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SUNBEAM CORPORATION
as Issuer
11% SENIOR SECURED SUBORDINATED NOTES DUE 2011
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INDENTURE
Dated as of [____] [__] , 2000
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THE BANK OF NEW YORK
as Trustee
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CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
310(a)(1)................................................ 7.10
(a)(2).............................................. 7.10
(a)(3).............................................. N.A.
(a)(4).............................................. N.A.
(a)(5).............................................. 7.10
(b)................................................. 7.10
(c)................................................. N.A.
311(a).............................................. 7.11
(b)................................................. 7.11
(c)................................................. N.A.
312(a).............................................. 2.05
(b)................................................. 12.03
(c)................................................. 12.03
313(a).............................................. 7.06
(b)(1).............................................. 10.03
(b)(2).............................................. 7.07
(c)................................................. 7.06, 12.02
(d)................................................. 7.06
314(a).............................................. 4.03, 12.02
(b)................................................. 10.02
(c)(1).............................................. 12.04
(c)(2).............................................. 12.04
(c)(3).............................................. N.A.
(d)................................................. 10.03, 10.04, 10.05
(e)................................................. 12.05
(f)................................................. N.A.
315(a).............................................. 7.01
(b)................................................. 7.05,12.02
(c)................................................. 7.01
(d)................................................. 7.01
(e)................................................. 6.11
316(a) (last sentence).............................. 2.09
(a)(1)(A)........................................... 6.05
(a)(1)(B)........................................... 6.04
(a)(2).............................................. N.A.
(b)................................................. 6.07
(c)................................................. 2.12
317(a)(1)........................................... 6.08
(a)(2).............................................. 6.09
(b)................................................. 2.04
318(a).............................................. 12.01
(b)................................................. N.A.
(c)................................................. 12.01
N.A. means not applicable.
* This Cross Reference Table is not part of the Indenture.
TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions..........................................................................1
Section 1.02. Other Definitions...................................................................16
Section 1.03. Incorporation by Reference of Trust Indenture Act...................................16
Section 1.04. Rules of Construction...............................................................17
ARTICLE 2
THE NOTES
Section 2.01. Principal Amount; Form and Dating...................................................17
Section 2.02. Execution and Authentication........................................................18
Section 2.03. Registrar and Paying Agent..........................................................18
Section 2.04. Paying Agent to Hold Money in Trust.................................................19
Section 2.05. Holder Lists........................................................................19
Section 2.06. Transfer and Exchange...............................................................19
Section 2.07. Replacement Notes...................................................................20
Section 2.08. Outstanding Notes...................................................................20
Section 2.09. Treasury Notes......................................................................20
Section 2.10. Temporary Notes.....................................................................20
Section 2.11. Cancellation........................................................................21
Section 2.12. Defaulted Interest..................................................................21
Section 2.13. CUSIP Numbers.......................................................................21
Section 2.14. Global Note Legend..................................................................21
Section 2.15. Book-Entry Provisions for Global Notes..............................................22
ARTICLE 3
REDEMPTION AND REPAYMENT
Section 3.01. Notices To Trustee..................................................................23
Section 3.02. Selection of Notes to Be Redeemed...................................................23
Section 3.03. Notice of Redemption................................................................23
Section 3.04. Effect of Notice of Redemption......................................................24
Section 3.05. Deposit of Redemption Price.........................................................24
Section 3.06. Notes Redeemed in Part..............................................................25
Section 3.07. Optional Redemption.................................................................25
Section 3.08. Mandatory Redemption................................................................25
Section 3.09. Offer to Purchase by Application of Excess Proceeds.................................25
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes....................................................................27
Section 4.02. Maintenance of Office or Agency.....................................................27
Section 4.03. Reports.............................................................................28
Section 4.04. Compliance Certificate..............................................................28
Section 4.05. Taxes...............................................................................29
Section 4.06. Stay, Extension and Usury Laws......................................................29
Section 4.07. Asset Sales.........................................................................29
Section 4.08. Liens...............................................................................31
Section 4.09. Corporate Existence.................................................................32
Section 4.10. Offer to Repurchase Upon Change of Control..........................................32
Section 4.11. No Amendment of Subordination Provisions............................................33
ARTICLE 5
SUCCESSORS
Section 5.01. Merger, Consolidation or Sale of Assets.............................................33
Section 5.02. Successor Person Substituted........................................................34
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default...................................................................35
Section 6.02. Acceleration........................................................................36
Section 6.03. Other Remedies......................................................................37
Section 6.04. Waiver of Past Defaults.............................................................37
Section 6.05. Control by Majority.................................................................37
Section 6.06. Limitation on Suits.................................................................37
Section 6.07. Rights of Holders of Notes to Receive Payment.......................................38
Section 6.08. Collection Suit by Trustee..........................................................38
Section 6.09. Trustee May File Proofs of Claim....................................................38
Section 6.10. Priorities..........................................................................39
Section 6.11. Undertaking for Costs...............................................................39
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee...................................................................39
Section 7.02. Rights of Trustee...................................................................40
Section 7.03. Individual Rights of Trustee........................................................41
Section 7.04. Trustee's Disclaimer................................................................41
Section 7.05. Notice of Defaults..................................................................41
Section 7.06. Reports by Trustee to Holders of the Notes..........................................41
Section 7.07. Compensation and Indemnity..........................................................42
Section 7.08. Replacement of Trustee..............................................................43
Section 7.09. Successor Trustee by Merger, etc....................................................43
Section 7.10. Eligibility; Disqualification.......................................................44
Section 7.11. Preferential Collection of Claims Against Company...................................44
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance............................44
Section 8.02. Legal Defeasance and Discharge......................................................44
Section 8.03. Covenant Defeasance.................................................................45
Section 8.04. Conditions to Legal or Covenant Defeasance..........................................45
Section 8.05. Deposited Money and U.S. Government Obligations to be Held in Trust;
Other Miscellaneous Provisions....................................................46
Section 8.06. Repayment to Company................................................................47
Section 8.07. Reinstatement.......................................................................47
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of Notes.................................................47
Section 9.02. With Consent of Holders of Notes....................................................48
Section 9.03. Compliance with Trust Indenture Act.................................................50
Section 9.04. Revocation and Effect of Consents...................................................50
Section 9.05. Notation on or Exchange of Notes....................................................50
Section 9.06. Trustee to Sign Amendments, etc.....................................................50
ARTICLE 10
SUBORDINATION
Section 10.01. Agreement of Subordination..........................................................51
Section 10.02. Payments to Holders.................................................................51
Section 10.03. Subrogation of Notes................................................................53
Section 10.04. Authorization by Holders............................................................54
Section 10.05. Notice to Trustee...................................................................54
Section 10.06. Trustee's Relation to Senior Debt...................................................55
Section 10.07. No Impairment of Subordination......................................................55
Section 10.08. Reliance by Holders of Senior Debt on Subordination Provisions......................56
Section 10.09. Reinstatement of Subordination......................................................56
Section 10.10. Permitted Payments..................................................................56
Section 10.11. Article Applicable to Paying Agents.................................................56
Section 10.12. Reliance on Judicial Order or Certificate of Liquidating Agent......................57
Section 10.13. Holders of Senior Debt May File Proofs of Claim.....................................57
ARTICLE 11
COLLATERAL AND SECURITY
Section 11.01. Grant of Second Lien; Security Agreements............................................57
Section 11.02. Recording and Opinions...............................................................58
Section 11.03. Transfer and Release of Collateral...................................................59
Section 11.04. Deposit; Use and Release of Trust Moneys.............................................60
Section 11.05. Possession and Use of Collateral.....................................................61
Section 11.06. Certificates of the Company..........................................................61
Section 11.07. Certificates of the Trustee..........................................................61
Section 11.08. Authorization of Actions to Be Taken by the Trustee Under the Security
Agreements.........................................................................62
Section 11.09. Authorization of Receipt of Funds by the Trustee Under the Security Agreements.......62
Section 11.10. Termination of Security Interest.....................................................62
ARTICLE 12
MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls.........................................................62
Section 12.02. Notices..............................................................................62
Section 12.03. Communication by Holders of Notes with Other Holders of Notes........................63
Section 12.04. Certificate and Opinion as to Conditions Precedent...................................64
Section 12.05. Statements Required in Certificate or Opinion........................................64
Section 12.06. Rules by Trustee and Agents..........................................................64
Section 12.07. No Personal Liability of Directors, Officers, Employees and Stockholders.............64
Section 12.08. Governing Law........................................................................65
Section 12.09. No Adverse Interpretation of Other Agreements........................................65
Section 12.10. Successors...........................................................................65
Section 12.11. Severability.........................................................................65
Section 12.12. Counterpart Originals................................................................65
Section 12.13. Table of Contents, Headings, etc.....................................................65
EXHIBITS
Exhibit A FORM OF NOTE .......................................................................A-1
INDENTURE dated as of [______] [__], 2000 between Sunbeam
Corporation, a Delaware corporation, and The Bank of New York, a New York
banking corporation, as trustee.
The Company (as defined below) and the Trustee (as defined below)
agree as follows for the benefit of each other and for the equal and
ratable benefit of the Holders of the Company's 11% Senior Secured
Subordinated Notes due 2011(the "Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Definitions.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of
this definition, "control" when used with respect to any Person, means the
power to direct the 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.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary that apply to such transfer or exchange.
"Asset Disposition" means any sale, lease, transfer or other
disposition (or series of related sales, leases, transfers or dispositions)
of shares of Capital Stock of a Restricted Subsidiary (other than
directors' qualifying shares), property or other assets (each referred to
for the purposes of this definition as a "disposition") by the Company or
any Restricted Subsidiary, including any disposition by means of a merger,
consolidation or similar transaction, for gross proceeds in excess of $1.0
million, other than:
(1) the disposition of property or assets (other than (a) shares
of Capital Stock of a Restricted Subsidiary and (b) assets which do not
constitute all or substantially all of the assets of any division or line
of business of the Company or any Restricted Subsidiary) at fair market
value in the ordinary course of business;
(2) the disposition of all or substantially all of the assets of
the Company permitted by the provisions of Section 5.01 hereof;
(3) the disposition of assets in exchange for other assets that
will replace the assets being relinquished by the Company or any Subsidiary
in the exchange or assets that will be used in the business of the Company
or any Subsidiary or in businesses reasonably related thereto;
(4) a disposition of assets by the Company to a Restricted
Subsidiary or by a Restricted Subsidiary to the Company or another
Restricted Subsidiary;
(5) the disposition of cash, cash equivalents and other cash
management investments;
(6) the disposition of inventory or obsolete, unused or
unnecessary equipment, in each case, in the ordinary course of business;
(7) the disposition of accounts receivable by the Company or any
of its Subsidiaries pursuant to the Existing Receivables Program, the New
Receivables Program or pursuant to any other accounts receivable sales
transaction permitted by the terms of the Senior Credit Agreement; and
(8) the disposition of assets of the Company or any Subsidiary or
Capital Stock of any Subsidiary pursuant to or in connection with a
foreclosure action with respect to the collateral subject to the First Lien
or the Collateral subject to the Second Lien.
"Bankruptcy Law" means Title 11, U.S. Code, or any similar federal
or state law for the relief of debtors.
"Board of Directors" means the Board of Directors of the Company
or any committee thereof duly authorized to act on behalf of such Board of
Directors.
"Business Day" means each day which is not a Legal Holiday.
"Capital Lease Obligations" of a Person means any obligation which
is required to be classified and accounted for as a capital lease on the
face of a balance sheet of such Person prepared in accordance with GAAP;
the amount of such obligation shall be the capitalized amount thereof,
determined in accordance with GAAP, and the Stated Maturity thereof shall
be the date of the last payment of rent or any other amount due under such
lease prior to the first date upon which such lease may be terminated by
the lessee without payment of a penalty.
"Capital Stock" of any Person means any and all shares, interests,
rights to purchase, warrants, options or participations (or other
equivalents thereof) in such Person (however designated), including any
Preferred Stock, but excluding any debt securities convertible into or
exchangeable for such equity.
"Change of Control" means:
(1) Any "Person" (as that term is used in Sections 13(d) and 14(d)
of the Exchange Act), is or becomes the beneficial owner (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of
more than 50% of the total voting power of the Voting Stock of the Company
(other than the occurrence of a transaction or event referred to in clause
(3) of this definition).
(2) During any period of two consecutive years, individuals who at
the beginning of such period constituted the Board of Directors of the
Company (together with any new directors whose election by such Board of
Directors or whose nomination for election by the stockholders of the
Company was approved by a majority of the directors of the Company 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 of
the Company then in office.
(3) The occurrence of any transaction or event in connection with
which all or substantially all of the Capital Stock of the Company shall be
exchanged for, converted into, acquired for or constitute solely the right
to receive consideration (whether by means of an exchange offer,
liquidation, tender offer, consolidation, merger, combination,
reclassification, recapitalization or otherwise) which is not all or
substantially all common stock of a company listed (or, upon consummation
of or immediately following such transaction or event, which will be
listed) on a United States national securities exchange or approved for
quotation in the NASDAQ National Market or any similar United States system
of automated dissemination of quotations of securities prices.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" means, collectively, the Pledged Subsidiary Stock and
the proceeds thereof that are from time to time subject to, or purported to
be subject to, the Second Lien.
"Commission" means the United States Securities and Exchange
Commission.
"Commodity Agreement" means any commodity futures contract,
commodity option or other similar agreement or arrangement (limited in
amount to underlying exposure, and not for speculative purposes) entered
into by the Company or any Restricted Subsidiary that is designed to
protect the Company or a Restricted Subsidiary against fluctuations in the
price of commodities used by the Company or a Restricted Subsidiary as raw
materials in the ordinary course of business.
"Company" means Sunbeam Corporation, and any and all successors
thereto.
"Corporate Trust Office of the Trustee" shall be at the address of
the Trustee specified in Section 12.02 hereof or such other address as to
which the Trustee may give notice to the Company.
"Currency Agreement" means with respect to any Person, any foreign
exchange contract, currency swap agreement or other similar agreement
(limited in amount to underlying exposure, and not for speculative
purposes) to which such Person is a party or a beneficiary.
"Custodian" means the Trustee, as custodian with respect to the
Global Notes, or any successor entity thereto.
"Debt" of any Person means, without duplication:
(1) the principal of and premium (if any) in respect of
(a) indebtedness of such Person for money borrowed and
(b) indebtedness evidenced by notes, debentures, bonds or
other similar instruments the payment of which such Person is
responsible or liable,
(2) all Capital Lease Obligations of such Person,
(3) all obligations of such Person issued or assumed 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 (but excluding trade accounts payable arising in the ordinary
course of business),
(4) all obligations of such Person, contingent or otherwise, for
the reimbursement of any obligor on any letter of credit, letter of
guarantee or banker's acceptance (other than obligations with respect to
letters of credit securing obligations (other than obligations described in
(1) through (3) above) entered into in the ordinary course of business of
such Person to the extent such letters of credit are not drawn upon),
(5) all Redeemable Stock of such Person and, with respect to any
Subsidiary of such Person, all Preferred Stock other than pay-in-kind
dividends in the form of Preferred Stock (the amount of Debt represented
thereby shall equal the greater of its liquidation preference and the
redemption, repayment or other repurchase obligations with respect thereto,
not excluding any accrued dividends),
(6) all Hedging Obligations of such Person,
(7) all obligations of the type referred to in clauses (1) through
(4) of other Persons and all dividends of other Persons 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, and
(8) all obligations of the type referred to in clauses (1) through
(6) of other Persons secured by any Lien on any property or asset of such
Person (whether or not such obligation is assumed by such Person), the
amount of such obligation being deemed to be the lesser of the value of
such property or assets or the amount of the obligation so secured.
For the avoidance of doubt, it is expressly understood that the
sale, transfer or other disposition of accounts receivable shall be
treated, for all purposes under this Indenture, as an Asset Disposition.
"Default" means any event that is, or after notice or the passage
of time or both would be, an Event of Default.
"Definitive Note" means a certificated Note registered in the name
of the Holder thereof and issued in accordance with Section 2.15 hereof,
substantially in the form of Exhibit A hereto, except that such Note shall
not bear the Global Note Legend and shall not have the "Schedule of
Exchanges of Interests in the Global Note" attached thereto.
"Depositary" means, with respect to the Notes issuable or issued
in whole or in part in global form, the Person specified in Section 2.03
hereof as the Depositary with respect to the Notes, and any and all
successors thereto appointed as depositary hereunder and having become such
pursuant to the applicable provision of this Indenture.
"Designated Senior Debt" means:
(1) Senior Debt incurred under the Senior Credit Agreement; or
(2) any other particular Senior Debt in which the instrument
creating or evidencing the same or the assumption or guarantee of Senior
Debt or related agreements or documents to which the Company is a party
expressly provides that the Senior Debt shall be "Designated Senior Debt"
for purposes of this Indenture; however, the instrument, agreement or other
document may place limitations and conditions on the right of such Senior
Debt to exercise the rights of Designated Senior Debt.
If any payment made to any holder of any Designated Senior Debt or its
Representative with respect to such Designated Senior Debt is rescinded or
must otherwise be returned by such holder or Representative upon the
insolvency, bankruptcy or reorganization of the Company or otherwise, the
reinstated Debt of the Company arising as a result of such rescission or
return shall constitute Designated Senior Debt effective as of the date of
such rescission or return.
"Equity Interests" means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock;
(3) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited); and
(4) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions
of assets of, the issuing Person.
"Equity Offering" means a sale by the Company of shares of its
Capital Stock (however designated and whether voting or non-voting) and any
and all rights, warrants or options to acquire such Capital Stock.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Existing Receivables Program" means the accounts receivable sales
program established pursuant to (i) the Receivables Sale and Contribution
Agreement, dated as of December 4, 1997, between Sunbeam Products, Inc. and
Sunbeam Asset Diversification, Inc., (ii) the Receivables Purchase and
Servicing Agreement, dated as of December 4, 1997 (as amended, supplemented
or otherwise modified in accordance with the terms of the Senior Credit
Agreement), by and among Llama Retail Funding, L.P., Capital USA, L.L.C.,
Sunbeam Asset Diversification, Inc. and Sunbeam Products, Inc. and (iii)
any receivables sale agreement executed and delivered after the date hereof
in accordance with the terms of the Senior Credit Agreement.
"Existing Subordinated Notes" means the $2,014 million principal
amount at maturity of the Company's Zero Coupon Convertible Senior
Subordinated Debentures due 2018.
"First Lien" means, collectively, the Lien granted by the Company
in favor of the Senior Lenders with respect to the Collateral, together
with the related documents (including, without limitation, any guarantee
agreements and security documents), in each case, as such Senior Credit
Agreement and documents have been or may be amended (including any
amendment and restatement thereof), supplemented or otherwise modified from
time to time, including any agreements extending the maturity of,
refinancing, replacing or otherwise restructuring all or any portion of the
indebtedness under such agreements.
"First Lien Representative" means the administrative agent under
the Senior Credit Agreement or any other Person designated as such to the
Trustee by the Senior Lenders.
"Foreign Asset Sale" means an Asset Disposition in respect of
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 Disposition are received by a Person subject in
respect of such proceeds to the tax laws of a jurisdiction outside the
United States.
"Foreign Subsidiary" means a Restricted Subsidiary that is
incorporated under the laws of a jurisdiction outside the United States.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect as of the Issue Date, including those
set forth:
(1) in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants,
(2) in statements and pronouncements of the Financial Accounting
Standards Board,
(3) in such other statements by such other entity as have been
approved by a significant segment of the accounting profession, and
(4) in the rules and regulations of the Commission governing the
inclusion of financial statements (including pro forma financial
statements) in periodic reports required to be filed pursuant to Section 13
of the Exchange Act, including opinions and pronouncements in Staff
Accounting Bulletins and similar written statements from the accounting
staff of the Commission.
"Global Note" means a global note substantially in the form of
Exhibit A hereto bearing the Global Note Legend and deposited with or on
behalf of, and registered in the name of, the Depositary or its nominee
that will be issued in a denomination equal to the outstanding principal
amount of the Notes issued under this Indenture.
"Global Note Legend" means the legend set forth in Section 2.14
hereof which is required to be placed on all Global Notes issued under this
Indenture.
"Guarantee" means, with respect to any Person, any obligation,
contingent or otherwise, of such Person directly or indirectly guaranteeing
any Debt or other obligation of any other Person and any obligation, direct
or indirect, contingent or otherwise of such Person:
(1) to purchase or pay (or advance or supply funds for the
purchase or payment of) any Debt or other obligation of any other Person
(whether arising by virtue of partnership arrangements, or by agreement to
keep-well, to purchase assets, goods, securities or services, to
take-or-pay or to maintain financial statement conditions or otherwise), or
(2) entered into for purposes of assuring in any other manner the
obligee of any Debt or other obligation of any other Person of the payment
thereof or to protect such obligee against loss in respect thereof (in
whole or in part);
provided, however, that the term "Guarantee" shall not include endorsements
for collection or deposits in the ordinary course of business or guarantees
of obligations of a Subsidiary in the ordinary course of business if such
obligations do not constitute Debt of such Subsidiary. The term "Guarantee"
used as a verb has a corresponding meaning.
"Hedging Obligations" of any Person means the obligations of such
Person pursuant to any Interest Rate Agreement, Currency Agreement or
Commodity Agreement (limited in amount to underlying exposure, and not for
speculative purposes).
