company.
SECTION 7.6 Repayment to Company.
--------------------
Subject to Sections 6.7, 7.2, 7.3 and 7.4 of this
Indenture, the Trustee and the Paying Agent shall promptly pay to the Company
upon written request any excess money held by them at any time and thereupon
shall be relieved from all liability with respect to such money. The Trustee and
the Paying Agent shall pay to the Company upon written request any money held by
them for the payment of principal or interest that remains unclaimed for two
years; provided, however, that the Company shall, if requested by the Trustee or
the Paying Agent, give the Trustee or such Paying Agent indemnification
reasonably satisfactory to it against any and all liability which may be
incurred by it by reason of such payment; and provided, further, that the
Trustee or such Paying Agent before being required to make any payment may cause
to be published at the expense of the Company once in a newspaper of general
circulation in the City of New York or mail to each Holder entitled to such
money at such Holder's address as set forth in the Security Register notice that
such money remains unclaimed and that after a date specified therein (which
shall be at least 30 days from the date of such publication or mailing) any
unclaimed balance of such money then remaining will be repaid to the Company.
After payment to the Company, Holders entitled to such money must look to the
Company for payment as general creditors unless an applicable law designates
another person, and all liability of the Trustee and such Paying Agent with
respect to such money shall cease.
SECTION 7.7 Reinstatement.
-------------
If the Trustee or Paying Agent is unable to apply any
money or U.S. Government Obligations in accordance with Section 7.2, 7.3 or 7.4
of this Indenture, as the case may be, by reason of any legal proceeding or by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture and the Securities shall be revived and
reinstated as though no deposit had occurred pursuant to Section 7.2, 7.3 or 7.4
of this Indenture, as the case may be, until such time as the Trustee or Paying
Agent is permitted to apply all such money or U.S. Government Obligations in
accordance with Section 7.2, 7.3 or 7.4 of this Indenture, as the case may be;
provided that, if the Company has made any payment of principal of or interest
on any Securities because of the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such Securities to receive
such payment from the money or U.S. Government Obligations held by the Trustee
or Paying Agent.
50
ARTICLE VIII
AMENDMENT AND SUPPLEMENTS
SECTION 8.1 Without Consent of Holders.
--------------------------
The Company, the Subsidiary Guarantors and the Trustee
may amend or supplement this Indenture, the Security Documents or the Securities
without notice to or the consent of any Securityholder:
(a) to cure any ambiguity, omission, defect or
inconsistency;
(b) to comply with Article IV;
(c) to provide for uncertificated Securities in
addition to certificated Securities; provided, however, that the uncertificated
Securities are issued in registered form for purposes of Section 163(f) of the
Internal Revenue Code of 1986, as amended, or in a manner such that the
uncertificated Securities are described in Section 163(f) (2) (B) of the Code;
(d) to add additional guarantees with respect to the
Securities or to secure the Securities;
(e) to add to the covenants of the Company for the
benefit of the Holders or to surrender any right or power herein conferred upon
the Company;
(f) to comply with the requirements of the SEC in
connection with qualification of the Indenture under the TIA;
(g) to make any change that does not adversely affect
the rights of any Securityholder; or
(h) to provide for certain amendments to the Security
Documents expressly called for therein and to add Collateral thereto.
After an amendment or supplement under this Section
becomes effective, the Company shall mail to Securityholders a notice briefly
describing such amendment or supplement. The failure to give such notice to all
Securityholders, or any defect therein, shall not impair or affect the validity
of an amendment or supplement under this Section.
SECTION 8.2 With Consent of Holders.
-----------------------
The Company, the Subsidiary Guarantors and the Trustee
may amend or supplement this Indenture, the Security Documents or the Securities
with the written consent of the Holders of a majority in principal amount of the
Securities. However, without the consent of each Securityholder affected, an
amendment or supplement under this Section may not:
(a) reduce the amount of Securities the Holders of
which must consent to an amendment or supplement;
(b) reduce the rate of or change the time for payment
of interest on any Security;
(c) reduce the principal of or change the Stated
Maturity of any Security;
51
(d) reduce the premium payable upon the redemption of
any Security or change the time at which any Security may or shall be redeemed
in accordance with Article IX;
(e) make any Security payable in currency or
consideration other than that stated in the Security;
(f) make any change in Section 5.4, 5.7 or 8.2 (second
sentence);
(g) directly or indirectly release Liens on all or
substantially all of the Collateral; or
(h) modify or affect in any manner adverse to the
Holders the terms and conditions of the obligation of any Guarantor for the due
and punctual payment of the principal of, premium, if any, or interest on the
Securities.
It shall not be necessary for the consent of the
Holders under this Section 8.2 to approve the particular form of any proposed
amendment, supplement or waiver, but it shall be sufficient if such consent
approves the substance thereof.
After an amendment or supplement under this Section
becomes effective, the Company shall mail to Securityholders a notice briefly
describing such amendment or supplement. The failure to give such notice to all
Securityholders, or any defect therein, shall not impart or affect the validity
of an amendment or supplement under this Section.
SECTION 8.3 Compliance with Trust Indenture Act.
