EXHIBIT 4.5
REMINGTON PRODUCTS COMPANY, L.L.C.
REMINGTON CAPITAL CORP.
As Issuers
SERIES C AND SERIES D
11% SENIOR SUBORDINATED NOTES DUE 2006
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INDENTURE
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Dated as of April 18, 0000
XXX XXXX XX XXX XXXX
As Trustee
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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.........................................17
Section 1.04 Rules of Construction.....................................................................17
ARTICLE 2
THE NOTES
Section 2.01 Form and Dating...........................................................................18
Section 2.02 Execution and Authentication..............................................................19
Section 2.03 Registrar and Paying Agent................................................................20
Section 2.04 Paying Agent to Hold Money in Trust.......................................................20
Section 2.05 Holder Lists..............................................................................20
Section 2.06 Transfer and Exchange.....................................................................21
Section 2.07 Replacement Notes.........................................................................33
Section 2.08 Outstanding Notes.........................................................................34
Section 2.09 Treasury Notes............................................................................34
Section 2.10 Temporary Notes...........................................................................34
Section 2.11 Cancellation..............................................................................35
Section 2.12 Record Date...............................................................................35
Section 2.13 Defaulted Interest........................................................................35
Section 2.14 CUSIP Numbers.............................................................................35
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee........................................................................36
Section 3.02 Selection of Notes to be Redeemed.........................................................36
Section 3.03 Notice of Redemption......................................................................37
Section 3.04 Effect of Notice of Redemption............................................................37
Section 3.05 Deposit of Redemption Price...............................................................37
Section 3.06 Notes Redeemed in Part....................................................................38
Section 3.07 Optional Redemption.......................................................................38
Section 3.08 Mandatory Redemption......................................................................38
Section 3.09 Offer to Purchase by Application of Excess Proceeds.......................................39
(i)
ARTICLE 4
COVENANTS
Section 4.01 Payment of Notes..........................................................................40
Section 4.02 Maintenance of Office or Agency...........................................................41
Section 4.03 Reports...................................................................................41
Section 4.04 Compliance Certificate....................................................................42
Section 4.05 Taxes.....................................................................................42
Section 4.06 Stay, Extension and Usury Laws............................................................43
Section 4.07 Restricted Payments.......................................................................43
Section 4.08 Dividend and Other Payment Restrictions Affecting Subsidiaries............................45
Section 4.09 Incurrence of Indebtedness................................................................46
Section 4.10 Asset Sales...............................................................................48
Section 4.11 Transactions With Affiliates..............................................................49
Section 4.12 Liens.....................................................................................50
Section 4.13 Activities of Intellectual Property Subsidiary............................................50
Section 4.14 Restrictions on Activities of Capital.....................................................50
Section 4.15 Existence as a Corporation or Limited Liability Company...................................50
Section 4.16 Change of Control.........................................................................50
Section 4.17 Limitation on Other Senior Subordinated Debt..............................................52
Section 4.18 Subsidiary Guarantees.....................................................................52
Section 4.19 Payments for Consent......................................................................52
ARTICLE 5
SUCCESSORS
Section 5.01 Merger, Consolidation, or Sale of Assets..................................................53
Section 5.02 Successor Corporation Substituted.........................................................53
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.........................................................................54
Section 6.02 Acceleration..............................................................................55
Section 6.03 Other Remedies............................................................................56
Section 6.04 Waiver of Past Defaults...................................................................56
Section 6.05 Control by Majority.......................................................................56
Section 6.06 Limitation on Suits.......................................................................56
Section 6.07 Rights of Holders of Notes to Receive Payment.............................................57
Section 6.08 Collection Suit by Trustee................................................................57
Section 6.09 Trustee May File Proofs of Claim..........................................................57
Section 6.10 Priorities................................................................................58
Section 6.11 Undertaking for Costs.....................................................................58
(ii)
ARTICLE 7
TRUSTEE
Section 7.01 Duties of Trustee.........................................................................59
Section 7.02 Rights of Trustee.........................................................................60
Section 7.03 Individual Rights of Trustee..............................................................60
Section 7.04 Trustee's Disclaimer......................................................................61
Section 7.05 Notice of Defaults........................................................................61
Section 7.06 Reports by Trustee to Holders of the Notes................................................61
Section 7.07 Compensation and Indemnity................................................................61
Section 7.08 Replacement of Trustee....................................................................62
Section 7.09 Successor Trustee by Merger, Etc..........................................................63
Section 7.10 Eligibility; Disqualification.............................................................63
Section 7.11 Preferential Collection of Claims Against the Company.....................................64
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance..................................64
Section 8.02 Legal Defeasance and Discharge............................................................64
Section 8.03 Covenant Defeasance.......................................................................64
Section 8.04 Conditions to Legal or Covenant Defeasance................................................65
Section 8.05 Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions. 66
Section 8.06 Repayment to the Issuers..................................................................67
Section 8.07 Reinstatement.............................................................................67
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders................................................................67
Section 9.02 With Consent of Holders of Notes..........................................................68
Section 9.03 Compliance with Trust Indenture Act.......................................................69
Section 9.04 Revocation and Effect of Consents.........................................................69
Section 9.05 Notation on or Exchange of Notes..........................................................70
Section 9.06 Trustee to Sign Amendments, Etc...........................................................70
ARTICLE 10
SUBORDINATION
Section 10.01 Agreement to Subordinate..................................................................70
Section 10.02 Liquidation; Dissolution; Bankruptcy......................................................70
Section 10.03 Default on Designated Senior Debt.........................................................71
Section 10.04 Acceleration of Notes.....................................................................72
Section 10.05 When Distribution Must Be Paid Over.......................................................72
Section 10.06 Notice By The Issuers.....................................................................72
(iii)
Section 10.07 Subrogation...............................................................................72
Section 10.08 Relative Rights...........................................................................73
Section 10.09 Subordination May Not Be Impaired by the Issuers..........................................73
Section 10.10 Distribution or Notice to Representative..................................................73
Section 10.11 Rights of Trustee and Paying Agent........................................................73
Section 10.12 Authorization to Effect Subordination.....................................................74
Section 10.13 Amendments................................................................................74
ARTICLE 11
MISCELLANEOUS
Section 11.01 Trust Indenture Act Controls..............................................................74
Section 11.02 Notices...................................................................................74
Section 11.03 Communication by Holders of Notes With Other Holders of Notes.............................76
Section 11.04 Certificate and Opinion as to Conditions Precedent........................................76
Section 11.05 Statements Required in Certificate or Opinion.............................................76
Section 11.06 Rules by Trustee and Agents...............................................................77
Section 11.07 No Personal Liability of Directors, Officers, Employees,
Partners and Stockholders.................................................................77
Section 11.08 Governing Law.............................................................................77
Section 11.09 No Adverse Interpretation of Other Agreements.............................................77
Section 11.10 Successors................................................................................77
Section 11.11 Severability..............................................................................77
Section 11.12 Counterpart Originals.....................................................................77
Section 11.13 Table of Contents, Headings, Etc..........................................................77
EXHIBITS
Exhibit A-1 FORM OF NOTE
Exhibit A-2 FORM OF REGULATION S TEMPORARY GLOBAL NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit B-1 FORM OF CERTIFICATE OF EXCHANGE
Exhibit B-2 FORM OF CERTIFICATE FROM ACQUIRING IAI
Exhibit C FORM OF GUARANTEE
Annex A EXCLUDED OBLIGATIONS
(iv)
INDENTURE dated as of April 18, 2001 among REMINGTON PRODUCTS COMPANY,
L.L.C., a Delaware limited liability company (the "Company"), REMINGTON CAPITAL
CORP., a Delaware corporation ("Capital" and, together with the Company, the
"Issuers"), and THE BANK OF NEW YORK, a New York banking corporation, as trustee
(the "Trustee").
The Issuers and the Trustee agree as follows for the benefit of each other
and for the equal and ratable benefit of the holders (the "Holders") of the 11%
Series C Senior Subordinated Notes due 2006 (the "Series C Notes") and the 11%
Series D Senior Subordinated Notes due 2006 (the "Series D Notes" and, together
with the Series C Notes, the "Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01......Definitions.
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"144A Global Note" means a global note substantially in the form of Exhibit
A-1 hereto bearing the Global Note Legend and the Private Placement 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 sold in reliance on Rule 144A.
"Acquired Debt" means, with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Restricted Subsidiary of such specified Person,
including, without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Restricted Subsidiary of such specified Person, and (ii) Indebtedness secured by
a Lien encumbering any asset acquired by such specified Person.
"Acquisition Debt" means, with respect to any Person, the aggregate of the
amount of Indebtedness incurred and the liquidation preference of preferred
stock issued by such Person and its Restricted Subsidiaries to finance or in
contemplation of the acquisition of the assets of any business, the acquisition
of such Person or the acquisition of any other Person that becomes a Restricted
Subsidiary of such Person (whether accomplished by asset purchase, merger or
stock purchase); provided that such acquisition constitutes a Permitted
Investment; and provided, further, that Acquisition Debt shall include
Indebtedness incurred and preferred stock issued as interest on or dividends
with respect to Acquisition Debt.
"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 purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided that
Beneficial Ownership of 10% or more of the voting securities of a Person shall
be deemed to be control.
"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, Euroclear and Cedel that apply to such transfer or exchange.
"Asset Sale" means (i) the sale, lease, conveyance or other disposition of
any assets (including, without limitation, by way of a sale and leaseback)
(provided that the sale, lease, conveyance or other disposition of all or
substantially all of the assets of the Issuers and their Restricted Subsidiaries
taken as a whole will be governed by the provisions of Section 4.16 of this
Indenture and/or the provisions of Section 5.01 of this Indenture and not by the
provisions of Section 4.10 of this Indenture), and (ii) the issue or sale by the
Issuers or any of their Subsidiaries of Equity Interests of any of the Issuers'
Subsidiaries, in the case of either clause (i) or (ii), whether in a single
transaction or a series of related transactions for net proceeds in excess of
$1.0 million. Notwithstanding the foregoing, the following will be deemed not to
be Asset Sales: (i) the sale of inventory or obsolete equipment in the ordinary
course of business, (ii) the surrender or waiver of contract rights or the
settlement, release or surrender of contract, tort or other claims of any kind,
(iii) the grant in the ordinary course of business of, or lapse of, any license
of patents, trademarks and other similar intellectual property, (iv) a transfer
of assets by the Issuers to a Wholly Owned Restricted Subsidiary or by a Wholly
Owned Restricted Subsidiary to the Issuers or to another Wholly Owned Restricted
Subsidiary, (v) an issuance of Equity Interests by a Wholly Owned Restricted
Subsidiary to the Issuers or to another Wholly Owned Restricted Subsidiary and
(vi) a Permitted Investment or a Restricted Payment that is permitted by Section
4.07 hereof.
"Bankruptcy Law", means Title 11, U.S. Code or any similar federal or state
law for the relief of debtors.
"Beneficial Owner" (including, with correlative meanings, "Beneficially
Owned" and "Beneficial Ownership") means, with respect to any Capital Stock, a
"person," as such term is used in Section 13(d)(3) of the Exchange Act, that is
a "beneficial owner," as such term is defined in Rule 13d-3 and Rule 13d-5 under
the Exchange Act, of such Capital Stock.
"Borrowing Base" means, with respect to any Person as of any date, an
amount equal to the sum of (i) 85% of the face amount of Eligible Accounts
Receivable of such Person and its Restricted Subsidiaries and (ii) 60% of the
book value (calculated on a first-in, first-out basis) of Eligible Inventory of
such Person and its Restricted Subsidiaries, in each case, determined as of the
end of the most recently completed month preceding such date for which internal
financial statements are available.
"Broker-Dealer" has the meaning set forth in the Registration Rights
Agreement.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any determination thereof is
to be made, the amount of the liability in respect of a capital lease that would
at such time be required to be capitalized on a balance sheet in accordance with
GAAP.
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"Capital Stock" means (i) in the case of a corporation, corporate stock,
(ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock, (iii) in the case of a partnership, partnership interests
(whether general or limited) and (iv) any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, the issuing Person.
"Cash Equivalents" means (i) United States dollars, (ii) securities issued
or directly and fully guaranteed or insured by the United States government or
any agency or instrumentality thereof having maturities of not more than six
months from the date of acquisition, (iii) certificates of deposit and
eurodollar time deposits with maturities of six months or less from the date of
acquisition, bankers' acceptances with maturities not exceeding six months and
overnight bank deposits, in each case with any domestic commercial bank having
capital and surplus in excess of $500 million and a Xxxxx Bank Watch Rating of
"B" or better, (iv) repurchase obligations with a term of not more than seven
days for underlying securities of the types described in clauses (ii) and (iii)
above entered into with any financial institution meeting the qualifications
specified in clause (iii) above, and (v) commercial paper having the highest
rating obtainable from Xxxxx'x Investors Service, Inc. or Standard & Poor's
Corporation and in each case maturing within six months after the date of
acquisition.
"Cedel" means Cedel Bank, SA.
"Certificated Securities" means Notes that are in the form of the Notes
attached hereto as Exhibit A-1, that do not include the Global Note Legend or
the "Schedule of Exchanges of Interests in the Global Note."
"Change of Control" means the occurrence of any of the following: (i) the
sale, lease, transfer, conveyance or other disposition (other than by way of
merger or consolidation), in one or a series of related transactions, of all or
substantially all of the assets of the Company and its Restricted Subsidiaries,
taken as a whole, to any "person" (as such term is used in Section 13(d)(3) of
the Exchange Act) other than the Principal, (ii) the adoption of a plan relating
to the liquidation or dissolution of the Company, (iii) prior to the
consummation of an Initial Public Offering, the consummation of any transaction
(including, without limitation, any merger or consolidation) the result of which
is that (a) the Principal ceases to have sufficient voting power (including,
without limitation, by contractual arrangement) to elect a majority of the
members of the Management Committee or (b) the Principal sells, grants an option
to sell, pledges or otherwise disposes of more than 20% of the amount of its
Investment in the Company as of the May 23, 1996 (other than in connection with
an Initial Public Offering and sales or other dispositions of Capital Stock that
do not result in the Principal no longer Beneficially Owning such Capital
Stock), (iv) following the consummation of an Initial Public Offering, the
Company becomes aware (by way of a report or other filing with the Commission or
otherwise) that any "person" (as such term is used in Section 13(d)(3) of the
Exchange Act), other than the Principal, has become the Beneficial Owner,
directly or indirectly, of (a) more than 35% of the voting power of the voting
Capital Stock of the Company and (b) more of the voting power of the voting
Capital Stock of the Company than is Beneficially Owned by the Principal, (v)
3
the first day on which the Company fails to own 100% of the issued and
outstanding Equity Interests of Capital, other than by reason of a merger of
Capital with and into a corporate successor to the Company, and (vi) the first
day on which more than one-third of the members of the Management Committee are
not Continuing Members; provided, however, that the Principal shall be deemed to
be the Beneficial Owner of the voting power of voting Capital Stock if (a) the
Principal retains the right (by contractual arrangement or otherwise) to vote
such Capital Stock and (b) the Principal Beneficially Owns at least 10% of the
common Equity Interests of the Company (excluding Capital Stock the Principal
may be deemed to Beneficially Own solely because it has the contractual right to
vote such Capital Stock).
"Commission" means the Securities and Exchange Commission.
"Consolidated Cash Flow" means, with respect to any Person for any period,
the Consolidated Net Income of such Person for such period plus, to the extent
deducted in computing Consolidated Net Income, (i) an amount equal to any
extraordinary loss plus any net loss realized in connection with an Asset Sale,
(ii) provision for taxes based on income or profits or the Tax Amount of such
Person and its Restricted Subsidiaries for such period, (iii) consolidated
interest expense of such Person and its Restricted Subsidiaries for such period,
whether paid or accrued and whether or not capitalized (including, without
limitation, amortization of original issue discount, non-cash interest payments,
the interest component of any deferred payment obligations, the interest
component of all payments associated with Capital Lease Obligations,
commissions, discounts and other fees and charges incurred in respect of letter
of credit or bankers' acceptance financings, and net payments (if any) pursuant
to Hedging Obligations) and (iv) depreciation and amortization (including
amortization of goodwill and other intangibles but excluding amortization of
prepaid cash expenses that were paid in a prior period), other non-cash charges
(excluding any such non-cash charge to the extent that it represents an accrual
of or reserve for cash charges in any future period or amortization of a prepaid
cash expense that was paid in a prior period) and Excluded Obligations of such
Person and its Restricted Subsidiaries for such period, in each case, on a
consolidated basis and determined in accordance with GAAP. Notwithstanding the
foregoing, the provision for taxes on the income or profits of, and the
depreciation and amortization, other non-cash charges and Excluded Obligations
of, a Restricted Subsidiary of the referent Person shall be added to
Consolidated Net Income to compute Consolidated Cash Flow only to the extent
(and in same proportion) that the Net Income of such Restricted Subsidiary was
included in calculating the Consolidated Net Income of such Person and only if a
corresponding amount would be permitted at the date of determination to be
dividended to the Issuers by such Restricted Subsidiary without prior
governmental approval (that has not been obtained), and without direct or
indirect restriction pursuant to the terms of its charter and all agreements,
instruments, judgments, decrees, orders, statutes, rules and governmental
regulations applicable to such Restricted Subsidiary or its stockholders.
"Consolidated Net Income" means, with respect to any Person for any period,
the aggregate of the Net Income of such Person and its Restricted Subsidiaries
for such period, on a consolidated basis, determined in accordance with GAAP;
provided that (i) the Net Income (but not loss) of any Person that is not a
Restricted Subsidiary or that is accounted for by the equity method of
accounting shall be included only to the extent of the amount of dividends or
distributions paid in cash to the referent Person or a Wholly Owned Restricted
Subsidiary thereof, (ii) the Net Income of any Restricted Subsidiary shall be
excluded to the extent that the declaration or payment of dividends or similar
4
distributions by such Restricted Subsidiary of such Net Income is not at the
date of determination permitted without any prior governmental approval (that
has not been obtained) or, directly or indirectly, by operation of the terms of
its charter or any agreement, instrument, judgment, decree, order, statute, rule
or governmental regulation applicable to such Restricted Subsidiary or its
stockholders, (iii) the Net Income of any Person acquired in a pooling of
interests transaction for any period prior to the date of such acquisition shall
be excluded, (iv) the cumulative effect of a change in accounting principles
shall be excluded and (v) the Net Income of any Unrestricted Subsidiary shall be
excluded, whether or not distributed to the Issuers or their Restricted
Subsidiaries.
"Consolidated Net Worth" means, with respect to any Person, the amount by
which the total assets of such Person and its Restricted Subsidiaries exceed the
sum of (i) the total liabilities of such Person and its Restricted Subsidiaries
plus (ii) any Disqualified Stock of such Person and its Restricted Subsidiaries
(other than any such Disqualified Stock issued to such Person or any of its
Restricted Subsidiaries), in each case determined in accordance with GAAP.
"Consulting Agreement" means a consulting and transitional services
agreement dated as of May 23, 1996 between RPI and the Company.
"Continuing Member" means, as of any date of determination, any member of
the Management Committee who (i) was a member of the Management Committee on May
23, 1996 or (ii) was nominated for election to the Management Committee with the
approval of at least a majority of the Continuing Members who were members of
the Management Committee at the time of such nomination or election.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 11.02 of this Indenture or such other address as to
which the Trustee gives notice to the Company.
"Default" means any event that is or with the passage of time or the giving
of notice 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 2.06 hereof, substantially
in the form of Exhibit A-1 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, until a successor shall have been
appointed and become such pursuant to the applicable provision of this Indenture
and, thereafter, "Depositary" shall mean or include such successor.
"Designated Senior Debt" means (i) Indebtedness under the Senior Credit
Agreement and (ii) any other Senior Debt permitted to be incurred by the Issuers
under the terms of this Indenture the principal amount of which is $25.0 million
or more and that has been designated by the Management Committee as "Designated
Senior Debt."
"Disqualified Stock" means any Capital Stock that, by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the holder thereof, in whole or in part, on or prior to the date
that is 91 days after the date on which the Notes mature.
5
"Eligible Accounts Receivable" means, with respect to any Person as of any
date of determination, all accounts receivable owned by such Person and its
Restricted Subsidiaries as of such date (i) which are not 90 or more days past
due; (ii) which are not owed by an obligor which has taken any of the actions or
suffered any of the events of the kind described in Section 6.01(h) or 6.01(i)
hereof; (iii) which are not subject to any asserted dispute, off-set,
counterclaim or defense on the part of the account debtor or to any asserted
claim on the part of the account debtor denying liability under such account in
whole or in part; and (iv) which are not owed by an obligor in respect of which
50% or more of the accounts receivable are 90 or more days past due or
uncollectible.
"Eligible Inventory" means, with respect to any Person as of any date of
determination, all inventory (less reserves for obsolescence) of such Person and
its Restricted Subsidiaries as of such date as to which the following
requirements have been fulfilled: (a) such Person or a Restricted Subsidiary of
such Person has lawful and absolute title to such inventory; and (b) none of
such inventory is obsolete, unsalable, damaged or otherwise unfit for sale or
further processing.
"Equity Interests" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Euroclear" means Xxxxxx Guaranty Trust Company of New York, Brussels
office, as operator of the Euroclear system.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Notes" means the Notes issued in the Exchange Offer pursuant to
Section 2.06(f) hereof.
"Exchange Offer" means the offer that may be made by the Issuers pursuant
to the Registration Rights Agreement to issue Series D Notes in exchange for
Series C Notes and Existing Notes.
"Exchange Offer Registration Statement" has the meaning set forth in the
Registration Rights Agreement.
"Excluded Obligations" means the obligations of the Company listed on Annex
A to this Indenture that will reduce the amounts of the distributions to Remsen
and RPI.
"Existing Indebtedness" means Indebtedness of the Issuers and their
Restricted Subsidiaries in existence on May 23, 1996, until such amounts are
repaid.
"Existing Notes" means the Issuers' 11% Series B Senior Subordinated Notes
due 2006, issued pursuant to that certain indenture dated May 23, 1996.
6
"Fixed Charge Coverage Ratio" means with respect to any Person for any
period, the ratio of the Consolidated Cash Flow of such Person for such period
to the Fixed Charges of such Person for such period; provided, however, that (i)
in the event that such Person or any of its Restricted Subsidiaries incurs,
assumes, Guarantees or redeems any Indebtedness (other than revolving credit
borrowings) or issues or redeems any preferred stock subsequent to the
commencement of the period for which the Fixed Charge Coverage Ratio is being
calculated but prior to the date on which the event for which the calculation of
the Fixed Charge Coverage Ratio is made (the "Calculation Date"), then the Fixed
Charge Coverage Ratio shall be calculated giving pro forma effect to such
incurrence, assumption, Guarantee or redemption of Indebtedness, or such
issuance or redemption of preferred stock, as if the same had occurred at the
beginning of the applicable four-quarter reference period; (ii) in the event
that such Person or any of its Restricted Subsidiaries makes any acquisitions or
dispositions (including Asset Sales), including through mergers or
consolidations and including any related financing transactions, during the
four-quarter reference period or subsequent to such reference period and on or
prior to the Calculation Date, then the Fixed Charge Coverage Ratio shall be
calculated giving pro forma effect to such acquisitions or dispositions
(including, without limitation, any cost savings or other reductions and any
additional expenses accounted for on an annualized basis which, in the good
faith estimate of the Management Committee, will be eliminated or realized
within six months after the date of such transaction), as if the same had
occurred at the beginning of the applicable four-quarter reference period, and,
in the case of acquisitions, Consolidated Cash Flow for such reference period
shall be calculated without giving effect to clause (iii) of the proviso set
forth in the definition of Consolidated Net Income; (iii) the Consolidated Cash
Flow attributable to discontinued operations, as determined in accordance with
GAAP, and operations or businesses disposed of prior to the Calculation Date,
shall be excluded; and (iv) the Fixed Charges attributable to discontinued
operations, as determined in accordance with GAAP, and operations or businesses
disposed of prior to the Calculation Date, shall be excluded, but only to the
extent that the obligations giving rise to such Fixed Charges will not be
obligations of the referent Person or any of its Restricted Subsidiaries
following the Calculation Date.
"Fixed Charges" means, with respect to any Person for any period, the sum
of (without duplication) (i) the consolidated interest expense of such Person
and its Restricted Subsidiaries for such period, whether paid or accrued
(including, without limitation, amortization of original issue discount,
non-cash interest payments, the interest component of any deferred payment
obligations, the interest component of all payments associated with Capital
Lease Obligations, commissions, discounts and other fees and charges incurred in
respect of letter of credit or bankers' acceptance financings, and net payments
(if any) pursuant to Hedging Obligations, but excluding all other amortization
of debt issuance costs) and (ii) the consolidated interest expense of such
Person and its Restricted Subsidiaries that was capitalized during such period
and (iii) any interest expense on Indebtedness of another Person that is
Guaranteed by such Person or one of its Restricted Subsidiaries or secured by a
Lien on assets of such Person or one of its Restricted Subsidiaries (whether or
not such Guarantee or Lien is called upon) and (iv) the product of (a) all cash
dividend payments or other distributions (and non-cash dividend payments in the
case of a Person that is a Restricted Subsidiary) on any series of preferred
equity of such Person (other than payments to such Person and its Wholly Owned
Restricted Subsidiaries), times (b) a fraction, the numerator of which is one
and the denominator of which is one minus the then current combined federal,
state and local statutory tax rate of such Person (or, in the case of a Person
that is a partnership, the combined federal, state and local tax rate to which
such Person would be subject if it were a Delaware corporation), expressed as a
decimal, in each case, on a consolidated basis and in accordance with GAAP.
7
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which were in effect on May 23, 1996.
"Global Note" means, individually and collectively, each of the Restricted
Global Notes and the Unrestricted Global Notes, substantially in the form of
Exhibit A-1 hereto issued in accordance with Section 2.01, 2.06(b)(iv),
2.06(d)(ii) or 2.06(f) hereof.
"Global Note Legend" means the legend set forth in Section 2.06(g)(ii),
which is required to be placed on all Global Notes issued under this Indenture.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America for the payment of which guarantee
or obligations the full faith and credit of the United States is pledged.
"Guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness.
"Guarantor" means each Subsidiary that executes a Guarantee of the Issuers'
payment obligations under the Notes and this Indenture in accordance with the
provisions of this Indenture, and their respective successors and assigns.
"Hedging Obligations" means, with respect to any Person, the obligations of
such Person under (i) interest and currency rate swap agreements, interest rate
cap agreements and interest rate collar agreements and (ii) other agreements or
arrangements designed to protect such Person against fluctuations in interest or
currency exchange rates.
"Holder" means a Person in whose name a Note is registered.
"IAI Global Note" means the global Note substantially in the form of
Exhibit A-1 hereto bearing the Global Note Legend and the Private Placement
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 sold to Institutional Accredited
Investors.
"Indebtedness" means, with respect to any Person, any indebtedness of such
Person, whether or not contingent, in respect of borrowed money or evidenced by
bonds, notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof) or banker's acceptances or
representing Capital Lease Obligations or the balance deferred and unpaid of the
purchase price of any property or representing any Hedging Obligations, except
any such balance that constitutes an accrued expense or trade payable, if and to
the extent any of the foregoing indebtedness (other than letters of credit and
Hedging Obligations) would appear as a liability upon a balance sheet of such
Person prepared in accordance with GAAP, as well as all indebtedness of others
secured by a Lien on any asset of such Person (whether or not such indebtedness
is assumed by such Person) and, to the extent not otherwise included, the
Guarantee by such Person of any indebtedness of any other Person.
8
"Indenture" means this Indenture, as amended, modified or supplemented from
time to time.
"Indirect Participant" means a Person who holds a beneficial interest in a
Global Note through a Participant.
"Initial Public Offering" means an underwritten public offering of common
Capital Stock of the Company registered under Securities Act (other than a
public offering registered on Form S-8 under the Securities Act) that results in
net proceeds of at least $25.0 million to the Company.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act, who are not also QIBs.
"Investments" means, with respect to any Person, all investments by such
Person in other Persons in the forms of direct or indirect loans (including
guarantees of Indebtedness or other obligations), advances (other than advances
to customers in the ordinary course of business that are recorded as accounts
receivable in accordance with GAAP) or capital contributions (excluding
commission, travel, relocation and similar advances to officers and employees
made in the ordinary course of business), purchases or other acquisitions for
consideration of Indebtedness, Equity Interests or other securities, together
with all items that are or would be classified as investments on a balance sheet
prepared in accordance with GAAP; provided that an acquisition of assets, Equity
Interests or other securities by the Issuers or any of their Restricted
Subsidiaries for consideration consisting of Equity Interests (other than
Disqualified Stock) of the Company shall not be deemed to be an Investment. If
the Issuers or any of their Restricted Subsidiaries sells or otherwise disposes
of any Equity Interests of any Restricted Subsidiary of the Issuers such that,
after giving effect to any such sale or disposition, such Person is no longer a
Restricted Subsidiary of either Issuer, the Issuers shall be deemed to have made
an Investment on the date of any such sale or disposition equal to the fair
market value of the Equity Interests of such Restricted Subsidiary not sold or
disposed of.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York or at a place of payment are authorized by
law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue
for the intervening period.