"Holder" means a Person in whose name a Note is registered on the
Registrar's books.
"Incur" means issue, assume, Guarantee, incur or otherwise become
liable for; provided, however, that any Debt or Capital Stock of a Person
existing at the time such Person becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be Incurred by
such Subsidiary at the time it becomes a Subsidiary. The term "Incurrence"
when used as a noun shall have a correlative meaning. The accretion of
principal of a non-interest bearing or other discount security shall be
deemed the Incurrence of Debt.
"Indenture" means this Indenture, as amended or supplemented from
time to time.
"Indirect Participant" means a Person who holds a beneficial
interest in a Global Note through a Participant.
"Interest Payment Date" means June 15 and December 15 of each
year, the dates on which the Company will pay semi-annual interest on the
Notes, or if any such day is not a Business Day, the next succeeding
Business Day.
"Interest Rate Agreement" means any interest rate swap agreement,
interest rate cap agreement or other financial agreement or arrangement
(limited in amount to underlying exposure, and not for speculative
purposes) designed to protect the Company or any Restricted Subsidiary
against fluctuations in interest rates.
"Investment" means, with respect to any Person, any loan or
advance to, any acquisition of Capital Stock, equity interest, obligation
or other security of, or capital contribution or other investment in, or
any other credit extension to (including by way of Guarantee of any Debt
of), any other Person.
"Investment Grade Rating" means a rating of BBB-or higher by S&P
and Baa3 or higher by Moody's or the equivalent of such rating by S&P and
Moody's or by any other Rating Agencies selected as provided in the
definition of Rating Agency.
"Issue Date" means the date on which any Note is originally
issued, including any Note issued subsequent to the date hereof as provided
in Section 2.02 hereof.
"Issue Price" of any Note means, in connection with the original
issuance of such Note, the initial issue price at which the Note is issued
set forth on the face of such Note.
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions in the City of New York, in the city of the Corporate
Trust Office of the Trustee or at a place of payment are authorized by law,
regulation or executive order to remain closed. If a payment date is a
Legal Holiday, payment may be made at that place on the next succeeding day
that is not a Legal Holiday, and no interest shall accrue on such payment
for the intervening period.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including any conditional sale or other title
retention agreement or lease in the nature thereof).
"Moody's" means Xxxxx'x Investors Service, Inc.
"Net Available Cash" from an Asset Disposition means cash payments
received therefrom (including, to the extent permitted, any cash payments
received by way of deferred payment of principal pursuant to a promissory
note or installment receivable or any Return of Capital or otherwise, but
only as and when received, but excluding any other consideration received
in the form of assumption by the acquiring Person of Debt or other
obligations relating to such properties or assets that are the subject of
such Asset Disposition or received in any other noncash form), in each
case, net of:
(1) all legal, title and recording expenses, commissions and other
fees and expenses incurred, and all Federal, state, provincial, foreign and
local taxes required to be accrued as a liability under GAAP, as a
consequence of such transaction,
(2) all payments made on any Debt which is secured by any assets
subject to such transaction, in accordance with the terms of any Lien upon
or other security agreement of any kind with respect to such assets, or
which must by its terms, or in order to obtain a necessary consent to such
transaction, or by applicable law be repaid out of the proceeds from such
transaction,
(3) all distributions and other payments required to be made to
any minority interest holders in Subsidiaries or joint ventures as a result
of such transaction,
(4) the deduction of appropriate amounts provided by the sellers
as a reserve, in accordance with GAAP, against any liabilities associated
with the property or other assets disposed in such transaction and retained
by the Company or any Restricted Subsidiary after such transaction, and
(5) all proceeds from such Asset Disposition which are placed in
an escrow or trust account to secure the obligations of the payee in
connection therewith, unless and until such proceeds are released from such
trust or escrow account and received by the Company or one of its
Subsidiaries.
"Net Cash Proceeds" means, with respect to any issuance or sale of
Capital Stock of the Company, the cash proceeds of such issuance or sale,
net of attorneys' fees, accountants' fees, underwriters' or placement
agents' fees, discounts or commissions and brokerage, consultants' and
other fees, and other costs and expenses actually incurred in connection
with such issuance or sale, and net of taxes paid or payable as a result
thereof.
"New Receivables Program" means the accounts receivable sales
program established pursuant to (i) the Receivables Purchase Agreement,
dated as of April 28, 2000 (as amended, supplemented or otherwise modified
in accordance with the terms of the Senior Credit Agreement), by and among
Redwood Receivables Corporation, General Electric Capital Corporation,
Xxxxxxx Funding Corporation, Xxxxxxx, Xxxxxxx Powermate, Inc. and the
Company and any other documents (including, without limitation, any
intercreditor agreement) executed in connection therewith or pursuant
thereto and (ii) any other accounts receivable sales agreements executed
and delivered in accordance with the terms of the Senior Credit Agreement.
"Notes" has the meaning assigned to it in the preamble to this
Indenture.
"Obligations" means the obligations and liabilities of the Company
under this Indenture and the Notes for principal, interest, penalties,
fees, indemnifications, reimbursements, damages and other liabilities.
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating
Officer, the Chief Financial Officer, the Treasurer, any Assistant
Treasurer, the Controller, the Secretary or any Vice-President of such
Person.
"Officers' Certificate" means a certificate that meets the
requirements of Section 12.05 hereof signed on behalf of the Company by two
Officers of the Company, one of whom must be the principal executive
officer, the principal financial officer or the principal accounting
officer of the Company.
"Opinion of Counsel" means an opinion that meets the requirements
of Section 12.05 hereof from legal counsel, who may be an employee of or
counsel to the Company, any Subsidiary of the Company or the Trustee.
"Original Issue Discount" of any Note means the difference between
the Issue Price and the Principal Amount of the Note as set forth on the
face of the Note. For purposes of this Indenture and the Notes, accrual of
Original Issue Discount shall be calculated on the basis of a 360-day year
of twelve 30-day months, compounded semi-annually.
"Participant" means, with respect to the Depositary, a Person who
has an account with the Depositary.
"Permitted Liens" means:
(1) Liens permitted under the Senior Credit Agreement or consented
to by the requisite percentage of Senior Lenders;
(2) Liens existing on the Issue Date or those that secure the
Notes, Senior Debt or other obligations permitted to be Incurred under the
Senior Credit Agreement or this Indenture;
(3) Liens for taxes, assessments or other governmental charges or
levies not yet due or that are being contested in good faith by appropriate
action or proceedings and with respect to which adequate reserves in
conformity with GAAP are being maintained;
(4) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen, repairmen, workmen, crews, maritime
liens and other Liens imposed by law created in the ordinary course of
business for amounts that are not past due or that are being contested in
good faith by appropriate action or proceedings and with respect to which
adequate reserves in accordance with GAAP are being maintained;
(5) Liens incurred or deposits or pledges made in the ordinary
course of business in connection with workers' compensation, unemployment
insurance and other types of social security, old age or other similar
obligations, or to secure the performance of tenders, statutory
obligations, surety and appeal bonds, bids, leases, government contracts,
performance and return-of-money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money) incurred in
the ordinary course of business;
(6) irregularities in title, boundaries, or other survey defects,
easements, rights-of-way, restrictions, servitudes, permits, reservations,
exceptions, zoning regulations, conditions, covenants, mineral or royalty
rights or reservations or oil, gas and mineral leases and rights of others
in any property of the Company or any Subsidiary for streets, roads,
bridges, pipes, pipe lines, railroads, electric transmission and
distribution lines, telegraph and telephone lines, the removal of oil, gas
or other minerals or other similar purposes, flood control, water rights,
rights of others with respect to navigable waters, sewage and drainage
rights and other similar charges or encumbrances existing as of the Issue
Date (or granted by the Company or any Subsidiary in the ordinary course of
business) that do not, in the aggregate, materially impair the value of the
property of the Company or any Subsidiary and the occupation, use and
enjoyment by the Company or any of its Subsidiaries of any of their
respective properties in the normal course of business;
(7) Liens securing Debt neither created, assumed nor guaranteed by
the Company or any Subsidiary upon lands over which easements or similar
rights are acquired by the Company or any Subsidiary in the ordinary course
of business of the Company or any Subsidiary;
(8) terminable or short-term leases or permits for occupancy,
which leases or permits expressly grant to the Company or any Subsidiary
the right to terminate them at any time on not more than six months' notice
and which occupancy does not interfere with the operation of the business
of the Company or any Subsidiary;
(9) any Lien or privilege arising by operation of law and vested
in any lessor, licensor or permittor on personal property located on
premises leased by the Company or any Subsidiary, for rent to become due or
for other obligations or acts to be performed, the payment of which rent or
the performance of which other obligations or acts is required under
leases, subleases, licenses or permits;
(10) Liens or privileges of any employee of the Company or any
Subsidiary for salary or wages earned but not yet payable;
(11) any obligations or duties affecting any of the property of
the Company or its Subsidiaries to any municipality or public authority
with respect to any franchise, grant, license or permit that do not
materially impair the use of such property for the purposes for which it is
held;
(12) Liens upon property or assets other than as described in
clause (13) immediately below acquired by the Company after the Issue Date;
provided, however, that such Liens do not extend to any property or assets
other than such property or assets so acquired;
(13) Liens on property or shares of Capital Stock of another
Person at the time such other Person becomes a Subsidiary of such Person;
provided, however, that such Liens are not created, incurred or assumed in
connection with, or in contemplation of, such other Person becoming such a
Subsidiary and do not extend to any assets other than those of the Person
that becomes a Subsidiary;
(14) Liens resulting from operation of law with respect to any
judgments, awards or orders to the extent that such judgments, awards or
orders do not cause or constitute an Event of Default;
(15) Liens on any property in favor of domestic or foreign
governmental bodies to secure partial, progress, advance or other payments
pursuant to any contract or statute, not yet due and payable;
(16) Liens securing Debt incurred to finance the construction,
purchase or lease of, or repairs, improvements or additions to, property of
such Person used in the business of the Company, to the extent such Debt is
otherwise permitted by this Indenture;
(17) easements, rights-of-way, restrictions and other similar
charges or encumbrances granted to others, in each case, not interfering
with the ordinary conduct of the business of the Company or any of its
Subsidiaries;
(18) Liens incurred in connection with any transaction related to,
or consummated in connection with, the Existing Receivables Program or the
New Receivables Program or any other transaction permitted by the terms of
the Senior Credit Agreement pursuant to which the Company or any Subsidiary
sells, conveys or otherwise transfers, or grants a security interest in,
any accounts receivable, instruments, chattel paper, general intangibles or
similar assets of the Company or any of its Subsidiaries, and any assets
relating thereto, including, without limitation, all collateral securing
any of the foregoing, all contracts, contract rights and all Guarantees or
other obligations in respect of any of the foregoing, proceeds of any of
the foregoing and any other assets which are customarily transferred or in
respect of which security interests are customarily granted in connection
with asset securitization transactions of such type; and
(19) extensions, renewals, modifications or replacements of any
Lien referred to in clauses (1) through (18) of this definition, provided
that such Lien is otherwise permitted by the terms hereof and, with respect
to Liens securing Debt, no extension or renewal Lien shall (A) secure more
than the amount of the Debt or other obligations secured by the Lien being
so extended or renewed, other than as permitted by clause (12) hereof, or
(B) extend to any property or assets not subject to the Lien being so
extended or renewed, other than as permitted by clause (12) hereof.
Notwithstanding anything to the contrary contained in this definition of
"Permitted Liens," any Lien which is deemed to be a Permitted Lien pursuant
to clause (1) or clause (2) hereof shall be, and shall continue to be, a
Permitted Lien for all purposes under this Indenture, notwithstanding that
(i) such Lien would not be deemed to be a Permitted Lien under one or more
other clauses of this definition and (ii) subsequent to the creation of
such Lien, all obligations under the Senior Credit Agreement are paid in
full in cash or other payment satisfactory to the Senior Lenders and all
lending commitments thereunder are terminated.
"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.
"Pledged Subsidiary Stock" means the Capital Stock of each of the
Company's three direct Wholly Owned Subsidiaries, Laser Acquisition Corp.,
Sunbeam Americas Holdings, Ltd. and DDG I, Inc.
"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 of assets upon any voluntary or involuntary liquidation or
dissolution of such corporation, over shares of Capital Stock of any other
class of such corporation.
"Principal" or "Principal Amount" of a Note means the principal
amount as set forth on the face of the Note.
"Rating Agency" means S&P and Moody's, or if S&P or Moody's or
both shall not make a rating on the Notes publicly available, a nationally
recognized statistical rating agency or agencies, as the case may be,
selected by the Company (as certified by a resolution of the Board of
Directors) which shall be substituted for S&P or Moody's or both, as the
case may be.
"Redeemable Stock" means any Capital Stock that by its terms or
otherwise is required to be redeemed on or prior to the Stated Maturity of
the Notes or is redeemable at the option of the Holder thereof without
regard to the occurrence of any contingency at any time on or prior to the
Stated Maturity of the Notes.
"Representative" means any trustee, agent or representative (if
any) for an issue of Senior Debt of the Company.
"Responsible Officer" means, when used with respect to the
Trustee, any officer within the Corporate Trust Administration of the
Trustee (or any successor group of the Trustee) or any other officer of the
Trustee customarily performing functions similar to those performed by any
of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Restricted Subsidiary" means any Subsidiary of the Company that
is not an Unrestricted Subsidiary.
"Return of Capital" means, with respect to any Equity Interest,
any sums paid on or in respect of such Equity Interest (1) as a return, in
whole or in part, of the capital of the issuer of such Equity Interest, (2)
in redemption of, or in exchange for, such Equity Interest or (3) in
connection with a partial or total liquidation or dissolution of the issuer
of such Equity Interest.
"S&P" means Standard & Poor's Rating Group.
"Second Lien" means the second-priority Lien granted by the
Company in favor of the Trustee, for the benefit of the Holders of the
Notes, pursuant to the Junior Pledge and Security Agreement, dated as of
the date hereof, by and between the Company and the Trustee, as the same
may be amended (including any amendment and restatement thereof),
supplemented or otherwise modified from time to time.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Agreements" means the Junior Pledge and Security
Agreement entered into by the Company and the Trustee, dated as of the date
hereof, to secure the obligations of the Company with respect to the Notes,
and the Intercreditor Agreement, dated as of the date hereof, between the
Trustee and the administrative agent under the Senior Credit Agreement, in
each case, as such agreements may be amended (including any amendment and
restatement thereof), modified or supplemented from time to time.
"Senior Credit Agreement" means that certain Senior Credit
Agreement, dated as of March 30, 1998, among the Company, the Subsidiary
Borrower referred to therein, the lenders party thereto, Xxxxxx Xxxxxxx
Senior Funding, Inc., as Syndication Agent, Bank of America, N.A., as
Documentation Agent, and First Union National Bank, as Administrative
Agent, as amended from time to time in whole or in part (including any
deferral, increase, renewal, extension, replacement, refinancing or
refunding of, or amendment, modification or supplement thereto, and whether
or not with the original Administrative Agent and Senior Lenders or another
administrative agent or other lenders and whether provided under the
original Senior Credit Agreement or any other credit or other agreement or
indenture).
"Senior Debt" means:
(1) all Debt of the Company or any Restricted Subsidiary
outstanding under the Senior Credit Agreement;
(2) any other Debt of the Company or any Restricted Subsidiary
permitted to be Incurred under the terms of this Indenture, unless the
instrument under which such Debt is Incurred expressly provides that it is
subordinated in right of payment to the Notes; and
(3) all obligations with respect to the items listed in the
preceding clauses (1) and (2) (including, to the extent provided in the
instrument governing such Debt, all interest accruing subsequent to, or
which would accrue but for, the commencement of any bankruptcy or similar
proceeding, whether or not a claim for post-petition interest is allowable
as a claim in any such proceeding).
Notwithstanding anything to the contrary in the preceding, Senior Debt
shall not include:
(1) any liability for federal, state, local or other taxes owed or
owing by the Company;
(2) any Debt of the Company to any of its Restricted Subsidiaries
or other Affiliates;
(3) any trade payables; or
(4) the portion of any Debt that is incurred in violation of this
Indenture.
"Senior Lenders" means the lenders who are parties from time to
time to the Senior Credit Agreement.
"Significant Subsidiary" means any Restricted Subsidiary that
would be a "significant subsidiary" of the Company as such term is defined
in Rule 1-02 of Regulation S-X, promulgated by the Commission.
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed date on which the principal of such
security or Debt is due and payable, including pursuant to any mandatory
redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the Holder thereof upon the
happening of any contingency unless such contingency has occurred).
"Subsidiary" means any corporation, association, partnership or
other business entity of which than more 50% of the total voting power of
shares of Capital Stock or other interests (including partnership
interests) entitled (without regard to the occurrence of any contingency)
to vote in the election of directors, managers or trustees thereof at the
time is owned or controlled, directly or indirectly, by:
(1) the Company,
(2) the Company and one or more Subsidiaries, or
(3) one or more Subsidiaries.
"Temporary Cash Investments" means any of the following:
(1) any investment in direct obligations of the United States of
America or any agency thereof or obligations Guaranteed by the United
States of America or any agency thereof,
(2) investments in time deposit accounts, banker's acceptances,
certificates of deposit and money market deposits maturing within 270 days
of the date of acquisition thereof issued by a bank or trust company which
is organized under the laws of the United States of America, any state
thereof or any foreign country recognized by the United States, and which
bank or trust company has capital, surplus and undivided profits
aggregating in excess of $50.0 million (or the foreign currency equivalent
thereof) and has outstanding debt which is rated "A" (or such similar
equivalent rating) or higher by at least one nationally recognized
statistical rating organization (as defined in Rule 436 under the
Securities Act) or any money market fund sponsored by a registered broker
dealer or mutual fund distributor,
(3) repurchase obligations with a term of not more than 30 days
for underlying securities of the types described in clause (1) above
entered into with a bank meeting the qualifications described in clause (2)
above,
(4) investments in commercial paper, maturing not more than 270
days after the date of acquisition, issued by a corporation (other than an
Affiliate of the Company) organized and in existence under the laws of the
United States of America or any foreign country recognized by the United
States of America with a rating at the time as of which any Investment
therein is made of "P-1" (or higher) according to Moody's or "A-1" (or
higher) according to S&P,
(5) investments in securities with maturities of six months or
less from the date of acquisition issued or fully guaranteed by any state,
commonwealth or territory of the United States of America, or by any
political subdivision or taxing authority thereof, and rated at least "A"
by S&P or "A" by Moody's,
(6) participations (for a tenor of not more than 90 days) in loans
to Persons having short-term credit ratings of at least "A-1" and "P-1" by
S&P and Moody's, respectively,
(7) with respect to any Foreign Subsidiary organized in Canada,
commercial paper of Canadian companies rated R-1 High or the equivalent
thereof by Dominion Bond Rating Services with maturities of less than one
year, and
(8) with respect to Foreign Subsidiaries not organized in Canada,
government obligations of another country whose debt securities are rated
by S&P and/or Moody's "A-1" or "P-1", or the equivalent thereof (if a
short-term debt rating is provided by either), or at least "AA" or "AA2",
or the equivalent thereof (if a long-term unsecured debt rating is provided
by either), in each case, with maturities of less than 12 months.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. xx.xx.
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
under the TIA.
"Trustee" means The Bank of New York, as trustee hereunder, until
a successor replaces it in accordance with the applicable provisions of
this Indenture and thereafter means the successor serving hereunder.
"United States" means the 50 states of the United States of
America and the District of Columbia.
"Unrestricted Subsidiary" means:
(1) any Subsidiary of the Company that at the time of
determination shall be designated an Unrestricted Subsidiary by the Board
of Directors in the manner provided below, and
(2) any Subsidiary of an Unrestricted Subsidiary.
The Board of Directors may designate any Subsidiary of the Company
(including any newly acquired or newly formed Subsidiary) to be an
Unrestricted Subsidiary so long as neither such Subsidiary nor any of its
Subsidiaries owns any Capital Stock or Debt of, or holds any Lien on any
property of, the Company or any other Subsidiary of the Company that is not
an Unrestricted Subsidiary and provided that:
(1) no Subsidiary of the Company that is a Restricted Subsidiary
on the Issue Date (other than a Restricted Subsidiary with total assets of
$1,000 or less on the Issue Date) may be designated an Unrestricted
Subsidiary, and
(2) no Subsidiary holding, directly or indirectly, any assets
(other than assets totaling $1,000 or less which constituted the only
assets of a Restricted Subsidiary on the Issue Date) held by the Company or
a Restricted Subsidiary on the Issue Date may be designated an Unrestricted
Subsidiary.
The Board of Directors may designate any Unrestricted Subsidiary
to be a Restricted Subsidiary; provided, however, that immediately after
giving effect to such designation, no Default shall have occurred and be
continuing.
Any such designation by the Board of Directors shall be
communicated by the Company to the Trustee by promptly filing with the
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 direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof)
for the payment of which the full faith and credit of the United States of
America is pledged and which are not callable at the issuer's option.
"Voting Stock" of a corporation means all classes of Capital Stock
of such corporation then outstanding and entitled generally (and not just
upon the happening of an event or events) to vote in the election of
directors.
"Wholly Owned Subsidiary" means a Restricted Subsidiary all the
Capital Stock of which (other than directors' qualifying shares) is owned
by the Company and/or another Wholly Owned Subsidiary; provided, however,
that a Foreign Subsidiary shall be a Wholly Owned Subsidiary if more than
90% of the Capital Stock and Voting Stock thereof is owned by the Company
and/or another Wholly Owned Subsidiary.