-----------------------------------
Every amendment or supplement to this Indenture or the
Securities shall be set forth in a supplemental indenture that complies with the
TIA as then in effect.
SECTION 8.4 Revocation and Effect of Consents.
---------------------------------
Until an amendment or supplement under this Article or
a waiver under Article V becomes effective, a consent to it by a Holder of a
Security is a continuing consent by the Holder and every subsequent Holder of a
Security or portion of a Security that evidences the same debt as the consenting
Holder's Security, even if notation of the consent is not made on any Security.
However, any such Holder or subsequent Holder may revoke the consent as to his
Security or portion of a Security if the Trustee receives the notice of
revocation before the date that the amendment, supplement or waiver becomes
effective.
After an amendment or supplement becomes effective, it
shall bind every Securityholder.
SECTION 8.5 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.
52
SECTION 8.6 Trustee to Sign Amendments.
--------------------------
The Trustee shall sign any supplemental indenture which
sets forth an amendment or supplement authorized pursuant to this Article if the
amendment or supplement 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 supplemental indenture the Trustee shall be
entitled to receive, and (subject to Section 6.1) shall be fully protected in
relying upon, an Officers' Certificate and an Opinion of Counsel stating that
such supplemental indenture is authorized or permitted by this Indenture.
SECTION 8.7 Fixing of Record Dates.
----------------------
The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Holders entitled to take any
action under this Indenture by vote or consent. Except as provided herein, such
record date shall be the later of (a) 30 days prior to the first solicitation of
such consent and (b) vote or the date of the most recent list of Securityholders
furnished to the Trustee pursuant to Section 2.5 prior to such solicitation. If
a record date is fixed, those Persons who were Securityholders at such record
date (or their duly designated proxies), and only those Persons, shall be
entitled to take such action by vote or consent or to revoke any vote or consent
previously given, whether or not such Persons continue to be Holders after such
record date; provided, however, that unless such vote or consent is obtained
from the Holders (or their duly designated proxies) of the requisite principal
amount of outstanding Securities prior to the date which is the 120th day after
such record date, any such vote or consent previously given shall automatically
and without further action by any Holder be canceled and of not further effect.
ARTICLE IX
REDEMPTION
SECTION 9.1 Notices to Trustee.
------------------
If the Company elects to redeem Securities pursuant to
paragraph 5 of the Securities it shall notify the Trustee in writing of the
redemption date and the principal amount (not including any premium in respect
thereof) of Securities to be redeemed and the paragraph of the Securities
pursuant to which the redemption will occur.
The Company shall give the notices provided for in this
Section at least 40 days before the redemption date (unless a shorter period
shall be satisfactory to the Trustee). Such notice shall be accompanied by an
Officers' Certificate to the effect that such redemption will comply with the
conditions herein. If fewer than all the Securities are to be redeemed, the
record date relating to such redemption shall be selected by the Company and
given to the Trustee, which record date shall be not less than 15 days after the
date of notice to the Trustee.
SECTION 9.2 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
any other method that complies with applicable legal and securities exchange
requirements, if any, and that the Trustee considers, in its sole discretion,
fair and appropriate and in
53
accordance with methods generally used at the time of selection by fiduciaries
in similar circumstances. The Trustee shall make the selection not more than 75
days before the redemption date 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 in original
principal amount at maturity. Securities and portions of them selected by the
Trustee shall be in amounts of $1,000 or whole multiples of $1,000. Provisions
of this Indenture that apply to Securities called for redemption also apply to
portions of Securities called for redemption.
SECTION 9.3 Notice of Redemption.
--------------------
At least 30 days but not more than 60 days before a
redemption date, the Company shall mail a notice of redemption to each Holder
whose Securities are to be redeemed at the address set forth for such Holder on
the register referred to in Section 2.3.
The notice shall identify the Securities to be redeemed
and shall state:
(a) the redemption date;
(b) the redemption price;
(c) the name and address of the Paying Agent;
(d) that Securities called for redemption must be
surrendered to the Paying Agent to collect the redemption price;
(e) if fewer than all the outstanding Securities are to
be redeemed, the identification and principal amounts of the particular
Securities to be redeemed;
(f) that, unless the Company defaults in making the
redemption payment, interest on Securities called for redemption ceases to
accrue on and after the redemption date; and
(g) 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 written request, made at least 45 days
before a redemption date, unless a shorter period shall be satisfactory to the
Trustee, the Trustee shall give the notice of redemption provided for in this
Section in the Company's name and at the Company's expense.
SECTION 9.4 Effect of Notice of Redemption.
------------------------------
Once notice of redemption is mailed, Securities called
for redemption become due and payable on the redemption date at the redemption
price. Upon surrender to the Paying Agent, such Securities shall be paid at the
redemption price stated in the notice, plus accrued and unpaid interest to the
redemption date.
54
SECTION 9.5 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 and unpaid 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 9.6 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.
ARTICLE X
SECURITY AND PLEDGE OF COLLATERAL
SECTION 10.1 Collateral Documents.