"Letter of Transmittal" means the letter of transmittal to be prepared by
the Company and sent to all Holders of the Notes for use by such Holders in
connection with the Exchange Offer.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction).
9
"Liquidated Damages" means all liquidated damages owed pursuant to Section
5 of the Registration Rights Agreement.
"LLC Agreement" means the Amended and Restated Limited Liability Company
Agreement dated as of May 16, 1996 among Vestar Members, RPI and certain members
of management of the Company.
"Management Agreement" means the Management Agreement dated as of May 23,
1996 between Vestar Capital Partners and the Company.
"Management Committee" means (i) for so long as the Company is a limited
liability company, the committee appointed pursuant to Section 6.1 of the LLC
Agreement, and (ii) otherwise the board of directors of the Company.
"Net Income" means, with respect to any Person for any period, (i) the net
income (loss) of such Person for such period, determined in accordance with GAAP
and before any reduction in respect of preferred stock dividends, excluding,
however, (a) any gain (but not loss), together with any related provision for
taxes or Tax Distributions on such gain (but not loss), realized in connection
with (1) any Asset Sale (including, without limitation, dispositions pursuant to
sale and leaseback transactions) or (2) the disposition of any securities by
such Person or any of its Restricted Subsidiaries or the extinguishment of any
Indebtedness of such Person or any of its Restricted Subsidiaries and (b) any
extraordinary or nonrecurring gain (but not loss), together with any related
provision for taxes or Tax Distributions on such extraordinary or nonrecurring
gain (but not loss), less (ii) in the case of any Person that is treated as a
partnership for United States federal or state income tax purposes, the Tax
Amount of such Person for such period.
"Net Proceeds" means the aggregate cash proceeds received by the Issuers or
any of their Restricted Subsidiaries in respect of any Asset Sale (including,
without limitation, any cash received upon the sale or other disposition of any
non-cash consideration received in any Asset Sale), net of the direct costs
relating to such Asset Sale (including, without limitation, legal, accounting
and investment banking fees, and sales commissions), any relocation expenses
incurred as a result thereof, any taxes or Tax Distributions paid or payable by
the Issuers or any of their Restricted Subsidiaries as a result thereof (after
taking into account any available tax credits or deductions and any tax sharing
arrangements), any purchase money obligations relating to the assets comprising
such Asset Sale (to the extent repaid with the proceeds thereof) and any reserve
for adjustment in respect of the sale price of such asset or assets established
in accordance with GAAP.
"Non-Recourse Debt" means Indebtedness (i) as to which neither the Issuers
nor any of their Restricted Subsidiaries (a) provides credit support of any kind
(including any undertaking, agreement or instrument that would constitute
Indebtedness), (b) is directly or indirectly liable (as a guarantor or
otherwise), or (c) constitutes the lender, (ii) no default with respect to which
(including any rights that the holders thereof may have to take enforcement
action against an Unrestricted Subsidiary) would permit (upon notice, lapse of
time or both) any holder of any other Indebtedness of the Issuers or any of
their Restricted Subsidiaries to declare a default on such other Indebtedness or
cause the payment thereof to be accelerated or payable prior to its stated
maturity and (iii) as to which the lenders have been notified in writing that
they will not have any recourse to the stock or assets of the Issuers or any of
their Restricted Subsidiaries.
10
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Note Custodian" means the Trustee, as custodian with respect to the Notes
in global form, or any successor entity thereto.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Officer" means, with respect to any Person, 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 signed on behalf of a Person by
two Officers of such Person, one of whom must be the principal executive
officer, the principal financial officer or the principal accounting officer of
such Person, that meets the requirements of Section 11.05 hereof.
"Opinion of Counsel" means an opinion from legal counsel who is reasonably
acceptable to the Trustee that meets the requirements of Section 11.05 hereof.
Such counsel may be an employee of or counsel to the Issuers, any subsidiary of
the Issuers or the Trustee.
"Participant" means, with respect to the Depositary, Euroclear or Cedel, a
Person who has an account with the Depositary, Euroclear or Cedel, respectively
(and, with respect to DTC, shall include Euroclear and Cedel).
"Permitted Investments" means (i) any Investment in the Issuers or in a
Wholly Owned Restricted Subsidiary of the Issuers; (ii) any Investment in Cash
Equivalents; (iii) any Investment by the Issuers or any of their Restricted
Subsidiaries in a Person if, as a result of such Investment, (a) such Person
becomes a Wholly Owned Restricted Subsidiary of the Company or (b) such Person
is merged, consolidated or amalgamated with or into, or transfers or conveys
substantially all of its assets to, or is liquidated into, the Company or a
Wholly Owned Restricted Subsidiary of the Company; (iv) any Restricted
Investment made as a result of the receipt of non-cash consideration from an
Asset Sale that was made pursuant to and in compliance with Section 4.10 hereof;
(v) advances and loans to employees of the Company and its Restricted
Subsidiaries in the ordinary course of business; (vi) Investments acquired by
the Company or any of its Restricted Subsidiaries (a) in exchange for any other
Investment or accounts receivable held by the Company or such Restricted
Subsidiary in connection with or as a result of a bankruptcy, workout,
reorganization or recapitalization of the issuer of such Investment or accounts
receivable or (b) as a result of a foreclosure by the Company or such Restricted
Subsidiary or other transfer of title with respect to any secured Investment in
default; and (vii) any Hedging Obligation.
11
"Permitted Liens" means (i) Liens securing Senior Debt and Indebtedness of
Restricted Subsidiaries that is permitted to be incurred pursuant to this
Indenture; (ii) Liens securing Indebtedness that is pari passu in right of
payment with the Notes, provided that the Notes are equally and ratably secured,
(iii) Liens in favor of the Issuers or any of their Restricted Subsidiaries;
(iv) Liens on property of a Person existing at the time such Person is merged
into or consolidated with the Issuers or any of their Restricted Subsidiaries,
provided that such Liens were in existence prior to the contemplation of such
merger or consolidation and do not extend to any assets other than those of the
Person merged into or consolidated with the Issuers or any such Restricted
Subsidiary; (v) Liens on property existing at the time of acquisition thereof by
the Issuers or any of their Restricted Subsidiaries, provided that such Liens
were in existence prior to the contemplation of such acquisition; (vi) Liens to
secure the performance of statutory obligations, surety or appeal bonds,
performance bonds or other obligations of a like nature incurred in the ordinary
course of business; (vii) Liens to secure Indebtedness (including capital Lease
obligations) permitted by clause (iv) of the second paragraph of Section 4.09 of
this Indenture covering only the assets acquired with such Indebtedness; (viii)
Liens existing on May 23, 1996; (ix) Liens for taxes, assessments or
governmental charges or claims that are not yet delinquent or that are being
contested in good faith by appropriate proceedings promptly instituted and
diligently concluded, provided that any reserve or other appropriate provision
as shall be required in conformity with GAAP shall have been made therefor; (x)
Liens of landlords or of mortgagees of landlords arising by operation of law,
provided that the rental payments secured thereby are not yet due and payable;
(xi) Liens incurred or deposits made in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other types of
social security; (xii) easements, rights-of-way, restrictions, minor defects or
irregularities in title and other similar charges or encumbrances not
interfering in any material respect with the business of the Company or any of
its Restricted Subsidiaries; (xiii) judgement or attachment Liens not giving
rise to an Event of Default; (xiv) Liens arising out of the purchase,
consignment, shipment or storage of inventory or other goods in the ordinary
course of business; (xv) any interest or title of a lessor in property subject
to any Capital Lease Obligation or other lease; (xvi) Liens arising from filing
Uniform Commercial Code financing statements regarding leases; and (xvii) Liens
incurred in the ordinary course of business of the Issuers or any of their
Restricted Subsidiaries that (a) are not incurred in connection with the
borrowing of money or the obtaining of advances or credit (other than trade
credit in the ordinary course of business) and (b) do not in the aggregate
materially detract from the value of the property or materially impair the use
thereof in the operation of business by the Issuers or any such Restricted
Subsidiary.
"Permitted Refinancing Indebtedness" means any Indebtedness of the Issuers
or any of their Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of the Issuers or any such Restricted Subsidiary;
provided that: (i) the principal amount (or accreted value, if applicable) of
such Permitted Refinancing Indebtedness does not exceed the principal amount (or
accreted value, if applicable) of the Indebtedness so extended, refinanced,
renewed, replaced, defeased or refunded (plus the amount of reasonable expenses
incurred in connection therewith); (ii) such Permitted Refinancing Indebtedness
has a final maturity date no earlier than the final maturity date of, and has a
12
Weighted Average Life to Maturity equal to or greater than the Weighted Average
Life to Maturity of, the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; (iii) if the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded is subordinated in right of
payment to the Notes, such Permitted Refinancing Indebtedness has a final
maturity date later than the final maturity date of, and is subordinated in
right of payment to, the Notes on terms at least as favorable to the Holders of
Notes as those contained in the documentation governing the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded; and (iv) such
Indebtedness is incurred only by the Issuer or the Restricted Subsidiary that is
the obligor on the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, limited liability company,
unincorporated organization or government or agency or political subdivision
thereof (including any subdivision or ongoing business of any such entity or
substantially all of the assets of any such entity, subdivision or business).
"Principal" means Vestar Equity Partners, L.P.
"Private Placement Legend" means the legend set forth in Section 2.06(g)(i)
to be placed on all Notes issued under this Indenture except where otherwise
permitted by the provisions of this Indenture.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Registration Rights Agreement" means the Registration Rights Agreement,
dated as of April 18, 2001, by and among the Issuers and the other parties named
on the signature pages thereto, as such agreement may be amended, modified or
supplemented from time to time.
"Regulation S" means Regulation S promulgated under the Securities Act.
"Regulation S Global Note" means a Regulation S Temporary Global Note or
Regulation S Permanent Global Note, as appropriate.
"Regulation S Permanent Global Note" means a permanent global Note in the
form of Exhibit A-1 hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of and registered in the name
of the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount of the Regulation S Temporary Global Note upon
expiration of the Restricted Period.
"Regulation S Temporary Global Note" means a temporary global Note in the
form of Exhibit A-2 hereto bearing the Private Placement Legend and deposited
with or on behalf of and registered in the name of the Depositary or its
nominee, issued in a denomination equal to the outstanding principal amount of
the Notes initially sold in reliance on Rule 903 of Regulation S.
"Representative" means the indenture trustee or other trustee, agent or
representative.
"Responsible Officer," when used with respect to the Trustee, means any
officer within the corporate trust administration department 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.
13
"Restricted Definitive Note" means a Definitive Note bearing the Private
Placement Legend.
"Restricted Global Note" means a Global Note bearing the Private Placement
Legend.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Period" means the 40-day restricted period as defined in
Regulation S.
"Restricted Subsidiary" of a Person means any Subsidiary of such Person
that is not an Unrestricted Subsidiary.
"RPI" means RPI Corp., a Delaware corporation.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Credit Agreement" means the Credit and Guarantee Agreement, dated
as of May 23, 1996, among the Company, the several banks and other financial
institutions from time to time parties thereto, Fleet National Bank and Banque
Nationale de Paris, as co-documentation agents, and Chemical Bank, as
administrative agent, and any amendments, modifications, restatements, renewals,
supplements, refundings, replacements or refinancings thereof.
"Senior Debt" means (i) Indebtedness under the Senior Credit Agreement and
(ii) any other Indebtedness permitted to be incurred by the Issuers under the
terms of this Indenture, unless the instrument under which such Indebtedness is
incurred expressly provides that it is subordinated in right of payment to any
Senior Debt of the Issuers. Notwithstanding anything to the contrary in the
foregoing, Senior Debt will not include (a) any liability for federal, state,
local or other taxes owed or owing by the Issuers, (b) any Indebtedness of the
Issuers to any of their Subsidiaries or other Affiliates, (c) any trade payables
or (d) any Indebtedness that is incurred in violation of this Indenture.
"Shelf Registration Statement" means the Shelf Registration Statement as
defined in the Registration Rights Agreement.
"Significant Subsidiary" means any Restricted Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Act, as such Regulation was in effect on May 23,
1996.
14
"Subsidiary" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of such Person (or a combination
thereof) and (ii) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or (b)
the only general partners of which are such Person or one or more Subsidiaries
of such Person (or any combination thereof).
"Subsidiary Debt Limit" means, with respect to any Restricted Subsidiary
that is not a Guarantor, the sum of (i) the Borrowing Base of such Restricted
Subsidiary, plus (ii) the amount of Acquired Debt of such Restricted Subsidiary
(excluding Indebtedness incurred in connection with or in contemplation of the
merger or acquisition of such Restricted Subsidiary with or by the Company or
any of its Restricted Subsidiaries), plus (iii) Acquisition Debt of such
Restricted Subsidiary.
"Tax Amount" means, with respect to any period, the amount of distributions
in respect of taxes for such period required pursuant to Section 5.5 of the LLC
Agreement as in effect on May 23, 1996.
"Tax Distribution" means a distribution in respect of taxes to the partners
of the Company pursuant to clause (iv) of the second paragraph of Section 4.07
of this Indenture.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. xx.xx.
77aaa-77bbbb), as in effect on May 23, 1996, except as provided by Section 9.03
hereof.
"Transfer Restricted Securities" means securities that bear or are required
to bear the legend set forth in Section 2.06 hereof.
"Trustee" means the party named as such above until a successor replaces it
in accordance with the applicable provisions of this Indenture and thereafter
means the successor serving hereunder.
"Unrestricted Definitive Note" means one or more Definitive Notes that do
not bear and are not required to bear the Private Placement Legend.
"Unrestricted Global Note" means a permanent global Note substantially in
the form of Exhibit A-1 attached hereto that bears the Global Note Legend and
that has the "Schedule of Exchanges of Interests in the Global Note" attached
thereto, and that is deposited with or on behalf of and registered in the name
of the Depositary, representing a series of Notes that do not bear the Private
Placement Legend.
15
"Unrestricted Subsidiary" means any Subsidiary, other than Capital, that is
designated by the Management Committee as an Unrestricted Subsidiary pursuant to
a Board Resolution, but only to the extent that such Subsidiary (i) has no
Indebtedness other than Non-Recourse Debt, (ii) is not party to any agreement,
contract, arrangement or understanding with the Issuers or any of their
Restricted Subsidiaries unless the terms of any such agreement, contract,
arrangement or understanding are no less favorable to the Issuers or such
Restricted Subsidiary than those that might be obtained at the time from Persons
who are not Affiliates of the Issuers, (iii) is a Person with respect to which
neither the Issuers nor any of their Restricted Subsidiaries has any direct or
indirect obligation (a) to subscribe for additional Equity Interests or (b) to
maintain or preserve such Person's financial condition or to cause such Person
to achieve any specified levels of operating results, (iv) is not a guarantor
of, and is not otherwise directly or indirectly providing credit support for,
any Indebtedness of the Issuers or any of their Restricted Subsidiaries and (v)
has at least one director on its board of directors that is not a director or
executive officer of the Issuers or any of their Restricted Subsidiaries and has
at least one executive officer that is not a director or executive officer of
the Issuers or any of their Restricted Subsidiaries. Any such designation by the
Management Committee shall be evidenced to the Trustee by filing with the
Trustee a certified copy of the Board Resolution giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the foregoing conditions and was permitted by Section 4.07 hereof.
If, at any time, any Unrestricted Subsidiary would fail to meet the foregoing
requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an
Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of
such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the
Issuers as of such date (and, if such Indebtedness is not permitted to be
incurred as of such date under Section 4.09 hereof, the Issuers shall be in
default of such covenant). The Management Committee may at any time designate
any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such
designation shall be deemed to be an incurrence of Indebtedness by a Restricted
Subsidiary of the Issuers of any outstanding Indebtedness of such Unrestricted
Subsidiary and such designation shall only be permitted if (i) such Indebtedness
is permitted under Section 4.09 hereof, and (ii) no Default or Event of Default
would be in existence following such designation.
"U.S. Person" means a U.S. person as defined in Rule 902(o) under the
Securities Act.
"Vestar" means Vestar Equity Partners, L.P.
"Vestar Members" means Vestar Xxxxxx Corp. ("Vestar Corp. I") and Vestar
Razor Corp. ("Vestar Corp. II"), corporations formed by Vestar.
"Weighted Average Life to Stated Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding principal
amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" of any Person means a Restricted
Subsidiary of such Person all of the outstanding common Capital Stock or other
common ownership interests of which (other than directors' qualifying shares)
shall at the time be owned by such Person and the Wholly Owned Restricted
Subsidiaries of such Person.
16
Section 1.02......Other Definitions.
Defined in
Term Section
"Affiliate Transaction"..................................... 4.11
"Asset Sale Offer".......................................... 3.09
"Change of Control Offer"................................... 4.16
"Change of Control Payment"................................. 4.16
"Change of Control Payment Date"............................ 4.16
"Covenant Defeasance"....................................... 8.03
"DTC"....................................................... 2.03
"Event of Default".......................................... 6.01
"Excess Proceeds"........................................... 4.10
"incur"..................................................... 4.09
"Legal Defeasance".......................................... 8.02
"Offer Amount".............................................. 3.09
"Offer Period".............................................. 3.09
"Paying Agent".............................................. 2.03
"Payment Blockage Notice"................................... 10.03
"Payment Default"........................................... 6.01
"Purchase Date"............................................. 3.09
"Registrar"................................................. 2.03
"Restricted Payments"....................................... 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;
"obligors" on the Notes means the Issuers and any successor obligors 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.
17
Section 1.04......Rules of Construction. Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to it
in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural include the
singular;
(5) provisions apply to successive events and transactions; and
(6) references to sections of or rules under the Securities Act shall be
deemed to include substitute, replacement or successor sections or rules adopted
by the Commission from time to time.
ARTICLE 2
THE NOTES
Section 2.01......Form and Dating.
(a) General. The Notes shall be substantially in the form of Exhibit A-1
and A-2 hereto. The Notes may have notations, legends or endorsements required
by law, stock exchange rule or usage. Each Note shall be dated the date of its
authentication. The Notes shall be in denominations of $1,000 and integral
multiples thereof.
The terms and provisions contained in the Notes shall constitute, and are
hereby expressly made, a part of this Indenture and the Issuers 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.
(b) Global Notes. Notes issued in global form shall be substantially in the
form of Exhibits A-1 or A-2 attached hereto (including the Global Note Legend
thereon and the "Schedule of Exchanges of Interests in the Global Note" attached
thereto). Notes issued in definitive form shall be substantially in the form of
Exhibit A-1 attached hereto (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 2.06 hereof.
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(c) Temporary Global Notes. Notes offered and sold in reliance on
Regulation S shall be issued initially in the form of the Regulation S Temporary
Global Note, which shall be deposited on behalf of the purchasers of the Notes
represented thereby with the Trustee, at its New York office, as custodian for
the Depositary, and registered in the name of the Depositary or the nominee of
the Depositary for the accounts of designated agents holding on behalf of
Euroclear or Cedel Bank, duly executed by the Issuers and authenticated by the
Trustee as hereinafter provided. The Restricted Period shall be terminated upon
the receipt by the Trustee of (i) a written certificate from the Depositary,
together with copies of certificates from Euroclear and Cedel Bank certifying
that they have received certification of non-United States beneficial ownership
of 100% of the aggregate principal amount of the Regulation S Temporary Global
Note (except to the extent of any beneficial owners thereof who acquired an
interest therein during the Restricted Period pursuant to another exemption from
registration under the Securities Act and who will take delivery of a beneficial
ownership interest in a 144A Global Note or an IAI Global Note bearing a Private
Placement Legend, all as contemplated by Section 2.06(a)(ii) hereof), and (ii)
an Officers' Certificate from the Issuers. Following the termination of the
Restricted Period, beneficial interests in the Regulation S Temporary Global
Note shall be exchanged for beneficial interests in Regulation S Permanent
Global Notes pursuant to the Applicable Procedures. Simultaneously with the
authentication of Regulation S Permanent Global Notes, the Trustee shall cancel
the Regulation S Temporary Global Note. The aggregate principal amount of the
Regulation S Temporary Global Note and the Regulation S Permanent Global Notes
may from time to time be increased or decreased by adjustments made on the
records of the Trustee and the Depositary or its nominee, as the case may be, in
connection with transfers of interest as hereinafter provided.
(d) Euroclear and Cedel Procedures Applicable. The provisions of the
"Operating Procedures of the Euroclear System" and "Terms and Conditions
Governing Use of Euroclear" and the "General Terms and Conditions of Cedel Bank"
and "Customer Handbook" of Cedel Bank shall be applicable to transfers of
beneficial interests in the Regulation S Temporary Global Note and the
Regulation S Permanent Global Notes that are held by Participants through
Euroclear or Cedel Bank.
Section 2.02......Execution and Authentication.
Two Officers of each of the Issuers shall sign the Notes by manual or
facsimile signature. The seals of the Issuers, if any, 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 form of the Trustee's certificate of
authentication to be borne by the Notes shall be substantially as set forth in
Exhibit A-1 attached hereto.
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The Trustee shall, upon a written order of the Issuers signed by two
Officers of each of the Issuers, authenticate Notes for original issue.
The Trustee may appoint an authenticating agent acceptable to the Issuers
to authenticate Notes. Unless limited by the terms of such appointment, an
authenticating agent may authenticate Notes whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as an
Agent to deal with the Issuers or Affiliates of the Issuers.
Section 2.03......Registrar and Paying Agent.
The Issuers shall maintain (i) an office or agency where Notes may be
presented for registration of transfer or for exchange ("Registrar") and (ii) 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 Issuers 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 Issuers may change any
Paying Agent or Registrar without prior notice to any Holder. The Issuers shall
notify the Trustee in writing and the Trustee shall notify the Holders of the
name and address of any Agent not a party to this Indenture. If the Issuers fail
to appoint or maintain another entity as Registrar or Paying Agent, the Trustee
shall act as such. The Issuers or any of their Restricted Subsidiaries may act
as Paying Agent or Registrar. The Issuers shall enter into an appropriate agency
agreement with any Agent not a party to this Indenture, which shall incorporate
the provisions of the TIA. Such agreement shall implement the provisions of this
Indenture that relate to such Agent. The Issuers shall notify the Trustee of the
name and address of any such Agent. If the Issuers fail to maintain a Registrar
or Paying Agent, or fail to give the foregoing notice, the Trustee shall act as
such, and shall be entitled to appropriate compensation in accordance with
Section 7.07 hereof.
The Issuers initially appoint The Depository Trust Company ("DTC") to act
as Depositary with respect to the Global Notes.
The Issuers initially appoint the Trustee to act as the Registrar and
Paying Agent and to act as Note Custodian with respect to the Global Notes.
Section 2.04......Paying Agent to Hold Money in Trust.
The Issuers 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 the
Holders or the Trustee all money held by the Paying Agent for the payment of
principal of, and premium, interest and Liquidated Damages, if any, on the
Notes, and will notify the Trustee of any Default by the Issuers 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 Issuers 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 Issuers or a Restricted
Subsidiary) shall have no further liability for the money delivered to the
Trustee. If the Issuers or a Restricted Subsidiary act as Paying Agent, such
Person shall segregate and hold in a separate trust fund for the benefit of the
Holders all money held by such Person as Paying Agent. Upon any bankruptcy or
reorganization proceedings relating to either Issuer, the Trustee shall serve as
Paying Agent.
Section 2.05......Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA ss. 312(a). If the Trustee is
not the Registrar, the Issuers 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,
including the aggregate principal amount of Notes held by each thereof, and the
Issuers shall otherwise comply with TIA ss. 312(a).
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Section 2.06......Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. All Global Notes will be exchanged by
the Issuers for Definitive Notes if (i) the Issuers deliver to the Trustee
notice from the Depositary that it is unwilling or unable to continue to act as
Depositary or that it is no longer a clearing agency registered under the
Exchange Act and, in either case, a successor Depositary is not appointed by the
Issuers within 120 days after the date of such notice from the Depositary or
(ii) the Issuers in their sole discretion determine that the Global Notes (in
whole but not in part) should be exchanged for Definitive Notes and deliver a
written notice to such effect to the Trustee; provided that in no event shall
the Regulation S Temporary Global Note be exchanged by the Issuers for
Definitive Notes prior to (x) the expiration of the Restricted Period and (y)
the receipt by the Registrar of any certificates required pursuant to Rule
903(b)(3)(ii)(B) under the Securities Act. Upon the occurrence of either of the
preceding events in (i) or (ii) above, Definitive Notes shall be issued in such
names as the Depositary shall instruct the Trustee. Global Notes also may be
exchanged or replaced, in whole or in part, as provided in Sections 2.07 and
2.10 hereof. Every Note authenticated and delivered in exchange for, or in lieu
of, a Global Note or any portion thereof, pursuant to this Section 2.06 or
Section 2.07 or 2.10 hereof, shall be authenticated and delivered in the form
of, and shall be, a Global Note. A Global Note may not be exchanged for another
Note other than as provided in this Section 2.06(a), however, beneficial
interests in a Global Note may be transferred and exchanged as provided in
Section 2.06(b), (c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global Notes. The
transfer and exchange of beneficial interests in the Global Notes shall be
effected through the Depositary, in accordance with the provisions of this
Indenture and the Applicable Procedures. Beneficial interests in the Restricted
Global Notes shall be subject to restrictions on transfer comparable to those
set forth herein to the extent required by the Securities Act. Transfers of
beneficial interests in the Global Notes also shall require compliance with
either subparagraph (i) or (ii) below, as applicable, as well as one or more of
the other following subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in
the same Restricted Global Note in accordance with the transfer
restrictions set forth in the Private Placement Legend; provided, however,
that prior to the expiration of the Restricted Period, transfers of
beneficial interests in the Regulation S Temporary Global Note may not be
made to a U.S. Person or for the account or benefit of a U.S. Person (other
than an Initial Purchaser). Beneficial interests in any Unrestricted Global
Note may be transferred to Persons who take delivery thereof in the form of
a beneficial interest in an Unrestricted Global Note. No written orders or
instructions shall be required to be delivered to the Registrar to effect
the transfers described in this Section 2.06(b)(i).
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(ii) All Other Transfers and Exchanges of Beneficial Interests in
Global Notes. In connection with all transfers and exchanges of beneficial
interests that are not subject to Section 2.06(b)(i) above, the transferor
of such beneficial interest must deliver to the Registrar either (A) (1) a
written order from a Participant or an Indirect Participant given to the
Depositary in accordance with the Applicable Procedures directing the
Depositary to credit or cause to be credited a beneficial interest in
another Global Note in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given in accordance with the
Applicable Procedures containing information regarding the Participant
account to be credited with such increase or (B) (1) a written order from a
Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to cause
to be issued a Definitive Note in an amount equal to the beneficial
interest to be transferred or exchanged and (2) instructions given by the
Depositary to the Registrar containing information regarding the Person in
whose name such Definitive Note shall be registered to effect the transfer
or exchange referred to in (1) above; provided that in no event shall
Definitive Notes be issued upon the transfer or exchange of beneficial
interests in the Regulation S Temporary Global Note prior to (x) the
expiration of the Restricted Period and (y) the receipt by the Registrar of
any certificates required pursuant to Rule 903 under the Securities Act.
Upon consummation of an Exchange Offer by Issuers in accordance with
Section 2.06(f) hereof, the requirements of this Section 2.06(b)(ii) shall
be deemed to have been satisfied upon receipt by the Registrar of the
instructions contained in the Letter of Transmittal delivered by the Holder
of such beneficial interests in the Restricted Global Notes. Upon
satisfaction of all of the requirements for transfer or exchange of
beneficial interests in Global Notes contained in this Indenture and the
Notes or otherwise applicable under the Securities Act, the Trustee shall
adjust the principal amount of the relevant Global Note(s) pursuant to
Section 2.06(h) hereof.
(iii) Transfer of Beneficial Interests to Another Restricted Global
Note. A beneficial interest in any Restricted Global Note may be
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Note if the transfer
complies with the requirements of Section 2.06(b)(ii) above and the
Registrar receives the following:
(A) if the transferee will take delivery in the form of a beneficial
interest in the 144A Global Note, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the certifications
in item (1) thereof;
(B) if the transferee will take delivery in the form of a beneficial
interest in the Regulation S Temporary Global Note or the Regulation S
Global Note, then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (2) thereof; and
(C) if the transferee will take delivery in the form of a beneficial
interest in the IAI Global Note, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the certifications
and certificates and Opinion of Counsel required by item (3) thereof, if
applicable.