Section 1.02. Other Definitions.
Defined Term Section
------------ -------
"Asset Sale Offer"............................................... 3.09
"Authentication Order"........................................... 2.02
"Change of Control Offer"........................................ 4.10
"Change of Control Payment"...................................... 4.10
"Change of Control Payment Date"................................. 4.10
"Collateral Account"............................................. 11.04
"Covenant Defeasance"............................................ 8.03
"Designated Senior Debt Default"................................. 10.02
"DTC"............................................................ 2.03
"Event of Default"............................................... 6.01
"Legal Defeasance"............................................... 8.02
"Offer Amount"................................................... 3.09
"Offer Period"................................................... 3.09
"Paying Agent"................................................... 2.03
"Payment Blockage Notice"........................................ 10.02
"Payment Default"................................................ 6.01
"Purchase Date".................................................. 3.09
"Registrar"...................................................... 2.03
"Senior Debt Payment Default".................................... 10.02
"Transfer"....................................................... 4.07
Section 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this
Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Notes means the Company and any successor obligor
upon the Notes.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission
rule under the TIA have the meanings so assigned to them.
Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and in the
plural include the singular;
(e) provisions apply to successive events and
transactions; and
(f) references to sections of or rules under the
Securities Act shall be deemed to include substitute, replacement
of successor sections or rules adopted by the Commission from time
to time.
ARTICLE 2
THE NOTES
Section 2.01. Principal Amount; Form and Dating.
(a) Principal Amount. The aggregate principal amount of Notes
which may be issued, executed, authenticated and outstanding under this
Indenture is unlimited.
(b) General. The Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto. The
Notes may have notations, legends or endorsements required by law, stock
exchange rule or usage. The Company and the Trustee shall approve the form
of the Notes and any notation, legend or endorsement on them. Each Note
shall be dated the date of its authentication. The Notes shall be in
denominations of $1,000 Principal Amount at maturity and integral multiples
thereof.
The terms and provisions contained in the Notes shall constitute,
and are hereby expressly made, a part of this Indenture and the Company and
the Trustee, by their execution and delivery of this Indenture, expressly
agree to such terms and provisions and to be bound thereby. However, to the
extent any provision of any Note conflicts with the express provisions of
this Indenture, the provisions of this Indenture shall govern and be
controlling.
(c) Form of Notes. Notes offered and issued hereunder in reliance
on Section 3(a)(9) of the Securities Act shall be issued in the form of one
or more permanent Global Notes in registered form, substantially in the
form set forth in Exhibit A (including the Global Note Legend thereon and
the "Schedule of Exchanges of Interests in the Global Note" attached
thereto), deposited with the Trustee, as Custodian for the Depositary, duly
executed by the Company and authenticated by the Trustee, as hereinafter
provided. Notes issued in exchange for interests in a Global Note pursuant
to Section 2.15 hereof shall be issued in the form of one or more
Definitive Notes in registered form, in substantially the form set forth in
Exhibit A (but without the Global Note Legend thereon and without the
"Schedule of Exchanges of Interests in the Global Note" attached thereto).
Each Global Note shall represent such of the outstanding Notes as shall be
specified therein and each shall provide that it shall represent the
aggregate principal amount of outstanding Notes from time to time endorsed
thereon and that the aggregate principal amount of outstanding Notes
represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any endorsement of a
Global Note to reflect the amount of any increase or decrease in the
aggregate principal amount of outstanding Notes represented thereby shall
be made by the Trustee or the Custodian, at the direction of the Trustee,
in accordance with instructions given by the Holder thereof, as required by
Section 2.15(c) hereof.
Section 2.02. Execution and Authentication.
The Notes shall be authorized on behalf of the Company by its
Chairman of the Board, one of its Vice Chairmen, its President or one of
its Vice Presidents. The Company's seal shall be reproduced on the Notes
and may be in facsimile form.
If an Officer whose signature is on a Note no longer holds that
office at the time a Note is authenticated, the Note shall nevertheless be
valid.
A Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that
the Note has been authenticated under this Indenture.
The Trustee shall, upon a written order of the Company signed by
two Officers (an "Authentication Order"), authenticate Notes for original
issue up to the aggregate principal amount at maturity of $348,422,000;
provided that additional Notes of the same series may be issued under this
Indenture from time to time in up to an unlimited principal amount at
maturity.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. An authenticating agent may authenticate
Notes whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with Holders
or an Affiliate of the Company.
Section 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Notes may be presented for payment ("Paying Agent").
The Registrar shall keep a register of the Notes and of their transfer and
exchange. The Company may appoint one or more co-registrars and one or more
additional paying agents. The term "Registrar" includes any co-registrar
and the term "Paying Agent" includes any additional paying agent. The
Company may change any Paying Agent or Registrar without notice to any
Holder. The Company shall notify the Trustee in writing of the name and
address of any Agent not a party to this Indenture. If the Company fails to
appoint or maintain another entity as Registrar or Paying Agent, it shall
direct the Trustee to act as such. The Company or any of its Subsidiaries
may act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company
("DTC") to act as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar
and Paying Agent and to act as Custodian with respect to the Global Notes.
Section 2.04. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee
to agree in writing that the Paying Agent will hold in trust for the
benefit of Holders or the Trustee all money held by the Paying Agent for
the payment of principal, premium or penalty, if any, or interest on the
Notes, and will notify the Trustee of any default by the Company in making
any such payment. While any such default continues, the Trustee may require
a Paying Agent to pay all money held by it to the Trustee. The Company at
any time may require a Paying Agent to pay all money held by it to the
Trustee. Upon payment over to the Trustee, the Paying Agent (if other than
the Company or a Subsidiary) shall have no further liability for the money.
If the Company or a Subsidiary acts as Paying Agent, it shall segregate and
hold in a separate trust fund for the benefit of the Holders all money held
by it as Paying Agent. Upon any bankruptcy or reorganization proceedings
relating to the Company, the Trustee shall serve as Paying Agent for the
Notes.
Section 2.05. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses
of all Holders and shall otherwise comply with TIA ss. 312(a). If the
Trustee is not the Registrar, the Company shall furnish to the Trustee at
least seven Business Days before each Interest Payment Date and at such
other times as the Trustee may request in writing, a list in such form and
as of such date as the Trustee may reasonably require of the names and
addresses of the Holders of Notes and the Company shall otherwise comply
with TIA ss. 312(a).
Section 2.06. Transfer and Exchange.
When Notes are presented to the Registrar with a request to
register the transfer of such Notes or to exchange such Notes for an equal
principal amount of Notes or other authorized denominations, the Registrar
shall register the transfer or make the exchange as requested if its
requirements for such transaction are met; provided, however, that the
Notes presented or surrendered for registration of transfer or exchange
shall be duly endorsed or accompanied by a written instrument of transfer
in form satisfactory to the Company, the Trustee and the Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.
To permit registration of transfers and exchanges, the Company shall
execute and the Trustee shall authenticate Notes at the Registrar's
request. No service charge shall be made for any registration of transfer
or exchange, but the Company may require payment of a sum sufficient to
cover any transfer tax, fee or similar governmental charge payable in
connection therewith (other than any such transfer taxes or similar
governmental charge payable upon exchanges or transfers pursuant to
Sections 2.10, 3.06, 4.07, 4.10 or 9.05, in which event the Company shall
be responsible for the payment of such taxes).
The Registrar shall not be required to register the transfer of or
exchange of any Note (i) during a period beginning at the opening of
business 15 days before the mailing of a notice of redemption of Notes and
ending at the close of business on the day of such mailing and (ii)
selected for redemption in whole or in part pursuant to Article 3 hereof,
except the unredeemed portion of any Note being redeemed in part.
Any Holder of a beneficial interest in a Global Note shall, by
acceptance of such Global Note, agree that transfers of beneficial
interests in such Global Note may be effected only through a book-entry
system maintained by the Holder of such Global Note (or its agent), and
that ownership of a beneficial interest in the Note shall be required to be
reflected in a book-entry system.
Section 2.07. Replacement Notes.
If any mutilated Note is surrendered to the Trustee or the Company
and the Trustee receives evidence to its satisfaction of the destruction,
loss or theft of any Note, the Company shall issue and the Trustee, upon
receipt of an Authentication Order, shall authenticate a replacement Note
if the Trustee's requirements are met. If required by the Trustee or the
Company, an indemnity bond must be supplied by the Holder that is
sufficient in the judgment of the Trustee and the Company to protect the
Company, the Trustee, any Agent, and any authenticating agent from any loss
that any of them may suffer if a Note is replaced. The Company may charge
for its expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company
and shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
Section 2.08. Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated
by the Trustee except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by
the Trustee in accordance with the provisions hereof, and those described
in this Section 2.08 as not outstanding. Except as set forth in Section
2.09 hereof, a Note does not cease to be outstanding because the Company or
an Affiliate of the Company holds the Note.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases
to be outstanding unless the Trustee receives proof satisfactory to it that
the replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under
Section 4.01 hereof, it ceases to be outstanding and interest on it ceases
to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date,
money sufficient to pay Notes payable on that date, then on and after that
date such Notes shall be deemed to be no longer outstanding and shall cease
to accrue interest.
Section 2.09. Treasury Notes.
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver or consent, Notes
owned by the Company, or by any Person directly or indirectly controlling
or controlled by or under direct or indirect common control with the
Company, shall be considered not outstanding, except that for the purposes
of determining whether the Trustee shall be protected in relying on any
such direction, waiver or consent, only Notes that the Trustee knows are so
owned shall be so disregarded.
Section 2.10. Temporary Notes.
Until certificates representing Notes are ready for delivery, the
Company may prepare and the Trustee, upon receipt of an Authentication
Order, shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form of certificated Notes, but may have variations
that the Company considers appropriate for temporary Notes and as shall be
reasonably acceptable to the Trustee. Without unreasonable delay, the
Company shall prepare and the Trustee shall authenticate definitive Notes
in exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of the
benefits of this Indenture.
Section 2.11. Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee
any Notes surrendered to them for registration of transfer, exchange or
payment. The Trustee and no one else shall cancel all Notes surrendered for
registration of transfer, exchange, payment, replacement or cancellation in
accordance with its customary practices. The Company may not issue new
Notes to replace Notes that it has paid or that have been delivered to the
Trustee for cancellation.
Section 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the Notes, it
shall, subject to the provisions of Article 10 hereof, pay the defaulted
interest in any lawful manner plus, to the extent lawful, interest payable
on the defaulted interest, to the Persons who are Holders on a subsequent
special record date, in each case, at the rate provided in the Notes and in
Section 4.01 hereof. The Company shall notify the Trustee in writing of the
amount of defaulted interest proposed to be paid on each Note and the date
of the proposed payment. The Company shall fix or cause to be fixed each
such special record date and payment date, provided that no such special
record date shall be less than 10 days prior to the related payment date
for such defaulted interest. At least 15 days before the special record
date, the Company (or, upon the written request of the Company, the Trustee
in the name and at the expense of the Company) shall mail or cause to be
mailed to Holders a notice that states the special record date, the related
payment date and the amount of such interest to be paid. The provisions of
this Section 2.12 shall at all times remain subject to the provisions of
Article 10 hereof regarding subordination of the Notes.
Section 2.13. CUSIP Numbers.
The Company in issuing the Notes may use "CUSIP" numbers (if then
generally in use) and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders: provided that any such
notice may state that no representation is made as to the correctness of
such numbers either as printed on the Notes or as contained in any notice
of a redemption and that reliance may be placed only on the other
identification numbers printed on the Notes, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company
will promptly notify the Trustee of any change in the "CUSIP" numbers.
Section 2.14. Global Note Legend.
Each Global Note shall bear the following legend on the face
thereof:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY ANY SUCH NOMINEE OF
THE DEPOSITARY, OR BY THE DEPOSITARY OR NOMINEE OF SUCH SUCCESSOR
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF
SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN. TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED
TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE.
Section 2.15. Book-Entry Provisions for Global Notes.
(a) The Global Notes initially shall (i) be registered in the name
of the Depositary or the nominee of such Depositary, (ii) be delivered to
the Trustee as Custodian for such Depositary and (iii) bear the legend set
forth in Section 2.14 hereof.
Participants in the Depositary shall have no rights under this
Indenture with respect to any Global Note held on their behalf by the
Depositary, or the Trustee as its Custodian, or under the Global Notes, and
the Depositary may be treated by the Company, the Trustee and any
representative of the Company or the Trustee as the absolute owner of such
Global Note for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee or any Representative
of the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depositary or
impair, as between the Depositary and its Participants, the operation of
customary practices governing the exercise of the rights of a Holder of any
Note.
(b) Transfers of a Global Note shall be limited to transfers in
whole, but not in part, to the Depositary, its successors or their
respective nominees. Interests of beneficial owners in a Global Note may be
transferred or exchanged for Definitive Notes in accordance with the
Applicable Procedures. In addition, Definitive Notes shall be transferred
to all beneficial owners in exchange for their beneficial interests in a
Global Note if (i) the Depositary notifies the Company that it is unwilling
or unable to continue as Depositary for the Global Notes and a successor
depositary is not appointed by the Company within 90 days of such notice or
(ii) the Company's obligation to pay the principal of, and accrued but
unpaid interest on, the Notes has been accelerated, as provided in Section
6.02 hereof, and the Registrar has received a written request from the
Depositary to issue Definitive Notes.
(c) In connection with any transfer or exchange of a portion of
the beneficial interest in a Global Note to beneficial owners pursuant to
paragraph (b) of this Section 2.15, the Registrar shall (if one or more
Definitive Notes are to be issued) reflect on its books and records the
date and a decrease in the principal amount of such Global Note in an
amount equal to the principal amount of the beneficial interest in the
Global Note to be transferred, and the Company shall execute, and the
Trustee shall authenticate and deliver, one or more Definitive Notes of
like tenor and amount.
(d) In connection with the transfer of an entire Global Note to
beneficial owners pursuant to paragraph (b) of this Section 2.15, such
Global Note shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall
authenticate and deliver, to each beneficial owner identified by the
Depositary in exchange for its beneficial interest in the Global Note, an
equal aggregate principal amount of Definitive Notes of authorized
denominations.
(e) The Holder of a Global Note may grant proxies and otherwise
authorize any Person, including Participants and Indirect Participants, to
take any action which a Holder is entitled to take under this Indenture or
the Notes.
ARTICLE 3
REDEMPTION AND REPAYMENT
Section 3.01. Notices To Trustee.
If the Company elects, subject to any applicable limitations
contained in the Senior Credit Agreement, to redeem Notes pursuant to the
optional redemption provisions of Section 3.07 hereof, it shall furnish to
the Trustee, at least 45 days but not more than 60 days before a redemption
date, an Officers' Certificate setting forth (i) the clause of this
Indenture pursuant to which the redemption shall occur, (ii) the redemption
date, (iii) the principal amount of Notes to be redeemed and (iv) the
redemption price.
Section 3.02. Selection of Notes to Be Redeemed.
If less than all of the Notes are to be redeemed, or purchased in
an offer to purchase at any time, the Trustee shall select the Notes to be
redeemed or purchased among the Holders of the Notes on a pro rata basis,
by lot or in accordance with any other method the Trustee considers fair
and appropriate. In the event of partial redemption by lot, the particular
Notes to be redeemed shall be selected, unless otherwise provided herein,
not less than 30 nor more than 60 days prior to the redemption date by the
Trustee from the outstanding Notes not previously called for redemption.
The Trustee shall promptly notify the Company in writing of the
Notes selected for redemption and, in the case of any Note selected for
partial redemption, the principal amount thereof to be redeemed. Notes and
portions of Notes selected for redemption shall, at the election of the
Company, be in amounts of $1,000 Principal Amount at maturity or whole
multiples of $1,000 Principal Amount at maturity; except that if all of the
Notes of a Holder are to be redeemed, the entire outstanding amount of
Notes held by such Holder, even if not a multiple of $1,000 Principal
Amount at maturity, shall be redeemed. Except as provided in the preceding
sentence, the provisions of this Indenture that apply to Notes called for
redemption also apply to portions of Notes called for redemption.
Section 3.03. Notice of Redemption.
Subject to the provisions of Section 3.09 hereof, at least 30 days
but not more than 60 days before a redemption date, the Company shall mail
or cause to be mailed, by first class mail, a notice of redemption to each
Holder whose Notes are to be redeemed at its registered address.
The notice shall identify the Notes to be redeemed and shall
state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the redemption
date upon surrender of such Note, a new Note or Notes in principal amount
equal to the unredeemed portion shall be issued upon cancellation of the
original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such redemption
payment, interest on Notes called for redemption ceases to accrue on and
after the redemption date;
(g) the paragraph of the Notes and/or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed; and
(h) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed on
the Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however,
that the Company shall have delivered to the Trustee, at least 45 days
prior to the redemption date, an Officers' Certificate requesting that the
Trustee give such notice and setting forth the information to be stated in
such notice as provided in the preceding paragraph.
Section 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section
3.03 hereof, Notes called for redemption become irrevocably due and payable
on the redemption date at the redemption price. A notice of redemption may
not be conditional. Failure to give notice to a Holder of a Note or any
defect in any notice shall not affect the validity of any notice to any
other Holder of a Note.
Section 3.05. Deposit of Redemption Price.
At least one Business Day prior to the redemption date, the
Company shall deposit with the Trustee or 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 but
unpaid interest on all Notes to be redeemed on the redemption date. The
Trustee or the Paying Agent shall promptly return to the Company any money
deposited with the Trustee or the Paying Agent by the Company in excess of
the amounts necessary to pay the redemption price of, and accrued but
unpaid interest on, all Notes to be redeemed.
If the Company complies with the provisions of the preceding
paragraph, on and after at 12:00 a.m. on the redemption date, interest
shall cease to accrue on the Notes or the portions of Notes called for
redemption. If a Note is redeemed on or after an interest record date but
on or prior to the related Interest Payment Date, then any accrued but
unpaid interest shall be paid to the Person in whose name such Note was
registered at the close of business on such record date; otherwise, such
interest shall be paid to the Holder of the Note on the redemption date. If
any Note called for redemption shall not be so paid upon surrender for
redemption because of the failure of the Company to comply with the
preceding paragraph, interest shall be paid on the unpaid principal, from
the redemption date until such principal is paid, and to the extent lawful
on any interest not paid on such unpaid principal, in each case at the rate
provided in the Notes and in Section 4.01 hereof.
Section 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Company
shall issue and, upon the Company's written request, the Trustee shall
authenticate for the Holder at the expense of the Company a new Note equal
in principal amount to the unredeemed portion of the Note surrendered.
Section 3.07. Optional Redemption.
(a) Except as set forth in clause (b) of this Section 3.07, the
Company shall not have the option to redeem the Notes pursuant to this
Section 3.07 prior to June 15, 2005. Thereafter, subject to any
applicable limitations contained in the Senior Credit Agreement, the
Company shall have the option to redeem the Notes, in whole or in part, at
the redemption prices (expressed as percentages of accreted value) set
forth below plus accrued and unpaid interest, if any, thereon to the
applicable redemption date, if redeemed during the twelve-month period
beginning on June 15 of the years indicated below:
Year Percentage
---- ----------
2005.............................................................. 105.500%
2006.............................................................. 103.667%
2007.............................................................. 101.833%
2008 and thereafter............................................... 100.000%
(b) Notwithstanding the provisions of clause (a) of this Section
3.07, at any time prior to June 15, 2003, subject to any applicable
limitations contained in the Senior Credit Agreement, the Company may on
any one or more occasions redeem Notes with the Net Cash Proceeds of one or
more Equity Offerings at a redemption price equal to 111% of the aggregate
accreted value thereof plus accrued and unpaid interest, if any, thereon;
provided that at least 65% in aggregate principal amount at maturity of the
Notes originally issued remain outstanding immediately after the occurrence
of such redemption (excluding Notes held by the Company and its
Subsidiaries) and that such redemption occurs within 90 days of the date of
the closing of such Equity Offering.
(c) Any redemption pursuant to this Section 3.07 shall be made
pursuant to the provisions of Section 3.01 through 3.06 hereof.
Section 3.08. Mandatory Redemption.
The Company shall not be required to make mandatory redemption or
sinking fund payments with respect to the Notes.
Section 3.09. Offer to Purchase by Application of Excess Proceeds.
In the event that, pursuant to Section 4.07 hereof, the Company
shall be required to commence an offer to all Holders to purchase Notes (an
"Asset Sale Offer"), it shall follow the procedures specified below.
The Asset Sale Offer shall remain open for a period of not less
than 20 Business Days following its commencement, except to the extent that
the Company elects to provide a longer period or a longer period is
required by applicable law (the "Offer Period"). No later than five
Business Days after the termination of the Offer Period (the "Purchase
Date"), the Company shall purchase the principal amount of Notes required
to be purchased pursuant to Section 4.07 hereof (the "Offer Amount") or, if
less than the Offer Amount has been tendered, all Notes tendered in
response to the Asset Sale Offer. Payment for any Notes so purchased shall
be made in the same manner as interest payments are made.
If the Purchase Date is on or after an interest record date and on
or before the related Interest Payment Date, any accrued and unpaid
interest shall be paid to the Person in whose name a Note is registered at
the close of business on such record date; otherwise, no accrued but unpaid
interest shall be payable to Holders who tender Notes pursuant to the Asset
Sale Offer.