--------------------
The due and punctual payment of the principal of,
premium, if any, and interest on the Securities when and as the same shall be
due and payable, whether on an Interest Payment Date, at Stated Maturity, by
acceleration, repurchase, redemption or otherwise, and interest on the overdue
principal of, premium and interest (to the extent permitted by law), if any, on
the Securities and performance of all other Obligations of the Company to the
Holders or the Trustee under this Indenture and the Securities, according to the
terms hereunder and thereunder, shall be secured as provided in the Security
Documents. Each Holder, by its acceptance of a Security, consents and agrees to
the terms of the Security Documents (including, without limitation, the
provisions providing for foreclosures and release of Collateral) as the same may
be in effect or may be amended from time to time in accordance with the terms
thereof and hereof and authorizes and directs the Trustee to enter into the
Security Documents and to perform its obligations and exercise its rights
thereunder in accordance therewith. Subject to the Permitted Liens, the Company
will do or cause to be done all such acts and things as may be necessary or
proper, or as may be required by the provisions of the Security Documents, to
assure and confirm to the Trustee the security interests in the Collateral
contemplated hereby and by the Security Documents, 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. Subject to the Permitted Liens, the Company shall
take, upon request of the Trustee, any and all actions required to cause the
Security Documents to create and maintain, as security for the Obligations of
the Company under this Indenture and the Securities, valid, binding,
enforceable, and perfected (except as expressly provided therein), Liens in and
on the Collateral, in favor of the Trustee, and subject to no other Liens other
than Permitted Liens.
SECTION 10.2 Opinion of Counsel.
------------------
The Company shall furnish within 10 business days after
the execution and delivery of this Indenture an Opinion of Counsel stating that
(i) the execution, delivery and performance of this Indenture, the Security
Documents, the Securities and financing statements to be executed in connection
therewith have been duly authorized by all necessary corporate action on the
part of the Company and the Subsidiary Guarantors, duly executed and delivered
by the Company and the Subsidiary Guarantors; (ii) such documents constitute the
legal, valid and
55
binding obligations of the Company and the Subsidiary Guarantors, enforceable
against them in accordance with their terms, subject to the effect of
bankruptcy, reorganization, insolvency, fraudulent conveyance, moratorium and
other similar laws, or equitable principles affecting creditors' rights and
remedies generally; (iii) either (A) all action has been taken with respect to
the recording, registering and filing of this Indenture, the Pledge Agreements,
financing statements or other instruments necessary to make effective the first
priority Lien intended to be created by the Pledge Agreements, and reciting the
details of such action, or (B) no such action is necessary to make such Lien
effective. Such opinion is to contain all customary qualifications, exceptions
and assumptions as Counsel to the Company deems appropriate and as are
reasonably acceptable to the Trustee.
To the extent required by the TIA, the Company shall
also furnish to the Trustee at least annually an Opinion of Counsel either (i)
stating that in the opinion of such counsel such action has been taken with
respect to the recording, filing, re-recording and refiling of this Indenture,
the Pledge Agreements, the Security Agreement and the Mortgages, if any,
financing statements or other instruments necessary to make effective the Lien
intended to be created by the Pledge Agreements, and the Security Agreement and
the Mortgages, if any, and reciting the details of such action or (ii) stating
that, in the opinion of such counsel, no such action is necessary to maintain
such Lien or to make such Lien effective.
SECTION 10.3 Remedies Upon an Event of Default.
----------------------------------
Upon the occurrence of an Event of Default, then or at
any time during the continuance of such occurrence, the Trustee is hereby
authorized and empowered, at its election, in accordance with its rights
hereunder and under the Security Documents (i) to transfer and register in its
name or in the names of any of its nominees the whole or any part of the
Collateral, (ii) to exercise all voting rights with respect thereto, (iii) to
demand, xxx for, collect, receive and give acquittance for any and all cash
dividends or other distributions or monies due or to become due upon or by
virtue thereof, and to settle, prosecute or defend any action or proceeding with
respect thereto, (iv) to exchange certificates or instruments representing or
evidencing the Collateral for certificates or instruments of different
denominations, (v) to sell in one or more sales the whole or any part of the
Collateral or otherwise to transfer or assign the same, applying the proceeds
therefrom to the payment of the Securities in accordance with Section 5.10, and
(vi) otherwise to act with respect to the Collateral or the proceeds thereof as
though the Trustee were the outright owner thereof.
SECTION 10.4 Release of the Collateral.
-------------------------
As long as no Default or Event of Default shall have
occurred and be continuing, at the sole cost and expense of the Company, the
Company shall be entitled at any time and from time to time to request the
Trustee to release a portion of the Collateral, and the Trustee shall release
such portion of the Collateral upon payment in full of all Obligations under
this Indenture and the Securities and the termination thereof, provided, that
the Trustee shall not release any Lien on any Collateral pursuant to this
Section 10.4 unless and until it shall have received from the Company an
Officers' Certificate and an Opinion of Counsel certifying that all conditions
precedent hereunder have been met, to the extent required by the TIA, an Opinion
of Counsel that the release of such Lien complies with the TIA and such other
documents required by Section 10.6 hereof. Upon compliance with the above
provisions, the Trustee shall execute, deliver or acknowledge any necessary or
proper instruments of termination, satisfaction or release to evidence the
release of any Collateral permitted to be released pursuant to this Indenture.