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(iv) Transfer and Exchange of Beneficial Interests in a Restricted
Global Note for Beneficial Interests in the Unrestricted Global Note. A
beneficial interest in any Restricted Global Note may be exchanged by any
holder thereof for a beneficial interest in an Unrestricted Global Note or
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note if the exchange or
transfer complies with the requirements of Section 2.06(b)(ii) above and:
(A) such exchange or transfer is effected pursuant to the Exchange
Offer in accordance with the Registration Rights Agreement and the holder
of the beneficial interest to be transferred, in the case of an exchange,
or the transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Notes or (3) a Person who
is an affiliate (as defined in Rule 144) of the Issuers;
(B) such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the
Exchange Offer Registration Statement in accordance with the Registration
Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for a beneficial
interest in an Unrestricted Global Note, a certificate from such holder in
the form of Exhibit B-1 hereto, including the certifications in item (1)(a)
thereof; or
(2) if the holder of such beneficial interest in a Restricted Global
Note proposes to transfer such beneficial interest to a Person who shall
take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note, a certificate from such holder in the form of
Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), an Opinion
of Counsel in form reasonably acceptable to the Registrar to the effect
that such exchange or transfer is in compliance with the Securities Act and
that the restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain compliance
with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D) above
at a time when an Unrestricted Global Note has not yet been issued, the Issuers
shall issue and, upon receipt of an authentication order in accordance with
Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted
Global Notes in an aggregate principal amount equal to the aggregate principal
amount of beneficial interests transferred pursuant to subparagraph (B) or (D)
above.
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Beneficial interests in an Unrestricted Global Note cannot be exchanged
for, or transferred to Persons who take delivery thereof in the form of, a
beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive Notes.
(i) Beneficial Interests in Restricted Global Notes to Restricted
Definitive Notes. If any holder of a beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a Restricted
Definitive Note or to transfer such beneficial interest to a Person who
takes delivery thereof in the form of a Restricted Definitive Note, then,
upon receipt by the Registrar of the following documentation:
(A) if the holder of such beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for a Restricted
Definitive Note, a certificate from such holder in the form of Exhibit B-1
hereto, including the certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred to a QIB in
accordance with Rule 144A under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in item
(1) thereof;
(C) if such beneficial interest is being transferred to a Non-U.S.
Person in an offshore transaction in accordance with Rule 903 or Rule 904
under the Securities Act, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (2) thereof;
(D) if such beneficial interest is being transferred pursuant to an
exemption from the registration requirements of the Securities Act in
accordance with Rule 144 under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in item
(3)(a) thereof;
(E) if such beneficial interest is being transferred to an
Institutional Accredited Investor in reliance on an exemption from the
registration requirements of the Securities Act other than those listed in
subparagraphs (B) through (D) above, a certificate to the effect set forth
in Exhibit B hereto, including the certifications, certificates and Opinion
of Counsel required by item (3) thereof, if applicable;
(F) if such beneficial interest is being transferred to the Issuers or
any of their Subsidiaries, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (3)(b) thereof; or
(G) if such beneficial interest is being transferred pursuant to an
effective registration statement under the Securities Act, a certificate to
the effect set forth in Exhibit B hereto, including the certifications in
item (3)(c) thereof,
24
the Trustee shall cause the aggregate principal amount of the
applicable Global Note to be reduced accordingly pursuant to Section
2.06(h) hereof, and the Issuers shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions a
Definitive Note in the appropriate principal amount. Any Definitive Note
issued in exchange for a beneficial interest in a Restricted Global Note
pursuant to this Section 2.06(c) shall be registered in such name or names
and in such authorized denomination or denominations as the holder of such
beneficial interest shall instruct the Registrar through instructions from
the Depositary and the Participant or Indirect Participant. The Trustee
shall deliver such Definitive Notes to the Persons in whose names such
Notes are so registered. Any Definitive Note issued in exchange for a
beneficial interest in a Restricted Global Note pursuant to this Section
2.06(c)(i) shall bear the Private Placement Legend and shall be subject to
all restrictions on transfer contained therein.
(ii) Beneficial Interests in Regulation S Temporary Global Note to
Definitive Notes. Notwithstanding Sections 2.06(c)(i)(A) and (C) hereof, a
beneficial interest in the Regulation S Temporary Global Note may not be
exchanged for a Definitive Note or transferred to a Person who takes
delivery thereof in the form of a Definitive Note prior to (x) the
expiration of the Restricted Period and (y) the receipt by the Registrar of
any certificates required pursuant to Rule 903(b)(3)(ii)(B) under the
Securities Act, except in the case of a transfer pursuant to an exemption
from the registration requirements of the Securities Act other than Rule
903 or Rule 904.
(iii) Beneficial Interests in Restricted Global Notes to Unrestricted
Definitive Notes. A holder of a beneficial interest in a Restricted Global
Note may exchange such beneficial interest for an Unrestricted Definitive
Note or may transfer such beneficial interest to a Person who takes
delivery thereof in the form of an Unrestricted Definitive Note only if:
(A) such exchange or transfer is effected pursuant to the Exchange
Offer in accordance with the Registration Rights Agreement and the holder
of such beneficial interest, in the case of an exchange, or the transferee,
in the case of a transfer, certifies in the applicable Letter of
Transmittal that it is not (1) a broker-dealer, (2) a Person participating
in the distribution of the Exchange Notes or (3) a Person who is an
affiliate (as defined in Rule 144) of the Issuers;
(B) such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the
Exchange Offer Registration Statement in accordance with the Registration
Rights Agreement; or
(D) the Registrar receives the following:
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(1) if the holder of such beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for a Definitive Note
that does not bear the Private Placement Legend, a certificate from such
holder in the form of Exhibit B-1 hereto, including the certifications in
item (1)(b) thereof; or
(2) if the holder of such beneficial interest in a Restricted Global
Note proposes to transfer such beneficial interest to a Person who shall
take delivery thereof in the form of a Definitive Note that does not bear
the Private Placement Legend, a certificate from such holder in the form of
Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), an Opinion
of Counsel in form reasonably acceptable to the Registrar to the effect
that such exchange or transfer is in compliance with the Securities Act and
that the restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain compliance
with the Securities Act.
(iii) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. If any holder of a beneficial interest in an
Unrestricted Global Note proposes to exchange such beneficial interest for
a Definitive Note or to transfer such beneficial interest to a Person who
takes delivery thereof in the form of a Definitive Note, then, upon
satisfaction of the conditions set forth in Section 2.06(b)(ii) hereof, the
Trustee shall cause the aggregate principal amount of the applicable Global
Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the
Issuers shall execute and the Trustee shall authenticate and deliver to the
Person designated in the instructions a Definitive Note in the appropriate
principal amount. Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.06(c)(iii) shall be registered in such
name or names and in such authorized denomination or denominations as the
holder of such beneficial interest shall instruct the Registrar through
instructions from the Depositary and the Participant or Indirect
Participant. The Trustee shall deliver such Definitive Notes to the Persons
in whose names such Notes are so registered. Any Definitive Note issued in
exchange for a beneficial interest pursuant to this Section 2.06(c)(iii)
shall not bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial Interests.
(i) Restricted Definitive Notes to Beneficial Interests in Restricted
Global Notes. If any Holder of a Restricted Definitive Note proposes to
exchange such Note for a beneficial interest in a Restricted Global Note or
to transfer such Restricted Definitive Notes to a Person who takes delivery
thereof in the form of a beneficial interest in a Restricted Global Note,
then, upon receipt by the Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Note proposes to
exchange such Note for a beneficial interest in a Restricted Global Note, a
certificate from such Holder in the form of Exhibit B-1 hereto, including
the certifications in item (2)(b) thereof;
26
(B) if such Restricted Definitive Note is being transferred to a QIB
in accordance with Rule 144A under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in item
(1) thereof;
(C) if such Restricted Definitive Note is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule 903 or
Rule 904 under the Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being transferred pursuant
to an exemption from the registration requirements of the Securities Act in
accordance with Rule 144 under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in item
(3)(a) thereof;
(E) if such Restricted Definitive Note is being transferred to an
Institutional Accredited Investor in reliance on an exemption from the
registration requirements of the Securities Act other than those listed in
subparagraphs (B) through (D) above, a certificate to the effect set forth
in Exhibit B hereto, including the certifications, certificates and Opinion
of Counsel required by item (3) thereof, if applicable;
(F) if such Restricted Definitive Note is being transferred to the
Issuers or any of their Subsidiaries, a certificate to the effect set forth
in Exhibit B hereto, including the certifications in item (3)(b) thereof;
or
(G) if such Restricted Definitive Note is being transferred pursuant
to an effective registration statement under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Note, increase or
cause to be increased the aggregate principal amount of, in the case of
clause (A) above, the appropriate Restricted Global Note, in the case of
clause (B) above, the 144A Global Note, in the case of clause (C) above,
the Regulation S Global Note, and in all other cases, the IAI Global Note.
(ii) Restricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of a Restricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global Note
or transfer such Restricted Definitive Note to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global Note
only if:
(A) such exchange or transfer is effected pursuant to the Exchange
Offer in accordance with the Registration Rights Agreement and the Holder,
in the case of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution of the
Exchange Notes or (3) a Person who is an affiliate (as defined in Rule 144)
of the Issuers;
27
(B) such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the
Exchange Offer Registration Statement in accordance with the Registration
Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Definitive Notes proposes to exchange such
Notes for a beneficial interest in the Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit B-1 hereto, including
the certifications in item (1)(c) thereof; or
(2) if the Holder of such Definitive Notes proposes to transfer such
Notes to a Person who shall take delivery thereof in the form of a
beneficial interest in the Unrestricted Global Note, a certificate from
such Holder in the form of Exhibit B hereto, including the certifications
in item (4) thereof;
and, in each such case set forth in this subparagraph (D), an Opinion
of Counsel in form reasonably acceptable to the Registrar to the effect
that such exchange or transfer is in compliance with the Securities Act and
that the restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain compliance
with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in
this Section 2.06(d)(ii), the Trustee shall cancel the Definitive Notes and
increase or cause to be increased the aggregate principal amount of the
Unrestricted Global Note.
(iii) Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global Note
or transfer such Definitive Notes to a Person who takes delivery thereof in
the form of a beneficial interest in an Unrestricted Global Note at any
time. Upon receipt of a request for such an exchange or transfer, the
Trustee shall cancel the applicable Unrestricted Definitive Note and
increase or cause to be increased the aggregate principal amount of one of
the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a
beneficial interest is effected pursuant to subparagraphs (ii)(B), (ii)(D)
or (iii) above at a time when an Unrestricted Global Note has not yet been
issued, the Issuers shall issue and, upon receipt of an authentication
order in accordance with Section 2.02 hereof, the Trustee shall
authenticate one or more Unrestricted Global Notes in an aggregate
principal amount equal to the principal amount of Definitive Notes so
transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes.
Upon request by a Holder of Definitive Notes and such Holder's compliance
with the provisions of this Section 2.06(e), the Registrar shall register
the transfer or exchange of Definitive Notes. Prior to such registration of
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transfer or exchange, the requesting Holder shall present or surrender to
the Registrar the Definitive Notes duly endorsed or accompanied by a
written instruction of transfer in form satisfactory to the Registrar duly
executed by such Holder or by its attorney, duly authorized in writing. In
addition, the requesting Holder shall provide any additional
certifications, documents and information, as applicable, required pursuant
to the following provisions of this Section 2.06(e).
(i) Restricted Definitive Notes to Restricted Definitive Notes. Any
Restricted Definitive Note may be transferred to and registered in the name
of Persons who take delivery thereof in the form of a Restricted Definitive
Note if the Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A under the
Securities Act, then the transferor must deliver a certificate in the form
of Exhibit B hereto, including the certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule 903 or Rule 904,
then the transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (2) thereof; and
(C) if the transfer will be made pursuant to any other exemption from
the registration requirements of the Securities Act, then the transferor
must deliver a certificate in the form of Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item (3)
thereof, if applicable.
(ii) Restricted Definitive Notes to Unrestricted Definitive Notes. Any
Restricted Definitive Note may be exchanged by the Holder thereof for an
Unrestricted Definitive Note or transferred to a Person or Persons who take
delivery thereof in the form of an Unrestricted Definitive Note if:
(A) such exchange or transfer is effected pursuant to the Exchange
Offer in accordance with the Registration Rights Agreement and the Holder,
in the case of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution of the
Exchange Notes or (3) a Person who is an affiliate (as defined in Rule 144)
of the Issuers;
(B) any such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights Agreement;
(C) any such transfer is effected by a Broker-Dealer pursuant to the
Exchange Offer Registration Statement in accordance with the Registration
Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted Definitive Notes proposes to
exchange such Notes for an Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit B-1 hereto, including the certifications
in item (1)(d) thereof; or
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(2) if the Holder of such Restricted Definitive Notes proposes to
transfer such Notes to a Person who shall take delivery thereof in the form
of an Unrestricted Definitive Note, a certificate from such Holder in the
form of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), an Opinion
of Counsel in form reasonably acceptable to the Issuers to the effect that
such exchange or transfer is in compliance with the Securities Act and that
the restrictions on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain compliance with the
Securities Act.
(iii) Unrestricted Definitive Notes to Unrestricted Definitive Notes.
A Holder of Unrestricted Definitive Notes may transfer such Notes to a
Person who takes delivery thereof in the form of an Unrestricted Definitive
Note. Upon receipt of a request to register such a transfer, the Registrar
shall register the Unrestricted Definitive Notes pursuant to the
instructions from the Holder thereof.
(f) Exchange Offer. Upon the occurrence of the Exchange Offer in
accordance with the Registration Rights Agreement, the Issuers shall issue
and, upon receipt of an authentication order in accordance with Section
2.02, the Trustee shall authenticate (i) one or more Unrestricted Global
Notes in an aggregate principal amount equal to the principal amount of the
beneficial interests in the Restricted Global Notes tendered for acceptance
by Persons that certify in the applicable Letters of Transmittal that (x)
they are not broker-dealers, (y) they are not participating in a
distribution of the Exchange Notes and (z) they are not affiliates (as
defined in Rule 144) of the Issuers, and accepted for exchange in the
Exchange Offer and (ii) Definitive Notes in an aggregate principal amount
equal to the principal amount of the Restricted Definitive Notes accepted
for exchange in the Exchange Offer. Concurrently with the issuance of such
Notes, the Trustee shall cause the aggregate principal amount of the
applicable Restricted Global Notes to be reduced accordingly, and the
Issuers shall execute and the Trustee shall authenticate and deliver to the
Persons designated by the Holders of Definitive Notes so accepted
Definitive Notes in the appropriate principal amount.
(g) Legends. The following legends shall appear on the face of all
Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this
Indenture.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each Global Note
and each Definitive Note (and all Notes issued in exchange therefor or
substitution thereof) shall bear the legend in substantially the following
form:
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"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX
XXXXXX XXXXXX SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND THE SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY
NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A)
IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) (AN
"INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS
ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION. THE HOLDER OF THE
SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUERS THAT (A)
SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a)
TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED
STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 904 UNDER THE SECURITIES ACT OR (d) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND
BASED UPON AN OPINION OF COUNSEL IF THE ISSUERS SO REQUEST), (2) TO THE
ISSUERS, (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY
OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE."
(B) Notwithstanding the foregoing, any Global Note or Definitive Note
issued pursuant to subparagraphs (b)(iv), (c)(iii), (c)(iv) (d)(ii),
(d)(iii), (e)(ii), (e)(iii) or (f) to this Section 2.06 (and all Notes
issued in exchange therefor or substitution thereof) shall not bear the
Private Placement Legend.
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(ii) Global Note Legend. Each Global Note shall bear a legend in
substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF
THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER
ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS
HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.07 OF THE INDENTURE, (II)
THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO
SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED
TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE
AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH
THE PRIOR WRITTEN CONSENT OF THE ISSUERS."
(iii) Regulation S Temporary Global Note Legend. The Regulation S
Temporary Global Note shall bear a legend in substantially the following
form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND
THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED
NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE
HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE
SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON."
(h) Cancellation and/or Adjustment of Global Notes. At such time as
all beneficial interests in a particular Global Note have been exchanged
for Definitive Notes or a particular Global Note has been redeemed,
repurchased or canceled in whole and not in part, each such Global Note
shall be returned to or retained and canceled by the Trustee in accordance
with Section 2.11 hereof. At any time prior to such cancellation, if any
beneficial interest in a Global Note is exchanged for or transferred to a
Person who will take delivery thereof in the form of a beneficial interest
in another Global Note or for Definitive Notes, the principal amount of
Notes represented by such Global Note shall be reduced accordingly and an
endorsement shall be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such reduction; and
if the beneficial interest is being exchanged for or transferred to a
Person who will take delivery thereof in the form of a beneficial interest
in another Global Note, such other Global Note shall be increased
accordingly and an endorsement shall be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect
such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the Issuers
shall execute and the Trustee shall authenticate Global Notes and
Definitive Notes upon the Issuers' order or at the Registrar's request.
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(ii) No service charge shall be made to a holder of a beneficial
interest in a Global Note or to a Holder of a Definitive Note for any
registration of transfer or exchange, but the Issuers may require payment
of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such transfer taxes
or similar governmental charge payable upon exchange or transfer pursuant
to Sections 2.10, 3.06, 3.09, 4.10, 4.16 and 9.05 hereof).
(iii) The Registrar shall not be required to register the transfer of
or exchange any Note selected for redemption in whole or in part, except
the unredeemed portion of any Note being redeemed in part.
(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive Notes
shall be the valid obligations of the Issuers, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Global Notes
or Definitive Notes surrendered upon such registration of transfer or
exchange.
(v) The Issuers shall not be required (A) to issue, to register the
transfer of or to exchange any Notes during a period beginning at the
opening of business 15 days before the day of any selection of Notes for
redemption under Section 3.02 hereof and ending at the close of business on
the day of selection, (B) to register the transfer of or to exchange any
Note so selected for redemption in whole or in part, except the unredeemed
portion of any Note being redeemed in part or (C) to register the transfer
of or to exchange a Note between a record date and the next succeeding
interest payment date.
(vi) Prior to due presentment for the registration of a transfer of
any Note, the Trustee, any Agent and the Issuers may deem and treat the
Person in whose name any Note is registered as the absolute owner of such
Note for the purpose of receiving payment of principal of and interest on
such Notes and for all other purposes, and none of the Trustee, any Agent
or the Issuers shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and Definitive Notes
in accordance with the provisions of Section 2.02 hereof.
(viii) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.06 to
effect a registration of transfer or exchange may be submitted initially by
facsimile, to be followed by originals. The Trustee is authorized to rely
conclusively and to act upon receipt of facsimile certifications,
certificates, and Opinions of Counsel delivered pursuant to this Section
2.06.
Section 2.07 Replacement Notes.
If any mutilated Note is surrendered to the Trustee, or the Issuers and the
Trustee receive evidence to their satisfaction of the destruction, loss or theft
of any Note, the Issuers shall issue and the Trustee, upon the written order of
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the Issuers signed by two Officers of each of the Issuers, shall authenticate a
replacement Note if the Trustee's requirements for replacements of Notes are
met. An indemnity bond must be supplied by the Holder that is sufficient in the
judgment of the Trustee and the Issuers to protect the Issuers, the Trustee, any
Agent and any authenticating agent from any loss that any of them may suffer if
a Note is replaced. The Issuers and the Trustee may charge for their expenses in
replacing a Note.
Every replacement Note is an additional obligation of the Issuers 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 as
not outstanding.
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; provided that the aggregate
principal amount of the Notes shall not increase by reason of this Section 2.08
or Section 2.07 hereof.
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.
Subject to Section 2.09 hereof, a Note does not cease to be outstanding
because the Issuers or an Affiliate of the Issuers holds the Note.
If the Paying Agent (other than the Issuers, a Subsidiary or any Affiliate
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
Issuers or by any Affiliate thereof shall be considered as though not
outstanding, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Notes that a Responsible Officer actually knows to be so owned shall be so
considered.
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Section 2.10 Temporary Notes.
Until Certificated Securities are ready for delivery, the Issuers may
prepare and the Trustee shall authenticate temporary Notes upon a written order
of the Issuers signed by two Officers of each of the Issuers. Temporary Notes
shall be substantially in the form of Certificated Securities but may have
variations that the Issuers and the Trustee consider appropriate for temporary
Notes and as shall be reasonably acceptable to the Trustee. Without unreasonable
delay, the Issuers shall prepare and the Trustee shall authenticate Certificated
Securities 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 Issuers at any time may deliver Notes to the Trustee for cancellation.
The Registrar and Paying Agent shall forward to the Trustee any Notes
surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall return
canceled Notes to the Issuers. The Issuers may not issue new Notes to replace
Notes that the Issuers have redeemed or paid or that have been delivered to the
Trustee for cancellation.
Section 2.12 Record Date.
The record date for purposes of determining the identity of Holders of the
Notes entitled to vote or consent to any action by vote or consent authorized or
permitted under this Indenture shall be determined as provided for in TIA ss.
316 (c).
Section 2.13 Defaulted Interest.
If the Issuers default in a payment of interest on the Notes, they shall
pay the defaulted interest in any lawful manner plus, to the extent lawful,
interest payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, which date shall be at the earliest practicable
date but in all events at least five Business Days prior to the payment date, in
each case at the rate provided in the Notes and in Section 4.01 hereof. The
Issuers 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
Issuers shall, with the consent of the Trustee, fix or cause to be fixed each
such special record date and payment date. At least 15 days before the special
record date, the Issuers (or, upon the written request of the Issuers, the
Trustee in the name and at the expense of the Issuers) shall mail or cause to be
mailed to the Holders a notice that states the special record date, the related
payment date and the amount of such interest to be paid.
Section 2.14 CUSIP Numbers.
The Issuers 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 Issuers shall promptly notify the Trustee of any
change in the CUSIP numbers.
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ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee.
If the Issuers elect to redeem Notes pursuant to the optional redemption
provisions of Section 3.07 hereof, they shall furnish to the Trustee, at least
30 days but not more than 60 days before a redemption date, an Officers'
Certificate setting forth (i) the section 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.
If the Issuers are required to make an offer to redeem Notes pursuant to
the provisions of Section 3.09 or 4.16 hereof, they shall furnish to the Trustee
at least 30 days but not more than 60 days before a redemption date, an
Officers' Certificate setting forth (i) the section of this Indenture pursuant
to which the redemption shall occur, (ii) the redemption date, (iii) the maximum
principal amount of Notes to be redeemed, (iv) the redemption price and (v) a
statement to the effect that (a) either Issuer or one of their Restricted
Subsidiaries has effected an Asset Sale and the conditions set forth in Section
4.10 have been satisfied or (b) a Change of Control has occurred and the
conditions set forth in Section 4.16 have been satisfied.
Section 3.02 Selection of Notes to be Redeemed.
If less than all of the Notes are to be redeemed at any time, the Trustee
shall select the Notes to be redeemed among the Holders in compliance with the
requirements of the principal national securities exchange, if any, on which the
Notes are listed or, if the Notes are not so listed, on a pro rata basis, by lot
or in accordance with any other method the Trustee considers fair and
appropriate; provided that no Notes of $1,000 or less shall be redeemed in part.
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 Issuers shall promptly notify
the Trustee in writing of the listing of the Notes on any national securities
exchange.
The Trustee shall promptly notify the Issuers 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
them selected shall be in amounts of $1,000 or whole multiples of $1,000; except
that if all Notes of a Holder are to be redeemed, the entire outstanding amount
of Notes held by such Holder, even if not a multiple of $1,000, shall be
redeemed. Except as provided in the preceding sentence, provisions of this
Indenture that apply to Notes called for redemption also apply to portions of
Notes called for redemption.
In the event the Issuers are required to make an offer to redeem Notes
pursuant to Sections 3.09 and 4.10 hereof and the amount of the Excess Proceeds
from the Asset Sale are not evenly divisible by $1,000, the Trustee shall
promptly refund to the Issuers any remaining Excess Proceeds.
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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 Issuers 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 (including CUSIP
numbers) and shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, 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 Issuers default 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 Issuers' request, the Trustee shall give the notice of redemption in
the Issuers' name and at their expense; provided, however, that the Issuers
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.
Section 3.05 Deposit of Redemption Price.
One Business Day prior to the redemption date, the Issuers shall deposit
with the Trustee or with the Paying Agent money sufficient to pay the redemption
price of and accrued interest and Liquidated Damages on all Notes to be redeemed
37
on that date. The Trustee or the Paying Agent shall promptly return to the
Issuers any money deposited with the Trustee or the Paying Agent by the Issuers
in excess of the amounts necessary to pay the redemption price of, and accrued
interest and Liquidated Damages on, all Notes to be redeemed.
If the Issuers comply with the provisions of the preceding paragraph, on
and after 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 and unpaid interest shall be paid to the Person in whose name
such Note was registered at the close of business on such record date. If any
Note called for redemption shall not be so paid upon surrender for redemption
because of the failure of the Issuers 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 Issuers shall issue
and, upon the Issuers' written request, the Trustee shall authenticate for the
Holder at the expense of the Issuers, a new Note equal in principal amount to
the unredeemed portion of the Note surrendered.
Section 3.07 Optional Redemption.
(a) The Issuers shall not have the option to redeem the Notes prior to May
15, 2001. Thereafter, the Issuers shall have the option to redeem the Notes, in
whole or in part, at the redemption prices (expressed as percentages of
principal amount) set forth below plus accrued and unpaid interest and
Liquidated Damages, if any, thereon to the applicable redemption date, if
redeemed during the twelve-month period beginning on May 15 of the years
indicated below:
Year Percentage
---- ----------
2001............................................................ 105.500%
2002............................................................ 103.667
2003 ........................................................... 101.833
2004 and thereafter ............................................ 100.0%
(b) Any redemption pursuant to this Section 3.07 shall be made, to the
extent applicable, pursuant to the provisions of Sections 3.01 through 3.06
hereof.
Section 3.08 Mandatory Redemption.
Except as set forth under Sections 4.10 and 4.16 hereof, the Issuers shall
not be required to make mandatory redemption or sinking fund payments with
respect to the Notes.
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Section 3.09 Offer to Purchase by Application of Excess Proceeds.
In the event that, pursuant to Section 4.10 hereof, the Issuers shall be
required to commence an offer to all Holders (an "Asset Sale Offer"), it shall
follow the procedures specified below.
The Asset Sale Offer shall remain open for a period of 20 Business Days
following its commencement and no longer, except to the extent that 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 Issuers shall purchase the principal amount of Notes required to be
purchased pursuant to Section 4.10 hereof (the "Offer Amount") or, if less than
the Offer Amount has been 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, and no additional interest shall be payable to
Holders who tender Notes pursuant to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Issuers shall send, by
first class mail, a notice to the Trustee and to 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 of Notes. 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 4.10 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 Issuers default 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 only elect to have all of such Note purchased and may not elect
to have only a portion of such Note purchased;
(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 titled "Option
of Holder to Elect Purchase" on the reverse of the Note completed, or transfer
the Note by book-entry transfer, to the Issuers, a depositary, if appointed by
the Issuers, 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
Issuers, the Depositary or the Paying Agent, as the case may be, receive, not
later than the expiration of the Offer Period, a 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;
39
(h) that, if the aggregate principal amount of Notes surrendered by Holders
exceeds the Offer Amount, the Issuers shall select the Notes to be purchased on
a pro rata basis (with such adjustments as may be deemed appropriate by the
Issuers so that only Notes in denominations of $1,000, 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 Issuers 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 Issuers in accordance with the
terms of this Section 3.09. The Issuers, the Depositary or the Paying Agent, as
the case may be, shall promptly (but in any case not later than three Business
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 Issuers for purchase, and the Issuers shall promptly issue a new Note, and
the Trustee, upon written request from the Issuers, 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 Issuers to the Holder thereof. The Issuers
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 Issuers shall pay or cause to be paid the principal of, and premium,
interest and Liquidated Damages, if any, on the Notes on the dates and in the
manner provided in the Notes. Principal of, and premium, interest and Liquidated
Damages, if any, on the Notes shall be considered paid on the date due if the
Paying Agent, if other than the Issuers or a Restricted Subsidiary thereof,
holds as of 10:00 a.m. Eastern Time on the due date money deposited by the
Issuers in immediately available funds and designated for and sufficient to pay
all principal of, and premium, interest and Liquidated Damages, if any, on the
Notes then due. The Paying Agent shall return to the Issuers, no later than five
days following the date of payment, any money (including accrued interest) that
exceeds such amount of principal of, and premium, interest and Liquidated
Damages, if any, paid on the Notes.
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The Issuers shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at the rate equal to
1% per annum in excess of the then applicable interest rate on the Notes to the
extent lawful; they 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 period) at the same rate to the extent
lawful.
Section 4.02 Maintenance of Office or Agency.
The Issuers shall maintain 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 exchange and where
notices and demands to or upon the Issuers in respect of the Notes and this
Indenture may be served. The Issuers 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 Issuers 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 Issuers 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 Issuers
of their obligation to maintain an office or agency for such purposes. The
Issuers 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 Issuers hereby designate the Corporate Trust Office of the Trustee as
one such office or agency of the Issuers in accordance with Section 2.03 hereof.
