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CORNING CONSUMER PRODUCTS COMPANY
9 5/8% Senior Subordinated Notes due 2008
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INDENTURE
Dated as of May 5, 1998
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THE BANK OF NEW YORK,
Trustee
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TABLE OF CONTENTS
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ARTICLE 1
Definitions and Incorporation by Reference
SECTION 1.01. Definitions
SECTION 1.02. Other Definitions ................................................ 2
SECTION 1.03. Incorporation by Reference of Trust Indenture Act ................ 2
SECTION 1.04. Rules of Construction ............................................ 2
ARTICLE 2
The Securities
SECTION 2.01 Amount of Securities; Issuable in Series ......................... 2
SECTION 2.02. Form and Dating .................................................. 2
SECTION 2.03. Execution and Authentication ..................................... 2
SECTION 2.04. Registrar and Paying Agent ....................................... 2
SECTION 2.05. Paying Agent to Hold Money in Trust .............................. 2
SECTION 2.06. Securityholder Lists ............................................. 2
SECTION 2.07. Transfer and Exchange ............................................ 2
SECTION 2.08. Replacement Securities ........................................... 2
SECTION 2.09. Outstanding Securities ........................................... 2
SECTION 2.10. Temporary Securities ............................................. 2
SECTION 2.11. Cancelation ...................................................... 2
SECTION 2.12. Defaulted Interest ............................................... 3
SECTION 2.13. CUSIP Numbers .................................................... 3
ARTICLE 3
Redemption
SECTION 3.01. Notices to Trustee ............................................... 3
SECTION 3.02. Selection of Securities To Be Redeemed ........................... 3
SECTION 3.03. Notice of Redemption ............................................. 3
SECTION 3.04. Effect of Notice of Redemption ................................... 3
SECTION 3.05. Deposit of Redemption Price ...................................... 3
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SECTION 3.06. Securities Redeemed in Part ...................................... 3
ARTICLE 4
Covenants
SECTION 4.01. Payment of Securities ............................................ 3
SECTION 4.02. SEC Reports ...................................................... 3
SECTION 4.03. Limitation on Incurrence of Indebtedness and Issuance
of Disqualified Stock ........................................... 3
SECTION 4.04. Limitation on Restricted Payments ................................ 3
SECTION 4.05. Dividend and Other Payment Restrictions Affecting
Subsidiaries .................................................... 4
SECTION 4.06. Asset Sales ...................................................... 4
SECTION 4.07. Transactions with Affiliates ..................................... 4
SECTION 4.08. Change of Control ................................................ 5
SECTION 4.09. Compliance Certificate ........................................... 5
SECTION 4.10. Further Instruments and Acts ..................................... 5
SECTION 4.11. Limitation on Guarantees of Indebtedness by Restricted
Subsidiaries .................................................... 5
SECTION 4.12. Liens ............................................................ 5
SECTION 4.13. Limitation on Other Senior Subordinated Indebtedness ............. 5
ARTICLE 5
Successor Company
SECTION 5.01. Merger, Consolidation, or Sale of All or Substantially
All Assets ...................................................... 5
ARTICLE 6
Defaults and Remedies
SECTION 6.01. Events of Default ................................................ 5
SECTION 6.02. Acceleration ..................................................... 5
SECTION 6.03. Other Remedies ................................................... 5
SECTION 6.04. Waiver of Past Defaults .......................................... 5
SECTION 6.05. Control by Majority .............................................. 5
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SECTION 6.06. Limitation on Suits .............................................. 6
SECTION 6.07. Rights of Holders to Receive Payment.............................. 6
SECTION 6.08. Collection Suit by Trustee........................................ 6
SECTION 6.09. Trustee May File Proofs of Claim ................................. 6
SECTION 6.10. Priorities ....................................................... 6
SECTION 6.11. Undertaking for Costs ............................................ 6
SECTION 6.12. Waiver of Stay or Extension Laws ................................. 6
ARTICLE 7
Trustee
SECTION 7.01. Duties of Trustee ................................................ 6
SECTION 7.02. Rights of Trustee ................................................ 6
SECTION 7.03. Individual Rights of Trustee ..................................... 6
SECTION 7.04. Trustee's Disclaimer ............................................. 6
SECTION 7.05. Notice of Defaults ............................................... 6
SECTION 7.06. Reports by Trustee to Holders .................................... 6
SECTION 7.07. Compensation and Indemnity ....................................... 6
SECTION 7.08. Replacement of Trustee ........................................... 6
SECTION 7.09. Successor Trustee by Merger ...................................... 6
SECTION 7.10. Eligibility; Disqualification .................................... 6
SECTION 7.11. Preferential Collection of Claims Against Company ................ 6
ARTICLE 8
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Securities; Defeasance.................. 6
SECTION 8.02. Conditions to Defeasance ......................................... 6
SECTION 8.03. Application of Trust Money ....................................... 7