Upon the commencement of an Asset Sale Offer, the Company shall
send, by first-class mail, a notice to the Trustee and each of the Holders,
with a copy to the Trustee. The notice shall contain all instructions and
materials necessary to enable such Holders to tender Notes pursuant to the
Asset Sale Offer. The Asset Sale Offer shall be made to all Holders. The
notice, which shall govern the terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this
Section 3.09 and Section 4.07 hereof and the length of time the Asset Sale
Offer shall remain open;
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that any Note not tendered or accepted for payment shall
continue to accrue interest;
(d) that, unless the Company defaults in making such payment, any
Note accepted for payment pursuant to the Asset Sale Offer shall cease to
accrue interest after the Purchase Date;
(e) that Holders electing to have a Note purchased pursuant to an
Asset Sale Offer may elect to have Notes purchased in integral multiples of
$1,000 Principal Amount at maturity only (unless the Company shall have
elected otherwise);
(f) that Holders electing to have a Note purchased pursuant to any
Asset Sale Offer shall be required to surrender the Note, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Note
completed, or transfer by book-entry transfer, to the Company, a
depositary, if appointed by the Company, or a Paying Agent at the address
specified in the notice at least three days before the Purchase Date;
(g) that Holders shall be entitled to withdraw their election if
the Company, the Depositary or the Paying Agent, as the case may be,
receives, not later than the expiration of the Offer Period, a telegram,
telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Note the Holder delivered for purchase
and a statement that such Holder is withdrawing his election to have such
Note purchased;
(h) that, if the aggregate principal amount of Notes surrendered
by Holders exceeds the Offer Amount, the Company shall select the Notes to
be purchased on a pro rata basis (with such adjustments as may be deemed
appropriate by the Company so that (unless the Company shall have elected
otherwise) only Notes in denominations of $1,000 Principal Amount at
maturity, or integral multiples thereof, shall be purchased); and
(i) that Holders whose Notes were purchased only in part shall be
issued new Notes equal in principal amount to the unpurchased portion of
the Notes surrendered (or transferred by book-entry transfer).
On or before the Purchase Date, the Company shall, to the extent
lawful, accept for payment, on a pro rata basis to the extent necessary,
the Offer Amount of Notes or portions thereof tendered pursuant to the
Asset Sale Offer, or if less than the Offer Amount has been tendered, all
Notes tendered, and shall deliver to the Trustee an Officers' Certificate
stating that such Notes or portions thereof were accepted for payment by
the Company in accordance with the terms of this Section 3.09. The Company,
the Depositary or the Paying Agent, as the case may be, shall promptly (but
in any case not later than five days after the Purchase Date) mail or
deliver to each tendering Holder an amount equal to the purchase price of
the Notes tendered by such Holder and accepted by the Company for purchase,
and the Company shall promptly issue a new Note, and the Trustee, upon
written request from the Company shall authenticate and mail or deliver
such new Note to such Holder, in a principal amount equal to any
unpurchased portion of the Note surrendered. Any Note not so accepted shall
be promptly mailed or delivered by the Company to the Holder thereof. The
Company shall publicly announce the results of the Asset Sale Offer on the
Purchase Date.
Other than as specifically provided in this Section 3.09, any
purchase pursuant to this Section 3.09 shall be made pursuant to the
provisions of Sections 3.01 through 3.06 hereof.
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes.
The Company shall pay or cause to be paid the principal of,
premium, if any, and interest on the Notes on the dates and in the manner
provided in the Notes. Principal, premium, if any, and interest shall be
considered paid on the date due if the Paying Agent, if other than the
Company or a Subsidiary thereof, holds as of 11:00 a.m., Eastern Time, on
the due date money deposited by the Company in immediately available funds
and designated for payment of and sufficient to pay all principal, premium,
if any, and interest then due. In the event that the Company or any
Subsidiary thereof is acting as Paying Agent, principal, premium, if any,
and interest shall be considered paid on the date due if the Company or
such Subsidiary has segregated and is holding in a separate trust fund as
of 11:00 a.m., Eastern Time, on the due date money in immediately available
funds and designated for payment of and sufficient to pay all principal,
premium, if any, and interest then due.
The Company shall, to the extent lawful, pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on
overdue principal at the then applicable interest rate on the Notes; it
shall, to the extent lawful, pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue installments of
interest at the same rate.
Section 4.02. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, the City
of New York, an office or agency (which may be an office of the Trustee or
an affiliate of the Trustee, Registrar or co-registrar) where Notes may be
surrendered for registration of transfer or for exchange and where notices
and demands to or upon the Company in respect of the Notes and this
Indenture may be served. The Company shall give prompt written notice to
the Trustee of the location, and any change in the location, of such office
or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any
manner relieve the Company of its obligation to maintain an office or
agency in the Borough of Manhattan, the City of New York for such purposes.
The Company shall give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such
other office or agency.
The Company hereby designates the Corporate Trust Office of the
Trustee as one such office or agency of the Company in accordance with
Section 2.03 hereof.
Section 4.03. Reports.
So long as the Company is required by applicable law to comply
with the reporting requirements of Section 13 or 15(d) of the Exchange Act
in respect of any security issued by the Company, the Company, for so long
as it is permitted to do so by the Commission, shall furnish to the Trustee
and make available to the Holders of Notes (i) all quarterly and annual
financial information required to be contained in a filing with the
Commission on Forms 10-Q and 10-K, including a "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and, with
respect to annual information only, a report thereon by the Company's
certified independent accountants and (ii) all current reports required to
be filed with the Commission on Form 8-K, in each case, within 15 days
after the filing of any such quarterly or annual financial information or
current report with the Commission. In addition, the Company shall file all
such information and reports with the Commission for public availability
(unless the Commission will not accept such a filing) and make such
information available to securities analysts and prospective investors upon
request. The Company shall at all times comply with TIA ss. 314(a).
Section 4.04. Compliance Certificate.
(a) The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year, an Officers' Certificate stating that a
review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture, the Notes and
the Security Agreements, and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge the
Company has kept, observed, performed and fulfilled each and every covenant
contained in this Indenture, the Notes and the Security Agreements and is
not in default in the performance or observance of any of the terms,
provisions and conditions of this Indenture, the Notes or the Security
Agreements (or, if a Default or Event of Default shall have occurred,
describing all such Defaults or Events of Default of which he or she may
have knowledge and what action the Company is taking or proposes to take
with respect thereto) and that to the best of his or her knowledge no event
has occurred and remains in existence by reason of which payments on
account of the principal of or interest, if any, on the Notes is prohibited
or if such event has occurred, a description of the event and what action
the Company is taking or proposes to take with respect thereto.
(b) The Company shall, so long as any of the Notes are
outstanding, deliver to the Trustee, within 5 days after the occurrence of
any Default or Event of Default, an Officers' Certificate specifying such
Default or Event of Default and what action the Company is taking or
proposes to take with respect thereto.
Section 4.05. Taxes.
The Company shall pay, and shall cause each of its Subsidiaries to
pay, prior to delinquency, all material taxes, assessments, and
governmental levies except such as are contested in good faith and by
appropriate proceedings or where the failure to effect such payment is not
adverse in any material respect to the Holders of the Notes.
Section 4.06. Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do so)
that it shall not at any time insist upon, plead or in any manner
whatsoever claim or take the benefit or advantage of, any stay, extension
or usury law wherever enacted, now or at any time hereafter in force, that
may affect the covenants or the performance of this Indenture; and the
Company (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law and covenants that it shall not,
by resort to any such law, hinder, delay or impede the execution of any
power herein granted to the Trustee, but shall suffer and permit the
execution of every such power as though no such law has been enacted.
Section 4.07. Asset Sales.
Until such time as all obligations under the Senior Credit
Agreement have been paid in full in cash or other payment satisfactory to
the Senior Lenders and all lending commitments thereunder have been
terminated, the Company and/or any Restricted Subsidiary may make Asset
Dispositions as and to the extent permitted under the Senior Credit
Agreement or with the consent of the requisite percentage of Senior
Lenders, and the Net Available Cash from any such Asset Disposition shall
be utilized (including the retention of any such proceeds by the Company
for working capital or other purposes) in accordance with the Senior Credit
Agreement or as otherwise permitted, from time to time, by the requisite
percentage of Senior Lenders. Following such time as all obligations under
the Senior Credit Agreement have been paid in full in cash or other payment
satisfactory to the Senior Lenders and all lending commitments thereunder
have been terminated, the Company shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly, consummate any Asset
Disposition, unless:
(1) the Company or the Restricted Subsidiary receives
consideration at the time of such Asset Disposition at least equal to the
fair market value, as determined in good faith by the Board of Directors
(including as to the value of all noncash consideration), of the shares and
assets subject to such Asset Disposition and at least 75% of the
consideration therefor received by the Company or such Restricted
Subsidiary is in the form of cash or cash equivalents; and
(2) an amount equal to 100% of the Net Available Cash from such
Asset Disposition is applied by the Company (or such Restricted Subsidiary,
as the case may be):
(A) first, to the extent the Company elects (or
is required by the terms of any Senior Debt), to prepay,
repay or purchase Senior Debt or Senior Debt (other than
any Redeemable Stock) of a Wholly Owned Subsidiary (in
each ease other than Debt owed to the Company or an
Affiliate of the Company) within 180 days from the later
of the date of such Asset Disposition or the receipt of
such Net Available Cash;
(B) second, to the extent of the balance of such
Net Available Cash after application in accordance with
clause (A), at the Company's election, to the investment
by the Company, any Wholly Owned Subsidiary or the
Restricted Subsidiary making such Asset Disposition in
assets to replace the assets that were the subject of
such Asset Disposition or an asset that (as determined by
the Board of Directors) will be used in the business of
the Company, any Wholly Owned Subsidiary or the
Restricted Subsidiary making such Asset Disposition in
businesses reasonably related thereto, in each case,
within the later of one year from the date of such Asset
Disposition or the receipt of such Net Available Cash;
(C) third, to the extent of the balance of such
Net Available Cash after application and in accordance
with clauses (A) and (B), to make an offer to purchase
Notes (and any Senior Debt of the Company designated by
the Company) pursuant to and subject to the conditions
contained in this Indenture; and
(D) fourth, to the extent of the balance of such
Net Available Cash after application in accordance with
clauses (A), (B) and (C), to the prepayment, repayment or
purchase of Debt (other than any Redeemable Stock) of the
Company or Debt of any Restricted Subsidiary (in either
case, other than Debt owed to the Company or an Affiliate
of the Company), in each case, within one year from the
later of the receipt of such Net Available Cash and the
date the offer described in clause (C) above is
consummated;
provided, however, that in connection with any prepayment, repayment or
purchase of Debt pursuant to clause (A), (C) or (D) above, the Company
shall cause the related loan commitment (if any) to be permanently reduced
in an amount equal to the principal amount so prepaid, repaid or purchased.
Notwithstanding the foregoing provisions of this paragraph, the Company and
its Restricted Subsidiaries shall not be required to apply any Net
Available Cash in accordance with this paragraph, except to the extent that
the aggregate Net Available Cash from all Asset Dispositions which are not
applied in accordance with this paragraph exceeds $20.0 million. Pending
application of Net Available Cash pursuant to this paragraph, such Net
Available Cash shall be invested in Temporary Cash Investments or used to
reduce the amount of Debt outstanding under any revolving credit facility
to which the Company may then be a party. Notwithstanding the foregoing,
any Net Available Cash associated with the sale, disposition or other
transfer ("Transfer") of Collateral shall be held in the Collateral
Account, as provided in Section 11.04 hereof, until applied by the Company
in accordance with the provisions of this Section 4.07.
For the purposes of this Section 4.07, the following are deemed to
be cash or "cash equivalents":
(1) the express assumption of Debt of the Company or any
Restricted Subsidiary and the release of the Company or such Restricted
Subsidiary from all liability on such Debt in connection with such Asset
Disposition; and
(2) securities received by the Company or any Restricted
Subsidiary from the transferee that are converted by the Company or such
Restricted Subsidiary into cash within 90 days of the receipt of such
securities.
The 75% limitation referred to in the previous paragraph shall not apply to
any Asset Disposition in which the cash portion of the consideration
received therefor, determined in accordance with the previous sentence, is
equal to or greater than what the after-tax cash proceeds would have been
had such Asset Disposition complied with such 75% limitation.
In the event of an Asset Disposition that requires the purchase of
the Notes (and other Senior Debt) pursuant to clause (2)(C) above, the
Company will be required to purchase Notes tendered pursuant to an offer by
the Company for the Notes (and other Senior Debt) at a purchase price of
100% of their accreted value (without premium) plus accrued but unpaid
interest, if any (or, in respect of such other Senior Debt, such price, if
any, as may be provided for by the terms of such Senior Debt), in
accordance with the procedures (including prorating in the event of
oversubscription) set forth in this Indenture. If the aggregate purchase
price of Notes (and any other Senior Debt) tendered pursuant to such offer
is less than the Net Available Cash allotted to the purchase thereof, the
Company will be required to apply the remaining Net Available Cash in
accordance with clause (2)(D) above. The Company shall not be required to
make such an offer to purchase Notes (and other Senior Debt) pursuant to
this Section 4.07 if the Net Available Cash available therefor is less than
$20.0 million (which lesser amount shall be carried forward for purposes of
determining whether such an offer is required with respect to any
subsequent Asset Disposition).
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 (and
invested in accordance with the last sentence of the first paragraph of
this Section 4.07) so long, but only so long, as the applicable local law
will not permit repatriation to the United States. The Company will agree
to 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 shall be applied in the manner as
described in this Section 4.07.
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 Notes pursuant to
this Section 4.07. To the extent that the provisions of any securities laws
or regulations conflict with the provisions of this Section 4.07, the
Company shall comply with the applicable securities laws and regulations
and shall not be deemed to have breached its obligations under this clause
by virtue of such conflict and compliance.
Section 4.08. Liens.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, create, incur, assume or suffer to exist or become
effective any Lien upon any of its other property or assets, now owned or
hereafter acquired, other than Permitted Liens.
Section 4.09. Corporate Existence.
Subject to Article 5 hereof, the Company shall do or cause to be
done all things necessary to preserve and keep in full force and effect (1)
its corporate existence, and the corporate, partnership or other existence
of each of its Restricted Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to time) of
the Company or any such Restricted Subsidiary and (2) the rights (charter
and statutory), licenses and franchises of the Company and its Restricted
Subsidiaries; provided, however, that the Company shall not be required to
preserve any such right, license or franchise, or the corporate,
partnership or other existence of any of its Restricted Subsidiaries, if
the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and its
Restricted Subsidiaries, taken as a whole, and that the loss thereof is not
adverse in any material respect to the Holders of the Notes.
Section 4.10. Offer to Repurchase Upon Change of Control.
(a) Upon the occurrence of a Change of Control, subject to any
applicable limitations contained in the Senior Credit Agreement, the
Company shall make an offer (a "Change of Control Offer") to each Holder to
repurchase all or any part (equal to $1,000 Principal Amount at maturity or
an integral multiple thereof) of each Holder's Notes at a purchase price
equal to 101% of the aggregate accreted value thereof plus accrued and
unpaid interest thereon, if any, to the date of repurchase (subject to the
right of Holders of record on the relevant record date to receive interest,
if any, due on the relevant interest payment date) (the "Change of Control
Payment").
Within 30 days following any Change of Control, the Company shall
mail a notice to each Holder with a copy to the Trustee stating:
(1) that a Change of Control has occurred and that such Holder has
the right to require the Company to purchase such Holder's Notes at a
purchase price in cash equal to 101% of the accreted value of the Notes
repurchased plus accrued and unpaid interest (if any) to the date of
purchase (subject to the right of Holders of record on the relevant record
date to receive interest due on the relevant interest payment date); (2)
the material circumstances and facts regarding such Change of Control
(including, without limitation, information with respect to pro forma
historical income, cash flow and capitalization after giving effect to such
Change of Control); (3) the repurchase date, which shall be no earlier than
30 days nor later than 60 days from the date such notice is mailed (the
"Change of Control Payment Date"); (4) that any Note not tendered will
continue to accrue interest; (5) that, unless the Company defaults in the
payment of the Change of Control Payment, all Notes accepted for payment
pursuant to the Change of Control Offer shall cease to accrue interest
after the Change of Control Payment Date; (6) that Holders electing to have
any Notes purchased pursuant to a Change of Control Offer will be required
to surrender the Notes, with the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Notes completed, to the Paying Agent at the
address specified in the notice prior to the close of business on the third
Business Day preceding the Change of Control Payment Date; (7) that Holders
will be entitled to withdraw their election if the Paying Agent receives,
not later than the close of business on the second Business Day preceding
the Change of Control Payment Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of Notes delivered for purchase, and a statement that such Holder is
withdrawing its election to have the Notes purchased; and (8) that Holders
whose Notes are being purchased only in part will be issued new Notes equal
in principal amount to the unpurchased portion of the Notes surrendered,
which unpurchased portion must be equal to $1,000 Principal Amount at
maturity or an integral multiple thereof.
(b) On the Change of Control Payment Date, the Company shall, to
the extent lawful, (1) accept for payment all Notes or portions thereof
properly tendered pursuant to the Change of Control Offer, (2) deposit with
the Paying Agent an amount equal to the Change of Control Payment in
respect of all Notes or portions thereof so tendered and (3) deliver or
cause to be delivered to the Trustee the Notes so accepted together with an
Officers' Certificate stating the aggregate principal amount of Notes or
portions thereof being purchased by the Company. The Paying Agent shall
promptly mail to each Holder of Notes so tendered payment in an amount
equal to the purchase price for the Notes, and the Trustee shall promptly
authenticate and mail (or cause to be transferred by book entry) to each
Holder a new Note equal in Principal Amount to any unpurchased portion of
the Notes surrendered by such Holder, if any; provided, that each such new
Note shall be in a Principal Amount at maturity of $1,000 or an integral
multiple thereof. The Company shall publicly announce the results of the
Change of Control Offer on or as soon as practicable after the Change of
Control Payment Date.
The Company shall 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 Notes pursuant to
this Section 4.10. To the extent that the provisions of any securities laws
or regulations conflict with the provisions of this Section 4.10, the
Company shall comply with the applicable securities laws and regulations
and shall not be deemed to have breached its obligations under this Section
4.10 by virtue of such conflict and compliance. Neither the Board of
Directors nor the Trustee may waive compliance by the Company with its
obligations to repurchase Notes upon a Change of Control.
Section 4.11. No Amendment of Subordination Provisions.
Without the consent of each Holder of the Notes outstanding, the
Company will not amend, modify or alter the indenture relating to the
Existing Subordinated Notes in any way that will (i) increase the rate of
or change the time for payment of interest on any of the Existing
Subordinated Notes, (ii) increase the principal of, advance the final
maturity date of or shorten the Stated Maturity of any of the Existing
Subordinated Notes, (iii) alter the redemption provisions or the price or
terms at which the Company is required to offer to purchase any of the
Existing Subordinated Notes in any manner adverse to the Holders or (iv)
amend the provisions of the indenture relating to the Existing Subordinated
Notes which relate to subordination in any manner adverse to the Holders.
ARTICLE 5
SUCCESSORS
Section 5.01. Merger, Consolidation or Sale of Assets.
Until such time as all obligations under the Senior Credit
Agreement have been paid in full in cash or other payment satisfactory to
the Senior Lenders and all lending commitments thereunder have been
terminated, unless permitted by the terms of the Senior Credit Agreement or
approved by the requisite percentage of Senior Lenders, the Company shall
not consolidate with or merge with or into, or convey, transfer or lease,
in one transaction or a series of related transactions, all or
substantially all its assets to, any Person. Following such time as all
obligations under the Senior Credit Agreement have been paid in full in
cash or other payment satisfactory to the Senior Lenders and all lending
commitments thereunder have been terminated, the Company will not
consolidate with or merge with or into, or convey, transfer or lease, in
one transaction or a series of related transactions, all or substantially
all of its assets to, any Person unless:
(1) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or the Person which
acquires by conveyance, transfer or lease the properties and assets of the
Company substantially as an entirety shall be a corporation, limited
liability company, partnership or trust organized and validly existing
under the laws of the United States of America or any State thereof or the
District of Columbia, and shall expressly assume by a supplemental
indenture, executed and delivered to the Trustee in form satisfactory to
the Trustee, the due and punctual payment of the Principal Amount, Issue
Price, accrued Original Issue Discount, redemption price, purchase price,
Change of Control Payment or interest, if any, on the Notes, according to
their tenor, and the due and punctual performance of all of the covenants
and obligations of the Company under the Notes and this Indenture;
(2) immediately after giving effect to such transaction, no
Default shall have occurred and be continuing; and
(3) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a supplemental
indenture is required in connection with such transaction, such
supplemental indenture, comply with this Indenture and that all conditions
precedent provided for in this Indenture relating to such transaction have
been satisfied.
The successor Person formed by such consolidation or into which
the Company is merged or the successor Person to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with
the same effect as if such successor had been named as the Company therein;
and thereafter, the Company shall be discharged from all obligations and
covenants under this Indenture and the Notes.
Section 5.02. Successor Person Substituted.