56
SECTION 10.5 intentionally omitted.
---------------------
SECTION 10.6 Certificates of Company.
-----------------------
The Company will furnish to the Trustee prior to each
proposed release of Collateral pursuant to Section 10.4 all documents required
by Sections 314(c) and 314(d) of the TIA. The Trustee may, to the extent
permitted by Sections 6.1 and 6.2 hereof, accept as conclusive evidence of
compliance with the foregoing provisions the appropriate statements contained in
such documents. Any certificate or opinion required by Sections 314(c) and
314(d) of the TIA may be made by an Officer of the Company, except in cases
where TIA Sections 314(c) and 314(d) require that such certificate or opinion be
made by an independent engineer, appraiser or other expert within the meaning of
Sections 314(c) and 314(d) of the TIA.
SECTION 10.7 Authorization of Actions to be Taken Under the Security
Documents.
----------------------------------------------------
The Trustee may 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
Obligations of the Company thereunder, hereunder or under the Securities. The
Trustee shall have the 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 that may be unlawful or in violation of the Security Documents, this
Indenture or the Securities, and such suits and proceedings as the Trustee may
deem expedient to preserve or protect its interests and 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 security interest hereunder or under the Security
Documents or be prejudicial to the interests of the Holders or of the Trustee).
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Trust Indenture Act Controls.
----------------------------
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by any of TIA xx.xx. 310 to 317, inclusive,
through operation of TIA ss. 318(c), such imposed duties shall control.
57
SECTION 11.2 Notices.
-------
Any notice or communication shall be in writing and
delivered in person, or mailed by first-class mail (certified, return receipt
requested), addressed as follows:
if to the Company or the Subsidiary Guarantors:
All Star Gas Corporation
000 Xxxx Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Secretary
if to the Trustee:
State Street Bank and Trust Company
Xxxxxxx Square
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Corporate Trust Administration
The Company, any Subsidiary Guarantor or the Trustee by
notice to the others may designate additional or different addresses for
subsequent notices or communications.
Any notice or communication to a Securityholder shall
be mailed by first-class mail to the Securityholder's address shown on the
register kept by the Registrar. 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 within the time prescribed, it is duly given, whether or not the
addressee receives it.
If the Company or any Subsidiary Guarantor mails a
notice or communication to Securityholders, it shall mail a copy to the Trustee
and each Agent at the same time.
SECTION 11.3 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, the Subsidiary Guarantors, the Trustee, the
Registrar and anyone else shall have the protection of TIA ss. 312(c).
SECTION 11.4 Certificate and Opinion as to Conditions Precedent.
--------------------------------------------------
Upon any request or application by the Company or any
Subsidiary Guarantor to the Trustee to take any action under this Indenture, the
Company shall, if requested by the Trustee, furnish to the Trustee:
(a) an Officers' Certificate in form and substance
reasonably satisfactory to the Trustee stating that, in the opinion of the
signers, all conditions precedent (including any covenants compliance with which
constitutes a condition precedent), if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(b) an Opinion of Counsel in form and substance
reasonably satisfactory to the Trustee stating that, in the opinion of such
counsel (which may rely upon an Officer's Certificate as to factual matters),
all such conditions precedent have been complied with.
58
SECTION 11.5 Statements Required in Certificate or Opinion.
---------------------------------------------
Each certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture other than
certificates provided pursuant to Section 3.9 shall include:
(a) a statement that the person making such certificate
or opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements contained in such
certificate or opinion are based;
(c) with respect to each certificate, a statement that,
in the opinion of such Person, he or she has made such examination or
investigation as is necessary to enable him or her to express an informed
opinion as to whether or not such covenant or condition has been complied with;
and
(d) a statement as to whether or not, in the opinion of
such Person, such condition or covenant has been complied with.
SECTION 11.6 Rules by Trustee and Agents.
---------------------------
The Trustee may make reasonable rules for action by or
a meeting of Securityholders. The Registrar or Paying Agent may make reasonable
rules and set reasonable requirements for their respective functions.
SECTION 11.7 Legal Holidays.
--------------
A "Legal Holiday" is a Saturday, a Sunday or a day on
which banking institutions are not required to be open in the State of New York,
the State of Connecticut or the State in which the principal office of the
Paying Agent is located. If a payment date is a Legal Holiday, payment may be
made at that place on the next succeeding day that is not a Legal Holiday, and
no interest shall accrue for the intervening period. If a regular record date is
a Legal Holiday, the regular record date shall not be affected.
SECTION 11.8 Successors; No Recourse Against Others.
--------------------------------------
(a) All agreements of the Company in this Indenture and
the Securities shall bind its successor. All agreements of the Trustee in this
Indenture shall bind its successor.
(b) All liability of the Company or any Subsidiary
Guarantor described in the Securities insofar as it relates to any director,
officer, employee or stockholder, as such, of the Company is waived and released
by each Securityholder.
SECTION 11.9 Duplicate Originals.
-------------------
The parties may sign any number of copies of this
Indenture. One signed copy is enough to prove this Indenture.
SECTION 11.10 Other Provisions.