SECTION 8.04. Repayment to Company ............................................. 7
SECTION 8.05. Indemnity for Government Obligations ............................. 7
SECTION 8.06. Reinstatement .................................................... 7
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ARTICLE 9
Amendments
SECTION 9.01. Without Consent of Holders ....................................... 7
SECTION 9.02. With Consent of Holders .......................................... 7
SECTION 9.03. Compliance with Trust Indenture Act .............................. 7
SECTION 9.04. Revocation and Effect of Consents and Waivers .................... 7
SECTION 9.05. Notation on or Exchange of Securities ............................ 7
SECTION 9.06. Trustee to Sign Amendments ....................................... 7
SECTION 9.07. Payment for Consent .............................................. 7
ARTICLE 10
Subordination
SECTION 10.01. Agreement To Subordinate ........................................ 7
SECTION 10.02. Liquidation, Dissolution, Bankruptcy ............................ 7
SECTION 10.03. Default on Senior Indebtedness .................................. 7
SECTION 10.04. Acceleration of Payment of Securities ........................... 7
SECTION 10.05. When Distribution Must Be Paid Over ............................. 7
SECTION 10.06. Subrogation ..................................................... 7
SECTION 10.07. Relative Rights ................................................. 7
SECTION 10.08. Subordination May Not Be Impaired by Company .................... 7
SECTION 10.09. Rights of Trustee and Paying Agent .............................. 7
SECTION 10.10. Distribution or Notice to Representative ........................ 7
SECTION 10.11. Article 10 Not To Prevent
Events of Default or Limit Right To Accelerate ................. 7
SECTION 10.12. Trust Moneys Not Subordinated ................................... 7
SECTION 10.13. Trustee Entitled To Rely ........................................ 7
SECTION 10.14. Trustee to Effectuate Subordination ............................. 8
SECTION 10.15. Trustee Not Fiduciary for Holders of Senior Indebtedness......... 8
SECTION 10.16. Reliance by Holders of Senior Indebtedness on
Subordination Provisions........................................ 8
SECTION 10.17. Trustee's Compensation Not Prejudiced............................ 8
SECTION 10.18. Defeasance ...................................................... 8
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ARTICLE 11
Miscellaneous
SECTION 11.01. Trust Indenture Act Controls .................................... 8
SECTION 11.02. Notices ......................................................... 8
SECTION 11.03. Communication by Holders with Other Holders ..................... 8
SECTION 11.04. Certificate and Opinion as to Conditions Precedent .............. 8
SECTION 11.05. Statements Required in Certificate or Opinion ................... 8
SECTION 11.06. When Securities Disregarded ..................................... 8
SECTION 11.07. Rules by Trustee, Paying Agent and Registrar .................... 8
SECTION 11.08. Legal Holidays .................................................. 8
SECTION 11.09. GOVERNING LAW ................................................... 8
SECTION 11.10. No Recourse Against Others ...................................... 8
SECTION 11.11. Successors ...................................................... 8
SECTION 11.12. Multiple Originals .............................................. 8
SECTION 11.13. Table of Contents; Headings ..................................... 8
Appendix A - Provisions Relating to Original Securities, Additional Securities,
Private Exchange Securities and Exchange Securities
Exhibit A - Form of Initial Security
Exhibit B - Form of Exchange Security
Exhibit C - Form of Certificate to be Delivered in Connection with Transfers of
Regulation S Global Security
Exhibit D - Form of Transferee Letter of Representation
INDENTURE dated as of May 5, 1998, between CORNING CONSUMER
PRODUCTS COMPANY, a Delaware corporation (the "Company"), and THE BANK
OF NEW YORK, a New York banking corporation, as trustee (the
"Trustee").
Each party agrees as follows for the benefit of the other party and for the
equal and ratable benefit of the Holders of (i) the Company's 9 5/8% Senior
Subordinated Notes due 2008 issued on the date hereof (the "Original
Securities"), (ii) any Additional Securities (as defined herein) that may be
issued on any Issuance Date (all such Securities in clauses (i) and (ii) being
referred to collectively as the "Initial Securities"), (iii) if and when issued
as provided in the Registration Agreement (as defined in Appendix A hereto (the
"Appendix")), the Company's 9 5/8% Senior Subordinated Notes due 2008 issued in
the Registered Exchange Offer (as defined in the Appendix) in exchange for any
Initial Securities (the "Exchange Securities") and (iv) if and when issued as
provided in the Registration Agreement, the Private Exchange Securities (as
defined in the Appendix, and together with the Initial Securities and any
Exchange Securities issued hereunder, the "Securities") issued in the Private
Exchange (as defined in the Appendix). Except as otherwise provided herein, the
Securities will be limited to $300,000,000 in aggregate principal amount
outstanding, of which $200,000,000 in aggregate principal amount will be
initially issued on the date hereof. Subject to the conditions set forth herein,
the Company may issue up to $100,000,000 aggregate principal amount of
Additional Securities.
ARTICLE 1
Definitions and Incorporation by Reference
SECTION 1.01. Definitions.
"Acquired Indebtedness" 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.
"Additional Securities" means up to $100,000,000 aggregate principal amount
of 9 5/8% Senior Subordinated Notes due 2008 issued under the terms of this
Indenture subsequent to the Closing Date, other than Exchange Securities issued
in exchange for Original Securities.
"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.