Upon any consolidation or merger, or any sale, assignment,
transfer, lease, conveyance or other disposition of all or substantially
all of the assets of the Company in accordance with Section 5.01 hereof,
the successor Person formed by such consolidation or into or with which the
Company is merged or to which such sale, assignment, transfer, lease,
conveyance or other disposition is made shall succeed to, and be
substituted for (so that from and after the date of such consolidation,
merger, sale, assignment, lease, conveyance or other disposition the
provisions of this Indenture referring to the "Company" shall refer instead
to the successor Person and not to the Company), and may exercise every
right and power of the Company under this Indenture with the same effect as
if such successor Person had been named as the Company herein; provided,
however, that the predecessor Person shall not be relieved from the
obligation to pay the principal of and interest on the Notes except in the
case of a sale of all of the Company's assets that meets the requirements
of Section 5.01 hereof.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
An "Event of Default" means:
(1) a default in any payment of interest on any Note when the same
becomes due and payable, and such default continues for a period of 30
days;
(2) a default in the payment of the principal of any Note when the
same becomes due and payable at its Stated Maturity, upon redemption, upon
declaration, upon required repurchase or otherwise;
(3) the failure by the Company to comply with its obligations
pursuant to Section 5.01 hereof;
(4) the failure by the Company to observe or perform any of its
obligations under Section 4.07 or 4.10 (in each case, other than a failure
to purchase Notes) of this Indenture for 30 days after notice to the
Company by the Trustee or the Holders of at least 25% in aggregate
principal amount of the Notes then outstanding voting as a single class;
(5) the failure by the Company to observe or perform any other
covenant, representation, warranty or other agreement in this Indenture
(other than those referred to in clause (1), (2), (3), or (4) above) or the
Notes for 60 days after notice to the Company by the Trustee or the Holders
of at least 25% in aggregate principal amount of the Notes then outstanding
voting as a single class;
(6) a default under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced any
Debt for money borrowed by the Company or any of its Restricted
Subsidiaries (or the payment of which is Guaranteed by the Company or any
of its Restricted Subsidiaries) whether such Debt or Guarantee now exists,
or is created after the date hereof, which default:
(a) is caused by failure to pay principal of or premium,
if any, or interest on such Debt prior to the expiration of the
grace period provided in such Debt on the date of such default
("Payment Default"); or
(b) results in the acceleration of such Debt prior to its
Stated Maturity;
and, in each case, the principal amount of any such Debt, together with the
principal amount of any other such Debt under which there has been a
Payment Default or the maturity of which has been so accelerated,
aggregates $25.0 million or more;
(7) any final non-appealable judgment or decree not covered by
insurance, or as to which the insurance carrier has denied responsibility
for the payment of money, in each case, in excess of $50.0 million is
rendered against the Company or any Significant Subsidiary and is not
discharged and there is a period of 60 days following such judgment during
which such judgment or decree is not discharged, waived or the execution
thereof stayed;
(8) The Company or any of its Significant Subsidiaries, pursuant
to or within the meaning of Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against
it in an involuntary case,
(iii) consents to the appointment of a custodian of it or
for all or substantially all of its property,
(iv) makes a general assignment for the benefit of its
creditors, or
(v) generally is not paying its debts as they become due;
or
(9) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(i) is for relief against the Company or any of its
Significant Subsidiaries in an involuntary case;
(ii) appoints a custodian of the Company or any of its
Significant Subsidiaries for all or substantially all of the
property of the Company or any of its Significant Subsidiaries; or
(iii) orders the liquidation of the Company or any of its
Significant Subsidiaries;
and the order or decree remains unstayed and in effect for 60 consecutive days.
Section 6.02. Acceleration.
If any Event of Default (other than an Event of Default specified
in clause (8) or (9) of Section 6.01 hereof with respect to the Company or
any of its Significant Subsidiaries) occurs and is continuing, the Trustee
or the Holders of at least 25% in principal amount of the then outstanding
Notes may declare all the principal of and accrued but unpaid interest on
the Notes to be due and payable immediately. Upon any such declaration,
subject to the subordination provisions described in Article 10 hereof and
the complete standstill in favor of the Senior Lenders with respect to the
Collateral described in Article 11 hereof and the Security Agreements, the
Notes shall become due and payable. If an Event of Default specified in
clause (8) or (9) of Section 6.01 hereof occurs with respect to the Company
or any of its Significant Subsidiaries and is continuing, the principal of
and accrued but unpaid interest on all the Notes shall ipso facto become
and be immediately due and payable immediately without any declaration or
other act on the part of the Trustee or any Holders of the Notes. The
Holders of a majority in aggregate principal amount of the then outstanding
Notes by written notice to the Trustee may on behalf of all of the Holders
rescind an acceleration and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Events of Default
(except nonpayment of principal, interest or premium that has become due
solely because of the acceleration) have been cured or waived.
Section 6.03. Other Remedies.
If an Event of Default occurs and is continuing, subject to the
terms of the Security Agreements and Articles 10 and 11 hereof, the Trustee
may pursue any available remedy to collect the payment of principal,
premium, if any, and interest on the Notes or to enforce the performance of
any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Notes or does not produce any of them in the proceeding. A delay
or omission by the Trustee or any Holder of a Note in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default.
All remedies are cumulative to the extent permitted by law.
Section 6.04. Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal amount
of the then outstanding Notes by notice to the Trustee may on behalf of the
Holders of all of the Notes waive an existing Default or Event of Default
and its consequences hereunder, except a continuing Default or Event of
Default in the payment of the principal of, premium, if any, or interest
on, the Notes (including in connection with an offer to purchase)
(provided, however, that the Holders of a majority in aggregate principal
amount of the then outstanding Notes may rescind an acceleration and its
consequences, including any related payment default that resulted from such
acceleration). Upon any such waiver, such Default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.
Section 6.05. Control by Majority.
Holders of a majority in principal amount at maturity of the then
outstanding Notes may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee or exercising
any trust or power conferred on it. However, the Trustee may refuse to
follow any direction that conflicts with law or this Indenture or if,
subject to Section 7.01, the Trustee reasonably determines that such
action, if taken, would be unduly prejudicial to the rights of other
Holders of Notes or that may involve the Trustee in personal liability.
Section 6.06. Limitation on Suits.
A Holder of a Note may pursue a remedy with respect to this
Indenture or the Notes only if:
(1) such Holder has previously given the Trustee notice that an
Event of Default is continuing;
(2) Holders of at least 25% in principal amount of the outstanding
Notes have requested the Trustee to pursue the remedy;
(3) such Holders have offered the Trustee reasonable security or
indemnity against any loss, liability or expense;
(4) the Trustee is permitted to take action under the terms of the
Security Agreements and Articles 10 and 11 hereof and has not complied with
such request within 60 days after the receipt thereof and the offer of
security or indemnity; and
(5) Holders of a majority in principal amount of the outstanding
Notes have not given the Trustee a direction inconsistent with such request
within such 60-day period. Subject to certain restrictions, the Holders of
a majority in principal amount of the outstanding Notes are given the right
to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or of exercising any trust or power
conferred on the Trustee.
A Holder of a Note may not use this Indenture to prejudice the
rights of another Holder of a Note or to obtain a preference or priority
over another Holder of a Note.
Section 6.07. Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right
of any Holder of a Note to receive payment of principal, premium, if any,
and interest on the Note, on or after the respective due dates expressed in
the Note (including in connection with an offer to purchase), or to bring
suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such
Holder; provided that a Holder shall not have the right to institute any
such suit for the enforcement of payment if and to the extent that the
institution or prosecution thereof or the entry of judgment therein would,
under applicable law, result in the surrender, impairment, waiver or loss
of the Second Lien granted under the Security Agreements upon any property
subject to such Second Lien.
Section 6.08. Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(1) or (2) occurs
and is continuing, the Trustee is authorized to recover judgment in its own
name and as trustee of an express trust against the Company for the whole
amount of principal of, premium, if any, and interest remaining unpaid on
the Notes and interest on overdue principal and, to the extent lawful,
interest and such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel.
Section 6.09. Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel) and the Holders of the Notes allowed in any judicial proceedings
relative to the Company (or any other obligor upon the Notes), its
creditors or its property and shall be entitled and empowered to collect,
receive and distribute any money or other property payable or deliverable
on any such claims and any custodian in any such judicial proceeding is
hereby authorized by each Holder to make such payments to the Trustee, and
in the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 7.07 hereof. To the extent that the payment of any such
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under Section
7.07 hereof out of the estate in any such proceeding, shall be denied for
any reason, payment of the same shall be secured by a Lien on, and shall be
paid out of, any and all distributions, dividends, money, securities and
other properties that the Holders may be entitled to receive in such
proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder, or to
authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding.
Section 6.10. Priorities.
Subject to the terms of the Security Agreements and Articles 10
and 11 hereof, if the Trustee collects any money pursuant to this Article,
it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due
under Section 7.07 hereof, including payment of all compensation,
expense and liabilities incurred, and all advances made, by the
Trustee and the costs and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the
Notes for principal, premium, if any, and interest, ratably,
without preference or priority of any kind, according to the
amounts due and payable on the Notes for principal, premium, if
any, and interest, respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment
to Holders of Notes pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or
omitted by it as a Trustee, a court in its discretion may require the
filing by any party litigant in the suit of an undertaking to pay the costs
of the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or
defenses made by the party litigant. This Section does not apply to a suit
by the Trustee, a suit by a Holder of a Note pursuant to Section 6.07
hereof, or a suit by Holders of more than 10% in principal amount at
maturity of the then outstanding Notes.
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a
prudent person would exercise or use under the circumstances in the conduct
of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely
by the express provisions of this Indenture and the Trustee need
perform only those duties that are specifically set forth in this
Indenture and no others, and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Trustee and conforming to the
requirements of this Indenture but, in the case of any such
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture (but need
not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein).
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph
(b) of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with
a direction received by it from the Holders of a majority in
principal amount at maturity of the outstanding Notes or pursuant
to Section 6.05 hereof relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under
this Indenture with respect to the Notes.
(d) Whether or not therein expressly so provided, every provision
of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b), and (c) of this Section.
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any liability. The Trustee shall be
under no obligation to exercise any of its rights and powers under this
Indenture at the request of any Holders, unless such Holder shall have
offered to the Trustee security and indemnity satisfactory to it against
any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
Section 7.02. Rights of Trustee.
(a) The Trustee may conclusively rely upon 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 or both. The
Trustee shall not be liable for any action it takes or omits to take in
good faith in reliance on such Officers' Certificate or Opinion of Counsel.
The Trustee may consult with counsel of its selection and the advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection from liability in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed
with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith that it reasonably believes to be authorized or
within the rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient
if signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in this Indenture at the request or direction
of any of the Holders unless such Holders shall have offered to the Trustee
security or indemnity satisfactory to it against the costs, expenses and
liabilities that might be incurred by it in compliance with such request or
direction.
(g) The Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact
such a Default is received by the Trustee at the Corporate Trust Office of
the Trustee, and such notice references the Notes and this Indenture.
Section 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the
Commission for permission to continue as Trustee or resign. Any Agent may
do the same with like rights and duties. The Trustee is also subject to
Sections 7.10 and 7.11 hereof.
Section 7.04. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the
Notes, it shall not be accountable for the Company's use of the proceeds
from the Notes or any money paid to the Company or upon the Company's
direction under any provision of this Indenture, it shall not be
responsible for the use or application of any money received by any Paying
Agent other than the Trustee, and it shall not be responsible for any
statement or recital herein or any statement in the Notes or any other
document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
Section 7.05. Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if
it is known to the Trustee, the Trustee shall mail to Holders of Notes a
notice of the Default or Event of Default within 90 days after it occurs.
Except in the case of a Default or Event of Default in payment of principal
of, premium, if any, or interest on any Note, the Trustee may withhold the
notice if and so long as a committee of its Responsible Officers in good
faith determines that withholding the notice is in the interests of the
Holders of the Notes.
Section 7.06. Reports by Trustee to Holders of the Notes.
Within 60 days after each June 15, beginning with June 15, 2001,
and for so long as Notes remain outstanding, the Trustee shall mail to the
Holders of the Notes a brief report dated as of such reporting date that
complies with TIA ss. 313(a) (but if no event described in TIA ss. 313(a)
has occurred within the twelve months preceding the reporting date, no
report need be transmitted). The Trustee also shall comply with TIA ss.
313(b)(2) to the extent applicable. The Trustee shall also transmit by mail
all reports as required by TIA ss. 313(c).
A copy of each report at the time of its mailing to the Holders of
Notes shall be mailed to the Company and filed with the Commission and each
stock exchange on which the Notes are listed, if any, in accordance with
TIA ss. 313(d). The Company shall promptly notify the Trustee if and when
the Notes are listed on any stock exchange and of any delisting thereof.
Section 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time such
compensation for its acceptance of this Indenture and services hereunder as
the Company and the Trustee shall from time to time agree to in writing The
Trustee's compensation shall not be limited by any law on compensation of a
Trustee of an express trust. The Company shall reimburse the Trustee
promptly upon request for all reasonable disbursements, advances and
expenses incurred or made by it in addition to the compensation for its
services. Such expenses shall include the reasonable compensation,
disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee against any and all
losses, liabilities or expenses incurred by it arising out of or in
connection with the acceptance or administration of its duties under this
Indenture, including the costs and expenses of enforcing this Indenture
against the Company (including this Section 7.07) and defending itself
against any claim (whether asserted by the Company or any Holder or any
other Person) or liability in connection with the exercise or performance
of any of its powers or duties hereunder, except to the extent any such
loss, liability or expense may be attributable to its negligence or willful
misconduct. The Trustee shall notify the Company promptly of any claim for
which it may seek indemnity. Failure by the Trustee to so notify the
Company shall not relieve the Company of its obligations hereunder except,
solely as it pertains to such claim, to the extent that the Company may be
materially prejudiced by such failure. The Company shall defend the claim
and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel and the Company shall pay the reasonable fees and expenses
of such counsel. The Company need not pay for any settlement made without
its consent, which consent shall not be unreasonably withheld.
The obligations of the Company under this Section 7.07 shall
survive the satisfaction and discharge of this Indenture.
To secure the Company's payment obligations in this Section, the
Trustee shall have a Lien prior to the Notes on all money or property held
or collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes. Such Lien shall survive the satisfaction and
discharge of this Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(8) or (9) hereof occurs, the
expenses and the compensation for the services (including the fees and
expenses of its agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.
Section 7.08. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.08.
The Trustee may resign at any time and be discharged from the
trust hereby created by so notifying the Company in writing. The Holders of
a majority in principal amount of the then outstanding Notes may remove the
Trustee by so notifying the Trustee and the Company in writing. The Company
may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order
for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a custodian 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 at maturity of the
then outstanding Notes may appoint a successor Trustee to replace the
successor Trustee appointed by the Company.
If a successor Trustee does not take office within 30 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of at least 10% in principal amount at maturity of
the then outstanding Notes may petition any court of competent jurisdiction
for the appointment of a successor Trustee.
If the Trustee, after written request by any Holder who has been a
Holder for at least six months, fails to comply with Section 7.10, such
Holder may petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and
the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of
its succession to Holders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, provided all sums
owing to the Trustee hereunder have been paid and subject to the Lien
provided for in Section 7.07 hereof. Notwithstanding replacement of the
Trustee pursuant to this Section 7.08, the Company's obligations under
Section 7.07 hereof shall continue for the benefit of the retiring Trustee.
Section 7.09. Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
Section 7.10. Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United
States of America or of any state thereof that is authorized under such
laws to exercise corporate trustee power, that is subject to supervision or
examination by federal or state authorities and that has, or is a direct or
indirect wholly owned subsidiary of a bank holding company that has, a
combined capital and surplus of at least $100.0 million as set forth in its
most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA xx.xx. 310(a)(1), (2) and (5). The Trustee is subject
to TIA ss. 310(b).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee is subject to TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.
Subject to any applicable limitations contained in the Senior
Credit Agreement, the Company may, at the option of its Board of Directors
evidenced by a resolution set forth in an Officers' Certificate, at any
time, elect to have either Section 8.02 or 8.03 hereof be applied to all
outstanding Notes upon compliance with the conditions set forth below in
this Article 8.
Section 8.02. Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.02, the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be deemed
to have been discharged from its obligations with respect to all
outstanding Notes on the date the conditions set forth below are satisfied
(hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance means
that the Company shall be deemed to have paid and discharged the entire
Debt represented by the outstanding Notes, which shall thereafter be deemed
to be "outstanding" only for the purposes of Section 8.05 hereof and the
other Sections of this Indenture referred to in clauses (a) and (b) below,
and to have satisfied all its other obligations under such Notes and this
Indenture (and the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the
following provisions which shall survive until otherwise terminated or
discharged hereunder: (a) the rights of Holders of outstanding Notes to
receive solely from the trust fund described in Section 8.04 hereof, and as
more fully set forth in such Section, payments in respect of the principal
of, premium, if any, and interest on such Notes when such payments are due,
(b) the Company's obligations with respect to such Notes under Article 2
and Section 4.02 hereof, (c) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and the Company's obligations in
connection therewith and (d) this Article 8. Subject to compliance with
this Article 8 and any applicable limitations contained in the Senior
Credit Agreement, the Company may exercise its option under this Section
8.02 notwithstanding the prior exercise of its option under Section 8.03
hereof.
Section 8.03. Covenant Defeasance.
Upon the Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.03, the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be
released from its obligations under the provisions of Sections 4.07, 4.08,
4.10 and Article 5 hereof with respect to the outstanding Notes on and
after the date the conditions set forth in Section 8.04 are satisfied
(hereinafter, "Covenant Defeasance"), and the Notes shall thereafter be
deemed not "outstanding" for the purposes of any direction, waiver, consent
or declaration or act of Holders (and the consequences of any thereof) in
connection with such Sections, but shall continue to be deemed
"outstanding" for all other purposes hereunder (it being understood that
such Notes shall not be deemed outstanding for accounting purposes). For
this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any
such Section or Article, whether directly or indirectly, by reason of any
reference elsewhere herein to any such Section or by reason of any
reference in any such Section to any other provision herein or in any other
document and such omission to comply shall not constitute a Default or an
Event of Default under Section 6.01 hereof, but, except as specified above,
the remainder of this Indenture and such Notes shall be unaffected thereby.
In addition, upon the Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.03 hereof, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, Sections 6.01(3)
through 6.01(7) hereof and, with respect only to Significant Subsidiaries,
Sections 6.01(8) and 6.01(9) shall not constitute Events of Default.
Section 8.04. Conditions to Legal or Covenant Defeasance.
In addition to any applicable limitations contained in the Senior
Credit Agreement, the following shall be the conditions to the application
of either Section 8.02 or 8.03 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant
Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders, cash in United States dollars, U.S.
Government Obligations, or a combination thereof, in such amounts as will
be sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay the principal of, premium, if any,
and interest on the outstanding Notes on the stated date for payment
thereof or on the applicable redemption date, as the case may be;
(b) in the case of an election under Section 8.02 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Trustee confirming that (A) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the date of this Indenture, there has
been a change in the applicable United States federal income tax law, in
either case to the effect that, and based thereon such Opinion of Counsel
shall confirm that, the Holders of the outstanding Notes will not recognize
income, gain or loss for United States federal income tax purposes as a
result of such Legal Defeasance and will be subject to United States
federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Legal Defeasance had not
occurred;
(c) in the case of an election under Section 8.03 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Trustee confirming that the
Holders of the outstanding Notes will not recognize income, gain or loss
for United States federal income tax purposes as a result of such Covenant
Defeasance and will be subject to United States federal income tax on the
same amounts, in the same manner and at the same times as would have been
the case had such Covenant Defeasance not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of
Default resulting from the incurrence of Debt all or a portion of the
proceeds of which will be used to defease the Notes pursuant to this
Article 8 concurrently with such incurrence) or insofar as Sections 6.01(8)
or 6.01(9) hereof are concerned and pertain to the Company, at any time in
the period ending on the 91st day after the date of deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not result
in a breach or violation of, or constitute a default under, any material
agreement or instrument (other than this Indenture) to which the Company or
any of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an Opinion of
Counsel (which may be subject to customary exceptions) to the effect that
on the 91st day following the deposit, the trust funds will not be subject
to the effect of any applicable Bankruptcy Law;
(g) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders over any other creditors of the Company or
with the intent of defeating, hindering, delaying or defrauding any other
creditors of the Company; and
(h) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the Covenant
Defeasance have been complied with.
Section 8.05. Deposited Money and U.S. Government Obligations to be Held
in Trust; Other Miscellaneous Provisions.
Subject to Section 8.06 hereof, all money and U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 8.05,
the "Trustee") pursuant to Section 8.04 hereof in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of the Notes and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as Paying Agent) as the Trustee may determine, to the Holders of
such Notes of all sums due and to become due thereon in respect of
principal, premium, if any, and interest, but such money need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the cash or U.S.
Government Obligations deposited pursuant to Section 8.04 hereof or the
principal and interest received in respect thereof other than any such tax,
fee or other charge which by law is for the account of the Holders of the
outstanding Notes.
Anything in this Article 8 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the
request of the Company any money or U.S. Government Obligations held by it
as provided in Section 8.04 hereof which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee (which may be the opinion
delivered under Section 8.04(a) hereof), are in excess of the amount
thereof that would then be required to be deposited to effect an equivalent
Legal Defeasance or Covenant Defeasance.