Section 4.03 Reports.
(a) Whether or not required by the rules and regulations of the Commission,
so long as any Notes are outstanding, the Issuers shall furnish to the Trustee
and the Holders of Notes (i) all quarterly and annual financial information that
would be required to be contained in a filing with the Commission on Forms 10-Q
and 10-K if the Issuers were required to file such forms, including a
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" that describes the financial position and results of operations of
the Company and its Restricted Subsidiaries and, with respect to the annual
information only, a report thereon by the Issuers' certified independent
accountants and (ii) all current reports that would be required to be filed with
the Commission on Form 8-K if the Issuers were required to file such reports. In
addition, whether or not required by the rules and regulations of the
Commission, the Issuers shall file a copy of all such information and reports
with the Commission for public availability (unless the Commission will not
accept such a filing) and make such information available to securities analysts
and prospective investors upon request. The Issuers shall at all times comply
with TIA ss. 314(a).
(b) For so long as any Notes remain outstanding, the Issuers shall furnish
to the Holders and to securities analysts and prospective investors, upon their
request, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act.
41
(c) Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Issuers'
compliance with any of the covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
Section 4.04 Compliance Certificate.
(a) The Issuers 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 Issuers and their Restricted Subsidiaries during the preceding
fiscal year has been made under the supervision of the signing Officers with a
view to determining whether each has kept, observed, performed and fulfilled its
obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that, to the best of his or her knowledge, each has
kept, observed, performed and fulfilled each and every covenant contained in
this Indenture and is not in default in the performance or observance of any of
the terms, provisions and conditions of this Indenture (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 each 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 or Liquidated Damages, if
any, on the Notes is prohibited or if such event has occurred, a description of
the event and what action each is taking or proposes to take with respect
thereto.
(b) So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.03(a) above shall be accompanied by a
written statement of the Issuers' independent public accountants (who shall be a
firm of established national reputation reasonably satisfactory to the Trustee)
that in making the examination necessary for certification of such financial
statements, nothing has come to their attention that would lead them to believe
that the Issuers have violated any provisions of Article 4 or Article 5 hereof
or, if any such violation has occurred, specifying the nature and period of
existence thereof, it being understood that such accountants shall not be liable
directly or indirectly to any Person for any failure to obtain knowledge of any
such violation.
(c) The Issuers shall, so long as any of the Notes are outstanding, deliver
to the Trustee, forthwith upon any Officer becoming aware of any Default or
Event of Default, an Officers' Certificate specifying such Default or Event of
Default and what action the Issuers are taking or propose to take with respect
thereto.
Section 4.05 Taxes.
The Issuers shall, and shall cause each of their 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.
42
Section 4.06 Stay, Extension and Usury Laws.
The Issuers covenant (to the extent that they may lawfully do so) that they
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 Issuers (to the extent that they may
lawfully do so) hereby expressly waive all benefit or advantage of any such law
and covenant that they 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 Restricted Payments.
The Issuers shall not, and shall not permit any of their Restricted
Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or make
any other payment or distribution on account of the Company's Equity Interests
(including, without limitation, any payment in connection with any merger or
consolidation involving the Company) or to any direct or indirect holder of the
Company's Equity Interests in its capacity as such, other than dividends or
distributions payable in Equity Interests (other than Disqualified Stock) of the
Company or dividends or distributions payable to the Company or any Wholly Owned
Restricted Subsidiary of the Company; (ii) purchase, redeem or otherwise acquire
or retire for value any Equity Interests of the Company or any direct or
indirect parent of the Company, other than any such Equity Interests owned by
the Company or any Wholly Owned Restricted Subsidiary of the Company; (iii) make
any principal payment on, or purchase, redeem, defease or otherwise acquire or
retire for value any Indebtedness that is subordinated to the Notes, except at
final maturity or any scheduled sinking fund payments set forth in the original
documentation governing such Indebtedness; or (iv) make any Restricted
Investment (all such payments and other actions set forth in clauses (i) through
(iv) above being collectively referred to as "Restricted Payments"), unless, at
the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or
would occur as a consequence thereof;
(b) the Fixed Charge Coverage Ratio of the Company for the Company's most
recently ended four full fiscal quarters for which internal financial statements
are available immediately preceding the date on which such Restricted Payment is
made, calculated on a pro forma basis as if such Restricted Payment had been
made at the beginning of such four-quarter period, would have been more than 2.0
to 1; and
(c) such Restricted Payment, together with the aggregate of all other
Restricted Payments made by the Issuers and their Restricted Subsidiaries after
May 23, 1996 (including Restricted Payments permitted by clause (vi) of the next
succeeding paragraph but excluding the Restricted Payments permitted by clauses
(i) - (v) and (vii) of the next succeeding paragraph), is less than the sum of
(i) 50% of the Consolidated Net Income of the Company for the period (taken as
one accounting period) from July 1, 1996 to the end of the Company's most
recently ended fiscal quarter for which internal financial statements are
43
available at the time of such Restricted Payment (or, if such Consolidated Net
Income for such period is a deficit, less 100% of such deficit), plus (ii) 100%
of the aggregate net cash proceeds, or the fair market value of assets (as
determined in good faith by the Management Committee), received by the Company
from capital contributions or the issue or sale after May 23, 1996 of Equity
Interests of the Company or of debt securities of the Company that have been
converted into such Equity Interests (other than Equity Interests (or
convertible debt securities) sold to a Subsidiary of the Company and other than
Disqualified Stock or debt securities that have been converted into Disqualified
Stock), plus (iii) 100% of the net cash proceeds received by the Company from a
distribution by, or from the sale or other liquidation of, any Restricted
Investment or Unrestricted Subsidiary.
The foregoing provisions shall not prohibit:
(i) the payment of any dividend or other distribution within 60
days after the date of declaration thereof, if at said date of
declaration such payment would have complied with the provisions of
this Indenture;
(ii) the making of any Restricted Investment or the redemption,
repurchase, retirement or other acquisition of any Equity Interests of
the Company in exchange for, or out of the proceeds of, a
substantially concurrent capital contribution or sale (other than to a
Subsidiary of the Company) of other Equity Interests of the Company
(other than any Disqualified Stock); provided that the amount of any
such net cash proceeds that are utilized for any such redemption,
repurchase, retirement or other acquisition shall be excluded from
clause (c) of the preceding paragraph;
(iii) the defeasance, redemption or repurchase of subordinated
Indebtedness with the net cash proceeds from an incurrence of
Permitted Refinancing Indebtedness or a substantially concurrent
capital contribution or sale (other than to a Subsidiary of the
Company) of Equity Interests of the Company (other than Disqualified
Stock); provided that the amount of any such net cash proceeds that
are utilized for any such redemption, repurchase, retirement or other
acquisition shall be excluded from clause (c) of the preceding
paragraph;
(iv) so long as the Company is treated as a partnership for
United States federal income tax purposes, distributions to members of
the Company in an amount not to exceed the Tax Amount for such period;
(v) the payment of fees to (a) Vestar and its Affiliates pursuant
to the Management Agreement as in effect on May 23, 1996; provided no
such payment in excess of $500,000 shall be permitted in any fiscal
year if at the time of such payment a Default in the payment of
principal of, or interest, premium or Liquidated Damages (if any) on,
the Notes shall have occurred and be continuing, and (b) RPI and its
Affiliates pursuant to the Consulting Agreement as in effect on May
23, 1996; provided no such payment in excess of $500,000 shall be
permitted in any fiscal year if at the time of such payment a Default
in the payment of principal of, or interest, premium or Liquidated
Damages (if any) on, the Notes shall have occurred and be continuing;
44
(vi) so long as no Default or Event of Default has occurred and
is continuing, the repurchase, redemption or other acquisition or
retirement for value of any Equity Interests of the Company held by
any member of the Company's or any of its Subsidiaries' management
(other than an Affiliate of Vestar or RPI) upon the death, disability
or termination of employment of such member of management, pursuant to
a management equity subscription agreement or option agreement;
provided that the aggregate price paid for all such Equity Interests
shall not exceed $500,000 in any fiscal year, plus any amount
available for such payments hereunder since May 23, 1996 which have
not been used for such purpose, plus the cash proceeds received by the
Company from any subsequent reissuance of such Equity Interests to
members of management of the Company or any of its Subsidiaries; and
(vii) so long as no Default or Event of Default has occurred and
is continuing, Restricted Investments in an aggregate amount not to
exceed $10.0 million.
The Management Committee may designate any Restricted Subsidiary, other
than Capital, to be an Unrestricted Subsidiary if such designation would not
cause a Default. For purposes of making such determination, all outstanding
Investments by the Issuers and their Restricted Subsidiaries (except to the
extent repaid in cash) in the Subsidiary so designated will be deemed to be
Restricted Payments at the time of such designation and will reduce the amount
available for Restricted Payments under the first paragraph of this Section
4.07. All such outstanding Investments will be deemed to constitute Investments
in an amount equal to the greatest of (i) the net book value of such Investments
at the time of such designation, (ii) the fair market value of such Investments
at the time of such designation and (iii) the original fair market value of such
Investments at the time they were made. Such designation will only be permitted
if such Restricted Payment would be permitted at such time and if such
Restricted Subsidiary otherwise meets the definition of an Unrestricted
Subsidiary.
The amount of all Restricted Payments (other than cash) shall be the fair
market value (evidenced by a resolution of the Management Committee set forth in
an Officers' Certificate delivered to the Trustee) on the date of the Restricted
Payment of the asset(s) proposed to be transferred by the Company or such
Subsidiary, as the case may be, pursuant to the Restricted Payment. Not later
than the date of making any Restricted Payment, the Company shall deliver to the
Trustee an Officers' Certificate stating that such Restricted Payment is
permitted and setting forth the basis upon which the calculations required by
this Section 4.07 were computed, which calculations may be based upon the
Company's latest available financial statements.
Section 4.08 Dividend and Other Payment Restrictions Affecting Subsidiaries.
The Issuers shall not, and shall not permit any of their Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
Restricted Subsidiary to (i)(a) pay dividends or make any other distributions to
the Issuers or any of their Restricted Subsidiaries on its Capital Stock or with
respect to any other interest or participation in, or measured by, its profits,
or (b) pay any indebtedness owed to the Issuers or any of their Restricted
Subsidiaries, (ii) make loans or advances to the Issuers or any of their
Restricted Subsidiaries or (iii) transfer any of its properties or assets to the
Issuers or any of their Restricted Subsidiaries, except for such encumbrances or
45
restrictions existing under or by reason of (a) the Senior Credit Agreement as
in effect on May 23, 1996, and any amendments, modifications, restatements,
renewals, supplements, refundings, replacements or refinancings thereof that
contain restrictions that are no more restrictive than those contained in the
Senior Credit Agreement as in effect on May 23, 1996, (b) agreements existing
and as in effect on May 23, 1996, (c) any instrument governing Indebtedness
permitted to be incurred pursuant to the terms of this Indenture, (d) applicable
law, (e) any instrument governing Indebtedness or Capital Stock of a Person
acquired by the Issuers or any of their Restricted Subsidiaries as in effect at
the time of such acquisition (except to the extent such Indebtedness was
incurred in connection with or in contemplation of such acquisition), which
encumbrance or restriction is not applicable to any Person, or the properties or
assets of any Person, other than the Person, or the property or assets of the
Person, so acquired, (f) customary non-assignment provisions in leases or other
agreements entered into in the ordinary course of business, (g) purchase money
obligations for property acquired in the ordinary course of business that impose
restrictions of the nature described in clause (iii) above on the property so
acquired, (h) any restriction or encumbrance contained in contracts for the sale
of assets permitted by this Indenture; provided that such restrictions relate
only to the assets being sold pursuant to such contracts and (i) Permitted
Refinancing Indebtedness; provided that the restrictions contained in the
agreements governing such Permitted Refinancing Indebtedness are no more
restrictive than those contained in the agreements governing the Indebtedness
being refinanced.
Section 4.09 Incurrence of Indebtedness.
The Issuers shall not, and shall not permit any of their Subsidiaries to,
directly or indirectly, create, incur, issue, assume, guaranty or otherwise
become directly or indirectly liable, contingently or otherwise, with respect to
(collectively, "incur") any Indebtedness (including the Notes and Acquired Debt)
and shall not permit any of their Restricted Subsidiaries to issue any preferred
stock; provided, however, that, so long as no Default or Event of Default has
occurred and is continuing, the Issuers and any of their Restricted Subsidiaries
may incur Indebtedness (including Acquired Debt) and the Issuers' Restricted
Subsidiaries may issue preferred stock if the Fixed Charge Coverage Ratio for
the Company's most recently ended four full fiscal quarters for which internal
financial statements are available immediately preceding the date on which such
additional Indebtedness is incurred or such preferred stock is issued would have
been at least 2.0 to 1, determined on a pro forma basis (including a pro forma
application of the net proceeds therefrom), as if the additional Indebtedness
had been incurred or the preferred stock had been issued at the beginning of
such four-quarter period; provided, further, however, that the amount of such
Indebtedness, together with any Indebtedness incurred pursuant to clause (i)
below, that is incurred by Restricted Subsidiaries of the Issuers that are not
Guarantors shall not exceed the sum of $15.0 million plus, with respect to each
such Restricted Subsidiary, the Subsidiary Debt Limit.
The foregoing provisions shall not apply to:
(i) the incurrence by the Issuers and their Restricted
Subsidiaries of Indebtedness pursuant to bank lines of credit
(including revolving and term loans) in an amount not to exceed the
greater of (a) $110.0 million at any time outstanding, less the
aggregate amount of all permanent reductions thereto pursuant to
Section 4.10 hereof, and (b) the Borrowing Base of the Company;
46
provided that, in either case, the aggregate amount of such
Indebtedness, together with any Indebtedness incurred pursuant to the
preceding paragraph, that is incurred by Restricted Subsidiaries of
the Company that are not Guarantors shall not exceed the sum of $15.0
million plus, with respect to each such Restricted Subsidiary, the
Subsidiary Debt Limit;
(ii) the incurrence by the Issuers and their Subsidiaries of
Existing Indebtedness;
(iii) the incurrence by the Issuers of Indebtedness represented
by the Notes and this Indenture;
(iv) the incurrence by the Issuers or any of their Restricted
Subsidiaries of Indebtedness represented by Capital Lease Obligations,
mortgage financings or purchase money obligations, in each case
incurred for the purpose of financing all or any part of the purchase
price or cost of construction or improvement of property, plant or
equipment used in the business of the Issuers or such Restricted
Subsidiary, in an aggregate principal amount not to exceed $10.0
million at any time outstanding; provided that the aggregate amount of
such Indebtedness that is incurred by Restricted Subsidiaries of the
Company that are not Guarantors shall not exceed $5.0 million at any
one time outstanding;
(v) the incurrence of intercompany Indebtedness between or among
the Issuers and any of their Wholly Owned Restricted Subsidiaries;
provided that any subsequent issuance or transfer of Equity Interests
that results in any such Indebtedness being held by a Person other
than an Issuer or a Wholly Owned Restricted Subsidiary of an Issuer,
or any sale or other transfer of any such Indebtedness to a Person
that is not either an Issuer or a Wholly Owned Restricted Subsidiary
of an Issuer, shall be deemed to constitute an incurrence of such
Indebtedness by the Issuers or such Restricted Subsidiary, as the case
may be;
(vi) the incurrence after May 23, 1996 by the Issuers or any of
their Restricted Subsidiaries of Hedging obligations that are incurred
for the purpose of fixing or hedging interest rate risk with respect
to any floating rate Indebtedness that is permitted by the terms of
this Indenture to be outstanding or for the purpose of fixing or
hedging any currency exchange rate risk;
(vii) the incurrence by the Issuers or any of their Restricted
Subsidiaries of Indebtedness arising from indemnification, purchase
price adjustment or similar obligations, or from guarantees, letters
of credit, surety bonds or performance bonds securing the performance
by the Company or any of its Restricted Subsidiaries of any such
obligations, pursuant to agreements relating to the disposition of any
business, assets or Subsidiary of the Company;
(viii) the incurrence after May 23, 1996 by the Company of
Indebtedness to members of management of the Company or any of its
Restricted Subsidiaries in connection with the repurchase of Equity
Interests of the Company in an amount not to exceed $2.5 million at
any one time outstanding; provided that (a) the instrument pursuant to
which such Indebtedness is incurred expressly states that such
47
Indebtedness is subordinated in right of payment to the Notes at least
to the extent that the Notes are subordinated to Senior Debt of the
Company and (b) such Indebtedness has a Weighted Average Life to
Maturity greater than the Weighted Average Life to Maturity of the
Notes;
(ix) the incurrence after May 23, 1996 by the Issuers and their
Restricted Subsidiaries of Indebtedness and the issuance by the
Issuers' Restricted Subsidiaries of preferred stock (in addition to
any other Indebtedness and preferred stock permitted by any other
clauses of this paragraph) in an amount not to exceed $10.0 million at
any one time outstanding;
(x) the incurrence by the Issuers or any of their Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or
the net proceeds of which are used to extend, refinance, renew,
replace, defease or refund, Indebtedness that was permitted by this
Indenture to be incurred; and
(xi) the incurrence by the Issuers' Unrestricted Subsidiaries of
Non-Recourse Debt; provided that if any such Indebtedness ceases to be
Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be
deemed to constitute an incurrence of Indebtedness by a Restricted
Subsidiary of the Issuers.
All Indebtedness incurred by either Issuer subsequent to May 23, 1996,
including the Indebtedness represented by the Notes, shall reduce the amounts
available to be incurred pursuant to this Section 4.09 to the same extent the
incurrence of such Indebtedness would have reduced such amounts available to be
incurred if such Indebtedness had been incurred after the date hereof.
Section 4.10 Asset Sales.
The Issuers shall not, and shall not permit any of their Restricted
Subsidiaries to, engage in an Asset Sale unless (i) the Issuers or the
Restricted Subsidiary, as the case may be, receives (a) consideration at the
time of such Asset Sale at least equal to the fair market value of the assets or
Equity Interests issued or sold or otherwise disposed of or (b) in the case of a
lease of assets, a lease providing for rent and other consideration which are no
less favorable to the Company or the Restricted Subsidiary, as the case may be,
than the then prevailing market conditions (in the case of either (a) or (b),
evidenced by a resolution of the Management Committee set forth in an Officers'
Certificate delivered to the Trustee) and (ii) at least 75% of the consideration
therefor received by the Issuers or such Restricted Subsidiary is in the form of
cash or Cash Equivalents; provided that the amount of (x) any liabilities (as
shown on the Issuers' or such Restricted Subsidiary's most recent balance sheet)
of the Issuers or any Restricted Subsidiary (other than liabilities that are by
their terms subordinated to the Notes) that are assumed by the transferee of any
such assets pursuant to a customary novation agreement that releases the Issuers
or such Restricted Subsidiary from further liability and (y) any notes or other
obligations received by the Issuers or such Restricted Subsidiary from such
transferee that are promptly (but in any event, within 30 days) converted by the
48
Issuers or such Restricted Subsidiary into cash (to the extent of the cash
received) shall be deemed to be cash for purposes of this provision; and
provided, further, that contingent liabilities that are assumed by the
transferee of any such assets shall not be deemed to be the receipt of
consideration if such contingent liabilities are not shown as liabilities on the
Issuers' or such Restricted Subsidiary's most recent balance sheet.
Within 360 days after the receipt of any Net Proceeds from an Asset Sale,
the Issuers may apply such Net Proceeds (a) to permanently reduce Senior Debt of
the Issuers or long-term Indebtedness of a Restricted Subsidiary of the Company
(and, in either case, to correspondingly reduce commitments with respect
thereto) or (b) to an Investment in another business, the making of a capital
expenditure or the acquisition of other long-term assets, in each case, in
accordance with the provisions of this Indenture. Pending the final application
of any such Net Proceeds, the Issuers may temporarily reduce Senior Debt or
otherwise invest such Net Proceeds in any manner that is not prohibited by this
Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as
provided in the first sentence of this paragraph will be deemed to constitute
"Excess Proceeds." When the aggregate amount of Excess Proceeds accumulated
since May 23, 1996 exceeds $5.0 million, the Issuers shall be required to make
an offer to all Holders of Notes (an "Asset Sale Offer") to purchase the maximum
principal amount of Notes that may be purchased out of the Excess Proceeds, at
an offer price in cash in an amount equal to 100% of the principal amount
thereof plus accrued and unpaid interest and Liquidated Damages, if any, thereon
to the date of purchase, in accordance with the procedures set forth in Section
3.09 of this Indenture. To the extent that the aggregate amount of Notes
tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the
Company may use any remaining Excess Proceeds for general corporate purposes
(subject to the restrictions of this Indenture). If the aggregate principal
amount of Notes surrendered by Holders thereof exceeds the amount of Excess
Proceeds, the Trustee shall select the Notes to be purchased on a pro rata
basis. Upon completion of such offer to purchase, the amount of Excess Proceeds
shall be reset at zero.
Section 4.11 Transactions With Affiliates.
Neither Issuer shall, and shall not permit any of its Restricted
Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into or make or amend any contract, agreement,
understanding, loan, advance or guarantee with, or for the benefit of, any
Affiliate (each of the foregoing, an "Affiliate Transaction"), unless (i) such
Affiliate Transaction is on terms that are no less favorable to such Issuer or
the relevant Restricted Subsidiary than those that would have been obtained in a
comparable transaction with an unrelated Person and (ii) such Issuer delivers to
the Trustee (a) with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in excess of $1.0
million, a resolution of the Management Committee set forth in an Officers'
Certificate certifying that such Affiliate Transaction complies with clause (i)
above and that such Affiliate Transaction has been approved by a majority of the
disinterested members of the Management Committee and (b) with respect to any
Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $5.0 million, an opinion as to the fairness
to the Company of such Affiliate Transaction from a financial point of view
issued by an accounting, appraisal or investment banking firm of national
standing; provided that (1) any compensation paid to, indemnity provided on
behalf of, or employment agreement entered into with, any Officer or director of
the Issuers or any of their Restricted Subsidiaries in the ordinary course of
business, (2) transactions between or among the Issuers and their Restricted
Subsidiaries and (3) Restricted Payments and Permitted Investments that are
permitted by the provisions of Section 4.07 hereof, in each case, shall not be
deemed Affiliate Transactions.
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Section 4.12 Liens.
The Issuers shall not, and shall not permit any of their Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Lien on any asset now owned or hereafter acquired, or any income or
profits therefrom or assign or convey any right to receive income therefrom,
except Permitted Liens.
Section 4.13 Activities of Intellectual Property Subsidiary.
For so long as the Company's Subsidiary holding the Company's intellectual
property is a Restricted Subsidiary of the Company and not a Subsidiary
Guarantor, the Company shall not permit such Subsidiary to engage in any
material operations, other than owning the intellectual property relating to the
business of the Company and its Restricted Subsidiaries and licensing such
intellectual property to the Company and its Restricted Subsidiaries.
Section 4.14 Restrictions on Activities of Capital.
Capital may not hold any material assets, become liable for any material
obligations or engage in any significant business activities; provided that
Capital may be a co-obligor or guarantor with respect to Indebtedness if the
Company is a primary obligor of such Indebtedness and the net proceeds of such
Indebtedness are retained by the Company or loaned to one or more of the
Company's Restricted Subsidiaries other than Capital.
Section 4.15 Existence as a Corporation or Limited Liability Company.
Subject to Article 5 hereof, the Issuers shall do or cause to be done all
things necessary to preserve and keep in full force and effect their existence
as a corporation or a limited liability company, as applicable, and the
corporate, partnership or other existence of each Restricted Subsidiary, in
accordance with the respective organizational documents (as the same may be
amended from time to time) of the Issuers or each Restricted Subsidiary and the
rights (charter and statutory), licenses and franchises of the Issuers and each
Restricted Subsidiary; provided, however, that the Issuers shall not be required
to preserve any such right, license or franchise, or the corporate, partnership
or other existence of any of their Restricted Subsidiaries, if the Management
Committee shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Issuers and their Restricted Subsidiaries,
taken as a whole, and that the loss thereof is not adverse in any material
respect to the Holders.
Section 4.16 Change of Control.
Upon the occurrence of a Change of Control, the Issuers shall be required
to make an offer (a "Change of Control Offer") to repurchase all or any part
(equal to $1,000 or an integral multiple thereof) of each Holder's Notes at an
offer price in cash equal to 101% of the aggregate principal amount thereof plus
accrued and unpaid interest and Liquidated Damages, if any, thereon to the date
of purchase (the "Change of Control Payment"). Within 30 days following any
Change of Control, the Issuers shall mail a notice to each Holder stating (1)
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that the Change of Control Offer is being made pursuant to this Section 4.16 and
that all Notes tendered shall be accepted for payment; (2) the purchase price
and purchase date, which shall be no later than 30 business days from the date
such notice is mailed (the "Change of Control Payment Date"); (3) that any Note
not tendered shall continue to accrue interest; (4) that, unless the Issuers
default 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; (5) that Holders electing to have any
Notes purchased pursuant to a Change of Control Offer shall 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 close of business
on the third Business Day preceding the Change of Control Payment Date; (6) that
Holders shall 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 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 his election to
have the Notes purchased; and (7) that Holders whose Notes are being purchased
only in part shall 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 in principal amount or an integral multiple thereof; provided
that, prior to complying with the provisions of this Section 4.16, but in any
event within 90 days following a Change of Control, the Issuers shall either
repay all outstanding Senior Debt or obtain the requisite consents, if any,
under all agreements governing outstanding Senior Debt to permit the repurchase
of Notes required by this Section 4.16. The Issuers shall comply with the
requirements of Rule 14e-1 under the Exchange Act and any other securities laws
and regulations thereunder to the extent such laws and regulations are
applicable in connection with the repurchase of the Notes as a result of a
Change of Control.
On the Change of Control Payment Date, the Issuers shall, to the extent
lawful, (i) accept for payment all Notes or portions thereof properly tendered
pursuant to the Change of Control Offer, (ii) deposit with the Paying Agent an
amount equal to the Change of Control Payment in respect of all Notes or
portions thereof so tendered and (iii) 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
Issuers. The Paying Agent shall promptly mail to each Holder of Notes so
tendered the Change of Control Payment for such 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, if any; provided that each such new Note shall be in a
principal amount of $1,000 or an integral multiple thereof. The Issuers shall
publicly announce the results of the Change of Control Offer on or as soon as
practicable after the Change of Control Payment Date.
Notwithstanding the foregoing, the Issuers shall not be required to make a
Change of Control Offer upon a Change of Control if a third party makes the
Change of Control Offer in the manner, at the times and otherwise in compliance
with the requirements set forth in this Indenture applicable to a Change of
Control Offer made by the Issuers and purchases all Notes validly tendered and
not withdrawn under such Change of Control Offer.
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Section 4.17 Limitation on Other Senior Subordinated Debt.
The Issuers shall not, and shall not permit any Guarantor to, incur,
create, issue, assume, guarantee or otherwise become liable for any Indebtedness
that is subordinate or junior in right of payment to any Senior Debt of the
Issuers or such Guarantor, as the case may be, and senior in any respect in
right of payment to the Notes or the Guarantees thereof by the Guarantors.
Section 4.18 Subsidiary Guarantees.
If the Issuers or any of their Subsidiaries shall acquire or create another
Subsidiary after May 23, 1996, or designate an Unrestricted Subsidiary to be a
Restricted Subsidiary, then such Subsidiary shall execute a Guarantee in the
form of Exhibit C attached hereto; provided, that this covenant shall not apply
to any Subsidiary (i) that is incorporated in any jurisdiction outside the
United States or (ii) that has been properly designated as an Unrestricted
Subsidiary in accordance with this Indenture for so long as it continues to
constitute an Unrestricted Subsidiary. Upon the creation or acquisition of any
Subsidiary after the date of this Indenture or the designation of an
Unrestricted Subsidiary as a Restricted Subsidiary, the Issuers shall deliver to
the Trustee an Opinion of Counsel to the effect that the provisions of this
Section 4.18 have been complied with and that the Guarantee of the Guarantor
constitutes a legally valid and binding obligation of such Guarantor,
enforceable against such Guarantor in accordance with its terms.
In the event of a sale or other disposition of all of the assets of any
Guarantor, by way of merger, consolidation or otherwise, or a sale or other
disposition of all of the capital stock of any Guarantor, then such Guarantor
(in the event of a sale or other disposition, by way of such a merger,
consolidation or otherwise, of all of the capital stock of such Guarantor) or
the corporation acquiring the property (in the event of a sale or other
disposition of all of the assets of such Guarantor) will be released and
relieved of any obligations under its Subsidiary Guarantee; provided that the
Net Proceeds of such sale or other disposition are applied in accordance with
Section 4.10 hereof. In addition, in the event the Management Committee
designates a Guarantor to be an Unrestricted Subsidiary, then such Guarantor
shall be released and relieved of any obligations under its Guarantee; provided
that such designation is conducted in accordance with Section 4.07 hereof.