"Applicable Premium" means, with respect to a Security at any Redemption
Date, the greater of (i) 1.0% of the principal amount of such Security and (ii)
the excess of (A) the present value at such time of (1) the redemption price of
such Security at May 1, 2003 (such redemption price being described under
paragraph 5 of the Securities) plus (2) all required interest payments due on
such Security through May 1, 2003, computed using a discount rate equal to the
Treasury Rate plus 50 basis points, over (B) the principal amount of such
Security.
"Asset Sale" means (i) the sale, conveyance, transfer or other disposition
(whether in a single transaction or a series of related transactions) of
property or assets (including by way of a sale and leaseback) of the Company or
any Restricted Subsidiary (each referred to in this definition as a
"disposition") or (ii) the issuance or sale of Equity Interests of any
Restricted Subsidiary (whether in a single transaction or a series of related
transactions), in each case, other than:
(a) a disposition of Cash Equivalents or Investment Grade Securities or
obsolete or worn out equipment in the ordinary course of business or
inventory or goods held for sale in the ordinary course of business;
(b) the disposition of all or substantially all of the assets of the
Company in a manner permitted pursuant to Section 5.01 or any disposition
that constitutes a Change of Control pursuant to this Indenture;
(c) the making of any Restricted Payment or Permitted Investment that
is permitted to be made, and is made, pursuant to Section 4.04;
(d) any disposition of assets with an aggregate fair market value of
less than $1.0 million;
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(e) any disposition of property or assets or issuance of securities by
a Restricted Subsidiary to the Company or by the Company or a Restricted
Subsidiary to a Restricted Subsidiary;
(f) any exchange of like property pursuant to Section 1031 of the Code
for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property
in the ordinary course of business;
(h) any financing transaction with respect to property built or
acquired by the Company or any Restricted Subsidiary after the Closing Date,
including, without limitation, sale-leasebacks and asset securitizations;
(i) foreclosures on assets;
(j) any sale of Equity Interests in, or Indebtedness or other
securities of, an Unrestricted Subsidiary (with the exception of Investments
in Unrestricted 3 Subsidiaries acquired pursuant to clause (j) of the
definition of Permitted Investments); and
(k) sales of accounts receivable, or participations therein, in
connection with any Receivables Facility.
"Board of Directors" means the Board of Directors of the Company or any
committee thereof duly authorized to act on behalf of such Board.
"Business Day" means each day which is not a Legal Holiday.
"Capital 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 or limited liability
company, partnership or membership 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.
"Capitalized 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 and reflected as a liability on
a balance sheet (excluding the footnotes thereto) in accordance with GAAP.
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"Cash Dividend" shall have the meaning given to it in the Offering
Memorandum.
"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, (iii) certificates of deposit, time
deposits and eurodollar time deposits with maturities of one year or less from
the date of acquisition, bankers' acceptances with maturities not exceeding one
year and overnight bank deposits, in each case with any commercial bank having
capital and surplus in excess of $500.0 million, (iv) repurchase obligations for
underlying securities of the types described in clauses (ii) and (iii) of this
definition entered into with any financial institution meeting the
qualifications specified in clause (iii) above, (v) commercial paper rated A-1
or the equivalent thereof by Xxxxx'x or S&P and in each case maturing within one
year after the date of acquisition, (vi) investment funds investing 95% of their
assets in securities of the types described in clauses (i)-(v) above, (vii)
readily marketable direct obligations issued by any state of the United States
of America or any political subdivision thereof having one of the two highest
rating categories obtainable from either Xxxxx'x or S&P and (viii) Indebtedness
or preferred stock issued by Persons with a rating of "A" or higher from S&P or
"A2" or higher from Xxxxx'x.
"CCPC Acquisition" means CCPC Acquisition Corp.
"Change of Control" means the occurrence of any of the following:
(i) the sale, lease or transfer, in one or a series of related
transactions, of all or substantially all of the assets of the Company
and its Subsidiaries, taken as a whole, to any Person other than a
Permitted Holder and their Related Parties; or
(ii) the Company becomes aware of (by way of a report or any other
filing pursuant to Section 13(d) of the Exchange Act, proxy, vote,
written notice or otherwise) the acquisition by any Person or group
(within the meaning of Section 13(d)(3) or Section 14(d)(2) of the
Exchange Act, or any successor provision), including any group acting
for the purpose of acquiring, holding or disposing of securities
(within the meaning of Rule 13d-5(b)(1) under the Exchange Act), other
than the Permitted Holders and their Related Parties, in a single
transaction or in a related series of transactions, by way of merger,
consolidation or other business combination or purchase of beneficial
ownership (within the meaning of Rule 13d-3 under the Exchange Act, or
any successor provision) of 50% or more of the total Voting Stock of
the Company.
"Closing Date" means the date of this Indenture.
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"Code" means the Internal Revenue Code of 1986, as amended.
"Common Stock" means the Company's shares of common stock, par value $0.01
per share.
"consolidated" with respect to any Person refers to such Person consolidated
with its Restricted Subsidiaries, and excludes from such consolidation any
Unrestricted Subsidiary as if such Unrestricted Subsidiary were not an Affiliate
of such Person.
"Consolidated Depreciation and Amortization Expense" means with respect to
any Person for any period, the total amount of depreciation and amortization
expense and other noncash charges (excluding any noncash item that represents an
accrual, reserve or amortization of a cash expenditure for a future period) of
such Person and its Restricted Subsidiaries for such period on a consolidated
basis and otherwise determined in accordance with GAAP.