----------------
The first certificate pursuant to Section 3.9 shall be
for the fiscal year ending on June 30, 2001. The reporting date for Section 6.6
is May 15th of each year. The first reporting date is May 15, 2001.
59
SECTION 11.11 Governing Law.
-------------
The laws of the State of New York govern this Indenture
and the Securities, without regard to the conflicts of laws rules thereof.
ARTICLE XII
SUBSIDIARY GUARANTEES
SECTION 12.1 Subsidiary Guarantees.
---------------------
Each of the Subsidiary Guarantors hereby jointly and
severally unconditionally guarantees to each Holder of a Security authenticated
and delivered by the Trustee, and to the Trustee on behalf of such Holder, the
due and punctual payment of the principal of (and premium, if any) and interest
(including interest that, but for the occurrence of an insolvency proceeding
involving or filing of a petition in bankruptcy by or against the Company would
accrue, whether or not such interest is allowed in such insolvency or bankruptcy
proceeding) on such Security and other amounts under the Indenture when and as
the same shall become due and payable, whether at the Stated Maturity, by
acceleration, call for redemption, purchase or otherwise, in accordance with the
terms of such Security and of this Indenture; provided, however, that the
liability of a Subsidiary Guarantor hereunder shall not exceed at any time the
maximum amount of Indebtedness permitted at the time of the grant of such
Subsidiary Guarantee or, if greater, at the time payment is required under such
Subsidiary Guarantee, to be incurred in compliance with any applicable
fraudulent conveyance or similar law. In case of the failure of the Company
punctually to make any such payment, each of the Subsidiary Guarantors hereby
jointly and severally agrees to cause such payment to be made punctually when
and as the same shall become due and payable, whether at the Stated Maturity or
by acceleration, call for redemption, purchase or otherwise, and as if such
payment were made by the Company.
Each of the Subsidiary Guarantors hereby jointly and
severally agrees that its obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of such Security or
this Indenture, the absence of any action to enforce the same, any exchange,
release or non-perfection of any Lien on any Collateral for, or any release or
amendment or waiver of any term of any other guarantee of, or any consent to
departure from any requirement of any other guarantee of all or any of the
Securities, the election by the Trustee or any of the Holders in any proceeding
under Chapter 11 of the Bankruptcy Law of the application of Section 1111(b)(2)
of the Bankruptcy Law, any borrowing or grant of a security interest by the
Company, as debtor-in-possession, under Section 364 of the Bankruptcy Law, the
disallowance, under Section 502 of the Bankruptcy Law, of all or any portion of
the claims of the Trustee or any of the Holders for payment of any of the
Securities, any waiver or consent by the Holder of such Security or by the
Trustee with respect to any provisions thereof or of this Indenture, the
obtaining of any judgment against the Company or any action to enforce the same
or any other circumstances which might otherwise constitute a legal or equitable
discharge or defense of a guarantor. Each of the Subsidiary Guarantors hereby
waives the benefits of diligence, presentment, demand of payment, any
requirement that the Trustee or any of the Holders protect, secure, perfect or
insure any security interest in or other Lien on any property subject thereto or
exhaust any right or take any action against the Company or any other Person or
any Collateral, filing of claims with a court in the event of insolvency or
bankruptcy of the Company or any Collateral, any right to require a proceeding
first against the Company, protest or notice with respect to such Security or
the Indebtedness evidenced thereby or hereby and all demands whatsoever, and
covenants, that this Subsidiary Guarantee will not be
60
discharged in respect of such Security except by complete performance of the
Obligations contained in such Security, this Indenture and in this Subsidiary
Guarantee. Each Subsidiary Guarantor hereby waives all suretyship defenses and
all defenses based upon impairment of suretyship status. Each of the Subsidiary
Guarantors hereby agrees that, in the event of a default in payment of principal
(or premium, if any) or interest (including interest that, but for the
occurrence of an insolvency proceeding involving or filing of a petition in
bankruptcy by or against the Company would accrue, whether or not such interest
is allowed in such insolvency or bankruptcy proceeding) on such Security and
other amounts under the Indenture, whether at their Stated Maturity, by
acceleration, call for redemption, purchase or otherwise, legal proceedings may
be instituted by the Trustee on behalf of, or by, the Holder of such Security,
subject to the terms and conditions set forth in this Indenture, directly
against each of the Subsidiary Guarantors to enforce this Subsidiary Guarantee
without first proceeding against the Company. Each Subsidiary Guarantor agrees
that if, after the occurrence and during the continuance of an Event of Default,
the Trustee or any of the Holders are prevented by applicable law from
exercising their respective rights to accelerate the maturity of the Securities,
to collect interest (including interest that, but for the occurrence of an
insolvency proceeding involving or filing of a petition in bankruptcy by or
against the Company would accrue, whether or not such interest is allowed in
such insolvency or bankruptcy proceeding) on the Securities, or to enforce or
exercise any other right or remedy with respect to the Securities or this
Indenture, or the Trustee or the Holders are prevented from taking any action to
realize on the Collateral, such Subsidiary Guarantor agrees to pay to the
Trustee for the account of the Holders, upon demand therefor, the amount that
would otherwise have been due and payable had such rights and remedies been
permitted to be exercised by the Trustee or any of the Holders.