Section 4.19 Payments for Consent.
The Issuers shall not, and shall not permit any of their Restricted
Subsidiaries to, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to any Holder of
any Notes for or as an inducement to any consent, waiver or amendment of any of
the terms or provisions of this Indenture or the Notes unless such consideration
is offered to be paid or is paid to all Holders of the Notes that consent, waive
or agree to amend in the time frame set forth in the solicitation documents
relating to such consent, waiver or agreement.
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ARTICLE 5
SUCCESSORS
Section 5.01 Merger, Consolidation, or Sale of Assets.
Neither Issuer may consolidate or merge with or into (whether or not such
Issuer is the surviving entity), or sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its properties or assets in one
or more related transactions, to another corporation, Person or entity, unless:
(i) such Issuer is the surviving entity or the entity or the
Person formed by or surviving any such consolidation or merger (if
other than such Issuer) or to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have been made is a
corporation organized or existing under the laws of the United States,
any state thereof or the District of Columbia;
(ii) the entity or Person formed by or surviving any such
consolidation or merger (if other than such Issuer) or the entity or
Person to which such sale, assignment, transfer, lease, conveyance or
other disposition shall have been made assumes all the obligations of
such Issuer under the Notes and this Indenture pursuant to a
supplemental indenture in a form reasonably satisfactory to the
Trustee;
(iii) immediately after such transaction, no Default or Event of
Default exists; and
(iv) except in the case of (a) a merger of such Issuer with or
into a Wholly Owned Restricted Subsidiary of such Issuer or (b) a
merger of the Company with and into a newly formed corporation that
(1) prior to such merger, has no liabilities or (2) owns 100% of the
Capital Stock of the Company and conducts no business other than
holding such Capital Stock, in either case, for the purpose of
reorganizing the Company as or into a corporation, such Issuer or the
entity or Person formed by or surviving any such consolidation or
merger (if other than such Issuer) or to which such sale, assignment,
transfer, lease, conveyance or other disposition shall have been made
(A) will have Consolidated Net Worth immediately after the transaction
equal to or greater than the Consolidated Net Worth of such Issuer
immediately preceding the transaction and (B) will, at the time of
such transaction and after giving pro forma effect thereto as if such
transaction had occurred at the beginning of the applicable
four-quarter period, be permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Fixed Charge Coverage Ratio
test set forth in Section 4.09 hereof.
Section 5.02 Successor Corporation 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
either Issuer in accordance with Section 5.01 hereof, the successor corporation
formed by such consolidation or into or with which such Issuer 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, in the case of any
consolidation or merger, or any sale, assignment transfer, lease, conveyance or
other disposition of all or substantially all of the assets of either Issuer,
53
from and after the date of such event, the provisions of this Indenture
referring to such Issuer shall refer instead to the successor corporation and
not to such Issuer), and may exercise every right and power of such Issuer under
this Indenture with the same effect as if such successor Person had been named
as such Issuer herein; provided, however, that the predecessor 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 predecessor'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" occurs if:
(a) the Issuers default in the payment of interest or Liquidated
Damages on any Note when the same becomes due and payable and the
Default continues for a period of 30 days, whether or not such payment
is prohibited by Article 10 hereof;
(b) the Issuers default in payment of the principal of or
premium, if any, on the Notes when and as the same becomes due and
payable at maturity, upon acceleration, optional or mandatory
redemption, required repurchase or otherwise, whether or not such
payment is prohibited by the provisions of Article 10 hereof;
(c) the Issuers fail to observe any covenant, condition or
agreement on the part of the Issuers to be observed or performed
pursuant to Sections 4.07, 4.09, 4.10, or 4.16 hereof;
(d) the Issuers fail for 30 days after notice to comply with any
of their other agreements or covenants in, or provisions of, the Notes
or this Indenture;
(e) an event of default occurs under any mortgage, indenture or
other instrument under which there may be issued or by which there may
be secured or evidenced any Indebtedness for money borrowed by the
Issuers or any of their Restricted Subsidiaries (or the payment of
which is guaranteed by the Issuers or any of their Restricted
Subsidiaries), whether such Indebtedness or guarantee now exists, or
is created after the date of this Indenture, which default (i) is
caused by a failure to pay principal of, or premium, if any, or
interest, on such Indebtedness prior to the expiration of the grace
period provided in such Indebtedness on the date of such default (a
"Payment Default") or (ii) results in the acceleration of such
Indebtedness prior to its express maturity and, in each case, the
principal amount of any such Indebtedness, together with the principal
amount of any other such Indebtedness under which there has been a
Payment Default or the maturity of which has been so accelerated,
aggregates $5.0 million or more;
(f) the Issuers or any of their Restricted Subsidiaries fail to
pay final non-appealable judgments aggregating in excess of $5.0
million, which judgments are not paid, discharged or stayed for a
period of 60 days;
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(g) any Guarantee of a Guarantor is held in a judicial proceeding
to be unenforceable or invalid or shall cease for any reason to be in
full force and effect, or any Guarantor, or any Person acting on
behalf of any Guarantor, denies or disaffirms its obligations under
its Guarantee; and
(h) either Issuer, any Significant Subsidiary of either Issuer,
or any group of Subsidiaries of either Issuer that, considered
together, would constitute a Significant Subsidiary of either Issuer,
pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in
an involuntary case,
(iii) consents to the appointment of a custodian of it or for all
or substantially all of its property,
(iv) makes a general assignment for the benefit of its creditors,
or
(v) generally is not paying its debts as they become due; or
(i) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(i) is for relief against either Issuer, any Significant
Subsidiary of either Issuer, or any group of Subsidiaries of either
Issuer that, considered together, would constitute a Significant
Subsidiary of either Issuer, in an involuntary case,
(ii) appoints a custodian of either Issuer or any Significant
Subsidiary of either Issuer, or for all or substantially all of the
property of either Issuer or any Significant Subsidiary of either
Issuer, or
(iii) orders the liquidation of either Issuer, any Significant
Subsidiary of either Issuer, or any group of Subsidiaries that,
considered together, would constitute a Significant Subsidiary of
either Issuer;
and the order or decree remains unstayed and in effect for 60
consecutive days;
Section 6.02 Acceleration.
If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Notes may
declare all the Notes to be due and payable five days after delivering a notice
of acceleration to the Company and to the agent for the lenders under the Senior
Credit Agreement (provided that the Notes shall become due and payable
immediately if any Senior Debt has been or is accelerated following delivery of
a notice of acceleration). Notwithstanding the foregoing, if an Event of Default
55
specified in clause (h) or (i) of Section 6.01 hereof occurs, all outstanding
Notes will become due and payable without further action or notice. The Holders
of not less than 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.
If an Event of Default occurs on or after May 15, 2001 by reason of any
willful action (or inaction) taken (or not taken) by or on behalf of the Issuers
with the intention of avoiding payment of the premium that the Issuers would
have to pay if the Issuers then had elected to redeem the Notes pursuant to
Section 3.07 hereof, then, upon acceleration of the Notes, an equivalent premium
shall also become and be immediately due and payable, to the extent permitted by
law, anything in this Indenture or in the Notes to the contrary notwithstanding.
If an Event of Default occurs prior to May 15, 2001 by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of the Issuers with
the intention of avoiding the prohibition on redemption of the Notes prior to
such date, then, upon acceleration of the Notes, an additional premium shall
also become and be immediately due and payable in the amount of 107.333%.
Section 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue any
available remedy to collect the payment of principal of, and premium, interest
and Liquidated Damages, if any, 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.
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
this Indenture except a continuing Default or Event of Default in the payment of
the principal of, or premium, interest or Liquidated Damages (if any) on, the
Notes.
Section 6.05 Control by Majority.
Holders of a majority in principal amount of the then outstanding Notes may
direct the time, method and place of conducting any proceeding for exercising
any remedy available to the Trustee or exercising any trust or power conferred
on it. However, the Trustee may refuse to follow any direction that conflicts
with law or this Indenture that the Trustee determines may 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:
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(a) the Holder of a Note gives to the Trustee written notice of a
continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the then outstanding
Notes make a written request to the Trustee to pursue the remedy;
(c) such Holder of a Note or Holders of Notes offer and, if requested,
provide to the Trustee indemnity satisfactory to the Trustee against any loss,
liability or expense;
(d) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and
(e) during such 60-day period the Holders of a majority in principal amount
of the then outstanding Notes do not give the Trustee a direction inconsistent
with the request.
A Holder of a Note may not use this Indenture to prejudice the rights of
another Holder of a Note or to obtain a preference or priority over another
Holder of a Note.
Section 6.07 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 of, and premium, interest and
Liquidated Damages, if any, 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.
Section 6.08 Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(a) or (b) occurs and is
continuing, the Trustee is authorized to recover judgment in its own name and as
trustee of an express trust against the Issuers for the whole amount of
principal of, and premium, interest and Liquidated Damages, if any, 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 Issuers
(or any other obligor upon the Notes), their creditors or their 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
57
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.
If the Trustee collects any money pursuant to this Article 6, 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 for amounts due and unpaid on the Notes for principal,
premium, interest and Liquidated Damages, if any, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Notes for
principal, premium, interest and Liquidated Damages, if any, respectively; and
Third: to the Issuers 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 and
expenses, 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 of the then outstanding Notes.
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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 man would
exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(i) the 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. However, 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 examine the certificates
and opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(i) this paragraph does not limit the effect of paragraph (b) of
this Section;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to paragraphs (a),
(b) and (c) of this Section 7.01.
(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.
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(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 Issuers. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
(g) Except with respect to Sections 4.01 and 4.04 hereof, the Trustee shall
have no duties to inquire as to the performance of the Issuers' covenants in
Article 4 hereof. In addition, the Trustee shall not be deemed to have knowledge
of any Default or Event of Default except (i) any Event of Default occurring
pursuant to Sections 6.01(a) or 6.01(b) hereof; provided, that at the time such
Event of Default occurs, the Trustee is the Paying Agent hereunder, or (ii) any
Default or Event of Default of which the Trustee shall have received written
notification or obtained actual knowledge.
Section 7.02 Rights of Trustee.
(a) The Trustee may conclusively rely upon any document believed by it to
be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate 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 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 Issuers shall be sufficient if signed by
an Officer of each of the Issuers.
(f) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities that might be
incurred by it in compliance with such request or direction.
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 Issuers or any Affiliate of the
Issuers 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.
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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 Issuers' use of the proceeds from the Notes or any money
paid to the Issuers or upon the Issuers' direction under any provision hereof,
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 the Holders of the 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, or
premium, interest or Liquidated Damages, if any, 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 May 15 beginning with the May 15 following the
date of this Indenture, and for so long as Notes remain outstanding, the Trustee
shall mail to the Holders of the Notes a brief report dated as of such reporting
date that complies with TIA 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). 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 Issuers and filed with the Commission and each stock
exchange on which the Notes are listed in accordance with TIA ss. 313(d). The
Issuers shall promptly notify the Trustee when the Notes are listed on any stock
exchange.
Section 7.07 Compensation and Indemnity.
The Issuers shall pay to the Trustee from time to time such compensation as
shall be agreed in writing between the Issuers and the Trustee for its
acceptance of this Indenture and for its services hereunder. To the extent
permitted by law, the Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Issuers 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.
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The Issuers shall indemnify the Trustee against any and all losses,
liabilities, damages, claims or expenses including taxes (other than taxes based
on the income of the Trustee) 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 Issuers
(including this Section 7.07) and defending itself against any claim (whether
asserted by the Issuers 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 bad faith. The Trustee shall notify the
Issuers promptly of any claim for which it may seek indemnity. Failure by the
Trustee to so notify the Issuers shall not relieve the Issuers of their
obligations hereunder. The Issuers shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel and the Issuers
shall pay the reasonable fees and expenses of such counsel. The Issuers need not
pay for any settlement made without their consent, which consent shall not be
unreasonably withheld.
The obligations of the Issuers under this Section 7.07 shall survive the
satisfaction and discharge of this Indenture.
To secure the Issuers' 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 of 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(h) or (i) 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.
The Trustee shall comply with the provisions of TIA ss. 313(b)(2) to the
extent applicable.
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 in writing at any time and be discharged from the
trust hereby created by so notifying the Issuers. The Holders of Notes of a
majority in principal amount of the then outstanding Notes may remove the
Trustee by so notifying the Trustee and the Issuers in writing. The Issuers 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
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(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 Issuers shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Issuers.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Issuers, or
the Holders of at least 10% in principal amount of the then outstanding Notes
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee, after written request by any Holder who has been a Holder
of a Note 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 Issuers. 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 the
Holders of the Notes. The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee; provided that 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 Issuers' 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 a combined capital and surplus of at least $50.0
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 ss. 310(a)(1), (2) and (5). The Trustee is subject to TIA ss. 310(b).
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Section 7.11 Preferential Collection of Claims Against the 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.
The Issuers may, at the option of the Management Committee 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 Issuers' exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Issuers shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be deemed to have been
discharged from their obligations with respect to all outstanding Notes on the
date the conditions set forth below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, Legal Defeasance means that the Issuers shall be
deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Notes, which shall thereafter be deemed to be "outstanding" only for
the purposes of Section 8.05 hereof and the other Sections of this Indenture
referred to in (i) and (ii) below, and to have satisfied all their other
obligations under such Notes and this Indenture (and the Trustee, on demand of
and at the expense of the Issuers, shall execute proper instruments
acknowledging the same), except for the following provisions which shall survive
until otherwise terminated or discharged hereunder: (i) the rights of Holders of
outstanding Notes to receive payments in respect of the principal of, and
premium, interest and Liquidated Damages (if any) on, the Notes when such
payments are due from the trust referred to in Section 8.04 hereof, (ii) the
Issuers' obligations with respect to such Notes under Article 2 and Section 4.02
hereof, (iii) the rights, powers, trusts, duties and immunities of the Trustee
hereunder, and the Issuers' obligations in connection therewith and (iv) this
Article 8. Subject to compliance with this Article 8, the Issuers may exercise
their option under this Section 8.02 notwithstanding the prior exercise of their
option under Section 8.03.
Section 8.03 Covenant Defeasance.
Upon the Issuers' exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Issuers shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be released from their
obligations under the covenants contained in Sections 4.07, 4.08, 4.09, 4.10,
4.11, 4.12, 4.13, 4.14, 4.16, 4.17, 4.18 and 4.19 hereof with respect to the
outstanding Notes on and after the date the conditions set forth below are
satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall thereafter
be deemed not "outstanding" for the purposes of any direction, waiver, consent
or declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "outstanding"
for all other purposes hereunder (it being understood that such Notes shall not
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be deemed outstanding for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes, the Issuers may
omit to comply with and shall have no liability in respect of any term condition
or limitation set forth in any such covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such covenant or by reason of
any reference in any such covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a Default or an Event
of Default under Section 6.01 hereof, but, except as specified above, the
remainder of this Indenture and such Notes shall be unaffected thereby. In
addition, upon the Issuers' 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(c) through 6.01(g)
hereof shall not constitute Events of Default.
Section 8.04 Conditions to Legal or Covenant Defeasance.
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:
(i) the Issuers must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders of the Notes, cash in United
States dollars, non-callable Government Securities, or a combination
thereof, in such amounts as will be sufficient, without reinvestment,
in the opinion of a nationally recognized firm of independent public
accountants, to pay the principal of, and premium, interest and
Liquidated Damages (if any) on, the outstanding Notes on the stated
maturity or on the applicable redemption date, as the case may be, and
the Issuers must specify whether the Notes are being defeased to
maturity or to a particular redemption date;
(ii) in the case of an election under Section 8.02 hereof, the
Issuers shall have delivered to the Trustee an Opinion of Counsel in
the United States reasonably acceptable to the Trustee confirming that
(a) the Issuers have received from, or there has been published by,
the Internal Revenue Service a ruling or (b) since the date of this
Indenture, there has been a change in the applicable federal income
tax law, in either case to the effect that, and based thereon such
Opinion of Counsel shall confirm that, the Holders of the outstanding
Notes will not recognize income, gain or loss for federal income tax
purposes as a result of such Legal Defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such Legal Defeasance had
not occurred;
(iii) in the case of an election under Section 8.03 hereof, the
Issuers shall have delivered to the Trustee an Opinion of Counsel in
the United States reasonably acceptable to the Trustee confirming that
the Holders of the outstanding Notes will not recognize income, gain
or loss for federal income tax purposes as a result of such Covenant
Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such Covenant Defeasance had not occurred;
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(iv) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event
of Default resulting from the borrowing of funds to be applied to such
deposit) or insofar as Sections 6.01(h) or 6.01(i) hereof is
concerned, at any time in the period ending on the 91st day after the
date of deposit;
(v) such Legal Defeasance or Covenant Defeasance will 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 Issuers or any of their Subsidiaries is a party or by which the
Issuers or any of their Subsidiaries is bound;
(vi) the Issuers shall have delivered to the Trustee an Opinion
of Counsel to the effect that after the 91st day following the
deposit, the trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors, rights generally;
(vii) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the
Issuers with the intent of preferring the Holders of Notes over the
other creditors of the Issuers with the intent of defeating,
hindering, delaying or defrauding creditors of the Issuers or others;
and
(viii) the Issuers shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to the Legal Defeasance or
the Covenant Defeasance have been complied with.
Section 8.05 Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions.
Subject to Section 8.06 hereof, all money and non-callable Government
Securities (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 such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Issuers 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, interest and Liquidated
Damages, if any, but such money need not be segregated from other funds except
to the extent required by law.
The Issuers shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or non-callable Government
securities 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 Issuers from time to time upon the request of the
Issuers any money or non-callable Government Securities 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(i) 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.
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Section 8.06 Repayment to the Issuers.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Issuers, in trust for the payment of the principal of, or
premium, interest or Liquidated Damages, if any, on, any Note and
remaining unclaimed for two years after such principal, premium,
interest or Liquidated Damages has become due and payable shall be
paid to the Issuers on their request or (if then held by the Issuers)
shall be discharged from such trust; and the Holder of such Note shall
thereafter look only to the Issuers for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such
trust money, and all liability of the Issuers as trustee thereof,
shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at
the expense of the Issuers cause to be published 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 Issuers.
Section 8.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States dollars
or non-callable Government Securities 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 Issuers' 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 Issuers make any
payment of principal of, or premium, interest or Liquidated Damages, if any, on,
any Note following the reinstatement of its obligations, the Issuers 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.
Notwithstanding Section 9.02 hereof, the Issuers and the Trustee may
amend or supplement this Indenture, the Guarantees or the Notes, as applicable,
without the consent of any Holder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in place of
certificated Notes;
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(c) to provide for the assumption of the Issuers' obligations to the
Holders of the Notes in the case of a merger or consolidation pursuant to
Section 5.01 hereof;
(d) to make any change that would provide any additional rights or benefits
to the Holders of Notes or that does not adversely affect the legal rights under
this Indenture of any such Holder; or
(e) to comply with the requirements of the Commission in order to effect or
maintain the qualification of this Indenture under the Trust Indenture Act.
Upon the request of the Issuers accompanied by a resolution of the
Management Committee authorizing the execution of any such amended or
supplemental Indenture, and upon receipt by the Trustee of the documents
described in Section 9.06 hereof, the Trustee shall join with the Issuers in the
execution of any amended or supplemental Indenture authorized or permitted by
the terms of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall not be
obligated to enter into such amended or supplemental Indenture that affects its
own rights, duties or immunities under this Indenture or otherwise.
Section 9.02 With Consent of Holders of Notes.
Except as provided below in this Section 9.02, the Issuers and the Trustee
may amend or supplement this Indenture, the Guarantees or the Notes, as
applicable, with the consent of the Holders of at least a majority in principal
amount of the Notes then outstanding (including, without limitation, consents
obtained in connection with a purchase of, or tender offer or exchange offer
for, 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, or premium, interest or Liquidated Damages, if any, on, the
Notes, except a payment default resulting from an acceleration that has been
rescinded) or compliance with any provision of this Indenture, the Guarantees or
the Notes may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Notes (including consents obtained in
connection with a tender offer or exchange offer for Notes).
Upon the request of the Issuers accompanied by a resolution of the
Management Committee authorizing the execution of any such amended or
supplemental Indenture, and upon the filing with the Trustee of evidence
satisfactory to the Trustee of the consent of the Holders as aforesaid, and upon
receipt by the Trustee of the documents described in Section 9.06 hereof, the
Trustee shall join with the Issuers in the execution of such amended or
supplemental Indenture unless such amended or supplemental Indenture affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise, in
which case the Trustee may in its discretion, but shall not be obligated to,
enter into such amended or supplemental Indenture.
It shall not be necessary for the consent of the Holders under this Section
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.
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After an amendment, supplement or waiver under this Section becomes
effective, the Issuers shall mail to the Holders of each Note affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Issuers to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amended or supplemental
Indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a
majority in aggregate principal amount of the Notes then outstanding may waive
compliance in a particular instance by the Issuers with any provision of this
Indenture or the Notes. However, without the consent of each Holder affected, an
amendment or waiver may not (with respect to any Notes held by a non-consenting
Holder):
(a) reduce the principal amount of Notes whose Holders must consent to an
amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any Note or
alter the provisions with respect to the redemption of the Notes (other than
provisions described in Sections 4.10 and 4.16 hereof);
(c) reduce the rate of or change the time for payment of interest on any
Note;
(d) waive a Default or Event of Default in the payment of principal of, or
premium, interest or Liquidated Damages (if any) on, the Notes (except a
rescission of acceleration of the Notes by Holders of at least a majority in
aggregate principal amount of the Notes and a waiver of the payment default that
resulted from such acceleration);
(e) make any Note or Guarantee payable in money other than that stated in
the Notes;
(f) make any change in Section 6.04 or 6.07 hereof or in the foregoing
amendment and waiver provisions;
(g) waive a redemption payment with respect to any Note (other than a
payment required by the provision described in Sections 4.10 and 4.16 hereof);
(h) discharge or terminate a Guarantee; or
(i) make any change in the foregoing amendment and waiver provisions.
In addition, any amendment to the provisions of Article 10 of this
Indenture shall require the consent of the Holders of at least 75% in aggregate
principal amount of the Notes then outstanding if such amendment would adversely
affect the rights of Holders of Notes.
Section 9.03 Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes shall be set
forth in an amended or supplemental Indenture that complies with the TIA as then
in effect.
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Section 9.04 Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent to it
by a Holder is a continuing consent by the Holder 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 or subsequent Holder 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.
The Issuers may fix a record date for determining which Holders must
consent to such amendment or waiver. If the Issuers fix a record date, the
record date shall be fixed at (i) the later of 30 days prior to the first
solicitation of such consent or the date of the most recent list of Holders
furnished to the Trustee prior to such solicitation pursuant to Section 2.05 or
(ii) such other date as the Issuers shall lawfully designate.
Section 9.05 Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Issuers in
exchange for all Notes may issue and the Trustee shall authenticate new Notes
that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
Section 9.06 Trustee to Sign Amendments, Etc.
The Trustee shall sign any amended or supplemental Indenture authorized
pursuant to this Article 9 if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. The Issuers
may not sign an amendment or supplemental Indenture until the Management
Committee approves it. In executing any amended or supplemental indenture, the
Trustee shall be entitled to receive and (subject to Section 7.01) shall be
fully protected in relying upon, an Officers' Certificate and an Opinion of
Counsel stating that the execution of such amended or supplemental indenture is
authorized or permitted by this Indenture.
ARTICLE 10
SUBORDINATION
Section 10.01 Agreement to Subordinate.
The Issuers agree, and each Holder by accepting a Note agrees, that the
payment of principal of, and premium, interest and Liquidated Damages (if any)
on, the Notes is subordinated in right of payment, to the extent and in the
manner provided in this Article 10, to the prior payment in full of all Senior
Debt (whether outstanding on the date hereof or hereafter created, incurred,
assumed or guaranteed), and that the subordination is for the benefit of the
holders of Senior Debt.
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Section 10.02 Liquidation; Dissolution; Bankruptcy.
Upon any distribution to creditors of either Issuer in a liquidation or
dissolution of such Issuer or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to such Issuer or its property, an
assignment for the benefit of creditors or any marshalling of either Issuers'
assets and liabilities:
(1) holders of Senior Debt of such Issuer shall be entitled to
receive payment in full of all Obligations due in respect of such
Senior Debt (including interest after the commencement of any such
proceeding at the rate specified in the applicable Senior Debt) before
the Holders of Notes shall be entitled to receive any payment with
respect to the Notes (except that Holders of Notes may receive
securities that are subordinated at least to the same extent as the
Notes to Senior Debt and any securities issued in exchange for Senior
Debt and payments made from the trust described in Section 8.04
hereof); and
(2) until all Obligations with respect to Senior Debt of such
Issuer are paid in full, any distribution to which the Holders of
Notes would be entitled but for this Article shall be made to the
holders of such Senior Debt (except that Holders of Notes may receive
securities that are subordinated at least to the same extent as the
Notes to Senior Debt and any securities issued in exchange for Senior
Debt and payments made from the trust described in Section 8.04
hereof).
Section 10.03 Default on Designated Senior Debt.
The Issuers may not make any payment upon or in respect of the Notes and
may not offer to repurchase Notes (other than securities that are subordinated
to the same extent as the Notes to Senior Debt and any securities issued in
exchange for Senior Debt and payments made from the trust described in Section
8.04 hereof) if:
(i) a default in the payment of the principal of, or premium or
interest on, or fees or other amounts owing with respect to,
Designated Senior Debt occurs and is continuing beyond any applicable
period of grace; or
(ii) any other default occurs and is continuing with respect to
Designated Senior Debt that permits holders of the Designated Senior
Debt as to which such default relates to accelerate its maturity and
the Trustee receives a notice of such default (a "Payment Blockage
Notice") from the Issuers or the holders of any Designated Senior
Debt.
Payments on the Notes may and shall be resumed:
(a) in the case of default referred to in Section 10.03(i), upon
the date on which such default is cured or waived, and
(b) in case of a default referred to in Section 10.03(ii), upon
the earlier of the date on which such nonpayment default is cured or
waived or 179 days after the date on which the applicable Payment
Blockage Notice is received, unless the maturity of any Designated
Senior Debt has been accelerated.
71
No new period of payment blockage may be commenced unless and until 360
days have elapsed since the effectiveness of the immediately prior Payment
Blockage Notice. No nonpayment default that existed or was continuing on the
date of delivery of any Payment Blockage Notice to the Trustee shall be, or be
made, the basis for a subsequent Payment Blockage Notice.
Section 10.04 Acceleration of Notes.
The Issuers shall promptly notify holders of Senior Debt of the receipt of
an acceleration notice following an Event of Default.
Section 10.05 When Distribution Must Be Paid Over.
In the event that the Trustee or any Holder receives any payment of any
Obligations with respect to the Notes at a time when the Trustee or such Holder,
as applicable, has actual knowledge that such payment is prohibited by Section
10.03 hereof, such payment shall be held by the Trustee or such Holder, in trust
for the benefit of and, upon written request, shall be paid forthwith over and
delivered to, the holders of Senior Debt as their interests may appear or their
Representative under the indenture or other agreement (if any) pursuant to which
Senior Debt may have been issued, as their respective interests may appear, for
application to the payment of all obligations with respect to Senior Debt
remaining unpaid to the extent necessary to pay such Obligations in full in
accordance with their terms, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Debt.
With respect to the holders of Senior Debt, the Trustee undertakes to
perform only such obligations on the part of the Trustee as are specifically set
forth in this Article 10, and no implied covenants or obligations with respect
to the holders of 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 shall not be liable to any such holders if the
Trustee shall pay over or distribute to or on behalf of Holders or the Issuers
or any other Person money or assets to which any holders of Senior Debt shall be
entitled by virtue of this Article 10, except if such payment is made as a
result of the willful misconduct or gross negligence of the Trustee.
Section 10.06 Notice By The Issuers.
The Issuers shall promptly notify the Trustee and the Paying Agent of any
facts known to the Issuers that would cause a payment of any Obligations with
respect to the Notes to violate this Article 10, but failure to give such notice
shall not affect the subordination of the Notes to the Senior Debt as provided
in this Article 10.
Section 10.07 Subrogation.
After all Senior Debt is irrevocably paid in full in cash or cash
equivalents reasonably satisfactory to the holders thereof and until the Notes
are paid in full, Holders shall be subrogated (equally and ratably with all
other Indebtedness pari passu with the Notes) to the rights of holders of Senior
Debt to receive distributions applicable to Senior Debt to the extent that
distributions otherwise payable to the Holders have been applied to the payment
of Senior Debt. A distribution made under this Article to holders of Senior Debt
that otherwise would have been made to Holders is not, as between the Issuers
and Holders, a payment by the Issuers on the Notes.
72
Section 10.08 Relative Rights.