"Consolidated Interest Expense" means, with respect to any period, the sum,
without duplication, of: (a) consolidated interest expense of such Person and
its Restricted Subsidiaries for such period, to the extent such expense was
deducted in computing Consolidated Net Income (including amortization of
original issue discount, non-cash interest payments, the interest component of
Capitalized Lease Obligations, and net payments (if any) pursuant to Hedging
Obligations, excluding amortization of deferred financing fees) and (b)
consolidated capitalized interest of such Person and its Restricted Subsidiaries
for such period, whether paid or accrued; provided, however, that Receivables
Fees shall be deemed not to constitute Consolidated Interest Expense.
"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, and otherwise determined in accordance
with GAAP; provided, however, that (i) any net after-tax extraordinary gains or
losses (less all fees and expenses relating thereto) shall be excluded, (ii) the
Net Income for such period shall not include the cumulative effect of a change
in accounting principles during such period, (iii) any net after-tax income
(loss) from discontinued operations and any net after-tax gains or losses on
disposal of discontinued operations shall be excluded, (iv) any net after-tax
gains or losses (less all fees and expenses relating thereto) attributable to
asset dispositions other than in the ordinary course of business (as determined
in good faith by the Board of Directors of the Company) shall be excluded, (v)
the Net Income for such period of any Person that is not a Subsidiary, or is an
Unrestricted Subsidiary, or that is accounted for by the equity method of
accounting, shall be excluded; provided that Consolidated Net Income of the
Company shall be increased by the amount of dividends or distributions or other
payments actually paid in cash (or to the extent converted into cash) to the
referent Person or a Restricted Subsidiary (subject to the limits in clause
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(vii) below) thereof in respect of such period, (vi) the Net Income of any
Person acquired in a pooling of interests transaction shall not be included for
any period prior to the date of such acquisition and (vii) the Net Income for
such period of any Restricted Subsidiary shall be excluded if the declaration or
payment of dividends or similar distributions by that Restricted Subsidiary of
its Net Income is not at the date of determination wholly permitted without any
prior governmental approval (which has not been obtained) or, directly or
indirectly, by the operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule, or governmental regulation
applicable to that Restricted Subsidiary or its stockholders, unless such
restriction with respect to the payment of dividends or in similar distributions
has been legally waived; provided that Consolidated Net Income of the Company
shall be increased by the amount of dividends or other distributions or other
payments actually paid in cash (or to the extent converted into cash) to the
referent Person or a Restricted Subsidiary thereof in respect of such period.
Notwithstanding the foregoing, for the purpose of Section 4.04 only, there shall
be excluded from Consolidated Net Income any sale or other disposition of
Restricted Investments made by the Company and its Restricted Subsidiaries,
repurchases and redemptions of Restricted Investments, repayments of loans and
advances which constitute Restricted Investments, sales of the stock of an
Unrestricted Subsidiary or distributions or dividends from an Unrestricted
Subsidiary, in each case only to the extent such amounts increase the amount of
Restricted Payments permitted under Section 4.04(a)(3)(iv).
"Contingent Obligations" means, with respect to any Person, any obligation
of such Person guaranteeing any leases, dividends or other obligations that do
not constitute Indebtedness ("primary obligations") of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, including,
without limitation, any obligation of such Person, whether or not contingent,
(i) to purchase any such primary obligation or any property constituting direct
or indirect security therefor, (ii) to advance or supply funds (A) for the
purchase or payment of any such primary obligation or (B) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, or (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment of
such primary obligation against loss in respect thereof.
"Contingent Payment" shall have the meaning given to it in the Offering
Memorandum.
"Credit Facilities" means, with respect to the Company, one or more debt
facilities (including, without limitation, the Senior Credit Facilities) or
commercial paper facilities with banks or other institutional lenders or
indentures providing for revolving credit loans, term loans, receivables
financing (including through the sale of receivables
6
to such lenders or to special purpose entities formed to borrow from such
lenders against receivables), letters of credit or other long-term indebtedness,
in each case, as amended, restated, modified, renewed, refunded, replaced or
refinanced in whole or in part from time to time.
"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.
"Designated Noncash Consideration" means the fair market value of noncash
consideration received by the Company or one of its Restricted Subsidiaries in
connection with an Asset Sale that is so designated as Designated Noncash
Consideration pursuant to an Officers' Certificate, setting forth the basis of
such valuation, executed by the principal executive officer and the principal
financial officer of the Company, less the amount of cash or Cash Equivalents
received in connection with a subsequent sale of such Designated Noncash
Consideration.
"Designated Preferred Stock" means preferred stock of the Company (other
than Disqualified Stock) that is issued for cash (other than to a Restricted
Subsidiary) and is so designated as Designated Preferred Stock, pursuant to an
Officers' Certificate executed by the principal executive officer and the
principal financial officer of the Company, on the issuance date thereof, the
cash proceeds of which are excluded from the calculation set forth in Section
4.04(a)(3).
"Designated Senior Indebtedness" means (i) Senior Indebtedness under the
Senior Credit Facilities and (ii) any other Senior Indebtedness permitted under
this Indenture the principal amount of which is $25.0 million or more and that
has been designated by the Company as Designated Senior Indebtedness in an
Officers' Certificate executed by the principal executive officer and principal
financial officer of the Company.