Section 8.06. Repayment to Company.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of, premium,
if any, or interest on any Note and remaining unclaimed for two years after
such principal, and premium, if any, or interest has become due and payable
shall be paid to the Company on its request or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Note
shall thereafter look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as Trustee thereof, shall thereupon
cease; provided, however, that before making any such repayment, the
Company shall publish once, in The New York Times and The Wall Street
Journal (national edition), notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days
from the date of such notification or publication, any unclaimed balance of
such money then remaining will be repaid to the Company.
Section 8.07. Reinstatement.
If the Trustee or Paying Agent is unable to apply any United
States dollars or U.S. Government Obligations in accordance with Section
8.02 or 8.03 hereof, as the case may be, by reason of any order or judgment
of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company's obligations under this
Indenture and the Notes shall be revived and reinstated as though no
deposit had occurred pursuant to Section 8.02 or 8.03 hereof until such
time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 8.02 or 8.03 hereof, as the case may be; provided,
however, that, if the Company makes any payment of principal of, premium,
if any, or interest on any Note following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders
of such Notes to receive such payment from the money held by the Trustee or
Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of Notes.
Notwithstanding Section 9.02 of this Indenture, the Company and
the Trustee (or other representative of the Holders under any Security
Agreement) may amend or supplement this Indenture, the Notes (including any
notation or endorsement thereon) or any of the Security Agreements without
the consent of any Holder of a Note:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to provide for uncertificated Notes in addition to or in place
of certificated Notes (provided that the uncertificated Secured Notes are
issued in registered form for purposes of Section 163(f) of the Code, or in
a manner such that the uncertificated Secured Notes are described in
Section 163(f)(2)(B) of the Code), or to alter the provisions of Article 2
hereof (including the related definitions) in a manner that does not
materially adversely affect any Holder;
(3) to provide for the assumption of the Company's obligations to
the Holders of the Notes by a successor to the Company pursuant to Article
5 or Article 11 hereof;
(4) to add Guarantees with respect to the Notes;
(5) to add to the covenants of the Company and its Subsidiaries
hereunder for the benefit of the Holders of the Notes or to surrender any
right or power conferred upon the Company;
(6) to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect the
legal rights hereunder of any Holder of the Notes; or
(7) to comply with requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the TIA.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or
supplemental indenture or Security Agreement, and upon receipt by the
Trustee of the documents described in Section 9.06 hereof, the Trustee
shall join with the Company in the execution of any amended or supplemental
indenture or Security Agreement authorized or permitted by the terms of
this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall not be
obligated to enter into such amended or supplemental indenture or Security
Agreement that affects its own rights, duties or immunities under this
Indenture or otherwise.
Section 9.02. With Consent of Holders of Notes.
Except as provided below in this Section 9.02, the Company or the
Trustee may amend or supplement this Indenture (including Sections 3.09,
4.07 and 4.10 hereof), the Notes or any of the Security Agreements with the
consent of the Holders of at least a majority in principal amount of the
Notes then outstanding voting as a single class (including consents
obtained in connection with a tender offer or exchange offer for, or
purchase of, the Notes), and, subject to Sections 6.04 and 6.07 hereof, any
existing Default or Event of Default (other than a Default or Event of
Default in the payment of the principal of, premium, if any, or interest on
the Notes, except a payment default resulting from an acceleration that has
been rescinded) or compliance with any provision of this Indenture, the
Notes or any Security Agreement may be waived with the consent of the
Holders of a majority in principal amount of the then outstanding Notes
voting as a single class (including consents obtained in connection with a
tender offer or exchange offer for, or purchase of, the Notes). Section
2.08 hereof shall determine which Notes are considered to be "outstanding"
for purposes of this Section 9.02.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or
supplemental indenture or Security Agreement, and upon the filing with the
Trustee of evidence satisfactory to the Trustee of the consent of the
Holders of Notes as aforesaid, and upon receipt by the Trustee of the
documents described in Section 9.06 hereof, the Trustee shall join with the
Company in the execution of such amended or supplemental indenture or
Security Agreement unless such amended or supplemental indenture directly
affects the Trustee's own rights, duties or immunities under this Indenture
or otherwise, in which case the Trustee may in its discretion, but shall
not be obligated to, enter into such amended or supplemental indenture or
Security Agreement.
It shall not be necessary for the consent of the Holders of Notes
under this Section 9.02 to approve the particular form of any proposed
amendment or waiver, but it shall be sufficient if such consent approves
the substance thereof.
After an amendment, supplement or waiver under this Section or
Section 9.01 becomes effective, the Company shall mail to the Holders of
Notes affected thereby a notice briefly describing the amendment,
supplement or waiver. Any failure of the Company to mail such notice, or
any defect therein, shall not, however, in any way impair or affect the
validity of any such amended or supplemental indenture or Security
Agreement or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders
of a majority in aggregate principal amount of the Notes then outstanding
voting as a single class may waive compliance in a particular instance by
the Company with any provision of this Indenture, the Notes or any of the
Security Agreements. However, without the consent of each Holder affected,
an amendment, supplement or waiver under this Section 9.02 may not (with
respect to any Notes held by a non-consenting Holder):
(a) reduce the principal amount of Notes whose Holders must
consent to an amendment, supplement or waiver;
(b) reduce the rate of or extend the time for payment of interest,
including default interest, on any Note or make any change to the manner or
rate of accrual of Original Issue Discount or extend the time for payment
of Original Issue Discount on any Note;
(c) reduce the principal of or extend the Stated Maturity of any
Note;
(d) alter or waive any of the provisions with respect to the
redemption of the Notes except as provided above with respect to Sections
3.09, 4.07 and 4.10 hereof;
(e) make any Note payable in money other than that stated in the
Notes;
(f) impair the right of any Holder of the Notes to receive payment
of principal of and interest on such Holder's Notes on or after the due
dates therefor or to institute suit for the enforcement of any payment on
or with respect to such Holder's Notes;
(g) waive a Default or Event of Default in the payment of
principal of or premium, if any, or interest on the Notes (except a
rescission of acceleration of the Notes by the Holders of at least a
majority in aggregate principal amount of the then outstanding Notes and a
waiver of the payment default that resulted from such acceleration);
(h) make any change in Article 10 hereof that adversely affects
the rights of any Holder in any material respect;
(i) make any change in Section 6.04 or 6.07 hereof or in this
sentence;
(j) deprive any of the Holders of the benefit of the Second Lien
created by the Security Agreements except in accordance with the terms of
the Security Agreements; or
(k) reduce the premium payable upon the redemption of any Secured
Note or change the time at which any Secured Note may or shall be redeemed.
An amendment under Section 9.01 hereof or this Section 9.02 may
not make any change that adversely affects the rights under Article 10
hereof of any holder of Senior Debt then outstanding unless the requisite
holders of such Senior Debt consent to such change pursuant to the terms of
such Senior Debt.
Section 9.03. Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes shall
be set forth in a amended or supplemental indenture that complies with the
TIA as then in effect.
Section 9.04. Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of a Note is a continuing consent by the Holder
of a Note and every subsequent Holder of a Note or portion of a Note that
evidences the same debt as the consenting Holder's Note, even if notation
of the consent is not made on any Note. However, any such Holder of a Note
or subsequent Holder of a Note may revoke the consent as to its Note if the
Trustee receives written notice of revocation before the date the waiver,
supplement or amendment becomes effective. An amendment, supplement or
waiver becomes effective in accordance with its terms and thereafter binds
every Holder.
Section 9.05. Notation on or Exchange of Notes.
If an amendment or supplement changes the terms of a Note, the
Trustee may require the Holder of such Note to deliver such Note to the
Trustee. The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee shall, upon receipt of an
authentication order from the Company, authenticate new Notes that reflect
the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall
not affect the validity and effect of such amendment, supplement or waiver.
Section 9.06. Trustee to Sign Amendments, etc.
The Trustee shall sign any amended or supplemental indenture or
Security Agreement authorized pursuant to this Article 9 if the amendment,
supplement or Security Agreement does not adversely affect the rights,
duties, liabilities or immunities of the Trustee. The Company may not sign
an amendment or supplemental indenture or Security Agreement unless the
Board of Directors authorizes it. In executing any amended or supplemental
indenture or Security Agreement, the Trustee shall be entitled to receive
and (subject to Section 7.01 hereof) shall be fully protected in relying
upon an Officer's Certificate and an Opinion of Counsel stating that the
execution of such amended or supplemental indenture or Security Agreement
is authorized or permitted by this Indenture.
ARTICLE 10
SUBORDINATION
Section 10.01. Agreement of Subordination.
The Company covenants and agrees for itself and its successors,
and each Holder of Notes issued hereunder by such Holder's acceptance
thereof likewise covenants and agrees, that all Notes shall be issued
subject to the provisions of this Article 10; and each Person holding any
such Note, whether upon original issue or upon transfer or assignment
thereof, accepts and agrees to be bound by such provisions. The payment of
the Principal Amount, Issue Price, accrued Original Issue Discount,
redemption price, Change of Control Payment, interest, if any, or any other
payments, in respect of all Notes issued hereunder shall, to the extent and
in the manner hereinafter set forth, be subordinated and subject in right
of payment to the prior payment in full in cash or other payment
satisfactory to the holders of all Senior Debt, whether outstanding at the
date of this Indenture or thereafter incurred. No provision of this Article
10 shall prevent the occurrence of any Default or Event of Default
hereunder.
Section 10.02. Payments to Holders.
No payment shall be made with respect to the payment of Principal
Amount, Issue Price, accrued Original Issue Discount, redemption price,
Change of Control Payment, interest, if any, or any other payments, on the
Notes, except payments and distributions made by the Trustee as permitted
by Section 10.05 hereof, if:
(i) a default in any payment obligations in respect of
Senior Debt (a "Senior Debt Payment Default") occurs and is continuing,
without regard to any applicable period of grace (whether at maturity or at
a date fixed for payment or by declaration or otherwise); or
(ii) any other default occurs and is continuing with
respect to Designated Senior Debt (a "Designated Senior Debt Default") that
permits the holders of the Designated Senior Debt as to which such default
relates to accelerate its maturity and the Trustee receives a notice of the
Designated Senior Debt Default (a "Payment Blockage Notice") from the
Company or a Representative for any issue of Designated Senior Debt.
If the Trustee receives any Payment Blockage Notice pursuant to
clause (ii) above, no subsequent Payment Blockage Notice shall be effective
for purposes of this Section 10.02 unless and until at least 365 days shall
have elapsed since the initial effectiveness of the immediately prior
Payment Blockage Notice. No Designated Senior Debt Default that existed or
was continuing on the date of delivery of any Payment Blockage Notice to
the Trustee shall be, or shall be made, the basis for a subsequent Payment
Blockage Notice unless the Designated Senior Debt Default specified in such
prior Payment Blockage Notice shall have been cured or waived for a period
of not less than 90 days (it being acknowledged that (x) any action by the
Company or any of its Subsidiaries occurring subsequent to delivery of a
Payment Blockage Notice with respect to such Designated Senior Debt Default
that would give rise to any event of default pursuant to any provision of
Senior Debt under which an event of default previously existed (or was
continuing at the time of delivery of a Payment Blockage Notice with
respect to such Designated Senior Debt Default) shall constitute a new
event of default for this purpose and (y) any breach of a financial
covenant giving rise to a Senior Debt Payment Default for a period ending
subsequent to the date of delivery of the respective Payment Blockage
Notice with respect to such Designated Senior Debt Default shall constitute
a new event of default for this purpose).
The Company may and shall resume payments on and
distributions in respect of the Notes upon the earlier of:
(1) in case of a Senior Debt Payment Default, the earlier of the
date upon which the Senior Debt Payment Default is cured or waived in
accordance with the terms of the governing instrument or ceases to exist,
or
(2) in the case of a Designated Senior Debt Default, the earlier
of the date upon which the Designated Senior Debt Default is cured, waived
in accordance with the terms of the governing instrument or ceases to exist
or 179 days after the date on which the applicable Payment Blockage Notice
is received by the Trustee if the maturity of such Designated Senior Debt
has not been accelerated, unless this Article 10 otherwise prohibits the
payment or distribution at the time of such payment or distribution.
Upon any payment by the Company or distribution of assets of the
Company of any kind or character, whether in cash, property or securities,
to creditors upon any dissolution or winding-up or liquidation or
reorganization or bankruptcy of the Company, whether voluntary or
involuntary or insolvency, reorganization, receivership or similar
proceedings relating to the Company or its property, or an assignment for
the benefit of creditors or any marshaling of the Company's assets or
liabilities, all amounts due or to become due upon all Senior Debt shall
first be paid in full in cash or other payment satisfactory to the holders
of such Senior Debt, or provision shall be made for such payment in cash or
other payment satisfactory to the holders of Senior Debt, before any
payment is made on account of the Principal Amount, Issue Price, accrued
Original Issue Discount, redemption price, Change of Control Payment or
interest, if any, in respect of the Notes or any other payment in respect
of the Notes (except payments made pursuant to Article 8 hereof from monies
deposited with the Trustee pursuant thereto prior to the happening of such
dissolution or winding-up or liquidation or reorganization or bankruptcy of
Company, whether voluntary or involuntary or insolvency, reorganization,
receivership or similar proceedings relating to the Company or its
property, or an assignment for the benefit of creditors or any marshaling
of the Company's assets or liabilities), and upon any such dissolution or
winding-up or liquidation or reorganization or bankruptcy of the Company,
whether voluntary or involuntary or insolvency, reorganization,
receivership or similar proceedings relating to the Company or its
property, or an assignment for the benefit of creditors or any marshaling
of the Company's assets or liabilities, any payment by the Company, or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, to which the Holders or the Trustee would be
entitled, except for the provisions of this Article 10, shall (except as
aforesaid) be paid by the Company or by any receiver, trustee in
bankruptcy, liquidating trustee, agent or other Person making such payment
or distribution, or by the Holders of the Notes or by the Trustee if
received by them or it, directly to the holders of Senior Debt (pro rata to
such holders on the basis of the respective amounts of Senior Debt held by
such holders, as calculated by the Company) or their Representative or
Representatives, or to the trustee or trustees under any indenture pursuant
to which any instruments evidencing any such Senior Debt may have been
issued, as their respective interests may appear to the extent necessary to
pay all such Senior Debt in full in cash or other payment satisfactory to
the holders of such Senior Debt, after giving effect to any concurrent
payment or distribution to or for the holders of such Senior Debt, before
any payment or distribution is made to the Holders or to the Trustee.
In the event that any Notes are declared due and payable before
their Stated Maturity pursuant to Section 6.02 hereof, then and in such
event the Company shall promptly notify holders of its Senior Debt of such
acceleration. The Company may not pay monies owed pursuant to the Notes
until 120 days have passed after such acceleration occurs and may
thereafter pay the Notes only if this Article 10 permits the payment at
that time.
In the event that, notwithstanding the foregoing provisions, any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities (including, without limitation, by
way of setoff or otherwise), prohibited by the foregoing provisions in this
Section 10.02, shall be received by the Trustee or the Holders of the Notes
before all Senior Debt of the Company is paid in full in cash or other
payment satisfactory to the holders of such Senior Debt, or provision is
made for such payment in cash or other payment satisfactory to the holders
of such Senior Debt, such payment or distribution shall be held in trust
for the benefit of and shall be paid over or delivered to the holders of
Senior Debt of the Company or their Representative or Representatives, or
to the trustee or trustees under any indenture pursuant to which any
instruments evidencing any such Senior Debt may have been issued, as their
respective interests may appear, as calculated by the Company, for
application to the payment of all such Senior Debt remaining unpaid to the
extent necessary to pay all such Senior Debt in full in cash or other
payment satisfactory to the holders of such Senior Debt after giving effect
to any concurrent payment or distribution, or provision therefor, to or for
the holders of such Senior Debt.
For purposes of this Article 10, the words, "cash, property or
securities" shall not be deemed to include shares of stock of the Company
as reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated at least to the extent provided in this
Article 10 with respect to the Notes to the payment of all Senior Debt of
the Company which may at the time be outstanding; provided that (i) such
Senior Debt is assumed by the new corporation, if any, resulting from any
such reorganization or readjustment, and (ii) the rights of the holders of
such Senior Debt (other than leases that are not assumed by the Company or
the new corporation, as the case may be) are not, without the consent of
such holders, altered by such reorganization or readjustment. The
consolidation of the Company with, or the merger of the Company into,
another corporation or the liquidation or dissolution of the Company
following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon the terms and
conditions provided for in Article 5 hereof shall not be deemed a
dissolution, winding-up, liquidation or reorganization for the purposes of
this Section 10.02 if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions
stated in Article 5 hereof.
Nothing in this Section 10.02 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 7.07 hereof. This
Section 10.02 shall be subject to the further provisions of Section 10.05
hereof.
Section 10.03. Subrogation of Notes.
Subject to the payment in full in cash or other payment
satisfactory to the holders of all Senior Debt of the Company, the rights
of the Holders shall be subrogated to the rights of the holders of such
Senior Debt to receive payments or distributions of cash, property or
securities of the Company applicable to such Senior Debt until the
Principal Amount, Issue Price, accrued Original Issue Discount, redemption
price, Change of Control Payment and interest, if any, in respect of the
Notes shall be paid in full; and, for the purposes of such subrogation, no
payments or distributions to the holders of such Senior Debt of any cash,
property or securities to which the Holders or the Trustee would be
entitled except for the provisions of this Article 10, and no payment over
pursuant to the provisions of this Article 10, to or for the benefit of the
holders of such Senior Debt by Holders or the Trustee, shall, as between
the Company, its creditors other than holders of its Senior Debt, and the
Holders of the Notes be deemed to be a payment by the Company to or on
account of its Senior Debt, and no payments or distributions of cash,
property or securities to or for the benefit of the Holders pursuant to the
subrogation provisions of this Article 10, which would otherwise have been
paid to the holders of Senior Debt shall be deemed to be a payment by the
Company to or for the account of the Notes. It is understood that the
provisions of this Article 10 are and are intended solely for the purpose
of defining the relative rights of the Holders, on the one hand, and the
holders of Senior Debt, on the other hand. Nothing contained in this
Article 10 or elsewhere in this Indenture or in the Notes is intended to or
shall impair, as between the Company, its creditors other than the holders
of its Senior Debt and the Holders, the obligation of the Company, which is
absolute and unconditional, to pay to the Holders the Principal Amount,
Issue Price, accrued Original Issue Discount, redemption price, Change of
Control Payment and interest, if any, in respect of the Notes as and when
the same shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the holders and
creditors of the Company other than the holders of the Senior Debt, nor
shall anything herein or therein prevent the Trustee or any Holder from
exercising all remedies otherwise permitted by applicable law upon an Event
of Default, subject to the terms of the Senior Credit Agreement and the
Security Agreements and the rights, if any, under this Article 10 of the
holders of Senior Debt in respect of cash, property or securities of the
Company received upon the exercise of any such remedy. Upon any payment or
distribution of assets of the Company referred to in this Article 10, the
Trustee, subject to the provisions of Section 7.01 hereof, and the Holders
of the Notes shall be entitled to rely upon any order or decree made by any
court of competent jurisdiction in which such dissolution, winding-up,
liquidation or reorganization proceedings are pending, or a certificate of
the receiver, trustee in bankruptcy, liquidating trustee, agent or other
Person making such payment or distribution, delivered to the Trustee, to
the Holders for the purpose of ascertaining the Persons entitled to
participate in such distribution, the holders of the Senior Debt and other
indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article 10.
Section 10.04. Authorization by Holders.
Each Holder of Notes by such Holder's acceptance thereof
authorizes and directs the Trustee in such Holder's behalf to take such
action as may be necessary or appropriate to effectuate the subordination
provided in this Article 10 and appoints the Trustee such Holder's
attorney-in-fact for any and all such purposes.
Section 10.05. Notice to Trustee.
The Company shall give prompt written notice in a form of an
Officers' Certificate to a Responsible Officer of any fact known to the
Company which would prohibit the making of any payment of monies to or by
the Trustee or any Paying Agent in respect of the Notes pursuant to the
provisions of this Article 10. Notwithstanding the provisions of this
Article 10 or any other provision of this Indenture, the Trustee shall not
be charged with knowledge of the existence of any facts which would
prohibit the making of any payment of monies to or by the Trustee in
respect of the Notes pursuant to the provisions of this Article 10, unless
and until a Responsible Officer shall have received written notice thereof
at the Corporate Trust Office of the Trustee from the Company (in the form
of an Officers' Certificate) or a holder or holders of Senior Debt or a
Representative or from any trustee therefor; and before the receipt of any
such written notice, the Trustee, subject to the provisions of Section 7.01
hereof, shall be entitled in all respects to assume that no such facts
exist; provided that, if on a date not fewer than three Business Days prior
to the date upon which by the terms hereof any such monies may become
payable for any purpose (including, without limitation, the payment of the
Principal Amount, Issue Price, accrued Original Issue Discount, redemption
price, Change of Control Payment or interest, if any, in respect of any
Note) the Trustee shall not have received, with respect to such monies, the
notice provided for in this Section 10.05, then, anything herein contained
to the contrary notwithstanding, the Trustee shall have full power and
authority to receive such monies and to apply the same to the purpose for
which they were received, and shall not be affected by any notice to the
contrary which may be received by it on or after such prior date.
Notwithstanding anything to the contrary herein set forth, nothing
shall prevent any payment by the Company or the Trustee to the Holders of
monies in connection with a redemption of Notes if (i) notice of such
redemption has been given pursuant to Article 3 hereof prior to the receipt
by the Trustee of written notice as aforesaid, and (ii) such notice of
redemption is given not earlier than 60 days before the redemption date.