Each Subsidiary Guarantor shall be subrogated to all
rights of the Holders of the Securities upon which its guarantee is endorsed
against the Company in respect of any amounts paid by such Subsidiary Guarantor
on account of such Securities pursuant to the provisions of its Subsidiary
Guarantee or this Indenture; provided, however, that no Subsidiary Guarantor
shall be entitled to enforce or to receive any payments arising out of, or based
upon, such right of subrogation until the principal of (and premium, if any) and
interest (including interest that, but for the occurrence of an insolvency
proceeding involving or filing of a petition in bankruptcy by or against the
Company would accrue, whether or not such interest is allowed in such insolvency
or bankruptcy proceeding) on all Securities issued hereunder and other amounts
hereunder shall have been paid in full.
Each Subsidiary Guarantee shall remain in full force
and effect and continue to be effective should any petition be filed by or
against the Company for liquidation or reorganization, should the Company become
insolvent or make an assignment for the benefit of creditors or should a
receiver or trustee be appointed for all or any significant part of the
Company's assets, and shall, to the fullest extent permitted by law, continue to
be effective or be reinstated, as the case may be, if at any time payment and
performance of the Securities, is, pursuant to applicable law, rescinded or
reduced in amount, or must otherwise be restored or returned by any obligee on
the Securities, whether as a "voidable preference," "fraudulent transfer," or
otherwise, all as though such payment or performance had not been made. In the
event that any payment, or any part thereof, is rescinded, reduced, restored or
returned, the Securities shall, to the fullest extent permitted by law, be
reinstated and deemed reduced only by such amount paid and not so rescinded,
reduced, restored or returned.
61
SECTION 12.2 Execution and Delivery of Subsidiary Guarantees.
-----------------------------------------------
The Subsidiary Guarantees to be endorsed on the
Securities shall include the terms of the Subsidiary Guarantee set forth in
Section 12.1 and any other terms that may be set forth in the form established
pursuant to Exhibit B annexed hereto, which is part of this Indenture. Each of
the Subsidiary Guarantors hereby agrees to execute its Subsidiary Guarantee, in
a form established pursuant to Exhibit B, to be endorsed on each Security
authenticated and delivered by the Trustee.
The Subsidiary Guarantee shall be executed on behalf of
each respective Subsidiary Guarantor by any one of such Subsidiary Guarantor's
Chairman of the Board, Vice Chairman of the Board, President or Vice Presidents,
attested by its Secretary or Assistant Secretary. The signature of any or all of
these officers on the Subsidiary Guarantee may be manual or facsimile.
A Subsidiary Guarantee bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of a
Subsidiary Guarantor shall bind such Subsidiary Guarantor, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of the Security on which such Subsidiary Guarantee
is endorsed or did not hold such offices at the date of such Subsidiary
Guarantee.
The delivery of any Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the
Subsidiary Guarantee endorsed thereon on behalf of the Subsidiary Guarantors.
Each of the Subsidiary Guarantors hereby jointly and severally agrees that its
Subsidiary Guarantee set forth in Section 12.1 shall remain in full force and
effect notwithstanding any failure to endorse a Subsidiary Guarantee on any
Security.
SECTION 12.3 Subsidiary Guarantors May Consolidate, Etc., on Certain
Terms.
-------------------------------------------------------
Except as set forth in Section 12.4 and in Articles III
and IV hereof, nothing contained in this Indenture or in any of the Securities
shall prevent any consolidation or merger of a Subsidiary Guarantor with or into
the Company or another Subsidiary Guarantor or shall prevent any sale or
conveyance of the property of another Subsidiary Guarantor as an entirety or
substantially as an entirety to the Company or a Subsidiary Guarantor.
SECTION 12.4 Release of Subsidiary Guarantors.
--------------------------------
(a) Concurrently with any consolidation or merger of a
Subsidiary Guarantor or any sale or conveyance of the property of a Subsidiary
Guarantor as an entirety or substantially as an entirety, in each case to the
extent expressly permitted hereunder, and upon delivery by the Company to the
Trustee of an Officers' Certificate and an Opinion of Counsel to the effect that
such consolidation, merger, sale or conveyance was made in accordance with the
terms and provisions hereof, the Trustee shall execute any documents reasonably
required in order to evidence the release of such Subsidiary Guarantor from its
obligations under its Subsidiary Guarantee endorsed on the Securities and under
this Article XII. Any Subsidiary Guarantor not released from its obligations
under its Subsidiary Guarantee endorsed on the Securities and under this Article
XII shall remain liable for the full amount of principal of, premium, if any,
and interest on the Securities and for the other obligations of a Subsidiary
Guarantor under its Subsidiary Guarantee endorsed on the Securities and under
this Article XII.
62
(b) Concurrently with the defeasance of the Securities
under Section 7.2 hereof, the Subsidiary Guarantors shall be released from all
of their obligations under the Subsidiary Guarantees endorsed on the Securities
and under this Article XII subject to reinstatement if the obligations under the
Securities are reinstated pursuant to Section 7.7.