"Disqualified Stock" means, with respect to any Person, any Capital Stock of
such Person which, by its terms (or by the terms of any security into which it
is convertible or for which it is putable or exchangeable), or upon the
happening of any event, matures or is mandatorily redeemable (other than as a
result of a change of control or asset sale), pursuant to a sinking fund
obligation or otherwise, or is redeemable at the option of the holder thereof
(other than as a result of a change of control or asset sale), in whole or in
part, in each case prior to the date 91 days after the earlier of the maturity
date of the Securities or the date the Securities are no longer outstanding;
provided, however, that if such Capital Stock is issued to any plan for the
benefit of employees of the Company or its Subsidiaries or by any such plan to
such employees, such Capital Stock shall not constitute Disqualified Stock
solely because it may be required to be repurchased by the Company or its
Subsidiaries in order to satisfy applicable statutory or regulatory obligations.
7
"EBITDA" means, with respect to any Person for any period, the Consolidated
Net Income of such Person for such period plus (a) provision for taxes based on
income or profits of such Person for such period deducted in computing
Consolidated Net Income, plus (b) Consolidated Interest Expense of such Person
for such period and any Receivables Fees paid by such Person or any of its
Restricted Subsidiaries during such period, in each case to the extent the same
was deducted in calculating such Consolidated Net Income, plus (c) Consolidated
Depreciation and Amortization Expense of such Person for such period to the
extent such depreciation and amortization were deducted in computing
Consolidated Net Income, plus (d) any expenses or charges related to any Equity
Offering, Permitted Investment, acquisition, recapitalization or Indebtedness
permitted to be Incurred by this Indenture (whether or not successful)
(including such fees, expenses or charges related to the Transactions) and
deducted in such period in computing Consolidated Net Income, plus (e) the
amount of any restructuring charge deducted in such period in computing
Consolidated Net Income (including any one-time costs incurred in connection
with acquisitions after the Closing Date), plus (f) without duplication, any
other non-cash charges reducing Consolidated Net Income for such period
(excluding any such charge which requires an accrual of a cash reserve for any
future period) plus (g) the amount of any minority interest expense deducted in
calculating Consolidated Net Income, less, without duplication (h) non-cash
items increasing Consolidated Net Income of such Person for such period
(excluding any items which represent the reversal of any accrual of, or cash
reserve for, anticipated cash charges in any prior period).
"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).
"Equity Offering" means any public or private sale of common stock or
preferred stock of the Company (excluding Disqualified Stock), other than (i)
public offerings with respect to the Company's Common Stock registered on Form
S-8 and (ii) any such public or private sale that constitutes an Excluded
Contribution.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Excluded Contribution" means net cash proceeds, marketable securities or
Qualified Proceeds, in each case, received by the Company from (a) contributions
to its common equity capital and (b) the sale (other than to a Subsidiary or to
any Company or Subsidiary management equity plan or stock option plan or any
other management or employee benefit plan or agreement) of Capital Stock (other
than Disqualified Stock and Designated Preferred Stock) of the Company, in each
case designated as Excluded
8
Contributions pursuant to an Officers' Certificate executed by the principal
executive officer and the principal financial officer of the Company on the date
such capital contributions are made or the date such Equity Interests are sold,
as the case may be, which are excluded from the calculation set forth in Section
4.04(a)(3).
"Existing Indebtedness" means Indebtedness of the Company or its Restricted
Subsidiaries in existence on the Closing Date, plus interest accruing thereon,
after application of the net proceeds of the sale of the Securities as described
the Offering Memorandum.
"Fixed Charge Coverage Ratio" means, with respect to any Person for any
period, the ratio of EBITDA of such Person for such period to the Fixed Charges
of such Person for such period. In the event that the Company or any of its
Restricted Subsidiaries Incurs or redeems any Indebtedness or issues or redeems
Disqualified Stock or preferred stock subsequent to the commencement of the
period for which the Fixed Charge Coverage Ratio is being calculated but prior
to 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 or redemption of
Indebtedness, or such issuance or redemption of Disqualified Stock or preferred
stock, as if the same had occurred at the beginning of the applicable
four-quarter period. For purposes of making the computation referred to above,
Investments, acquisitions, dispositions, mergers, consolidations and
discontinued operations (as determined in accordance with GAAP) that have been
made by the Company or any of its Restricted Subsidiaries during the
four-quarter reference period or subsequent to such reference period and on or
prior to or simultaneously with the Calculation Date shall be calculated on a
pro forma basis assuming that all such Investments, acquisitions, dispositions,
mergers, consolidations and discontinued operations (and the reduction of any
associated fixed charge obligations and the change in EBITDA resulting
therefrom) had occurred on the first day of the four-quarter reference period.