The Trustee, subject to the provisions of Section 7.01 hereof,
shall be entitled to rely conclusively on the delivery to it of a written
notice by a Person representing himself to be a holder or a Representative
of Designated Senior Debt or a Representative of Senior Debt (or a trustee
on behalf of such holder) to establish that such notice has been given by a
holder or a Representative of Designated Senior Debt or a Representative of
such Senior Debt or a trustee on behalf of any such holder or holders. In
the event that the Trustee determines in good faith that further evidence
is required with respect to the right of any Person as a holder of Senior
Debt to participate in any payment or distribution pursuant to this Article
10, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of such Senior Debt
held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent
to the rights of such Person under this Article 10, and if such evidence is
not furnished the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such
payment.
Section 10.06. Trustee's Relation to Senior Debt.
The Trustee in its individual capacity shall be entitled to all
the rights set forth in this Article 10 in respect of any Senior Debt at
any time held by it, to the same extent as any other holder of such Senior
Debt, and nothing contained elsewhere in this Indenture shall deprive the
Trustee of any of its rights as such holder.
Nothing in this Article 10 shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 7.07 hereof.
With respect to the holders of Senior Debt, the Trustee undertakes
to perform or to observe only such of its covenants and obligations as are
specifically set forth in this Article 10, and no implied covenants or
obligations with respect to the holders of such Senior Debt shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to
owe any fiduciary duty to the holders of Senior Debt and the Trustee shall
not be liable to any holder of such Senior Debt if it shall in good faith
mistakenly pay over or deliver to Holders, the Company or any other Person
money or assets to which any holder of Senior Debt shall be entitled by
virtue of this Article 10 or otherwise.
Section 10.07. No Impairment of Subordination.
No right of any present or future holder of any Senior Debt to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by (i) any amendment of or addition or supplement to
any such Senior Debt or any instrument or agreement relating thereto
(unless otherwise expressly provided therein), or (ii) any act or failure
to act on the part of the Company or by any act or failure to act, in good
faith, by any such holder, or by any noncompliance by the Company with the
terms, provisions and covenants of the instrument, regardless of any
knowledge thereof which any such holder may have or otherwise be charged
with.
Section 10.08. Reliance by Holders of Senior Debt on Subordination
Provisions.
Each Holder of Notes by such Holder's acceptance thereof,
acknowledges and agrees that the foregoing subordination provisions are,
and are intended to be, an inducement and a consideration to each holder of
any Senior Debt, whether such Senior Debt was created or acquired before or
after the issuance of the Notes, to acquire and continue to hold, or to
continue to hold, such Senior Debt and such holder of Senior Debt shall be
deemed conclusively to have relied on such subordination provisions in
acquiring and continuing to hold, or in continuing to hold, such Senior
Debt, and no amendment or modification of the provisions contained herein
shall diminish the rights of such holder or holders unless such holder or
holders shall have agreed in writing thereto.
Section 10.09. Reinstatement of Subordination.
If, at any time, all or part of any payment of any Senior Debt
theretofore made by the Company or any other Person is rescinded or must
otherwise be returned by the holders of such Senior Debt for any reason
whatsoever (including, without limitation, the insolvency, bankruptcy or
reorganization of the Company or such other Person), these subordination
provisions shall continue to be effective or be reinstated, as the case may
be, all as though such payment had not been made.
Section 10.10. Permitted Payments.
Nothing contained in this Article 10 or elsewhere in this
Indenture, or in the Notes shall prevent (a) the Company at any time,
except under the conditions described in Section 10.02 hereof, from making
payments at any time of Principal Amount, Issue Price, accrued Original
Issue Discount, redemption price, Change of Control Payment or interest, if
any, in respect of the Notes, or from depositing with the Trustee or any
Paying Agent money for such payments, or (b) the application by the Trustee
or Paying Agent of any moneys deposited with it under this Indenture to the
payment of or on account of the Principal Amount, Issue Price, accrued
Original Issue Discount, redemption price, Change of Control Payment or
interest, if any, in respect of the Notes to the Holders entitled thereto
to the beneficiaries thereof, if such payment would not have been
prohibited by the provisions of Section 10.02 hereof.
Section 10.11. Article Applicable to Paying Agents.
If at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article 10 shall (unless the context otherwise
requires) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying
Agent were named in this Article 10 in addition to or in place of the
Trustee; provided, however, that the first paragraph of Section10.05 hereof
shall not apply to the Company or any Affiliate of the Company if it or
such Affiliate acts as Paying Agent.
Section 10.12. Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of the Company referred
to in this Article 10, the Trustee and the Holders shall be entitled to
rely upon any order or decree entered by any court of competent
jurisdiction in which such insolvency, bankruptcy, receivership,
liquidation, reorganization, dissolution, winding up or similar case or
proceeding is pending, or a certificate of the trustee in bankruptcy,
liquidating trustee, custodian, receiver, assignee for the benefit of
creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders, for the purpose of ascertaining
the Persons entitled to participate in such payment or distribution, the
holders of Senior Debt and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article 10.
Section 10.13. Holders of Senior Debt May File Proofs of Claim.
If the Trustee does not file a claim or proof of debt in the form
required in any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding pursuant to Section 6.09 hereof prior to 30 days before the
expiration of the time to file such claims or proofs, then any holder or
holders of Senior Debt or their Representative or Representatives shall
have the right to demand, xxx for, collect, receive and receipt for the
payments and distributions in respect of the Notes which are required to be
paid or delivered to the holders of Senior Debt as provided in this Article
10 and to file and prove all claims therefor and to take all such other
actions in the name of the holders or otherwise, as such holders of Senior
Debt or Representative thereof may determine to be necessary or appropriate
for the enforcement of the provisions of this Article 10.
ARTICLE 11
COLLATERAL AND SECURITY
Section 11.01. Grant of Second Lien; Security Agreements.
(a) In order to secure the Company's Obligations under the Notes
and this Indenture, the Company has granted to the Trustee, for the benefit
of the Holders, the Second Lien and security interest in the Collateral
consisting of the Pledged Subsidiary Stock, as set forth in this Indenture
and the Security Agreements which the Company has entered into
simultaneously with the execution of this Indenture. The due and punctual
payment of the principal of and interest, if any, on the Notes when and as
the same shall be due and payable, whether on an Interest Payment Date, at
maturity, by acceleration, repurchase, redemption or otherwise, and
interest on the overdue principal of and interest (to the extent permitted
by law), if any, on the Notes and performance of all other obligations of
the Company to the Holders of Notes or the Trustee under this Indenture and
the Notes, according to the terms hereunder or thereunder, shall be secured
as provided above and in the Security Agreements. The Second Lien, and the
exercise of rights and remedies in respect thereof, shall at all times be
junior and subordinate to the First Lien, as provided in the Security
Agreements, and shall also be subject to other Permitted Liens. At the
request of the Company or the First Lien Representative, the Trustee shall
be authorized and directed to enter into an intercreditor agreement, in
substantially the form of the Intercreditor Agreement, dated as of the date
hereof, by and between the Trustee and the First Lien Representative, in
favor of any holder of a Permitted Lien. The Second Lien, as now or
hereafter in effect, shall be held for the equal and ratable benefit and
security of the Notes, without preference, priority or distinction of any
thereof over any other by reason, or difference in time, of issuance, sale
or otherwise, and for the enforcement of the payment of principal of and
interest on the Notes, in accordance with their terms. Notwithstanding the
foregoing, until such time as all obligations under the Senior Credit
Agreement have been paid in full in cash or other payment satisfactory to
the Senior Lenders and all lending commitments thereunder have been
terminated, the right of the Trustee and/or the Holders of the Notes to
foreclose on, or otherwise exercise any rights and remedies in respect of,
the Collateral is subject to a complete standstill in favor of the Senior
Lenders, as and to the extent provided in the Security Agreements.
(b) The Company covenants and agrees for itself and its
successors, and each Holder of Notes issued hereunder by such Holder's
acceptance thereof likewise covenants and agrees, that all Notes shall be
issued subject to the provisions of this Article 11 and the terms of the
Security Agreements; and each Person holding any such Note, whether upon
original issue or upon transfer or assignment thereof, accepts and agrees
to be bound by such provisions. Each Holder of Notes, by its acceptance
thereof, consents and agrees to the terms of the Security Agreements
(including, without limitation, the provisions providing for foreclosure
and release of Collateral) as the same may be in effect or may be amended
from time to time in accordance with their terms and authorizes and directs
the Trustee to enter into the Security Agreements and to perform its
obligations and exercise its rights thereunder in accordance therewith. The
Company shall deliver to the Trustee copies of all documents delivered
pursuant to the Security Agreements, and shall 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 Agreements, to assure and confirm to the
Trustee the security interest in the Collateral contemplated hereby, by the
Security Agreements or any part thereof, as from time to time constituted,
so as to render the same available for the security and benefit of this
Indenture and of the Notes secured thereby, according to the intent and
purposes herein expressed. The Company shall take, upon request of any
Holder or the Trustee (acting at the direction of any Holder), any and all
actions reasonably required to cause the Security Agreements to create and
maintain, as security for the Obligations of the Company hereunder, a valid
and enforceable perfected second-priority Lien in and on all the
Collateral, in favor of the Trustee for the benefit of the Holders of
Notes, superior to and prior to the rights of all third Persons and subject
to no other Liens other than the First Lien and Permitted Liens.
Section 11.02. Recording and Opinions.
(a) The Company shall furnish to the Trustee simultaneously with
the execution and delivery of this Indenture a letter stating that it is
entitled to rely on an Opinion of Counsel stating that in the opinion of
such counsel all action has been taken with respect to the delivery of all
financing statements or other instruments necessary to make effective the
Second Lien intended to be created by this Indenture and the Security
Agreements.
(b) The Company shall furnish to the Trustee on June 15 in each
year beginning with June 15, 2001 an Opinion of Counsel, dated as of such
date, either (i) (A) stating that, in the opinion of such counsel, action
has been taken with respect to the recording, registering, filing,
re-recording, re-registering and refiling of all supplemental indentures,
financing statements, continuation statements or other instruments of
further assurance as are necessary to maintain the Second Lien of this
Indenture and the Security Agreements and reciting with respect to the
security interest in the Collateral the details of such action or referring
to prior Opinions of Counsel in which such details are given, (B) stating
that, based on relevant laws as in effect on the date of such Opinion of
Counsel, all financing statements and continuation statements have been
executed and filed that are necessary as of such date and during the
succeeding 12 months fully to preserve and protect, to the extent such
protection and preservation are possible by filing, the rights of the
Holders of Notes and the Trustee hereunder and under the Security
Agreements with respect to the security interest in the Collateral, or (ii)
stating that, in the opinion of such counsel, no such action is necessary
to maintain such Second Lien and security interest.
(c) The Company shall otherwise comply with the provisions of
TIAss. 314(b).
Section 11.03. Transfer and Release of Collateral.
(a) Subject to subsections (b) and (c) of this Section 11.03,
Collateral may be released from the Second Lien and security interest
created by this Indenture and the Security Agreements at any time or from
time to time in accordance with the provisions of the Security Agreements
or as provided hereby.
(b) Until such time as all obligations under the Senior Credit
Agreement have been paid in full in cash or other payment satisfactory to
the Senior Lenders and all lending commitments thereunder have been
terminated, the Company shall be entitled to Transfer all or a portion of
the Collateral consisting of the Pledged Subsidiary Stock to the extent
that any such Transfer is permitted under the Senior Credit Agreement or
approved by the requisite percentage of Senior Lenders and provided the
First Lien is to be released as to the Collateral so Transferred. Upon any
Transfer of any of the Collateral as provided above (other than any
Transfer of the Collateral pursuant to a deferral, increase, renewal,
extension, replacement or refunding of, or amendment, modification or
supplement to, the Senior Credit Agreement), including the release of the
First Lien in connection therewith, any security interest in such
Collateral securing the repayment of the Secured Notes or securing the
performance of the Company under this Indenture shall automatically cease
and terminate, subject only to the provisions of the Senior Credit
Agreement governing the use of proceeds received in connection with any
such Transfer and Sections 4.07 and 11.04 hereof. Upon the receipt of
written notice from the Company or the First Lien Representative of a
Transfer of any of the Collateral or a proposed Transfer of any of the
Collateral, which notice shall state that the Collateral subject to such
Transfer has been or will be released from the First Lien, the Trustee
shall be authorized and directed to execute and deliver to the Company,
concurrently with the closing in the case of a proposed Transfer of such
Collateral, at the Company's expense, such documents as the Company or the
First Lien Representative shall reasonably request (which documents shall
be prepared by the Company or the First Lien Representative) to evidence
such release of the Second Lien with respect to the Collateral subject to
such Transfer. Notwithstanding the foregoing, as and to the extent provided
in the Security Agreements, in the event that Sunbeam Transfers all or a
portion of the Collateral as provided in this Section 11.03(b) and receives
in exchange therefor cash and/or Equity Interests that are to become
subject to the First Lien, then such cash and/or Equity Interests shall
also become subject to the Second Lien in the same manner and to the same
extent as the Pledged Subsidiary Stock. In the event that the First Lien is
released as to a particular item or items of Collateral in contemplation of
a proposed Transfer thereof and, whether as a result of the Company's
failure to Transfer such item or items of Collateral or for any other
reason, the First Lien is subsequently reinstated as to such Collateral,
then the Second Lien shall also be reinstated in the same manner and to the
same extent applicable prior to such release. A release of Collateral in
accordance with the procedures described in this Section 11.03(b) will not
be deemed to impair the security under this Indenture in contravention of
the provisions hereof, as contemplated by TIA ss. 314(d).
(c) At such time as all obligations under the Senior Credit
Agreement have been paid in full in cash or other payment satisfactory to
the Senior Lenders and all lending commitments thereunder have been
terminated, the Company shall be entitled to Transfer all or a portion of
the Collateral consisting of the Pledged Subsidiary Stock upon compliance
with the condition that the Company deliver to the Trustee (x) an Officers'
Certificate certifying that all conditions precedent hereunder have been
met and stating that such release is in connection with an Asset
Disposition and (y) a notice from the Company requesting the release of the
Released Interests (as defined below), which notice shall:
(i) describe the proposed items of Collateral to be
released (the "Released Interests"),
(ii) state that the consideration to be received is at
least equal to the fair market value of the Released Interests,
(iii) state that the Net Available Cash received from the
Transfer of such Released Interests shall be applied in accordance
with Sections 4.07 and 11.04 of this Indenture, and
(iv) confirm that the sale or exchange of, or an
agreement to sell or exchange, such Released Interests, as the
case may be, is a bona fide sale or exchange.
Upon any Transfer of Collateral in compliance with the provisions
of this Section 11.03(c), the Trustee will release the Released Interests
from the Second Lien and security interest created by this Indenture and
the Security Agreements and reconvey the Released Interests to the Company
or the purchaser, subject only to the provisions of Sections 4.07 and 11.04
hereof. Upon receipt of such Officers' Certificate and notice, the Trustee
shall execute, deliver or acknowledge any necessary or proper instruments
of termination, satisfaction or release prepared by the Company to evidence
the release of any Collateral permitted to be released pursuant to this
Indenture or the Security Agreements. No Collateral shall be released from
the Second Lien and security interest created by this Indenture and the
Security Agreements pursuant to this Section 11.03(c) unless there shall
have been delivered to the Trustee the Officers' Certificate and notice
described above. A release of Collateral in accordance with the procedures
described in this Section 11.03(c) will not be deemed to impair the
security under this Indenture in contravention of the provisions hereof, as
contemplated by TIA ss. 314(d).
Section 11.04. Deposit; Use and Release of Trust Moneys.
Until such time as all obligations under the Senior Credit
Agreement have been paid in full in cash or other payment satisfactory to
the Senior Lenders and all lending commitments thereunder have been
terminated, the Net Available Cash associated with any Transfer of
Collateral shall be used to prepay, repay or repurchase Senior Debt in
accordance with the Senior Credit Agreement or as otherwise permitted by
the requisite percentage of Senior Lenders; provided, however, that
following such time as all obligations under the Senior Credit Agreement
have been paid in full in cash or other payment satisfactory to the Senior
Lenders and all lending commitments thereunder have been terminated, such
Net Available Cash shall be deposited into a securities account maintained
by the Trustee at its corporate trust offices or at any securities
intermediary selected by the Company having a combined capital and surplus
of at least $250 million and having a long-term debt rating of at least
"A3" by Xxxxx'x and at least "A--" by S&P styled the "Sunbeam Collateral
Account" (such account being the "Collateral Account") which shall be under
the exclusive dominion and control of the Trustee. All amounts on deposit
in the Collateral Account shall be treated as financial assets and cash
funds on deposit in the Collateral Account may be invested by the Trustee,
at the direction of the Company, in Temporary Cash Investments. The Company
will not have the right to withdraw funds or assets from the Collateral
Account except in compliance with the terms of this Indenture and all
assets credited to the Collateral Account shall be subject to a Lien in
favor of the Trustee and the Holders. Notwithstanding the foregoing, at the
direction of the Company, as set forth in a notice to the Trustee, the
Trustee shall release any Net Available Cash on deposit in the Collateral
Account in order that the Company may apply such Net Available Cash in
accordance with the provisions of Section 4.07 hereof. A release of Net
Available Cash from the Collateral Account in accordance with the
procedures described immediately above will not be deemed to impair the
security under this Indenture in contravention of the provisions hereof, as
contemplated by TIA ss. 314(d).
Section 11.05. Possession and Use of Collateral.
(a) Until such time as all obligations under the Senior Credit
Agreement have been paid in full in cash or other payment satisfactory to
the Senior Lenders and all lending commitments thereunder have been
terminated, the First Lien Representative shall, subject to the terms and
conditions of the First Lien security documents, remain in possession and
retain exclusive control of the Collateral securing the Secured Notes,
including the Net Available Cash resulting from any Transfer of all or a
portion of the Collateral or the proceeds of any foreclosure action against
the Collateral. Following such time as all obligations under the Senior
Credit Agreement have been paid in full in cash or other payment
satisfactory to the Senior Lenders and all lending commitments thereunder
have been terminated, the Trustee shall, subject to the terms and
conditions of the Security Agreements, take possession and control of the
Collateral.
(b) Notwithstanding anything to the contrary contained in clause
(a) of this Section 11.05, except as otherwise provided under the Senior
Credit Agreement (until such time as all obligations thereunder have been
paid in full in cash or other payment satisfactory to the Senior Lenders
and all lending commitments thereunder have been terminated) or unless the
Company's obligation to repay the principal of, and accrued but unpaid
interest on, the Notes shall have been accelerated, as provided in Section
6.02 hereof, the Company shall be entitled to:
(i) receive and use all cash distributions in respect of
the Collateral consisting of the Pledged Subsidiary Stock for
general corporate purposes, including any cash distributions in
respect of any Equity Interest received in connection with any
Transfer of Pledged Subsidiary Stock;
(ii) receive and use for general corporate purposes any
cash interest payments on any deferred payment of principal under
any promissory note, installment receivable or other arrangement
received in connection with any Transfer of Pledged Subsidiary
Stock;
(iii) vote the Pledged Subsidiary Stock, including any
Equity Interest received in connection with any Transfer of
Pledged Subsidiary Stock; and
(iv) give consents, approvals, waivers and ratifications
in respect of any Pledged Subsidiary Stock, including any Equity
Interest received in connection with any Transfer of Pledged
Subsidiary Stock.
Section 11.06. Certificates of the Company.
The Company shall furnish to the Trustee, prior to each proposed
release of Collateral pursuant to the Security Agreements, (i) all
documents required by TIA ss. 314(d) (which, for purposes of this
Indenture, shall be the documents required by Section 11.03 hereof, as
applicable) and (ii) an Opinion of Counsel, which may be rendered by
internal counsel to the Company, to the effect that such accompanying
documents constitute all documents, if any, required by TIA ss. 314(d). The
Trustee may, to the extent permitted by Sections 7.01 and 7.02 hereof,
accept as conclusive evidence of compliance with the foregoing provisions
the appropriate statements contained in such documents and such Opinion of
Counsel.
Section 11.07. Authorization of Actions to Be Taken by the Trustee Under
the Security Agreements.
Subject to the provisions of Sections 7.01 and 7.02 hereof and the
terms of the Security Agreements, the Trustee may, at the direction of the
Holders and on their behalf, take all actions as the Holders shall direct
in order to (a) enforce any of the terms of the Security Agreements and (b)
collect and receive any and all amounts payable in respect of the
Obligations of the Company hereunder. Subject to the terms of the Security
Agreements, the Trustee shall, at the direction of the Holders, have the
power to institute and maintain such suits and proceedings as the Holders
shall direct to prevent any impairment of the Collateral by any acts that
may be unlawful or in violation of the Security Agreements or this
Indenture, and such suits and proceedings as the Holders shall direct to
preserve or protect the Trustee's interests and the interests of the
Holders of Notes in the Collateral (including the 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 be prejudicial to the interests of the Holders of
Notes or of the Trustee).
Section 11.08. Authorization of Receipt of Funds by the Trustee Under the
Security Agreements.
The Trustee is authorized to receive any funds for the benefit of
the Holders of Notes distributed under the Security Agreements, and to make
further distributions of such funds to the Holders of Notes according to
the provisions of this Indenture.