This Article defines the relative rights of Holders and holders of Senior
Debt. Nothing in this Indenture shall:
(1) impair, as between the Issuers and Holders, the obligation of
the Issuers, which is absolute and unconditional, to pay principal of
and interest on the Notes in accordance with their terms;
(2) affect the relative rights of Holders and creditors of the
Issuers other than their rights in relation to holders of Senior Debt;
or
(3) prevent the Trustee or any Holder from exercising its
available remedies upon a Default or Event of Default, subject to the
rights of holders and owners of Senior Debt to receive distributions
and payments otherwise payable to Holders.
If the Issuers fail because of this Article 10 to pay principal of or
interest on a Note on the due date, the failure is still a Default or Event of
Default.
Section 10.09 Subordination May Not Be Impaired by the Issuers.
No right of any holder of Senior Debt to enforce the subordination of the
Debt evidenced by the Notes shall be impaired by any act or failure to act by
the Issuers or any Holder or by the failure of the Issuers or any Holder to
comply with this Indenture.
Section 10.10 Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of
Senior Debt, the distribution may be made and the notice given to their
Representative.
Upon any payment or distribution of assets of the Issuers referred to in
this Article 10, the Trustee and the Holders shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction or upon any
certificate of such Representative or of the liquidating trustee or agent or
other Person making any distribution to the Trustee or to the Holders for the
purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of Senior Debt and other Indebtedness of the Issuers,
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 10.11 Rights of Trustee and Paying Agent.
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 that would prohibit the making of any payment or distribution by
the Trustee, and the Trustee and the Paying Agent may continue to make payments
on the Notes, unless the Trustee shall have received at its Corporate Trust
Office at least five Business Days prior to the date of such payment written
notice of facts that would cause the payment of any obligations with respect to
the Notes to violate this Article. Only the Issuers or a Representative may give
the notice. Nothing in this Article 10 shall impair the claims of, or payments
to, the Trustee under or pursuant to Section 7.07 hereof.
73
The Trustee shall be entitled to rely on the delivery to it of a written
notice by a person representing himself to be a holder of Senior Debt (or a
Representative of such holder) to establish that such notice has been given by a
holder of Senior Debt (or a Representative of any such holder). 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 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 which it may be
required to make for the benefit of such person pursuant to the terms of this
Indenture pending judicial determination as to the rights of such person to
receive such payment.
The Trustee in its individual or any other capacity may hold Senior Debt
with the same rights it would have if it were not Trustee. Any Agent may do the
same with like rights.
Section 10.12 Authorization to Effect Subordination.
Each Holder of a Note by the Holder's acceptance thereof authorizes and
directs the Trustee on the Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this
Article 10, and appoints the Trustee to act as the Holder's attorney-in-fact for
any and all such purposes. If the Trustee does not file a proper proof of claim
or proof of debt in the form required in any proceeding referred to in Section
6.09 hereof at least 30 days before the expiration of the time to file such
claim, the agents of the lenders under the Senior Credit Agreement are hereby
authorized to file an appropriate claim for and on behalf of the Holders of the
Notes.
Section 10.13 Amendments.
The provisions of this Article 10 shall not be amended or modified without
the written consent of the holders of all Senior Debt.
ARTICLE 11
MISCELLANEOUS
Section 11.01 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 11.02 Notices.
Any notice or communication by the Issuers 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), telecopier or overnight air
courier guaranteeing next day delivery, to the others' address:
74
If to the Issuers:
Remington Products Company
00 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: General Counsel
With a copy to:
Xxxxxxxx & Xxxxx
Citigroup Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
If to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxxxxx Xxxxxx
The Issuers or the Trustee, by notice to the others, may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) shall be
deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when receipt acknowledged, if telecopied; and the next
Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first class
mail, or by overnight air courier guaranteeing next day delivery to its address
shown on the register kept by the Registrar. Any notice or communication shall
also be so mailed to any Person described in TIA 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.
75
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 Issuers mail a notice or communication to Holders, it shall mail a
copy to the Trustee and each Agent at the same time.
Section 11.03 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 Issuers, the
Trustee, the Registrar and anyone else shall have the protection of TIA ss.
312(c).
Section 11.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuers to the Trustee to take any
action under this Indenture, the Issuers 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 11.05
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 11.05
hereof) stating that, in the opinion of such counsel, all such conditions
precedent and covenants have been satisfied.
Section 11.05 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.
76
Section 11.06 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 11.07 No Personal Liability of Directors, Officers, Employees,
Partners and Stockholders.
No past, present or future director, officer, employee, incorporator,
partner or stockholder of the Issuers, as such, shall have any liability for any
obligations of the Issuers under the Notes or this 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 issuance of the Notes.
Section 11.08 Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE AND THE NOTES.
Section 11.09 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan or
debt agreement of the Issuers or their Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
Section 11.10 Successors.
All agreements of the Issuers in this Indenture and the Notes shall bind
their successors. All agreements of the Trustee in this Indenture shall bind its
successors.
Section 11.11 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 11.12 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 11.13 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.
[Signatures on following page]
77
SIGNATURES
Dated as of April 18, 2001 REMINGTON PRODUCTS COMPANY, L.L.C.
By:_______________________________
Name:
Title:
Dated as of April 18, 2001 REMINGTON CAPITAL CORP.
By:_______________________________
Name:
Title:
Dated as of April 18, 0000 XXX XXXX XX XXX XXXX
Trustee
By:_______________________________
Name:
Title:
78
EXHIBIT A-1
FORM OF NOTE
------------------------------------------------------------------------------
[REMAINDER INTENTIONALLY BLANK]
A-1-1
FORM OF 11% SERIES C SENIOR SUBORDINATED NOTES
==============================================================================
11% Series C Senior Subordinated Notes due 2006
CUSIP NO.:___________
$[---------]
No. [___]
REMINGTON PRODUCTS COMPANY, L.L.C.
REMINGTON CAPITAL CORP.,
promises to pay to [__________]
or registered assigns,
the principal sum of [_________] Dollars ($[_________]) on May 15, 2006.
Interest Payment Dates: May 15 and November 15.
Record Dates: May 1 and November 1.
Dated: April 18, 2001
REMINGTON PRODUCTS COMPANY, L.L.C.
By: ____________________________________
Name:
Title:
By: _____________________________________
Name:
Title:
[SEAL]
This is one of the Notes referred REMINGTON CAPITAL CORP.
to in the within-mentioned
Indenture:
By: ____________________________________
The Bank of New York, Name:
as Trustee Title:
By: ___________________ By: ____________________________________
Authorized Signatory Name:
Title:
[SEAL]
A-1-2
[Back of Note]
11% Series C Senior Subordinated Notes due 2006
Unless and until it is exchanged in whole or in part for Notes in
definitive form, this Note may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. Unless this certificate is presented by an authorized representative
of The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) ("DTC") to
the Issuers (as defined below) or their agent for registration of transfer,
exchange or payment, and any certificate issued is registered in the name of
Cede & Co. or such other name as may be requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or such other
entity as may be 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.
[INSERT THE GLOBAL NOTE LEGEND, IF APPLICABLE PURSUANT TO THE TERMS OF THE
INDENTURE]
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN
A TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX XXXXXX
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE SECURITY
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S.
PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION. THE HOLDER OF
THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUERS THAT (A)
SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a) TO A
PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT), IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT
A-1-3
OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE ISSUERS SO
REQUEST), (2) TO THE ISSUERS, (3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF
THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.
Capitalized terms used herein shall have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
1. Interest. Remington Products Company, L.L.C, a Delaware limited
liability company (the "Company"), and Remington Capital Corp., a Delaware
corporation ("Capital" and, together with the Company, the "Issuers") promise to
pay interest on the principal amount of this Note at the rate of 11% per annum
from April 18, 2001 until maturity (including any additional interest required
to be paid pursuant to the provisions of the Registration Rights Agreement). The
Issuers will pay interest semi-annually in arrears on May 15 and November 15 of
each year, or if any such day is not a Business Day, on the next succeeding
Business Day (each an "Interest Payment Date"). Interest on the Notes will
accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from the date of original issuance; provided that if
there is no existing Default in the payment of interest, and if this Note is
authenticated between a record date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; provided, further, that the first Interest
Payment Date shall be May 15, 2001. The Issuers 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 a rate that is 1%
per annum in excess of the rate then in effect. The Issuers 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 comprised of twelve
30-day months.
2. Maturity. The Notes mature on May 15, 2006.
3. Method of Payment. The Issuers 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 May 1 or November 1 immediately 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 2.13 of the
Indenture with respect to defaulted interest. The Notes will be payable as to
principal, premium, interest and Liquidated Damages, if any, at the office or
agency of the Issuers maintained for such purpose or, at the option of the
Issuers, payment of interest may be made by check mailed to the Holders at their
addresses set forth in the register of Holders; provided that payment by wire
A-1-4
transfer of immediately available funds will be required with respect to
principal of, and premium, interest and Liquidated Damages (if any) on, all
Global Notes and all other Notes the Holders of which shall have provided
appropriate wire transfer instructions to the Company or the Paying Agent. Until
otherwise designated by the Issuers, the Issuers' office or agency will be the
office of the Trustee maintained for such purpose. 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.
4. Paying Agent and Registrar. Initially, The Bank of New York, the Trustee
under the Indenture, will act as Paying Agent and Registrar. The Issuers may
change any Paying Agent or Registrar without notice to any Holder. The Issuers
or any of their Restricted Subsidiaries may act in any such capacity.
5. Indenture. The Issuers issued the Notes under an Indenture dated as of
April 18, 2001 (the "Indenture") among the Issuers and the Trustee. The terms of
the Notes include those stated in the Indenture and those made a part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S.
Code xx.xx. 77aaa-77bbbb) (the "TIA"). The Notes are subject to all such terms
and Holders are referred to the Indenture and the TIA for a statement of such
terms. The Notes are general unsecured obligations of the Issuers and are not
limited in aggregate principal amount.
6. Subordination. The payment of principal of, and premium, interest and
Liquidated Damages (if any) on, the Notes shall be subordinated in right of
payment as set forth in the Indenture, to the prior payment in full of all
Senior Debt, whether outstanding on the date of the Indenture or thereafter
incurred.
7. Optional Redemption. The Issuers shall not have the option to redeem the
Notes prior to May 15, 2001. Thereafter, the Issuers 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 principal
amount) set forth below plus accrued and unpaid interest and Liquidated Damages,
if any, thereon, to the applicable redemption date, if redeemed during the
twelve-month period beginning on May 15 of the years indicated below:
Year Percentage
2001 ................................................ 105.500%
2002 ................................................ 103.667%
2003 ................................................ 101.833%
2004 and thereafter ................................. 100.000%
8. Mandatory Redemption. Except as set forth in paragraph 9 below, the
Issuers shall not be required to make mandatory redemption or sinking fund
payments with respect to the Notes.
9. Repurchase at the Option of Holders. If there is a Change of Control,
the Issuers shall be required to make an offer (a "Change of Control Offer") to
repurchase all or any part (equal to $1,000 or an integral multiple thereof) of
each Holder's Notes at a purchase price in cash equal to 101% of the aggregate
principal amount thereof, plus accrued and unpaid interest and Liquidated
Damages, if any, thereon to the date of purchase (the "Change of Control
Payment"). Within 30 days following any Change of Control, the Issuers shall
mail a notice to each Holder setting forth the procedures governing the Change
of Control Offer as required in the Indenture. Prior to the commencement of a
Change of Control Offer, but in any event within 90 days after the occurrence of
a Change of Control, the Issuers shall (i) to the extent then required to be
A-1-5
repaid, repay in full all outstanding Senior Debt, or (ii) obtain the requisite
consents, if any, under all agreements governing outstanding Senior Debt to
permit the repurchase of Notes as provided in Section 4.16 of the Indenture. The
Issuers shall first comply with the requirements of the preceding sentence
before they shall be required to repurchase Notes pursuant to Section 4.16 of
the Indenture.
If the Issuers or a Restricted Subsidiary consummates any Asset Sales,
within five Business Days of each date on which the aggregate amount of Excess
Proceeds accumulated since May 23, 1996 exceeds $5.0 million, the Issuers shall
be required to make an offer to all Holders of Notes (an "Asset Sale Offer")
pursuant to Section 4.10 of the Indenture to purchase the maximum principal
amount of Notes that may be purchased out of the Excess Proceeds, at an offer
price in cash in an amount equal to 100% of the principal amount thereof plus
accrued and unpaid interest and Liquidated Damages, if any, thereon to the date
of purchase 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 Excess Proceeds, the Company may use any remaining Excess
Proceeds for general corporate purposes (subject to the restrictions of the
Indenture). If the aggregate principal amount of Notes surrendered by Holders
thereof exceeds the amount of Excess Proceeds, the Trustee shall select the
Notes to be purchased on a pro rata basis. Holders of Notes that are the subject
of an offer to purchase will receive an Asset Sale Offer from the Issuers prior
to any related purchase date and may elect to have such Notes purchased by
completing the form titled "Option of Holder to Elect Purchase" on the reverse
of the Notes.
10. Notice of Redemption. Notice of redemption shall be mailed by first
class mail at least 30 days but not more than 60 days before the redemption date
to each Holder of Notes to be redeemed at its registered address. If any Note is
to be redeemed in part only, the notice of redemption that relates to such Note
shall state the portion of the principal amount thereof to be redeemed. Notes
may be redeemed in part but only in whole multiples of $1,000, unless all of the
Notes held by a Holder are to be redeemed. On and after the redemption date,
interest ceases to accrue on Notes or portions thereof called for redemption.
11. Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the
Issuers may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Issuers 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 Issuers
need not exchange or register the transfer of any Notes for a period of 15 days
before the date on which a notice of redemption is mailed or during the period
between a record date and the corresponding Interest Payment Date.
12. Persons Deemed Owners. The registered Holder of a Note may be treated
as its owner for all purposes.
A-1-6
13. Amendment, Supplement and Waiver. Subject to certain exceptions, the
Indenture or the Notes may be amended or supplemented with the consent of the
Holders of at least a majority in principal amount of the then outstanding Notes
(including, without limitation, consents obtained in connection with a purchase
of or tender offer or exchange offer for, Notes), and any existing Default or
Event of Default (other than a Default or Event of Default in the payment of the
principal of, or premium, interest or Liquidated Damages (if any) on the Notes,
except a payment default resulting from an acceleration that has been rescinded)
or compliance with any provision of the Indenture or the Notes may be waived
with the consent of the Holders of a majority in principal amount of the then
outstanding Notes (including consent obtained in connection with a purchase of
or tender offer or exchange for Notes). Without the consent of any Holder of a
Note, the Indenture or the Notes may be amended or supplemented to cure any
ambiguity, defect or inconsistency, to provide for the assumption of the
Issuers' obligations to the Holders of the Notes in the case of a merger or
consolidation, to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect the legal
rights under the Indenture of any such Holder, or to comply with the
requirements of the Commission in order to effect or maintain the qualification
of the Indenture under the Trust Indenture Act.
14. Defaults and Remedies. Events of Default include: (i) the failure by
the Issuers to pay interest or Liquidated Damages on any of the Notes when the
same becomes due and payable and the continuance of any such failure for 30 days
(whether or not prohibited by Article 10 of the Indenture); (ii) the failure by
the Issuers to pay principal of or premium, if any, on the Notes (whether or not
prohibited by Article 10 of the Indenture); (iii) the failure by the Issuers to
comply with any of the provisions of Sections 4.07, 4.09, 4.10, or 4.16 of the
Indenture; (iv) the failure by the Issuers for 30 days after notice to comply
with any of their other agreements in the Indenture or the Notes; (v) an event
of default occurs under any mortgage, indenture or instrument under which there
may be issued or by which there may be secured or evidenced any Indebtedness for
money borrowed by the Issuers or any of their Restricted Subsidiaries (or the
payment of which is guaranteed by the Issuers or any of their Restricted
Subsidiaries) whether such Indebtedness or guarantee now exists, or is created
after the date of the Indenture, which default (a) is caused by a failure to pay
principal of, or premium, if any, or interest, on such Indebtedness prior to the
expiration of the grace period provided in such Indebtedness on the date of such
default (a "Payment Default") or (b) results in the acceleration of such
Indebtedness prior to its express maturity and, in each case, the principal
amount of any such Indebtedness, together with the principal amount of any other
such Indebtedness under which there has been a Payment Default or the maturity
of which has been so accelerated, aggregates $5.0 million or more; (vi) the
failure by the Issuers or any of their Restricted Subsidiaries to pay final
non-appealable judgments aggregating in excess of $5.0 million, which judgments
are not paid, discharged or stayed for a period of 60 days; (vii) any Guarantee
of a Guarantor is held in a judicial proceeding to be unenforceable or invalid
or shall cease for any reason to be in full force and effect, or any Guarantor,
or any Person acting on behalf of any Guarantor, denies or disaffirm its
obligations under its Guarantee; and (viii) certain events of bankruptcy or
insolvency with respect to the Issuers, any of their Significant Subsidiaries,
or any group of Subsidiaries that, considered together, would constitute a
Significant Subsidiary. The Trustee must, within 90 days after the occurrence of
a Default or Event of Default, give to the Holders notice of all uncured
Defaults or Events of Default known to it; provided that, except in the case of
A-1-7
a Default or Event of Default in payment of any Note, the Trustee may withhold
such notice if a committee of its Responsible Officers in good faith determines
that the withholding of such notice is in the interest of the Holders. The
Issuers are required to furnish annually to the Trustee a certificate as to
their compliance with the terms of the Indenture.
15. Trustee Dealings With Company. The Trustee in its individual or any
other capacity may become the owner or pledgee of Notes and may otherwise deal
with the Issuers or any Affiliate of the Issuers, with the same rights it would
have if it were not Trustee.
16. No Recourse Against Others. No past, present or future director,
officer, employee, incorporator, partner or stockholder of the Issuers, as such,
shall have any liability for any obligations of the Issuers 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.
17. Authentication. This Note shall not be valid until authenticated by the
manual signature of the Trustee or an authenticating agent.
18. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
19. Additional Rights of Holders of Transfer Restricted Securities. In
addition to the rights provided to Holders of the Notes under the Indenture,
Holders of Transferred Restricted Securities shall have all the rights set forth
in the Registration Rights Agreement dated as of April 18, 2001 among the
Issuers and the parties named on the signature pages thereof (the "Registration
Rights Agreement").
20. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Issuers have caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to the 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.
21. GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN
AND BE USED TO CONSTRUE THE INDENTURE AND THE NOTES.
The Issuers shall furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
Remington Products Company
00 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Attention: General Counsel
A-1-8
[REMAINDER INTENTIONALLY BLANK]
A-1-9
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and
transfer this Note to
(Insert assignee's soc. sec. or tax I.D. no.)
(Print or type assignee's name, address and zip code)
and irrevocably appoint
-------------------------------------------------
to transfer this Note on the books of the Issuers. 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*:
-------------------------------------------
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuers pursuant to
Section 4.10 or 4.16 of the Indenture, check the box below:
| _ | Section 4.10 | _ | Section 4.16
If you want to elect to have only part of the Note purchased by the Issuers
pursuant to Section 4.10 or Section 4.16 of the Indenture, state the amount you
elect to have purchased:
$------------
Date: Your Signature:
-----------------------------------------------------
(Sign exactly as your name appears on the Note)
Tax Identification No.:
---------------------------------------------
Signature Guarantee*:
---------------------------------------------
--------------------
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A-1-10
SCHEDULE OF EXCHANGES OF INTERESTS IN GLOBAL NOTE
The following exchanges with respect to a part of this Global Note for have
been made:
Principal Amount of
this Global Note Signature of
Amount of decrease Amount of increase in following such authorized signatory
in Principal Amount Principal Amount of decrease (or of Trustee or Note
Date of Exchange of this Global Note this Global Note increase) Custodian
---------------- ------------------- --------------------- ------------------- ---------------------
A-1-11
FORM OF 11% SERIES D SENIOR SUBORDINATED NOTES
=============================================================================
11% Series D Senior Subordinated Notes due 2006
CUSIP NO.:___________
[$------------]
No. [___]
REMINGTON PRODUCTS COMPANY, L.L.C.
REMINGTON CAPITAL CORP.,
promises to pay to [____________]
or registered assigns,
the principal sum of [____________] Million Dollars ($[___________]) on May 15,
2006.
Interest Payment Dates: May 15 and November 15.
Record Dates: May 1 and November 1.
Dated: ______________, 2001
REMINGTON PRODUCTS COMPANY, L.L.C.
By: ____________________________________
Name:
Title:
By: _____________________________________
Name:
Title:
[SEAL]
This is one of the Notes referred REMINGTON CAPITAL CORP.
to in the within-mentioned
Indenture:
By: ____________________________________
The Bank of New York, Name:
as Trustee Title:
By: ___________________
Authorized Signatory By: ___________________________________
Name:
Title:
[SEAL]
A-1-12
[Back of Note]
11% Series D Senior Subordinated Notes due 2006
Unless and until it is exchanged in whole or in part for Notes in
definitive form, this Note may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. Unless this certificate is presented by an authorized representative
of The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) ("DTC") to
the Issuers (as defined below) or their agent for registration of transfer,
exchange or payment, and any certificate issued is registered in the name of
Cede & Co. or such other name as may be requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or such other
entity as may be 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.
[INSERT THE GLOBAL NOTE LEGEND, IF APPLICABLE PURSUANT TO THE TERMS OF THE
INDENTURE]
Capitalized terms used herein shall have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
1. Interest. Remington Products Company, L.L.C, a Delaware limited
liability company (the "Company"), and Remington Capital Corp., a Delaware
corporation ("Capital" and, together with the Company, the "Issuers") promise to
pay interest on the principal amount of this Note at the rate of 11% per annum
from [_________, 2001] until maturity (including any additional interest
required to be paid pursuant to the provisions of the Registration Rights
Agreement). The Issuers will pay interest semi-annually in arrears on May 15 and
November 15 of each year, or if any such day is not a Business Day, on the next
succeeding Business Day (each an "Interest Payment Date"). Interest on the Notes
will accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from the date of original issuance; provided that if
there is no existing Default in the payment of interest, and if this Note is
authenticated between a record date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; provided, further, that the first Interest
Payment Date shall be November 15, 2001. The Issuers 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 a rate
that is 1% per annum in excess of the rate then in effect. The Issuers 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
comprised of twelve 30-day months.
2. Maturity. The Notes mature on May 15, 2006.
A-1-13
3. Method of Payment. The Issuers 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 May 1 or November 1 immediately 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 2.13 of the
Indenture with respect to defaulted interest. The Notes will be payable as to
principal, premium, interest and Liquidated Damages, if any, at the office or
agency of the Issuers maintained for such purpose or, at the option of the
Issuers, payment of interest may be made by check mailed to the Holders at their
addresses set forth in the register of Holders; provided that payment by wire
transfer of immediately available funds will be required with respect to
principal of, and premium, interest and Liquidated Damages (if any) on, all
Global Notes and all other Notes the Holders of which shall have provided
appropriate wire transfer instructions to the Company or the Paying Agent. Until
otherwise designated by the Issuers, the Issuers' office or agency will be the
office of the Trustee maintained for such purpose. 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.
4. Paying Agent and Registrar. Initially, The Bank of New York, the Trustee
under the Indenture, will act as Paying Agent and Registrar. The Issuers may
change any Paying Agent or Registrar without notice to any Holder. The Issuers
or any of their Restricted Subsidiaries may act in any such capacity.
5. Indenture. The Issuers issued the Notes under an Indenture dated as of
April 18, 2001 (the "Indenture") among the Issuers and the Trustee. The terms of
the Notes include those stated in the Indenture and those made a part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S.
Code xx.xx. 77aaa-77bbbb) (the "TIA"). The Notes are subject to all such terms
and Holders are referred to the Indenture and the TIA for a statement of such
terms. The Notes are general unsecured obligations of the Issuers and are not
limited in aggregate principal amount.
6. Subordination. The payment of principal of, and premium, interest and
Liquidated Damages (if any) on, the Notes shall be subordinated in right of
payment as set forth in the Indenture, to the prior payment in full of all
Senior Debt, whether outstanding on the date of the Indenture or thereafter
incurred.
7. Optional Redemption. The Issuers shall not have the option to redeem the
Notes prior to May 15, 2001. Thereafter, the Issuers 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 principal
amount) set forth below plus accrued and unpaid interest and Liquidated Damages,
if any, thereon, to the applicable redemption date, if redeemed during the
twelve-month period beginning on May 15 of the years indicated below:
A-1-14
Year Percentage
2001 .................................................... 105.500%
2002 .................................................... 103.667%
2003 .................................................... 101.833%
2004 and thereafter ..................................... 100.000%
8. Mandatory Redemption. Except as set forth in paragraph 9 below, the
Issuers shall not be required to make mandatory redemption or sinking fund
payments with respect to the Notes.
9. Repurchase at the Option of Holders. If there is a Change of Control,
the Issuers shall be required to make an offer (a "Change of Control Offer") to
repurchase all or any part (equal to $1,000 or an integral multiple thereof) of
each Holder's Notes at a purchase price in cash equal to 101% of the aggregate
principal amount thereof, plus accrued and unpaid interest and Liquidated
Damages, if any, thereon to the date of purchase (the "Change of Control
Payment"). Within 30 days following any Change of Control, the Issuers shall
mail a notice to each Holder setting forth the procedures governing the Change
of Control Offer as required in the Indenture. Prior to the commencement of a
Change of Control Offer, but in any event within 90 days after the occurrence of
a Change of Control, the Issuers shall (i) to the extent then required to be
repaid, repay in full all outstanding Senior Debt, or (ii) obtain the requisite
consents, if any, under all agreements governing outstanding Senior Debt to
permit the repurchase of Notes as provided in Section 4.16 of the Indenture. The
Issuers shall first comply with the requirements of the preceding sentence
before they shall be required to repurchase Notes pursuant to Section 4.16 of
the Indenture.
(a) If the Issuers or a Restricted Subsidiary consummates any
Asset Sales, within five Business Days of each date on which the
aggregate amount of Excess Proceeds accumulated since May 23, 1996
exceeds $5.0 million, the Issuers shall be required to make an offer
to all Holders of Notes (an "Asset Sale Offer") pursuant to Section
4.10 of the Indenture to purchase the maximum principal amount of
Notes that may be purchased out of the Excess Proceeds, at an offer
price in cash in an amount equal to 100% of the principal amount
thereof plus accrued and unpaid interest and Liquidated Damages, if
any, thereon to the date of purchase 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 Excess
Proceeds, the Company may use any remaining Excess Proceeds for
general corporate purposes (subject to the restrictions of the
Indenture). If the aggregate principal amount of Notes surrendered by
Holders thereof exceeds the amount of Excess Proceeds, the Trustee
shall select the Notes to be purchased on a pro rata basis. Holders of
Notes that are the subject of an offer to purchase will receive an
Asset Sale Offer from the Issuers prior to any related purchase date
and may elect to have such Notes purchased by completing the form
titled "Option of Holder to Elect Purchase" on the reverse of the
Notes.
10. Notice of Redemption. Notice of redemption shall be mailed by first
class mail at least 30 days but not more than 60 days before the redemption date
to each Holder of Notes to be redeemed at its registered address. If any Note is
to be redeemed in part only, the notice of redemption that relates to such Note
A-1-15
shall state the portion of the principal amount thereof to be redeemed. Notes
may be redeemed in part but only in whole multiples of $1,000, unless all of the
Notes held by a Holder are to be redeemed. On and after the redemption date,
interest ceases to accrue on Notes or portions thereof called for redemption.
11. Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the
Issuers may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Issuers 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 Issuers
need not exchange or register the transfer of any Notes for a period of 15 days
before the date on which a notice of redemption is mailed or during the period
between a record date and the corresponding Interest Payment Date.
12. Persons Deemed Owners. The registered Holder of a Note may be treated
as its owner for all purposes.
13. Amendment, Supplement and Waiver. Subject to certain exceptions, the
Indenture or the Notes may be amended or supplemented with the consent of the
Holders of at least a majority in principal amount of the then outstanding Notes
(including, without limitation, consents obtained in connection with a purchase
of or tender offer or exchange offer for, Notes), and any existing Default or
Event of Default (other than a Default or Event of Default in the payment of the
principal of, or premium, interest or Liquidated Damages (if any) on the Notes,
except a payment default resulting from an acceleration that has been rescinded)
or compliance with any provision of the Indenture or the Notes may be waived
with the consent of the Holders of a majority in principal amount of the then
outstanding Notes (including consent obtained in connection with a purchase of
or tender offer or exchange for Notes). Without the consent of any Holder of a
Note, the Indenture or the Notes may be amended or supplemented to cure any
ambiguity, defect or inconsistency, to provide for the assumption of the
Issuers' obligations to the Holders of the Notes in the case of a merger or
consolidation, to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect the legal
rights under the Indenture of any such Holder, or to comply with the
requirements of the Commission in order to effect or maintain the qualification
of the Indenture under the Trust Indenture Act.