If since the beginning of such period any Person (that subsequently became a
Restricted Subsidiary or was merged with or into the Company or any Restricted
Subsidiary since the beginning of such period) shall have made any Investment,
acquisition, disposition, merger, consolidation or discontinued operation that
would have required adjustment pursuant to this definition, then the Fixed
Charge Coverage Ratio shall be calculated giving pro forma effect thereto for
such period as if such Investment, acquisition, disposition, merger,
consolidation or discontinued operation had occurred at the beginning of the
applicable four-quarter period. For purposes of this definition, whenever pro
forma effect is to be given to a transaction, the pro forma calculations shall
be made in good faith by a responsible financial or accounting officer of the
Company. If any Indebtedness bears a floating rate of interest and is being
given pro forma effect, the interest on such Indebtedness shall be calculated as
if the rate in effect on the Calculation Date had been the applicable rate for
the entire period (taking into account any Hedging
9
Obligations applicable to such Indebtedness). Interest on a Capitalized Lease
Obligation shall be deemed to accrue at an interest rate reasonably determined
by a responsible financial or accounting officer of the Company to be the rate
of interest implicit in such Capitalized Lease Obligation in accordance with
GAAP. For purposes of making the computation referred to above, interest on any
Indebtedness under a revolving credit facility computed on a pro forma basis
shall be computed based upon the average daily balance of such Indebtedness
during the applicable period. Interest on Indebtedness that may optionally be
determined at an interest rate based upon a factor of a prime or similar rate, a
eurocurrency interbank offered rate, or other rate, shall be deemed to have been
based upon the rate actually chosen, or, if none, then based upon such optional
rate chosen as the Company may designate.
"Fixed Charges" means, with respect to any Person for any period, the sum of
(a) Consolidated Interest Expense of such Person for such period and (b) all
cash dividend payments (excluding items eliminated in consolidation) on any
series of Disqualified Stock of such Person.
"Foreign Subsidiary" means a Restricted Subsidiary not organized or existing
under the laws of the United States, any State thereof, the District of
Columbia, or any territory thereof.
"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 are in effect on the Closing Date.
"Government Securities" means securities that are (a) direct obligations of
the United States of America for the timely payment of which its full faith and
credit is pledged or (b) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States of America the
timely payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act), as custodian with respect to any such Government Securities
or a specific payment of principal of or interest on any such Government
Securities held by such custodian for the account of the holder of such
depository receipt; provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the Government Securities or the specific payment of principal of or interest on
the Government Securities evidenced by such depository receipt.
10
"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 or other obligations.
"Guarantee" means any guarantee of the obligations of the Company under this
Indenture and the Securities by any Person in accordance with the provisions of
this Indenture and any supplemental indenture. When used as a verb, "Guarantee"
shall have a corresponding meaning.
"Guarantor" means any Person that Incurs a Guarantee; provided that upon the
release and discharge of such Person from its Guarantee in accordance with this
Indenture and any supplemental indenture, such Person shall cease to be a
Guarantor.
"Hedging Obligations" means, with respect to any Person, the obligations of
such Person under (i) currency exchange, interest rate or commodity swap
agreements, currency exchange, interest rate or commodity cap agreements and
currency exchange, interest rate or commodity collar agreements and (ii) other
agreements or arrangements designed to protect such Person against fluctuations
in currency exchange, interest rates or commodity prices.
"Holder" or "Securityholder" means a holder of the Securities.
"Incur" means to directly or indirectly create, incur, issue, assume,
guarantee or otherwise become directly or indirectly liable, contingently or
otherwise; provided, however, that any Indebtedness or Capital Stock of a Person
existing at the time such Person becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be Incurred by such
Subsidiary at the time it becomes a Subsidiary. The term "Incurrence" when used
as a noun shall have a correlative meaning.
"Indebtedness" means, with respect to any Person, (a) any indebtedness
(including principal and premium) of such Person, whether or not contingent (i)
in respect of borrowed money, (ii) evidenced by bonds, notes, debentures or
similar instruments or letters of credit or bankers' acceptances (or, without
double counting, reimbursement agreements in respect thereof), (iii)
representing the balance deferred and unpaid of the purchase price of any
property (including Capitalized Lease Obligations), except any such balance that
constitutes a trade payable or similar obligation to a trade creditor, in each
case accrued in the ordinary course of business or (iv) representing any Hedging
Obligations, if and to the extent that any of the foregoing Indebtedness (other
than letters of credit and Hedging Obligations) would appear as a liability upon
a balance sheet (excluding the footnotes thereto) of such Person prepared in
accordance with GAAP,
11
(b) to the extent not otherwise included, any obligation by such Person to be
liable for, or to pay, as obligor, guarantor or otherwise, on the Indebtedness
of another Person (other than by endorsement of negotiable instruments for
collection in the ordinary course of business) and (c) to the extent not
otherwise included, Indebtedness of another Person secured by a Lien on any
asset owned by such Person (whether or not such Indebtedness is assumed by such
Person); provided, however, that Contingent Obligations Incurred in the ordinary
course of business shall be deemed not to constitute Indebtedness, and
obligations under or in respect of Receivables Facilities shall not be deemed to
constitute Indebtedness of a Person.