Section 11.09. Termination of Security Interest.
Upon the payment in full of all Obligations of the Company under
this Indenture and the Notes, or upon Legal Defeasance, the Trustee shall
release the Second Lien pursuant to this Indenture and the Security
Agreements.
Section 11.10. Trustee's Obligations With Respect to Collateral.
The Trustee shall not be responsible for filing any financing or
continuation statements or recording any documents or instruments in any
public office at any time or times or otherwise perfecting or maintaining
the perfection of any security interest in the Collateral.
The Trustee shall not be responsible for the existence, genuineness
or value of any of the Collateral or for the validity, perfection, priority
or enforceability of the Second Lien in any of the Collateral for the
validity of the title of the Company to the Collateral, for insuring the
Collateral or for the payment of taxes, charges, assessments or liens upon
the Collateral or otherwise as to the maintenance of the Collateral. The
Trustee shall have no duty to ascertain or inquire as to the performance or
observance of any of the terms of this Indenture or the Security Agreements
by the Company or the other parties thereto.
ARTICLE 12
MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by TIA ss. 318(c), the imposed duties shall
control.
Section 12.02. Notices.
Any notice or communication by the Company or the Trustee to the
others is duly given if in writing and delivered in Person or mailed by
first-class mail (registered or certified, return receipt requested),
telex, telecopier or overnight air courier guaranteeing next day delivery,
to the others' address:
If to the Company:
Sunbeam Corporation.
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: General Counsel
Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
If to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx
00xx Xxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust
Trustee Administration
(Attention: Sunbeam Corporation,
11% Senior Secured Subordinated Notes Due 2011)
Facsimile Number: (000) 000-0000 / (000) 000-0000
The Company or the Trustee, by notice to the others may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; when received, if mailed postage prepaid when receipt
acknowledged, if telecopied; and the next Business Day after timely
delivery to the courier, if sent by overnight air courier guaranteeing next
day delivery.
Any notice or communication to a Holder shall be mailed by first
class mail to its address shown on the register kept by the Registrar. Any
notice or communication shall also be so mailed to any Person described in
TIA ss. 313(c), to the extent required by the TIA. Failure to mail a notice
or communication to a Holder or any defect in it shall not affect its
sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the
addressee receives it.
If the Company mails a notice or communication to Holders, it
shall mail a copy to the Trustee, each Agent at the same time.
Section 12.03. Communication by Holders of Notes with Other Holders of
Notes.
Holders may communicate pursuant to TIA ss. 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, any Agent and any other Person shall have the
protection of TIA ss. 312(c).
Section 12.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the
Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 12.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 12.05 hereof) stating that, in the opinion of such counsel, all
such conditions precedent and covenants have been satisfied.
Section 12.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a
certificate provided pursuant to TIA ss. 314(a)(4)) shall comply with the
provisions of TIA ss. 314(e) and shall include:
(a) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been satisfied; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied.
Section 12.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or Paying Agent may make reasonable rules
and set reasonable requirements for its functions.
Section 12.07. No Personal Liability of Directors, Officers, Employees
and Stockholders.
No past, present or future director, officer, employee,
incorporator or stockholder of the Company, as such, shall have any
liability for any obligations of the Company under the Notes, this
Indenture or the Security Agreements or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder by
accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes.
Section 12.08. Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED
TO CONSTRUE THIS INDENTURE, THE NOTES AND THE SECURITY AGREEMENTS
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW
TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
Section 12.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture,
loan or debt agreement of the Company or its Subsidiaries or of any other
Person. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
Section 12.10. Successors.
All agreements of the Company in this Indenture and the Notes
shall bind its successors. All agreements of the Trustee in this Indenture
shall bind its successors.
Section 12.11. Severability.
In case any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 12.12. Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the
same agreement.
Section 12.13. Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part of this Indenture and
shall in no way modify or restrict any of the terms or provisions hereof.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the undersigned, being duly authorized, have
executed this Indenture on behalf of the respective parties hereto as of
the date first written above.
SUNBEAM CORPORATION
By _____________________________________
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
THE BANK OF NEW YORK, as Trustee
By: _____________________________________
Authorized Signatory
EXHIBIT A
[Face of Note]
SUNBEAM CORPORATION
11% SENIOR SECURED SUBORDINATED NOTE DUE 2011
No. ___
Issue Date: [_____] [_], 2000 CUSIP/CINS ____________
Issue Price: $________________________ Original Issue Discount: $ ______________________
(for each $1,000 Principal Amount at maturity) (for each $1,000 Principal Amount at maturity)
Sunbeam Corporation, a Delaware corporation, promises to pay to
_______________________, or registered assigns, the Principal Amount of
____________ Dollars* on June 15, 2011.
This Note shall bear interest as specified on the other side of
this Note. This Note shall accrue Original Issue Discount as specified on
the other side of this Note.
Interest Payment Dates: June 15 and December 15
Record Dates: June 1 and December 1
Additional provisions of this Note are set forth on the other side
of this Note.
IN WITNESS WHEREOF, Sunbeam Corporation has caused this instrument
to be duly executed.
Sunbeam Corporation
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
Dated: [_____] [_], 2000 (SEAL)
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
The Bank of New York
as Trustee, certifies that this is one of the Notes
referred to in the within-mentioned Indenture.
By: ____________________________
Authorized Signatory
----------------
* The Global Note will instead read: "the Principal Amount shown on
Schedule of Exchanges of Interests in the Global Note attached
hereto."
[Back of Note]
11% Senior Secured Subordinated Notes due 2011
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY ANY SUCH NOMINEE OF
THE DEPOSITARY, OR BY THE DEPOSITARY OR NOMINEE OF SUCH SUCCESSOR
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF
SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN. TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED
TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE.
Capitalized terms used herein shall have the meanings assigned to
them in the Indenture referred to below unless otherwise indicated.
1. Interest. Sunbeam Corporation, a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Note
at a rate of 11% per annum from the Issue Date until maturity. The Company
will pay interest semi-annually on June 15 and December 15 of each year, or
if any such day is not a Business Day, on the next succeeding Business Day
(each an "Interest Payment Date"). The Company will pay in cash 15% of the
interest payable on each of June 15, 2000 and December 15, 2001, to be
distributed to the Holders on a pro rata basis, with the remaining interest
to be an accretion of Original Issue Discount. The Company will pay in cash
30% of the interest payable on each of December 15, 2001 and June 15, 2002,
to be distributed to the Holders on a pro rata basis, with the remaining
interest to be an accretion of Original Issue Discount. With respect to
Interest Payment Dates occurring on or after June 15, 2002, the Company
will pay in cash 100% of the aggregate interest payable on the Notes.
Interest on the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the Issue
Date; provided that if there is no existing Default in the payment of
interest, and if this Note is authenticated between a record date referred
to on the face hereof and the next succeeding Interest Payment Date,
interest shall accrue from such next succeeding Interest Payment Date;
provided, further, that the first Interest Payment Date shall be December
15, 2000. (Notwithstanding the foregoing, with respect to any Notes issued
subsequent to the date of the Indenture, as provided in Section 2.02
thereof, the Company will pay in cash (i) 15% of the interest payable on
the first and second Interest Payment Dates following issuance, (ii) 30% of
the interest payable on the third and fourth Interest Payment Dates
following issuance, and (iii) 100% of the interest payable on each
subsequent Interest Payment Date following issuance, as provided above.)
The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal and premium, if
any, from time to time on demand at the then applicable rate on the Notes;
it shall pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue installments of interest (without
regard to any applicable grace periods) from time to time on demand at the
same rate to the extent lawful. Interest will be computed on the basis of a
360-day year consisting of twelve 30-day months.
2. Method of Payment. The Company will pay interest on the Notes
(except defaulted interest) to the Persons who are registered Holders of
Notes at the close of business on the December 1 or June 1 next preceding
the Interest Payment Date, even if such Notes are canceled after such
record date and on or before such Interest Payment Date, except as provided
in Section 2.12 of the Indenture with respect to defaulted interest. The
Notes will be payable as to principal and interest at the office or agency
of the Company maintained for such purpose within or without the City and
State of New York, or, at the option of the Company, payment of interest
may be made by check mailed to the Holders at their addresses set forth in
the register of Holders, and provided that payment by wire transfer of
immediately available funds will be required with respect to the payment of
principal of and interest and premium on, all Global Notes and all other
Notes the Holders of which shall have provided wire transfer instructions
to the Company or the Paying Agent. Such payment shall be in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
3. Paying Agent and Registrar. Initially, The Bank of New York,
the Trustee under the Indenture, will act as Paying Agent and Registrar.
The Company may change any Paying Agent or Registrar without notice to any
Holder. The Company or any of its Subsidiaries may act in any such
capacity.
4. Indenture and Security Agreements. The Company issued the Notes
under an Indenture, dated as of [____] [_], 2000 (the "Indenture"), between
the Company and the Trustee. The terms of the Notes include those stated in
the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939, as amended (15 U.S. Code xx.xx. 77aaa-77bbbb).
The Notes are subject to all such terms, and Holders are referred to the
Indenture and such Act for a statement of such terms. To the extent any
provision of this Note conflicts with the express provisions of the
Indenture, the provisions of the Indenture shall govern and be controlling.
The Notes are secured obligations of the Company in up to an unlimited
aggregate principal amount at maturity. The Notes are secured by pledged
collateral pursuant to the Security Agreements referred to in the
Indenture.
5. Optional Redemption.
(a) Except as set forth in subparagraph (b) of this
Paragraph 5, the Company shall not have the option to redeem the Notes
prior to June 15, 2005. After June 15, 2005, the Company shall have the
option to redeem the Notes, in whole or in part, upon not less than 30 nor
more than 60 days' notice, at the redemption prices (expressed as
percentages of accreted value) set forth below plus accrued and unpaid
interest, if any, thereon to the applicable redemption date, if redeemed
during the twelve-month period beginning on June 15 of the years
indicated below:
Year Percentage
---- ----------
2005 105.500%
2006 103.667%
2007 101.833%
2008 and thereafter 100.000%
(b) Notwithstanding the provisions of subparagraph (a) of
this Paragraph 5, at any time prior to June 15, 2003, the Company may on
any one or more occasions redeem up to 35% of the aggregate principal
amount of Notes issued under the Indenture with the Net Cash Proceeds of
one or more Equity Offerings at a redemption price equal to 111% of the
accreted value of the Notes redeemed plus accrued and unpaid interest
thereon; provided that at least 65% in aggregate principal amount of the
Notes originally issued under the Indenture remain outstanding immediately
after the occurrence of such redemption (excluding Notes held by the
Company and its Subsidiaries), and that such redemption occurs within 90
days of the date of the closing of such Equity Offering.
6. Mandatory Redemption.
Except as set forth in paragraph 7 below, the Company shall not be
required to make mandatory redemption with respect to the Notes.
7. Repurchase at the Option of Holders.
(a) Upon the occurrence of a Change of Control, and
subject to any applicable limitations contained in the Senior Credit
Agreement, each Holder will have the right to require the Company to
repurchase all or any part (equal to $1,000 Principal Amount at maturity or
an integral multiple thereof) of each Holder's Notes at a purchase price
equal to 101% of the aggregate accreted value thereof plus accrued and
unpaid interest, if any, thereon to the date of purchase (subject to the
right of Holders of record on the relevant record date to receive interest
due on the relevant Interest Payment Date) (the "Change of Control
Payment"). Within 30 days following any Change of Control, the Company
shall mail a notice to each Holder setting forth the procedures governing
the Change of Control Offer as required by the Indenture.
(b) If the Company or a Restricted Subsidiary consummates
any Asset Dispositions, when the aggregate amount of Net Available Cash
remaining after application in accordance with the provisions of Section
4.07 of the Indenture exceeds $20.0 million, the Company shall commence an
offer to all Holders of Notes (an "Asset Sale Offer") pursuant to Section
3.09 of the Indenture to purchase the maximum principal amount of Notes
that may be purchased out of the balance of such Net Available Cash at an
offer price in cash in an amount equal to 100% of the accreted value
(without premium) thereof plus accrued and unpaid interest, if any, thereon
to the date fixed for the closing of such offer, in accordance with the
procedures set forth in the Indenture. To the extent that the aggregate
amount of Notes tendered pursuant to an Asset Sale Offer is less than the
Net Available Cash available, the Company (or such Restricted Subsidiary)
must use such deficiency in the manner specified in Section 4.07 of the
Indenture. If the aggregate principal amount of Notes surrendered by
Holders thereof exceeds the amount of Net Available Cash available, the
Trustee shall select the Notes to be purchased on a pro rata basis in
accordance with the Indenture. Holders of Notes that are the subject of an
offer to purchase will receive an Asset Sale Offer from the Company prior
to any related purchase date and may elect to have such Notes purchased by
completing the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Notes.
8. Notice of Redemption. Notice of redemption will be mailed at
least 30 days but not more than 60 days before the redemption date to each
Holder whose Notes are to be redeemed at its registered address. Notes in
denominations larger than $1,000 Principal Amount at maturity may be
redeemed in part but only in whole multiples of $1,000 Principal Amount at
maturity, unless all of the Notes held by a Holder are to be redeemed. On
and after the redemption date interest ceases to accrue on Notes or
portions thereof called for redemption.
9. Subordination. The Notes are subordinated to all existing and
future Senior Debt of the Company. To the extent provided in the Indenture,
Senior Debt of the Company must be paid before the Notes may be paid. The
Indenture does not limit the amount of present or future Senior Debt that
the Company may have. The Company agrees, and each Holder of the Notes by
accepting a Note agrees, to the subordination and authorizes the Trustee to
give it effect and appoints the Trustee as attorney-in-fact for such
purpose. The Second Lien on the Collateral securing the Notes shall at all
times be junior and subordinate to the First Lien, as provided in the
Security Agreements, and shall also be subject to other Permitted Liens, as
provided in the Indenture. Each Holder of Notes, by its acceptance thereof,
consents and agrees to the terms of the Security Agreements (including,
without limitation, the provisions providing for foreclosure and release of
Collateral) as the same may be in effect or may be amended from time to
time in accordance with its terms and authorizes and directs the Trustee to
enter into the Security Agreements and to perform its obligations and
exercise its rights thereunder in accordance therewith. Until such time as
all obligations under the Senior Credit Agreement have been paid in full in
cash or other payment satisfactory to the Senior Lenders and all lending
commitments thereunder have been terminated, the right of the Trustee
and/or the Holders of the Notes to foreclose on, or otherwise exercise any
rights and remedies in respect of, the Collateral is subject to a complete
standstill in favor of the Senior Lenders, as and to the extent provided in
the Security Agreements.
10. Denominations, Transfer, Exchange. The Notes are in registered
form without coupons in denominations of $1,000 Principal Amount at
maturity and integral multiples of $1,000 Principal Amount at maturity. The
transfer of Notes may be registered and Notes may be exchanged as provided
in the Indenture. The Registrar and the Trustee may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents
and the Company may require a Holder to pay any taxes and fees required by
law or permitted by the Indenture. The Company need not exchange or
register the transfer of any Note or portion of a Note selected for
redemption, except for the unredeemed portion of any Note being redeemed in
part. Also, the Company need not exchange or register the transfer of any
Notes for a period of 15 days before a selection of Notes to be redeemed or
during the period between a record date and the corresponding Interest
Payment Date.
11. Persons Deemed Owners. The registered Holder of a Note may be
treated as its owner for all purposes.
12. Amendment, Supplement and Waiver. Subject to certain
exceptions, the Indenture, the Notes or any of the Security Agreements may
be amended or supplemented with the consent of the Holders of at least a
majority in principal amount of the then outstanding Notes voting as a
single class, and any existing Default or Event of Default (subject to
certain exceptions set forth in the Indenture) or compliance with any
provision of the Indenture, the Notes or any of the Security Agreements may
be waived with the consent of the Holders of a majority in principal amount
of the then outstanding Notes voting as a single class. Without the consent
of any Holder of a Note, the Indenture, the Notes or any of the Security
Agreements may be amended or supplemented to cure any ambiguity, defect or
inconsistency, to provide for uncertificated Notes in addition to or in
place of certificated Notes (provided that the uncertificated Notes are
issued in registered form for purposes of Section 163(f) of the Code, or in
a manner such that the uncertificated Notes are described in Section
163(f)(2)(B) of the Code), to provide for the assumption of the Company's
obligations to Holders of the Notes in case of a Change of Control, to add
Guarantees with respect to the Notes, to add to the covenants of the
Company and its Subsidiaries for the benefit of the Holders or to surrender
any right or power conferred upon the Company, to comply with the
requirements of the Commission in order to effect or maintain the
qualification of the Indenture under the Trust Indenture Act, or to make
any change that would provide any additional rights or benefits to the
Holders of the Notes or that does not adversely affect the legal rights
under the Indenture of any such Holder.
13. Defaults and Remedies. Events of Default include: (i) a
default in any payment of interest on any Note when the same becomes due
and payable, and such default continues for a period of 30 days; (ii) a
default in the payment of the principal of any Note when the same becomes
due and payable at its Stated Maturity, upon redemption, upon declaration,
upon required repurchase or otherwise; (iii) the failure by the Company to
comply with its obligations pursuant to Section 5.01 of the Indenture; (iv)
failure by the Company to observe or perform any of its obligations
pursuant to Sections 4.07 or 4.10 (in each case, other than a failure to
purchase Notes) of the Indenture for 30 days after notice to the Company by
the Trustee or the Holders of at least 25% in aggregate principal amount of
the Notes then outstanding voting as a single class; (v) failure by the
Company to observe or perform any other covenant, representation, warranty
or other agreement in the Indenture or the Notes for 60 days after notice
to the Company by the Trustee or the Holders of at least 25% in aggregate
principal amount of the Notes then outstanding voting as a single class;
(vi) default under certain other agreements relating to Debt of the Company
which default results in the acceleration of such Debt prior to its Stated
Maturity; (vii) certain final judgments for the payment of money that
remains undischarged for a period of 60 days; and (viii) certain events of
bankruptcy or insolvency with respect to the Company or any of its
Significant Subsidiaries. If any Event of Default occurs and is continuing,
the Trustee or the Holders of at least 25% in principal amount of the then
outstanding Notes may declare the principal of and accrued but unpaid
interest on all the Notes to be due and payable. Notwithstanding the
foregoing, in the case an Event of Default arising from certain events of
bankruptcy, reorganization or insolvency of the Company or any Significant
Subsidiary occurs and is continuing, all outstanding Notes will become due
and payable without further declaration or other act on the part of the
Trustee or any Holders of the Notes. Holders may not enforce the Indenture
or the Notes except as provided in the Indenture. Subject to certain
limitations, Holders of a majority in principal amount of the then
outstanding Notes may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Holders of the Notes notice of any
continuing Default or Event of Default (except a Default or Event of
Default relating to the payment of principal or interest) if and so long as
a committee of its trust officers determines that withholding notice is in
the interest of the Holders of the Notes. The Holders of a majority in
aggregate principal amount of the Notes then outstanding by notice to the
Trustee may on behalf of the Holders of all of the Notes waive any existing
Default or Event of Default and its consequences under the Indenture except
a continuing Default or Event of Default in the payment of interest on, or
the principal of, the Notes. The Company is required to deliver to the
Trustee within 120 days of each fiscal year a statement regarding
compliance with the Indenture, and the Company is required upon becoming
aware of any Default or Event of Default, to deliver to the Trustee written
notice specifying such Default or Event of Default, within 30 days after
the occurrence thereof.
14. Trustee Dealings with Company. The Trustee, in its individual
or any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not the Trustee.
15. No Recourse Against Others. A director, officer, employee,
incorporator or stockholder, of the Company, as such, shall not have any
liability for any obligations of the Company under the Notes or the
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder by accepting a Note waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes.
16. Authentication. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.
17. Abbreviations. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A
(= Uniform Gifts to Minors Act).
18. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes and the Trustee may use
CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed
on the Notes or as contained in any notice of redemption and reliance may
be placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to:
Sunbeam Corporation
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Corporate Secretary
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to: ______________________________
(Insert assignee's legal name)
__________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ______________________________________________ to
transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date: __________________________ Your Signature:__________________________
(Sign exactly as your name appears
on the face of this Note)
Signature Guarantee*:________________________
* Participant in a recognized Signature Guarantee Medallion Program
(or other signature guarantor acceptable to the Trustee).
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.07 or 4.10 of the Indenture, check the appropriate
box below:
|_| Section 4.07 |_| Section 4.10
If you want to elect to have only part of the Note purchased by
the Company pursuant to Section 4.07 or Section 4.10 of the Indenture,
state the amount you elect to have purchased:
$_________________________
Date: ____________________ Your Signature:_______________________________
(Sign exactly as your name appears
on the face of this Note)
Tax Identification No.:___________________
Signature Guarantee*:_____________________
* Participant in a recognized Signature Guarantee Medallion Program
(or other signature guarantor acceptable to the Trustee).
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
The following exchanges of a part of this Global Note for an
interest in another Global Note or for a Definitive Note, or exchanges of a
part of another Global Note or Definitive Note for an interest in this
Global Note, have been made:
Principal Amount Signature of
Amount of decrease in Amount of increase in of this Global Note authorized officer
Principal Amount Principal Amount following such decrease of Trustee or
Date of Exchange of this Global Note of this Global Note (or increase) Note Custodian
---------------- ------------------- ------------------- ------------- --------------
* This schedule should be included only if the Note is issued in global form.