14. Defaults and Remedies. Events of Default include: (i) the failure by
the Issuers to pay interest or Liquidated Damages on any of the Notes when the
same becomes due and payable and the continuance of any such failure for 30 days
(whether or not prohibited by Article 10 of the Indenture); (ii) the failure by
the Issuers to pay principal of or premium, if any, on the Notes (whether or not
prohibited by Article 10 of the Indenture); (iii) the failure by the Issuers to
comply with any of the provisions of Sections 4.07, 4.09, 4.10, or 4.16 of the
Indenture; (iv) the failure by the Issuers for 30 days after notice to comply
with any of their other agreements in the Indenture or the Notes; (v) an event
of default occurs under any mortgage, indenture or instrument under which there
may be issued or by which there may be secured or evidenced any Indebtedness for
money borrowed by the Issuers or any of their Restricted Subsidiaries (or the
A-1-16
payment of which is guaranteed by the Issuers or any of their Restricted
Subsidiaries) whether such Indebtedness or guarantee now exists, or is created
after the date of the Indenture, which default (a) is caused by a failure to pay
principal of, or premium, if any, or interest, on such Indebtedness prior to the
expiration of the grace period provided in such Indebtedness on the date of such
default (a "Payment Default") or (b) results in the acceleration of such
Indebtedness prior to its express maturity and, in each case, the principal
amount of any such Indebtedness, together with the principal amount of any other
such Indebtedness under which there has been a Payment Default or the maturity
of which has been so accelerated, aggregates $5.0 million or more; (vi) the
failure by the Issuers or any of their Restricted Subsidiaries to pay final
non-appealable judgments aggregating in excess of $5.0 million, which judgments
are not paid, discharged or stayed for a period of 60 days; (vii) any Guarantee
of a Guarantor is held in a judicial proceeding to be unenforceable or invalid
or shall cease for any reason to be in full force and effect, or any Guarantor,
or any Person acting on behalf of any Guarantor, denies or disaffirm its
obligations under its Guarantee; and (viii) certain events of bankruptcy or
insolvency with respect to the Issuers, any of their Significant Subsidiaries,
or any group of Subsidiaries that, considered together, would constitute a
Significant Subsidiary. The Trustee must, within 90 days after the occurrence of
a Default or Event of Default, give to the Holders notice of all uncured
Defaults or Events of Default known to it; provided that, except in the case of
a Default or Event of Default in payment of any Note, the Trustee may withhold
such notice if a committee of its Responsible Officers in good faith determines
that the withholding of such notice is in the interest of the Holders. The
Issuers are required to furnish annually to the Trustee a certificate as to
their compliance with the terms of the Indenture.
15. Trustee Dealings With Company. The Trustee in its individual or any
other capacity may become the owner or pledgee of Notes and may otherwise deal
with the Issuers or any Affiliate of the Issuers, with the same rights it would
have if it were not Trustee.
16. No Recourse Against Others. No past, present or future director,
officer, employee, incorporator, partner or stockholder of the Issuers, as such,
shall have any liability for any obligations of the Issuers 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.
17. Authentication. This Note shall not be valid until authenticated by the
manual signature of the Trustee or an authenticating agent.
18. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
19. Additional Rights of Holders of Transfer Restricted Securities. In
addition to the rights provided to Holders of the Notes under the Indenture,
Holders of Transferred Restricted Securities shall have all the rights set forth
in the Registration Rights Agreement dated as of April 18, 2001 among the
Issuers and the parties named on the signature pages thereof (the "Registration
Rights Agreement").
A-1-17
20. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Issuers have caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to the 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.
21. GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN
AND BE USED TO CONSTRUE THE INDENTURE AND THE NOTES.
The Issuers shall furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
Remington Products Company
00 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Attention: General Counsel
[REMAINDER INTENTIONALLY BLANK]
A-1-18
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and
transfer this Note to
(Insert assignee's soc. sec. or tax I.D. no.)
(Print or type assignee's name, address and zip code)
and irrevocably appoint
-------------------------------------------------------
to transfer this Note on the books of the Issuers. 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*:
-------------------------------------------
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuers pursuant to
Section 4.10 or 4.16 of the Indenture, check the box below:
| _ | Section 4.10 | _ | Section 4.16
If you want to elect to have only part of the Note purchased by the Issuers
pursuant to Section 4.10 or Section 4.16 of the Indenture, state the amount you
elect to have purchased:
$------------
Date: Your Signature:
-------------------------------------------------
(Sign exactly as your name appears on the Note)
Tax Identification No.:
-----------------------------------------
Signature Guarantee*:
-----------------------------------------
--------------------
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A-1-19
SCHEDULE OF EXCHANGES OF INTERESTS IN GLOBAL NOTE
The following exchanges with respect to a part of this Global Note for have
been made:
Principal Amount of
this Global Note Signature of
Amount of decrease Amount of increase in following such authorized signatory
in Principal Amount Principal Amount of decrease (or of Trustee or Note
Date of Exchange of this Global Note this Global Note increase) Custodian
---------------- ------------------- ---------------------- ------------------- ---------------------
X-0-00
XXXXXXX X-0
FORM OF REGULATION S TEMPORARY GLOBAL NOTE
------------------------------------------------------------------------------
[REMAINDER INTENTIONALLY BLANK]
A-2-1
FORM OF REGULATION S TEMPORARY GLOBAL NOTE
==============================================================================
11% Series C Senior Subordinated Notes due 2006
CUSIP NO.:___________
$[---------]
No. [___]
REMINGTON PRODUCTS COMPANY, L.L.C.
REMINGTON CAPITAL CORP.,
promises to pay to [__________]
or registered assigns,
the principal sum of [_________] Dollars ($[_________]) on May 15, 2006.
Interest Payment Dates: May 15 and November 15.
Record Dates: May 1 and November 1.
Dated: April 18, 2001
REMINGTON PRODUCTS COMPANY, L.L.C.
By: ____________________________________
Name:
Title:
By: ____________________________________
Name:
Title:
[SEAL]
This is one of the Notes referred REMINGTON CAPITAL CORP.
to in the within-mentioned
Indenture:
By: _____________________________________
The Bank of New York, Name:
as Trustee Title:
By: ___________________
Authorized Signatory By: ____________________________________
Name:
Title:
[SEAL]
A-2-2
[Back of Note]
11% Series C Senior Subordinated Notes due 2006
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS
SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED
TO RECEIVE PAYMENT OF INTEREST HEREON.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) ("XXX"),
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE 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.
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN
A TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX XXXXXX
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE SECURITY
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S.
PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION. THE HOLDER OF
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THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUERS THAT (A)
SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a) TO A
PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT), IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT
OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE ISSUERS SO
REQUEST), (2) TO THE ISSUERS, (3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF
THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.
Capitalized terms used herein shall have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
1. Interest. Remington Products Company, L.L.C, a Delaware limited
liability company (the "Company"), and Remington Capital Corp., a Delaware
corporation ("Capital" and, together with the Company, the "Issuers") promise to
pay interest on the principal amount of this Note at the rate of 11% per annum
from April 18, 2001 until maturity (including any additional interest required
to be paid pursuant to the provisions of the Registration Rights Agreement). The
Issuers will pay interest semi-annually in arrears on May 15 and November 15 of
each year, or if any such day is not a Business Day, on the next succeeding
Business Day (each an "Interest Payment Date"). Interest on the Notes will
accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from the date of original issuance; provided that if
there is no existing Default in the payment of interest, and if this Note is
authenticated between a record date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; provided, further, that the first Interest
Payment Date shall be May 15, 2001. The Issuers 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 a rate that is 1%
per annum in excess of the rate then in effect. The Issuers 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 comprised of twelve
30-day months.
Until this Regulation S Temporary Global Note is exchanged for one or more
Regulation S Permanent Global Notes, the Holder hereof shall not be entitled to
receive payments of interest hereon; until so exchanged in full, this Regulation
S Temporary Global Note shall in all other respects be entitled to the same
benefits as other Notes under the Indenture.
2. Maturity. The Notes mature on May 15, 2006.
3. Method of Payment. The Issuers will pay interest on the Notes (except
defaulted interest) to the Persons who are registered Holders of Notes at the
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close of business on the May 1 or November 1 immediately 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 2.13 of the
Indenture with respect to defaulted interest. The Notes will be payable as to
principal, premium, interest and Liquidated Damages, if any, at the office or
agency of the Issuers maintained for such purpose or, at the option of the
Issuers, payment of interest may be made by check mailed to the Holders at their
addresses set forth in the register of Holders; provided that payment by wire
transfer of immediately available funds will be required with respect to
principal of, and premium, interest and Liquidated Damages (if any) on, all
Global Notes and all other Notes the Holders of which shall have provided
appropriate wire transfer instructions to the Company or the Paying Agent. Until
otherwise designated by the Issuers, the Issuers' office or agency will be the
office of the Trustee maintained for such purpose. 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.
4. Paying Agent and Registrar. Initially, The Bank of New York, the Trustee
under the Indenture, will act as Paying Agent and Registrar. The Issuers may
change any Paying Agent or Registrar without notice to any Holder. The Issuers
or any of their Restricted Subsidiaries may act in any such capacity.
5. Indenture. The Issuers issued the Notes under an Indenture dated as of
April 18, 2001 (the "Indenture") among the Issuers and the Trustee. The terms of
the Notes include those stated in the Indenture and those made a part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S.
Code xx.xx. 77aaa-77bbbb) (the "TIA"). The Notes are subject to all such terms
and Holders are referred to the Indenture and the TIA for a statement of such
terms. The Notes are general unsecured obligations of the Issuers and are not
limited in aggregate principal amount.
6. Subordination. The payment of principal of, and premium, interest and
Liquidated Damages (if any) on, the Notes shall be subordinated in right of
payment as set forth in the Indenture, to the prior payment in full of all
Senior Debt, whether outstanding on the date of the Indenture or thereafter
incurred.
7. Optional Redemption. The Issuers shall not have the option to redeem the
Notes prior to May 15, 2001. Thereafter, the Issuers 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 principal
amount) set forth below plus accrued and unpaid interest and Liquidated Damages,
if any, thereon, to the applicable redemption date, if redeemed during the
twelve-month period beginning on May 15 of the years indicated below:
Year Percentage
2001 ................................................ 105.500%
2002 ................................................ 103.667%
2003 ................................................ 101.833%
2004 and thereafter ................................. 100.000%
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8. Mandatory Redemption. Except as set forth in paragraph 9 below, the
Issuers shall not be required to make mandatory redemption or sinking fund
payments with respect to the Notes.
9. Repurchase at the Option of Holders. If there is a Change of Control,
the Issuers shall be required to make an offer (a "Change of Control Offer") to
repurchase all or any part (equal to $1,000 or an integral multiple thereof) of
each Holder's Notes at a purchase price in cash equal to 101% of the aggregate
principal amount thereof, plus accrued and unpaid interest and Liquidated
Damages, if any, thereon to the date of purchase (the "Change of Control
Payment"). Within 30 days following any Change of Control, the Issuers shall
mail a notice to each Holder setting forth the procedures governing the Change
of Control Offer as required in the Indenture. Prior to the commencement of a
Change of Control Offer, but in any event within 90 days after the occurrence of
a Change of Control, the Issuers shall (i) to the extent then required to be
repaid, repay in full all outstanding Senior Debt, or (ii) obtain the requisite
consents, if any, under all agreements governing outstanding Senior Debt to
permit the repurchase of Notes as provided in Section 4.16 of the Indenture. The
Issuers shall first comply with the requirements of the preceding sentence
before they shall be required to repurchase Notes pursuant to Section 4.16 of
the Indenture.
If the Issuers or a Restricted Subsidiary consummates any Asset Sales,
within five Business Days of each date on which the aggregate amount of Excess
Proceeds accumulated since May 23, 1996 exceeds $5.0 million, the Issuers shall
be required to make an offer to all Holders of Notes (an "Asset Sale Offer")
pursuant to Section 4.10 of the Indenture to purchase the maximum principal
amount of Notes that may be purchased out of the Excess Proceeds, at an offer
price in cash in an amount equal to 100% of the principal amount thereof plus
accrued and unpaid interest and Liquidated Damages, if any, thereon to the date
of purchase 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 Excess Proceeds, the Company may use any remaining Excess
Proceeds for general corporate purposes (subject to the restrictions of the
Indenture). If the aggregate principal amount of Notes surrendered by Holders
thereof exceeds the amount of Excess Proceeds, the Trustee shall select the
Notes to be purchased on a pro rata basis. Holders of Notes that are the subject
of an offer to purchase will receive an Asset Sale Offer from the Issuers prior
to any related purchase date and may elect to have such Notes purchased by
completing the form titled "Option of Holder to Elect Purchase" on the reverse
of the Notes.
10. Notice of Redemption. Notice of redemption shall be mailed by first
class mail at least 30 days but not more than 60 days before the redemption date
to each Holder of Notes to be redeemed at its registered address. If any Note is
to be redeemed in part only, the notice of redemption that relates to such Note
shall state the portion of the principal amount thereof to be redeemed. Notes
may be redeemed in part but only in whole multiples of $1,000, unless all of the
Notes held by a Holder are to be redeemed. On and after the redemption date,
interest ceases to accrue on Notes or portions thereof called for redemption.
11. Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Notes may be registered and Notes may be exchanged as provided in
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the Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the
Issuers may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Issuers 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 Issuers
need not exchange or register the transfer of any Notes for a period of 15 days
before the date on which a notice of redemption is mailed or during the period
between a record date and the corresponding Interest Payment Date.
This Regulation S Temporary Global Note is exchangeable in whole or in part
for one or more Global Notes only (i) on or after the termination of the 40-day
restricted period (as defined in Regulation S) and (ii) upon presentation of
certificates (accompanied by an Opinion of Counsel, if applicable) required by
Article 2 of the Indenture. Upon exchange of this Regulation S Temporary Global
Note for one or more Global Notes, the Trustee shall cancel this Regulation S
Temporary Global Note.
12. Persons Deemed Owners. The registered Holder of a Note may be treated
as its owner for all purposes.
13. Amendment, Supplement and Waiver. Subject to certain exceptions, the
Indenture or the Notes may be amended or supplemented with the consent of the
Holders of at least a majority in principal amount of the then outstanding Notes
(including, without limitation, consents obtained in connection with a purchase
of or tender offer or exchange offer for, Notes), and any existing Default or
Event of Default (other than a Default or Event of Default in the payment of the
principal of, or premium, interest or Liquidated Damages (if any) on the Notes,
except a payment default resulting from an acceleration that has been rescinded)
or compliance with any provision of the Indenture or the Notes may be waived
with the consent of the Holders of a majority in principal amount of the then
outstanding Notes (including consent obtained in connection with a purchase of
or tender offer or exchange for Notes). Without the consent of any Holder of a
Note, the Indenture or the Notes may be amended or supplemented to cure any
ambiguity, defect or inconsistency, to provide for the assumption of the
Issuers' obligations to the Holders of the Notes in the case of a merger or
consolidation, to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect the legal
rights under the Indenture of any such Holder, or to comply with the
requirements of the Commission in order to effect or maintain the qualification
of the Indenture under the Trust Indenture Act.
14. Defaults and Remedies. Events of Default include: (i) the failure by
the Issuers to pay interest or Liquidated Damages on any of the Notes when the
same becomes due and payable and the continuance of any such failure for 30 days
(whether or not prohibited by Article 10 of the Indenture); (ii) the failure by
the Issuers to pay principal of or premium, if any, on the Notes (whether or not
prohibited by Article 10 of the Indenture); (iii) the failure by the Issuers to
comply with any of the provisions of Sections 4.07, 4.09, 4.10, or 4.16 of the
Indenture; (iv) the failure by the Issuers for 30 days after notice to comply
with any of their other agreements in the Indenture or the Notes; (v) an event
of default occurs under any mortgage, indenture or instrument under which there
may be issued or by which there may be secured or evidenced any Indebtedness for
money borrowed by the Issuers or any of their Restricted Subsidiaries (or the
payment of which is guaranteed by the Issuers or any of their Restricted
Subsidiaries) whether such Indebtedness or guarantee now exists, or is created
A-2-7
after the date of the Indenture, which default (a) is caused by a failure to pay
principal of, or premium, if any, or interest, on such Indebtedness prior to the
expiration of the grace period provided in such Indebtedness on the date of such
default (a "Payment Default") or (b) results in the acceleration of such
Indebtedness prior to its express maturity and, in each case, the principal
amount of any such Indebtedness, together with the principal amount of any other
such Indebtedness under which there has been a Payment Default or the maturity
of which has been so accelerated, aggregates $5.0 million or more; (vi) the
failure by the Issuers or any of their Restricted Subsidiaries to pay final
non-appealable judgments aggregating in excess of $5.0 million, which judgments
are not paid, discharged or stayed for a period of 60 days; (vii) any Guarantee
of a Guarantor is held in a judicial proceeding to be unenforceable or invalid
or shall cease for any reason to be in full force and effect, or any Guarantor,
or any Person acting on behalf of any Guarantor, denies or disaffirm its
obligations under its Guarantee; and (viii) certain events of bankruptcy or
insolvency with respect to the Issuers, any of their Significant Subsidiaries,
or any group of Subsidiaries that, considered together, would constitute a
Significant Subsidiary. The Trustee must, within 90 days after the occurrence of
a Default or Event of Default, give to the Holders notice of all uncured
Defaults or Events of Default known to it; provided that, except in the case of
a Default or Event of Default in payment of any Note, the Trustee may withhold
such notice if a committee of its Responsible Officers in good faith determines
that the withholding of such notice is in the interest of the Holders. The
Issuers are required to furnish annually to the Trustee a certificate as to
their compliance with the terms of the Indenture.
15. Trustee Dealings With Company. The Trustee in its individual or any
other capacity may become the owner or pledgee of Notes and may otherwise deal
with the Issuers or any Affiliate of the Issuers, with the same rights it would
have if it were not Trustee.
16. No Recourse Against Others. No past, present or future director,
officer, employee, incorporator, partner or stockholder of the Issuers, as such,
shall have any liability for any obligations of the Issuers 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.
17. Authentication. This Note shall not be valid until authenticated by the
manual signature of the Trustee or an authenticating agent.
18. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
19. Additional Rights of Holders of Transfer Restricted Securities. In
addition to the rights provided to Holders of the Notes under the Indenture,
Holders of Transferred Restricted Securities shall have all the rights set forth
in the Registration Rights Agreement dated as of April 18, 2001 among the
Issuers and the parties named on the signature pages thereof (the "Registration
Rights Agreement").
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20. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Issuers have caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to the 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.
21. GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN
AND BE USED TO CONSTRUE THE INDENTURE AND THE NOTES.
The Issuers shall furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
Remington Products Company
00 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Attention: General Counsel
[REMAINDER INTENTIONALLY BLANK]
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ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and
transfer this Note to
(Insert assignee's soc. sec. or tax I.D. no.)
(Print or type assignee's name, address and zip code)
and irrevocably appoint
------------------------------------------------------
to transfer this Note on the books of the Issuers. 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*:
------------------------------------------
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuers pursuant to
Section 4.10 or 4.16 of the Indenture, check the box below:
| _ | Section 4.10 | _ | Section 4.16
If you want to elect to have only part of the Note purchased by the Issuers
pursuant to Section 4.10 or Section 4.16 of the Indenture, state the amount you
elect to have purchased:
$------------
Date: Your Signature:
------------------------------------------------
(Sign exactly as your name appears on the Note)
Tax Identification No.:
----------------------------------------
Signature Guarantee*:
----------------------------------------
--------------------
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A-2-10
SCHEDULE OF EXCHANGES OF REGULATION S TEMPORARY GLOBAL NOTE
The following exchanges of a part of this Regulation S Temporary Global
Note for an interest in another Global Note, or of other Restricted Global Notes
for an interest in this Regulation S Temporary Global Note, have been made:
Principal Amount of
this Global Note Signature of
Amount of decrease Amount of increase in following such authorized signatory
in Principal Amount Principal Amount of decrease (or of Trustee or Note
Date of Exchange of this Global Note this Global Note increase) Custodian
---------------- ------------------- ---------------------- ------------------ ---------------------
A-2-11
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
[Issuer address block]
[Registrar address block]
Re: [full title of securities]
Reference is hereby made to the Indenture, dated as of _________________
(the "Indenture"), between ____________________, as issuers (the "Issuers"), and
____________________, as trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
___________________, (the "Transferor") owns and proposes to transfer the
Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $___________ in such Note[s] or interests (the "Transfer"),
to ___________________________ (the "Transferee"), as further specified in Annex
A hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. Check if Transferee will take delivery of a beneficial interest in the
144A Global Note or a Definitive Note Pursuant to Rule 144A. The Transfer is
being effected pursuant to and in accordance with Rule 144A under the United
States Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or
Definitive Note for its own account, or for one or more accounts with respect to
which such Person exercises sole investment discretion, and such Person and each
such account is a "qualified institutional buyer" within the meaning of Rule
144A in a transaction meeting the requirements of Rule 144A and such Transfer is
in compliance with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the 144A Global Note and/or the Definitive Note and
in the Indenture and the Securities Act.
2. Check if Transferee will take delivery of a beneficial interest in the
Regulation S Temporary Global Note, the Regulation S Global Note or a Definitive
Note pursuant to Regulation S. The Transfer is being effected pursuant to and in
accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly,
the Transferor hereby further certifies that (i) the Transfer is not being made
to a person in the United States and (x) at the time the buy order was
originated, the Transferee was outside the United States or such Transferor and
any Person acting on its behalf reasonably believed and believes that the
Transferee was outside the United States or (y) the transaction was executed in,
on or through the facilities of a designated offshore securities market and
neither such Transferor nor any Person acting on its behalf knows that the
transaction was prearranged with a buyer in the United States, (ii) no directed
B-1
selling efforts have been made in contravention of the requirements of Rule
903(b) or Rule 904(b) of Regulation S under the Securities Act, (iii) the
transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act and (iv) if the proposed transfer is being
made prior to the expiration of the Restricted Period, the transfer is not being
made to a U.S. Person or for the account or benefit of a U.S. Person (other than
an Initial Purchaser). Upon consummation of the proposed transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will be subject to the restrictions on Transfer enumerated in
the Private Placement Legend printed on the Regulation S Global Note, the
Regulation S Temporary Global Note and/or the Definitive Note and in the
Indenture and the Securities Act.
3. Check and complete if Transferee will take delivery of a beneficial
interest in the IAI Global Note or a Definitive Note pursuant to any provision
of the Securities Act other than Rule 144A or Regulation S. The Transfer is
being effected in compliance with the transfer restrictions applicable to
beneficial interests in Restricted Global Notes and Restricted Definitive Notes
and pursuant to and in accordance with the Securities Act and any applicable
blue sky securities laws of any state of the United States, and accordingly the
Transferor hereby further certifies that (check one):
(a) such Transfer is being effected pursuant to and in accordance with Rule
144 under the Securities Act;
or
(b) such Transfer is being effected to the Issuers or a subsidiary thereof;
or
(c) such Transfer is being effected pursuant to an effective registration
statement under the Securities Act and in compliance with the prospectus
delivery requirements of the Securities Act;
or
(d) such Transfer is being effected to an Institutional Accredited Investor
and pursuant to an exemption from the registration requirements of the
Securities Act other than Rule 144A, Rule 144 or Rule 904, and the Transferor
hereby further certifies that it has not engaged in any general solicitation
within the meaning of Regulation D under the Securities Act and the Transfer
complies with the transfer restrictions applicable to beneficial interests in a
Restricted Global Note or Restricted Definitive Notes and the requirements of
the exemption claimed, which certification is supported by (1) a certificate
executed by the Transferee in the form of Exhibit B-2 to the Indenture and (2)
an Opinion of Counsel provided by the Transferor or the Transferee (a copy of
which the Transferor has attached to this certification), to the effect that
such Transfer is in compliance with the Securities Act. Upon consummation of the
proposed transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the IAI Global
Note and/or the Definitive Notes and in the Indenture and the Securities Act.
B-2
4. Check if Transferee will take delivery of a beneficial interest in an
Unrestricted Global Note or of an Unrestricted Definitive Note.
(a) Check if Transfer is pursuant to Rule 144. (i) The Transfer is being
effected pursuant to and in accordance with Rule 144 under the Securities Act
and in compliance with the transfer restrictions contained in the Indenture and
any applicable blue sky securities laws of any state of the United States and
(ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note will no longer be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture.
(b) Check if Transfer is Pursuant to Regulation S. (i) The Transfer is
being effected pursuant to and in accordance with Rule 903 or Rule 904 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.
(c) Check if Transfer is Pursuant to Other Exemption. (i) The Transfer is
being effected pursuant to and in compliance with an exemption from the
registration requirements of the Securities Act other than Rule 144, Rule 903 or
Rule 904 and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any State of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will not be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the Restricted Global Notes or
Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuers.
[Insert Name of Transferor]
By:
-----------------------------------
Name:
Title:
Dated: _______________________
B-3
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) a beneficial interest in the:
(i) 144A Global Note (CUSIP _________), or
(ii) Regulation S Global Note (CUSIP _________), or
(iii) IAI Global Note (CUSIP _________); or
(b) a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) a beneficial interest in the:
(i) 144A Global Note (CUSIP _________), or
(ii) Regulation S Global Note (CUSIP _________), or
(iii) IAI Global Note (CUSIP _________); or
(iv) Unrestricted Global Note (CUSIP _________); or
(b) a Restricted Definitive Note; or
(c) an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
B-4
EXHIBIT B-1
FORM OF CERTIFICATE OF EXCHANGE
[Issuer address block]
[Registrar address block]
Re: [full title of securities]
(CUSIP ____________)
Reference is hereby made to the Indenture, dated as of _________________
(the "Indenture"), between _______________________, as issuers (the "Issuers"),
and _________________, as trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
__________________________, (the "Owner") owns and proposes to exchange the
Note[s] or interest in such Note[s] specified herein, in the principal amount of
$____________ in such Note[s] or interests (the "Exchange"). In connection with
the Exchange, the Owner hereby certifies that:
1. Exchange of Restricted Definitive Notes or Beneficial Interests in a
Restricted Global Note for Unrestricted Definitive Notes or Beneficial Interests
in an Unrestricted Global Note
(a) Check if Exchange is from beneficial interest in a Restricted Global
Note to beneficial interest in an Unrestricted Global Note. In connection with
the Exchange of the Owner's beneficial interest in a Restricted Global Note for
a beneficial interest in an Unrestricted Global Note in an equal principal
amount, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner's own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the Global
Notes and pursuant to and in accordance with the United States Securities Act of
1933, as amended (the "Securities Act"), (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act and (iv) the beneficial
interest in an Unrestricted Global Note is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.
(b) Check if Exchange is from beneficial interest in a Restricted Global
Note to Unrestricted Definitive Note. In connection with the Exchange of the
Owner's beneficial interest in a Restricted Global Note for an Unrestricted
Definitive Note, the Owner hereby certifies (i) the Definitive Note is being
acquired for the Owner's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to the
Restricted Global Notes and pursuant to and in accordance with the Securities
Act, (iii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act and (iv) the Definitive Note is being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.
B-1-1
(c) Check if Exchange is from Restricted Definitive Note to beneficial
interest in an Unrestricted Global Note. In connection with the Owner's Exchange
of a Restricted Definitive Note for a beneficial interest in an Unrestricted
Global Note, the Owner hereby certifies (i) the beneficial interest is being
acquired for the Owner's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to
Restricted Definitive Notes and pursuant to and in accordance with the
Securities Act, (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(d) Check if Exchange is from Restricted Definitive Note to Unrestricted
Definitive Note. In connection with the Owner's Exchange of a Restricted
Definitive Note for an Unrestricted Definitive Note, the Owner hereby certifies
(i) the Unrestricted Definitive Note is being acquired for the Owner's own
account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
2. Exchange of Restricted Definitive Notes or Beneficial Interests in
Restricted Global Notes for Restricted Definitive Notes or Beneficial Interests
in Restricted Global Notes
(a) Check if Exchange is from beneficial interest in a Restricted Global
Note to Restricted Definitive Note. In connection with the Exchange of the
Owner's beneficial interest in a Restricted Global Note for a Restricted
Definitive Note with an equal principal amount, the Owner hereby certifies that
the Restricted Definitive Note is being acquired for the Owner's own account
without transfer. Upon consummation of the proposed Exchange in accordance with
the terms of the Indenture, the Restricted Definitive Note issued will continue
to be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Definitive Note and in the Indenture
and the Securities Act.
(b) Check if Exchange is from Restricted Definitive Note to beneficial
interest in a Restricted Global Note. In connection with the Exchange of the
Owner's Restricted Definitive Note for a beneficial interest in the [CHECK ONE]
144A Global Note, Regulation S Global Note, IAI Global Note with an equal
principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner's own account without transfer and (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, and in compliance with any applicable blue sky securities
laws of any state of the United States. Upon consummation of the proposed
Exchange in accordance with the terms of the Indenture, the beneficial interest
issued will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the relevant Restricted Global Note and in the
Indenture and the Securities Act.