In addition, "Indebtedness" of any Person shall include Indebtedness
described in the foregoing paragraph that would not appear as a liability on the
balance sheet of such Person if (i) such Indebtedness is the obligation of a
partnership or a joint venture that is not a Restricted Subsidiary (a "Joint
Venture"), (2) such Person or a Restricted Subsidiary is a general partner of
the Joint Venture (a "General Partner") and (3) there is recourse, by contract
or operation of law, with respect to the payment of such Indebtedness to
property or assets of such Person or a Restricted Subsidiary; and such
Indebtedness shall be included in an amount not to exceed (x) the greater of (A)
the net assets of the General Partner and (B) the amount of such obligations to
the extent that there is recourse by, contract or operation of law, to the
property or assets of such Person or a Restricted Subsidiary (other than the
General Partner) or (y) if less than the amount determined pursuant to clause
(x) immediately above, the actual amount of such Indebtedness that is recourse
to such Person, if the Indebtedness is evidenced by a writing and is for a
determinable amount and the related interest expense shall be included in
Consolidated Interest Expense to the extent paid by the Company or its
Restricted Subsidiaries.
"Indenture" means this Indenture as amended or supplemented from time to
time.
"Independent Financial Advisor" means an accounting, appraisal, investment
banking firm or consultant to Persons engaged in Similar Businesses of
nationally recognized standing that is, in the good faith judgment of the
Company, qualified to perform the task for which it has been engaged.
"Investment Grade Securities" means (i) securities issued or directly and
fully guaranteed or insured by the United States government or any agency or
instrumentality thereof (other than Cash Equivalents), (ii) debt securities or
debt instruments with a rating of BBB- or higher by S&P or Baa3 or higher by
Moody's or the equivalent of such rating by such rating organization, or, if no
rating of S&P or Moody's then exists, the equivalent of such rating by any other
nationally recognized securities rating agency, but excluding any debt
securities or instruments constituting loans or advances among the Company and
its Subsidiaries, and (iii) investments in any fund that invests exclusively in
12
investments of the type described in clauses (i) and (ii) which fund may also
hold immaterial amounts of cash pending investment and/or distribution.
"Investments" means, with respect to any Person, all investments by such
Person in other Persons (including Affiliates) in the form of loans (including
guarantees), advances or capital contributions (excluding accounts receivable,
trade credit, advances to customers, commission, travel 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 issued by any other Person and investments that are required by GAAP
to be classified on the balance sheet (excluding the footnotes) of the Company
in the same manner as the other investments included in this definition to the
extent such transactions involve the transfer of cash or other property. For
purposes of the definition of "Unrestricted Subsidiary" and Section 4.04, (i)
"Investments" shall include the portion (proportionate to the Company's equity
interest in such Subsidiary) of the fair market value of the net assets of a
Subsidiary of the Company at the time that such Subsidiary is designated an
Unrestricted Subsidiary; provided, however, that upon a redesignation of such
Subsidiary as a Restricted Subsidiary, the Company shall be deemed to continue
to have a permanent "Investment" in an Unrestricted Subsidiary in an amount (if
positive) equal to (x) the Company's "Investment" in such Subsidiary at the time
of such redesignation less (y) the portion (proportionate to the Company's
equity interest in such Subsidiary) of the fair market value of the net assets
of such Subsidiary at the time of such redesignation; and (ii) any property
transferred to or from an Unrestricted Subsidiary shall be valued at its fair
market value at the time of such transfer, in each case as determined in good
faith by the Company.
"Issuance Date" with respect to any Initial Securities, means the date on
which such Initial Securities are originally issued.
"KKR" means Kohlberg Kravis Xxxxxxx & Co., L.P.
"Letter of Credit Obligations" means all Obligations in respect of
Indebtedness of the Company with respect to letters of credit issued pursuant to
the Senior Credit Facilities which Indebtedness shall be deemed to consist of
(a) the aggregate maximum amount available to be drawn under all such letters of
credit (the determination of such aggregate maximum amount to assume compliance
with all conditions for drawing) and (b) the aggregate amount that has been paid
by, and not reimbursed to, the issuers under such letters of credit.
"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
13
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); provided that in no event shall an operating
lease be deemed to constitute a Lien.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Net Income" means, with respect to any Person, the net income (loss) of
such Person, determined in accordance with GAAP and before any reduction in
respect of preferred stock dividends.
"Net Proceeds" means the aggregate cash proceeds received by the Company or
any of its Restricted Subsidiaries in respect of any Asset Sale (including,
without limitation, any cash received upon the sale or other disposition of any
Designated Noncash Consideration received in any Asset Sale), net of the direct
costs relating to such Asset Sale and the sale or disposition of such Designated
Noncash Consideration (including, without limitation, legal, accounting and
investment banking fees, and brokerage and sales commissions), any relocation
expenses incurred as a result thereof, taxes paid or payable as a result thereof
(after taking into account any available tax credits or deductions and any tax
sharing arrangements), amounts required to be applied to the repayment of
principal, premium (if any) and interest on Indebtedness required (other than
required by Section 4.06(b)(i)) to be paid as a result of such transaction and
any deduction of appropriate amounts to be provided by the Company as a reserve
in accordance with GAAP against any liabilities associated with the asset
disposed of in such transaction and retained by the Company after such sale or
other disposition thereof, including, without limitation, pension and other
post-employment benefit liabilities and liabilities related to environmental
matters or against any indemnification obligations associated with such
transaction.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements (including, without limitation, reimbursement
obligations with respect to letters of credit and banker's acceptances), damages
and other liabilities, and guarantees of payment of such principal, interest,
penalties, fees, indemnifications, reimbursements, damages and other
liabilities, payable under the documentation governing any Indebtedness.