(c) Upon the sale or disposition (by merger or
otherwise) of any Subsidiary Guarantor by the Company or any Restricted
Subsidiary of the Company to any entity that is not the Company or a Subsidiary
or Affiliate thereof and which sale or disposition is otherwise in compliance
with the terms of this Indenture, such Subsidiary Guarantor shall automatically
be released from all obligations under its Subsidiary Guarantee endorsed on the
Securities and under this Article XII; provided that such Subsidiary Guarantor
is sold or disposed of for fair market value (evidenced by a Board Resolution
and set forth in an Officers' Certificate delivered to the Trustee and by an
independent engineer, appraiser or other expert, to the extent required by the
TIA).
(d) Upon the redesignation by the Company of a
Subsidiary Guarantor from Restricted Subsidiary to an Unrestricted Subsidiary in
compliance with the provisions of this Indenture, such Subsidiary shall cease to
be a Subsidiary Guarantor and shall be released from all of the obligations of a
Subsidiary guarantor under its Subsidiary Guarantee endorsed on the Securities
and under this Article XII.
SECTION 12.5 Additional Subsidiary Guarantors.
--------------------------------
The Company shall cause any Person that becomes a
Restricted Subsidiary after the date of this Indenture to become a Subsidiary
Guarantor with respect to the Securities. Any such Person shall become a
Subsidiary Guarantor by executing and delivering to the Trustee (a) a
supplemental indenture, in form and substance satisfactory to the Trustee, which
subjects such Person to the provisions (including the representations and
warranties) of this Indenture as a Subsidiary Guarantor and (b) an Opinion of
Counsel to the effect that such supplemental indenture has been duly authorized
and executed by such Person and constitutes the legal, valid, binding and
enforceable obligation of such Person (subject to such customary exceptions
concerning creditors' rights and equitable principles as may be reasonably
acceptable to the Trustee in its discretion).
63
SIGNATURES
Dated: _________ __, 2000
ALL STAR GAS CORPORATION
By _______________________________
Name:
Title:
Attest: By _____________________________
Name:
Title:
____________________________
Each of the SUBSIDIARY GUARANTORS
LISTED ON Schedule I attached hereto
Attest: By _______________________________
Name:
Title:
_____________________________
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By _______________________________
Name:
Title:
[SEAL]
Attest:
_____________________________
64
TABLE OF CONTENTS
Page
>
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE...............................................................2
SECTION 1.1 Definitions........................................................................2
SECTION 1.2 Other Definitions.................................................................15
SECTION 1.3 Incorporation by Reference of Trust Indenture Act.................................16
SECTION 1.4 Rules of Construction.............................................................16
ARTICLE II
THE SECURITIES..........................................................................................17
SECTION 2.1 Form and Dating...................................................................17
SECTION 2.2 Execution and Authentication......................................................17
SECTION 2.3 Registrar and Paying Agent........................................................18
SECTION 2.4 Paying Agent To Hold Money in Trust...............................................18
SECTION 2.5 Securityholder Lists..............................................................19
SECTION 2.6 Transfer and Exchange.............................................................19
SECTION 2.7 Replacement Securities............................................................21
SECTION 2.8 Outstanding Securities............................................................21
SECTION 2.9 Determination of Holders' Action..................................................21
SECTION 2.10 Temporary Securities..............................................................22
SECTION 2.11 Cancellation......................................................................22
SECTION 2.12 Defaulted Interest................................................................22
ARTICLE III
COVENANTS...............................................................................................22
SECTION 3.1 Payment of Securities.............................................................22
SECTION 3.2 Maintenance of Office or Agency...................................................23
SECTION 3.3 Limitation on Restricted Payments.................................................23
SECTION 3.4 Limitation on Incurrence of Indebtedness..........................................24
SECTION 3.5 Limitation on Payment Restrictions Affecting Subsidiaries.........................24
SECTION 3.6 Limitation on Sale/Leaseback Transactions.........................................25
SECTION 3.7 Limitation on Liens...............................................................25
SECTION 3.8 Change of Control.................................................................27
SECTION 3.9 Compliance Certificate............................................................28
SECTION 3.10 SEC Reports and Financial Reporting...............................................29
SECTION 3.11 Transactions with Affiliates......................................................29
SECTION 3.12 Sales of Assets...................................................................29
SECTION 3.13 Corporate Existence...............................................................32
SECTION 3.14 Payment of Taxes and Other Claims.................................................32
SECTION 3.15 Notice of Defaults and Other Events...............................................33
SECTION 3.16 Maintenance of Properties and Insurance...........................................33
SECTION 3.17 Limitation on Issuance of Capital Stock and Incurrence of Indebtedness
of Restricted Subsidiaries........................................................33
SECTION 3.18 Limitation on Changes in the Nature of the Business...............................33
i
ARTICLE IV
CONSOLIDATION, MERGER AND SALE..........................................................................34
SECTION 4.1 Merger and Consolidation of Company...............................................34
SECTION 4.2 Successor Substituted.............................................................36
ARTICLE V
DEFAULTS AND REMEDIES...................................................................................36
SECTION 5.1 Events of Default.................................................................36
SECTION 5.2 Acceleration......................................................................38
SECTION 5.3 Other Remedies....................................................................39
SECTION 5.4 Waiver of Defaults................................................................39
SECTION 5.5 Control by Majority...............................................................39