B-1-2
This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuers.
[Insert Name of Transferor]
By:
----------------------------------------
Name:
Title:
Dated: ______________________
X-0-0
XXXXXXX X-0
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
[Issuer address block]
[Registrar address block]
Re: [full title of securities]
Reference is hereby made to the Indenture, dated as of
_________________ (the "Indenture"), between _____________________, as issuers
(the "Issuers"), and ___________________, as trustee. Capitalized terms used but
not defined herein shall have the meanings given to them in the Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of:
(a) a beneficial interest in a Global Note, or
(b) a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or any interest
therein is subject to certain restrictions and conditions set forth in the
Indenture and the undersigned agrees to be bound by, and not to resell, pledge
or otherwise transfer the Notes or any interest therein except in compliance
with, such restrictions and conditions and the United States Securities Act of
1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes and any interest therein
may not be offered or sold except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we are acting
as hereinafter stated, that if we should sell the Notes or any interest therein,
we will do so only (A) to the Issuers or any subsidiary thereof, (B) in
accordance with Rule 144A under the Securities Act to a "qualified institutional
buyer" (as defined therein), (C) to an institutional "accredited investor" (as
defined below) that, prior to such transfer, furnishes (or has furnished on its
behalf by a U.S. broker-dealer) to you and to the Issuers a signed letter
substantially in the form of this letter and an Opinion of Counsel in form
reasonably acceptable to the Issuers to the effect that such transfer is in
compliance with the Securities Act, (D) outside the United States in accordance
with Rule 904 of Regulation S under the Securities Act, (E) pursuant to the
provisions of Rule 144(k) under the Securities Act or (F) pursuant to an
effective registration statement under the Securities Act, and we further agree
to provide to any person purchasing the Definitive Note or beneficial interest
in a Global Note from us in a transaction meeting the requirements of clauses
(A) through (E) of this paragraph a notice advising such purchaser that resales
thereof are restricted as stated herein.
B-2-1
3. We understand that, on any proposed resale of the Notes or beneficial
interest therein, we will be required to furnish to you and the Issuers such
certifications, legal opinions and other information as you and the Issuers may
reasonably require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Notes purchased by us will bear a
legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes, and we and
any accounts for which we are acting are each able to bear the economic risk of
our or its investment.
5. We are acquiring the Notes or beneficial interest therein purchased by
us for our own account or for one or more accounts (each of which is an
institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You and the Issuers are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
[Insert Name of Accredited Investor]
By:
-------------------------------------
Name:
Title:
Dated: _______________________
B-2-2
EXHIBIT C
Form of Subsidiary Guarantee
THIS GUARANTEE (as the same may be amended, modified or supplemented from
time to time, this "Guarantee"), dated as of , is made by (hereinafter referred
to as the "Guarantor") in favor of THE BANK OF NEW YORK, a New York banking
association, as trustee under the Indenture hereinafter described (the
"Trustee") for the ratable benefit of the holders from time to time (the
"Holders") of the Senior Subordinated Notes (as hereinafter defined).
All terms not otherwise defined herein shall have for the purposes hereof
the meanings set forth in the Indenture (as hereinafter defined) unless the
context otherwise requires.
Recitals
A. Remington Products Company, L.L.C. (the "Company") and Remington Capital
Corp. ("Capital" and, together with the Company, the "Issuers") are parties to
that certain indenture dated April 18, 2001 (as amended, supplemented or
otherwise modified from time to time, the "Indenture") among the Issuers and the
Trustee, pursuant to which the Issuers issued their 11% Senior Subordinated
Notes due 2006 (including all Series C and Series D Senior Subordinated Notes
issued from time to time pursuant to the Indenture, collectively, the "Senior
Subordinated Notes");
B. The Guarantor is a direct or indirect Subsidiary of the Company, and
will derive both direct and indirect economic benefit from the proceeds of the
Senior Subordinated Notes and other financial accommodations made to the Issuers
under the Indenture; and
C. The Indenture requires that the Guarantor execute and deliver this
Guaranty to guarantee the payment and performance by the Issuers of all of their
obligations under the Indenture and the Senior Subordinated Notes, including, in
each case, all reasonable costs of collection and enforcement thereof and
interest thereon which would be owing by the Issuers or such Guarantor but for
the effect of the Bankruptcy Code, 11 U.S.C.ss.101 et seq. (collectively, the
"Guaranteed Obligations").
NOW, THEREFORE, for and in consideration of the foregoing and of any
financial accommodations or extensions of credit (including, without limitation,
any loan or advance by renewal, refinancing or extension of the Indenture or
otherwise) heretofore, now or hereafter made to or for the benefit of the
Issuers pursuant to the Indenture or any other agreement, instrument or document
executed pursuant to or in connection therewith, and for other good and valuable
consideration, the receipt and sufficiency of which are acknowledged, the
Guarantor and the Trustee agree as follows:
1. The Guarantee. The Guarantor hereby absolutely, unconditionally and
irrevocably guarantees the full and punctual payment (whether at stated
maturity, upon acceleration or otherwise) of the Guaranteed Obligations. This
Guarantee is a guarantee of payment and not of collection. All payments made by
the Guarantor under this Guarantee shall be paid at the place and in the manner
specified in the Indenture and the Senior Subordinated Notes.
C-1
2. Amendments, etc. with Respect to the Guaranteed Obligations; Waiver of
Rights. The Guarantor shall remain obligated hereunder notwithstanding that
without any reservation of rights against the Guarantor and without notice to or
further assent by the Guarantor any demand for payment of any of the Guaranteed
Obligations made by the Trustee or the Holders may be rescinded by them and any
of the Guaranteed Obligations continued, and the Guaranteed Obligations, or the
liability of any other party upon or for any part thereof, or guarantee therefor
or right of offset with respect thereto, may, from time to time, in whole or in
part, be renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the Trustee or the Holders, and the Indenture and any
other documents executed and delivered in connection therewith may be amended,
modified, supplemented or terminated, in whole or in part, as the Trustee or the
Holders may deem advisable from time to time or as provided in the Indenture,
and any guarantee or right of offset at any time held by the Trustee for the
payment of the Guaranteed Obligations may be sold, exchanged, waived,
surrendered or released.
3. Guarantee Absolute and Unconditional. The Guarantor waives any and all
notice of the creation, renewal, extension or accrual of any of the Guaranteed
Obligations, and notice of or proof of reliance by the Trustee or the Holders
upon this Guarantee, the Guaranteed Obligations, and any of them shall
conclusively be deemed to have been created, contracted or incurred, or renewed,
extended, amended or waived, in reliance upon this Guarantee; and all dealings
between the Issuers and the Guarantor, on the one hand, and the Trustee and the
Holders, on the other hand, likewise shall be conclusively presumed to have been
had or consummated in reliance upon this Guarantee. The Guarantor waives
diligence, presentment, protest, demand for payment and notice of default or
nonpayment to or upon the Issuers or the Guarantor with respect to the
Guaranteed Obligations. The Guarantor understands and agrees that this Guarantee
shall be construed as a continuing, absolute and unconditional guarantee of
payment without regard to (a) the validity, regularity or enforceability of the
Indenture or any of the Senior Subordinated Notes, any of the Guaranteed
Obligations or guarantee or right of offset with respect thereto at any time or
from time to time held by the Trustee or the Holders, (b) any defense, set-off
or counterclaim (other than a defense of payment or performance) which may at
any time be available to or be asserted by the Issuers against the Trustee or
the Holders, or (c) any other circumstances whatsoever (with or without notice
to or knowledge of the Issuers or such Guarantor) which constitute, or might be
construed to constitute, an equitable or legal discharge of the Issuers for the
Guaranteed Obligations, or of the Guarantor under this Guarantee, in bankruptcy
or in any other instance. When pursuing its rights and remedies hereunder
against the Guarantor, the Trustee and/or the Holders may, but shall be under no
C-2
obligation to, pursue such rights and remedies as it or they may have against
the Issuers or any other Person or against any guarantee for the Guaranteed
Obligations or any right of offset with respect thereto, and any failure by the
Trustee or the Holders to pursue such other rights or remedies or to collect any
payments from the Issuers or any such other Person or to realize upon any such
guarantee or to exercise any such right of offset, or any release of the Issuers
or any such other Person or any such guarantee or right of offset, shall not
relieve the Guarantor of any liability hereunder, and shall not impair or affect
the rights and remedies, whether express, implied or available as a matter of
law, of the Trustee and/or the Holders against the Guarantor. This Guarantee
shall remain in full force and effect and be binding in accordance with and to
the extent of its terms upon the Guarantor and its successors and assigns
thereof, and shall inure to the benefit of the Trustee, and its successors,
indorsees, transferees and assigns, and the Holders from time to time of the
Senior Subordinated Notes until all the Guaranteed Obligations and the
obligations of the Guarantor under this Guarantee shall have been satisfied by
payment in full, notwithstanding that from time to time during the term of the
Indenture the Issuers may be free from any Guaranteed Obligations.
4. Discharge Only Upon Payment In Full; Reinstatement In Certain
Circumstances. The Guarantor's obligations hereunder shall remain in full force
and effect until the Guaranteed Obligations shall have been paid in full. If at
any time any payment of any of the Guaranteed Obligations is rescinded or must
be otherwise restored or returned upon the insolvency, bankruptcy or
reorganization of the Issuers or otherwise, the Guarantor's obligations
hereunder with respect to such payment shall be reinstated at such time as
though such payment had been due but not made at such time.
5. Waiver by the Guarantor. The Guarantor irrevocably waives acceptance
hereof, presentment, demand, protest and any notice not provided for herein, as
well as any requirement that at any time any action be taken by any Person
against the Issuers or any other Person.
6. Subrogation. Notwithstanding any payments made by the Guarantor under
this Guarantee, the Guarantor shall not be entitled to be subrogated to any of
the rights of any other Guarantor, the Trustee or any Holder against the Issuers
until all amounts of principal of and interest and premium on the Senior
Subordinated Notes and all other amounts payable by the Issuers under the
Indenture and the Senior Subordinated Notes and by the Guarantor under its
Guarantee have been paid in full. If any amount shall be paid to the Guarantor
on account of such subrogation rights at any time when all of the Guaranteed
Obligations shall not have been paid in full, such amount shall be held by the
Guarantor in trust for the Trustee segregated from other funds of the Guarantor,
and shall, forthwith upon receipt by the Guarantor, be turned over to the
Trustee in the exact form received by the Guarantor (duly indorsed by the
Guarantor to the Trustee, if required), to be applied against the Guaranteed
Obligations, whether matured or unmatured, at such time and in such order as the
Trustee may determine.
7. Stay of Acceleration. In the event that acceleration of the time for
payment of any of the Guaranteed Obligations is stayed upon insolvency,
bankruptcy or reorganization of the Issuers, all such amounts otherwise subject
to acceleration under the terms of the Indenture and the Senior Subordinated
Notes shall nonetheless be payable by the Guarantor forthwith on demand by the
Trustee.
8. Subordination.
a. Definitions. As used in this Section 8, the terms set forth below shall
have the following meanings:
"Designated Guarantor Senior Debt" shall mean the guarantee by the
Guarantor of (i) Indebtedness under the Senior Credit Agreement and (ii) other
Guarantor Senior Debt permitted to be incurred by the Guarantor under the terms
C-3
of the Indenture the principal amount of which is $25.0 million or more and that
has been designated by the Management Committee as "Designated Guarantor Senior
Debt."
"Guarantor Senior Debt" shall mean (i) the guarantee by the Guarantor of
Indebtedness under the Senior Credit Agreement and (ii) any other Indebtedness
permitted to be incurred by the Guarantor under the terms of the Indenture,
unless the instrument under which such Indebtedness is incurred expressly
provides that it is subordinated in right of payment to any Guarantor Senior
Debt. Notwithstanding anything to the contrary in the foregoing, Guarantor
Senior Debt will not include (a) any liability for federal, state, local or
other taxes owed or owing by the Guarantor, (b) any Indebtedness of the
Guarantor to any of its Subsidiaries or other Affiliates, (c) any trade payables
or (d) any Indebtedness that is incurred in violation of the Indenture.
b. Agreement to Subordinate. The Guarantor agrees, and each Holder by
accepting a Note agrees, that the payment of the Guaranteed Obligations is
subordinated in right of payment, to the extent and in the manner provided in
this Section 8, to the prior payment in full of all Guarantor Senior Debt
(whether outstanding on the date hereof or hereafter created, incurred, assumed
or guaranteed), and that the subordination is for the benefit of the holders of
Guarantor Senior Debt.
c. Liquidation; Dissolution; Bankruptcy. Upon any distribution to creditors
of the Guarantor in a liquidation or dissolution of the Guarantor or in a
bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to the Guarantor or its property, an assignment for the benefit of
creditors or any marshalling of the Guarantor's assets and liabilities:
(i) holders of Guarantor Senior Debt of the Guarantor shall be
entitled to receive payment in full of all Obligations due in respect
of such Guarantor Senior Debt (including interest after the
commencement of any such proceeding at the rate specified in the
applicable Guarantor Senior Debt) before the Holders shall be entitled
to receive any payment with respect to the Guarantee (except that
Holders may receive securities that are subordinated at least to the
same extent as the Guarantees to Guarantor Senior Debt and any
securities issued in exchange for Guarantor Senior Debt); and
(ii) until all Obligations with respect to Guarantor Senior Debt
of the Guarantor are paid in full, any distribution to which the
Holders of Notes would be entitled but for this Section 8 shall be
made to the holders of such Guarantor Senior Debt (except that Holders
may receive securities that are subordinated at least to the same
extent as the Guarantee to Guarantor Senior Debt and any securities
issued in exchange for Guarantor Senior Debt).
d. Default on Designated Guarantor Senior Debt. The Guarantor may not make
any payment upon or in respect of the Guarantee (except that Holders may receive
securities that are subordinated to the same extent as the Notes to Guarantor
Senior Debt and any securities issued in exchange for Guarantor Senior Debt) if:
C-4
(i) a default in the payment of the principal of, or premium or
interest on, or fees or other amounts owing with respect to,
Designated Guarantor Senior Debt occurs and is continuing beyond any
applicable period of grace; or
(ii) any other default occurs and is continuing with respect to
Designated Guarantor Senior Debt that permits holders of the
Designated Guarantor Senior Debt as to which such default relates to
accelerate its maturity and the Trustee receives a notice of such
default (a "Payment Blockage Notice") from the Guarantor or the
holders of any Designated Guarantor Senior Debt.
Payments on the Guarantee may and shall be resumed:
(y) in the case of default referred to in Section 8(d)(i), upon
the date on which such default is cured or waived, and
(z) in case of a default referred to in Section 8(d)(ii), the
earlier of the date on which such nonpayment default is cured or
waived or 179 days after the date on which the applicable Payment
Blockage Notice is received, unless the maturity of any Designated
Guarantor Senior Debt has been accelerated.
No new period of payment blockage may be commenced unless and until 360
days have elapsed since the effectiveness of the immediately prior Payment
Blockage Notice. No nonpayment default that existed or was continuing on the
date of delivery of any Payment Blockage Notice to the Trustee shall be, or be
made, the basis for a subsequent Payment Blockage Notice.
e. Acceleration of Guarantee. The Guarantor shall promptly notify holders
of Guarantor Senior Debt of the receipt by the Issuers of an acceleration notice
following an Event of Default under the Indenture.
f. When Distribution Must Be Paid Over. In the event that the Trustee or
any Holder receives any payment of any Obligations with respect to the Guarantee
at a time when the Trustee or such Holder, as applicable, has actual knowledge
that such payment is prohibited by Section 8(d) hereof, such payment shall be
held by the Trustee or such Holder, in trust for the benefit of and, upon
written request, shall be paid forthwith over and delivered to, the holders of
Guarantor Senior Debt as their interests may appear or their Representative
under the indenture or other agreement (if any) pursuant to which Guarantor
Senior Debt may have been issued, as their respective interests may appear, for
application to the payment of all Obligations with respect to Guarantor Senior
Debt remaining unpaid to the extent necessary to pay such Obligations in full in
accordance with their terms, after giving effect to any concurrent payment or
distribution to or for the holders of Guarantor Senior Debt.
With respect to the holders of Guarantor Senior Debt, the Trustee
undertakes to perform only such obligations on the part of the Trustee as are
specifically set forth in this Section 8, and no implied covenants or
obligations with respect to the holders of Guarantor Senior Debt shall be read
C-5
into this Guarantee against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Guarantor Senior Debt, and shall not be
liable to any such holders if the Trustee shall pay over or distribute to or on
behalf of Holders or the Guarantor or any other Person money or assets to which
any holders of Guarantor Senior Debt shall be entitled by virtue of this Section
8, except if such payment is made as a result of the willful misconduct or gross
negligence of the Trustee.
g. Notice by the Guarantor. The Guarantor shall promptly notify the Trustee
and the Paying Agent of any facts known to the Guarantor that would cause a
payment of any Obligations with respect to the Guarantee to violate this Section
8, but failure to give such notice shall not affect the subordination of the
Guarantee to the Guarantor Senior Debt as provided in this Section 8.
h. Subrogation. After all Guarantor Senior Debt is irrevocably paid in full
in cash or cash equivalents reasonably satisfactory to the holders thereof and
until the Guaranteed Obligations are paid in full, Holders shall be subrogated
(equally and ratably with all other Indebtedness pari passu with the Guarantee)
to the rights of holders of Guarantor Senior Debt to receive distributions
applicable to Guarantor Senior Debt to the extent that distributions otherwise
payable to the Holders have been applied to the payment of Guarantor Senior
Debt. A distribution made under this Section 8 to holders of Guarantor Senior
Debt that otherwise would have been made to Holders is not, as between the
Guarantor and Holders, a payment by the Guarantor on the Guarantee.
i. Relative Rights. This Section 8(i) defines the relative rights
of Holders and holders of Guarantor Senior Debt. Nothing in this
Guarantee shall:
(i) impair, as between the Guarantor and Holders, the obligation
of the Guarantor, which is absolute and unconditional, to pay the
Guaranteed Obligations in accordance with the terms of this Guarantee;
(ii) affect the relative rights of Holders and creditors of the
Guarantor other than their rights in relation to holders of Guarantor
Senior Debt; or
(iii) prevent the Trustee or any Holder from exercising its
available remedies upon a Default or Event of Default, subject to the
rights of holders and owners of Guarantor Senior Debt to receive
distributions and payments otherwise payable to Holders.
j. Subordination May Not Be Impaired by the Guarantor. No right of any
holder of Guarantor Senior Debt to enforce the subordination of the Indebtedness
evidenced by the Guarantee shall be impaired by any act or failure to act by the
Guarantor or any Holder or by the failure of the Guarantor or any Holder to
comply with this Guarantee.
k. Distribution or Notice to Representative. Whenever a distribution is to
be made or a notice given to holders of Guarantor Senior Debt, the distribution
may be made and the notice given to their Representative.
Upon any payment or distribution of assets of the Guarantor referred to in
this Section 8, the Trustee and the Holders shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction or upon any
certificate of such Representative or of the liquidating trustee or agent or
C-6
other Person making any distribution to the Trustee or to the Holders for the
purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of Guarantor Senior Debt and other Indebtedness of the
Guarantor, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Section 8.
l. Rights of Trustee and Paying Agent. Notwithstanding the provisions of
this Section 8 or any other provision of the Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts that would prohibit the
making of any payment or distribution by the Trustee, and the Trustee and the
Paying Agent may continue to make payments on the Guarantee, unless the Trustee
shall have received at its Corporate Trust Office at least five Business Days
prior to the date of such payment written notice of facts that would cause the
payment of any Obligations with respect to the Guarantee to violate this Section
8. Only the Guarantor or a Representative may give the notice. Nothing in this
Section 8 shall impair the claims of, or payments to, the Trustee under or
pursuant to Section 7.07 of the Indenture.
The Trustee shall be entitled to rely on the delivery to it of a written
notice by a person representing himself to be a holder of Guarantor Senior Debt
(or a Representative of such holder) to establish that such notice has been
given by a holder of Guarantor Senior Debt (or a Representative of any such
holder). 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
Guarantor Senior Debt to participate in any payment or distribution pursuant to
this Section 8, the Trustee may request such person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Guarantor 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 Section 8, and if such evidence is not furnished, the
Trustee may defer any payment which it may be required to make for the benefit
of such person pursuant to the terms of this Guarantee pending judicial
determination as to the rights of such person to receive such payment.
The Trustee in its individual or any other capacity may hold Guarantor
Senior Debt with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights.
m. Authorization to Effect Subordination. Each Holder of a Note by the
Holder's acceptance thereof authorizes and directs the Trustee on the Holder's
behalf to take such action as may be necessary or appropriate to effectuate the
subordination as provided in this Section 8, and appoints the Trustee to act as
the Holder's attorney-in-fact for any and all such purposes. If the Trustee does
not file a proper proof of claim or proof of debt in the form required in any
proceeding referred to in Section 6.09 of the Indenture at least 30 days before
the expiration of the time to file such claim, the holders of Guarantor Senior
Debt (or a Representative of any such holder) are hereby authorized to file an
appropriate claim for and on behalf of the Holders.
n. Amendments. The provisions of this Section 8 shall not be amended or
modified without the written consent of the holders of all Guarantor Senior
Debt.
C-7
9. Merger, Consolidation or Sale of Assets.
a. The Guarantor may not consolidate with or merge with or into (whether or
not the Guarantor is the surviving Person) another corporation, Person or
entity, whether or not affiliated with the Guarantor, unless (i) subject to the
provisions of Section 9(b), the Person formed by or surviving any such
consolidation or merger (if other than the Guarantor) assumes all the
obligations of the Guarantor, pursuant to a supplemental Guarantee in form and
substance reasonably satisfactory to the Trustee, under the Guarantee; (ii)
immediately after giving effect to such transaction, no Default or Event of
Default exists; (iii) the Guarantor, or any Person formed by or surviving any
such consolidation or merger, would have Consolidated Net Worth (immediately
after giving effect to such transaction) equal to or greater than the
Consolidated Net Worth of the Guarantor immediately preceding the transaction;
and (iv) the Company would be permitted by virtue of the Company's pro forma
Fixed Charge Coverage Ratio, immediately after giving effect to such
transaction, to incur at least $1.00 of additional Indebtedness pursuant to the
Fixed Charge Coverage Ratio test set forth in Section 4.09 of the Indenture;
provided, however, that the foregoing will not apply to the consolidation or
merger of the Guarantor with and into either Issuer or another Guarantor.
b. In the event of a sale or other disposition of all of the assets of the
Guarantor, by way of merger, consolidation or otherwise, or a sale or other
disposition of all of the capital stock of the Guarantor, then the Guarantor (in
the event of a sale or other disposition, by way of such a merger, consolidation
or otherwise, of all of the capital stock of the Guarantor) or the corporation
acquiring the property (in the event of a sale or other disposition of all of
the assets of the Guarantor) will be released and relieved of any obligations
under this Guarantee; provided that the Net Proceeds of such sale or other
disposition are applied in accordance with Section 4.10 of the Indenture. In
addition, in the event the Management Committee designates the Guarantor to be
an Unrestricted Subsidiary, then the Guarantor shall be released and relieved of
any obligations under this Guarantee; provided that such designation is
conducted in accordance with Section 4.07 of the Indenture.
10. Miscellaneous.
a. Benefits of Guarantee; Successors and Assigns. Nothing in this
Guarantee, expressed or implied, shall give to any person, other than Trustee,
the Holders and their respective successors, transferees and assigns hereunder,
any benefit or any legal or equitable rights, remedy or claim under this
Guarantee. This Guarantee shall be binding upon the Guarantor, its successors
and assigns, and inure, together with the rights and remedies of Trustee
hereunder, to the benefit of Trustee, the Holders and their respective
successors, transferees and assigns. The Guarantor shall not, without the prior
written consent of Trustee, assign any rights, duties or obligations under this
Guarantee.
b. Notices. All notices, demands and other communications hereunder shall
be given and shall be effective in accordance with the Indenture, except that
notices to the Guarantor shall be given to its address set forth on the
signature page hereof, or to such other address as the Guarantor may specify in
writing from time to time to the Trustee.
C-8
c. Amendments. Neither this Guarantee nor any provision hereof may be
amended, modified, waived, discharged or terminated other than pursuant to the
provisions of the Indenture.
d. No Personal Liability of Directors, Officers, Employees, Partners and
Stockholders. No past, present or future director, officer, employee,
incorporator, partner or stockholder of the Guarantor, as such, shall have any
liability for any obligations of the Guarantor under this Guarantee or for any
claim based on, in respect of, or by reason of, this Guarantee. Each Holder by
accepting a Note has waived and released all such liability. The waiver and
release are part of the consideration for issuance of this Guarantee.
e. Governing Law. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN
AND BE USED TO CONSTRUE THIS GUARANTEE.
f. No Adverse Interpretation of Other Agreements. This Guarantee may not be
used to interpret any other guarantee, indenture, loan or debt agreement of the
Issuers, the Guarantor or their respective Subsidiaries or of any other Person.
Any such guarantee, indenture, loan or debt agreement may not be used to
interpret this Guarantee.
g. Successors. All agreements of the Guarantor in this Guarantee shall bind
its successors. All agreements of the Trustee in this Guarantee shall bind its
successors.
h. Severability. In case any provision in this Guarantee 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.
i. Counterpart Originals. The parties may sign any number of copies of this
Guarantee. Each signed copy shall be an original, but all of them together
represent the same agreement.
j. Headings, etc. The headings of the sections of this Guarantee have been
inserted for convenience of reference only, are not to be considered a part of
this Guarantee and shall in no way modify or restrict any of the terms or
provisions hereof.
[Signature Pages Follow]
C-9
IN WITNESS WHEREOF, the undersigned Guarantor has caused this
instrument to be duly executed and delivered to the Trustee as of the date first
above written.
[GUARANTOR]
[Address]
By:
-----------------------------------
Name:
Title:
C-10
ANNEX A
Excluded Obligations
Total Amount Remsen Share RPI Share
Scheduled Excluded Obligations:
Bonus to Xxxxx Xxxxx $ 3,350,000 $ 1,675,000 $ 1,675,000
Bonus to Xxxxx Xxxxx 550,411 275,206 275,206
Bonus to Xxxxx Xxxxxx 452,123 226,062 226,062
Bonus to Xxxx Xxxxxx 420,671 210,336 210,336
Bonus to Xxxxxxxx Xxxxxxxxx 157,260 78,630 78,630
Bonus to X. Xxxxxx Kimpton 117,945 58,973 58,973
Other Bonuses to Managers 1,171,590 585,795 585,795
PV of Employment Contract to VKK, II 1,589,905 794,953 794,953
PV of Employment Contract to VKK, III 157,243 78,622 78,622
Investment Banking Fees-Xxxxxxxx Xxxxxxx & 1,884,089 942,044 942,044
Co.
Commercial Bankers - Congress Prepayment Fee 825,000 206,250 618,750
1,000,000 500,000 500,000
Accrued but Unpaid Taxes @ Closing
(estimate)
Severance Payments 200,000 100,000 100,000
Accrued but Unpaid Compensation @ Closing 1,120,000 560,000 560,000
(estimate)
Accrued Bonuses @ Closing (estimate) 680,000 340,000 340,000
50% of Transfer Taxes on Real Estate 0 0 0
(amount pending)
$ 13,676,238 $ 6,631,869 $ 7,044,369
Remsen Distribution Calculation:
Gross Distribution to Remsen (as agreed) 90,351,500
less Remsen Share of Excluded Obligations (6,631,869)
Net Remsen Proceeds $ 83,719,631
Less Payment to Escrow Account (5,000,000)
Total Cash Delivered to Remsen upon Closing $ 78,719,631
C-11
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)............................................. 11.03
(c)............................................. 11.03
313 (a)............................................. 7.06
(b)(1).......................................... N.A.
(b)(2).......................................... 7.06;7.07
(c)............................................. 7.06;11.02
(d)............................................. 7.06
314 (a)............................................. 4.03;4.04
(b)............................................. N.A.
(c)(1).......................................... 11.04
(c)(2).......................................... 11.04
(c)(3).......................................... N.A.
(d)............................................. N.A.
(e)............................................. 11.05
(f)............................................. N.A.
315 (a)............................................. N.A.
(b)............................................. N.A.
(c)............................................. N.A.
(d)............................................. N.A.
(e)............................................. 6.11
316 (a)(last sentence).............................. 2.09
(a)(1)(A)....................................... 6.05
(a)(1)(B)....................................... N.A.
(a)(2).......................................... N.A.
(b)............................................. 6.07
(c)............................................. N.A.
317 (a)(1).......................................... 6.08
(a)(2).......................................... 6.09
(b)............................................. 2.04
318 (a)............................................. N.A.
(b)............................................. N.A.
(c)............................................. 11.01
N.A. means not applicable.
------------------
* This Cross-Reference Table is not part of the Indenture.