SECTION 5.6 Limitation on Suits...............................................................39
SECTION 5.7 Rights of Holders To Receive Payment..............................................40
SECTION 5.8 Collection Suit by Trustee........................................................40
SECTION 5.9 Trustee May File Proofs of Claim..................................................40
SECTION 5.10 Priorities........................................................................41
SECTION 5.11 Undertaking for Costs.............................................................41
SECTION 5.12 Waiver of Stay or Extension Laws..................................................41
ARTICLE VI
TRUSTEE.................................................................................................42
SECTION 6.1 Duties of Trustee.................................................................42
SECTION 6.2 Rights of Trustee.................................................................43
SECTION 6.3 Individual Rights of Trustee......................................................43
SECTION 6.4 Trustee's Disclaimer..............................................................43
SECTION 6.5 Notice of Defaults................................................................44
SECTION 6.6 Reports by Trustee to Holders.....................................................44
SECTION 6.7 Compensation and Indemnity........................................................44
SECTION 6.8 Replacement of Trustee............................................................45
SECTION 6.9 Successor Trustee by Merger, etc..................................................46
SECTION 6.10 Eligibility; Disqualification.....................................................46
SECTION 6.11 Preferential Collection of Claims Against Company.................................46
SECTION 6.12 Paying Agents.....................................................................46
ARTICLE VII
SATISFACTION AND DISCHARGE OF INDENTURE.................................................................47
SECTION 7.1 Discharge of Liability on Securities; Defeasance..................................47
SECTION 7.2 Termination of Company's Obligations..............................................47
SECTION 7.3 Defeasance and Discharge of Indenture.............................................48
SECTION 7.4 Defeasance of Certain Obligations.................................................49
SECTION 7.5 Application of Trust Money........................................................51
SECTION 7.6 Repayment to Company..............................................................51
SECTION 7.7 Reinstatement.....................................................................51
ii
ARTICLE VIII
AMENDMENT AND SUPPLEMENTS...............................................................................52
SECTION 8.1 Without Consent of Holders........................................................52
SECTION 8.2 With Consent of Holders...........................................................52
SECTION 8.3 Compliance with Trust Indenture Act...............................................53
SECTION 8.4 Revocation and Effect of Consents.................................................53
SECTION 8.5 Notation on or Exchange of Securities.............................................54
SECTION 8.6 Trustee to Sign Amendments........................................................54
SECTION 8.7 Fixing of Record Dates............................................................54
ARTICLE IX
REDEMPTION..............................................................................................54
SECTION 9.1 Notices to Trustee................................................................54
SECTION 9.2 Selection of Securities To be Redeemed............................................55
SECTION 9.3 Notice of Redemption..............................................................55
SECTION 9.4 Effect of Notice of Redemption....................................................56
SECTION 9.5 Deposit of Redemption Price.......................................................56
SECTION 9.6 Securities Redeemed in Part.......................................................56
ARTICLE X
SECURITY AND PLEDGE OF COLLATERAL.......................................................................56
SECTION 10.1 Collateral Documents..............................................................56
SECTION 10.2 Opinion of Counsel................................................................57
SECTION 10.3 Remedies Upon an Event of Default.................................................57
SECTION 10.4 Release of the Collateral.........................................................58
SECTION 10.6 Certificates of Company...........................................................58
SECTION 10.7 Authorization of Actions to be Taken Under the Security Documents.................58
ARTICLE XI
MISCELLANEOUS...........................................................................................59
SECTION 11.1 Trust Indenture Act Controls......................................................59
SECTION 11.2 Notices...........................................................................59
SECTION 11.3 Communication by Holders with Other Holders.......................................60
SECTION 11.4 Certificate and Opinion as to Conditions Precedent................................60
SECTION 11.5 Statements Required in Certificate or Opinion.....................................60
SECTION 11.6 Rules by Trustee and Agents.......................................................60
SECTION 11.7 Legal Holidays....................................................................61
SECTION 11.8 Successors; No Recourse Against Others............................................61
SECTION 11.9 Duplicate Originals...............................................................61
SECTION 11.10 Other Provisions..................................................................61
SECTION 11.11 Governing Law.....................................................................61
ARTICLE XII
SUBSIDIARY GUARANTEES...................................................................................61
SECTION 12.1 Subsidiary Guarantees.............................................................61
SECTION 12.2 Execution and Delivery of Subsidiary Guarantees...................................63
SECTION 12.3 Subsidiary Guarantors May Consolidate, Etc., on Certain Terms.....................64
SECTION 12.4 Release of Subsidiary Guarantors..................................................64
SECTION 12.5 Additional Subsidiary Guarantors..................................................65
iii
________________________________________________________________________________
ALL STAR GAS CORPORATION
and
CERTAIN SUBSIDIARY GUARANTORS HERETO
and
STATE STREET BANK AND TRUST COMPANY, Trustee
================================================================================
INDENTURE
Dated as of December 1, 2000
================================================================================
$50,880,000 Principal Amount at Maturity
Senior Secured Notes Due 2003
________________________________________________________________________________