"Offer Period" means the period from the date of a Change of Control until
and including the Change of Control Payment Date.
"Offering Memorandum" means the Offering Memorandum dated April 30, 1998,
relating to the Company's 9 5/8% Senior Subordinated Notes due 2008.
14
"Officer" means the Chairman of the Board, the President, any Executive Vice
President, Senior Vice President or Vice President, the Treasurer or the
Secretary of the Company or any Guarantor.
"Officers' Certificate" means a certificate signed on behalf of the Company
by two Officers of the Company, one of whom must be the principal executive
officer, the principal financial officer, the treasurer or the principal
accounting officer of the Company that meets the requirements set forth in this
Indenture.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
"Permitted Holders" means KKR and any of its Affiliates.
"Permitted Investments" means (a) any Investment in the Company or any
Restricted Subsidiary; (b) any Investment in cash and Cash Equivalents or
Investment Grade Securities; (c) any Investment by the Company or any Restricted
Subsidiary of the Company in a Person that is engaged in a Similar Business if
as a result of such Investment (i) such Person becomes a Restricted Subsidiary
or (ii) such Person, in one transaction or a series of related transactions, 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
Restricted Subsidiary; (d) any Investment in securities or other assets not
constituting cash or Cash Equivalents and received in connection with an Asset
Sale made pursuant to Section 4.06 or any other disposition of assets not
constituting an Asset Sale; (e) any Investment existing on the Closing Date; (f)
advances to employees not in excess of $10.0 million outstanding at any one
time, in the aggregate; (g) any Investment acquired by the Company or any of its
Restricted Subsidiaries (i) in exchange for any other Investment or accounts
receivable held by the Company or any such Restricted Subsidiary in connection
with or as a result of a bankruptcy, workout, reorganization or recapitalization
of the issuer of such other Investment or accounts receivable or (ii) as a
result of a foreclosure by the Company or any of its Restricted Subsidiaries
with respect to any secured Investment or other transfer of title with respect
to any secured Investment in default; (h) Hedging Obligations permitted under
Section 4.03(b)(x); (i) loans and advances to officers, directors and employees
for business-related travel expenses, moving expenses and other similar
expenses, in each case Incurred in the ordinary course of business; (j) any
Investment in a Similar Business having an aggregate fair market value, taken
together with all other Investments made pursuant to this clause (j) that are at
that time outstanding (without giving effect to the sale of an Unrestricted
Subsidiary to the extent the proceeds of such sale do not consist of cash,
marketable securities and/or Qualified Proceeds), not to exceed the greater of
(x) $100.0 million or (y) 15% of Total
15
Assets at the time of such Investment (with the fair market value of each
Investment being measured at the time made and without giving effect to
subsequent changes in value); (k) Investments the payment for which consists of
Equity Interests of the Company (exclusive of Disqualified Stock); provided,
however, that such Equity Interests shall not increase the amount available for
Restricted Payments under Section 4.04(a)(3); (l) additional Investments having
an aggregate fair market value, taken together with all other Investments made
pursuant to this clause (l) that are at that time outstanding (without giving
effect to the sale of an Unrestricted Subsidiary to the extent the proceeds of
such sale do not consist of cash, marketable securities and/or Qualified
Proceeds or distributions made pursuant to Section 4.04(b)(xiv)), not to exceed
the greater of (x) $30.0 million or (y) 5% of Total Assets at the time of such
Investment (with the fair market value of each Investment being measured at the
time made and without giving effect to subsequent changes in value); (m)
Investments in a Similar Business having an aggregate fair market value, taken
together with all other Investments made pursuant to this clause (m) that are at
that time outstanding (without giving effect to the sale of an Unrestricted
Subsidiary to the extent the proceeds of such sale do not consist of cash,
marketable securities and/or Qualified Proceeds or distributions made pursuant
to Section 4.04(b)(xiv)), not to exceed $100.0 million at the time of such
Investment (with the fair market value of each Investment being measured at the
time made and without giving effect to subsequent changes in value); provided
that at the time of such Investment the Company would be permitted to Incur at
least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage
Ratio test set forth in Section 4.03(a); (n) Investments relating to any special
purpose Wholly-Owned Subsidiary of the Company organized in connection with a
Receivables Facility that, in the good faith determination of the Board of
Directors of the Company, are necessary or advisable to effect such Receivables
Facility; (o) guarantees (including Guarantees) of Indebtedness permitted under
Section 4.03; (p) any transaction to the extent it constitutes an investment
that is permitted and made in accordance with the provisions of Section 4.07(b)
(except transactions described in clauses (ii), (vi), (vii) and (xi) of Section
4.07(b)); and (q) Investments consisting of the licensing or contribution of
intellectual property pursuant to joint marketing arrangements with other
Persons.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"preferred stock" means any Equity Interest with preferential rights of
payment of dividends or upon liquidation, dissolution, or winding up.
16
"principal" of a Security means the principal of the Security plus the
premium, if any, payable on the Security that is due or overdue or is to become
due at the relevant time.
"Qualified Proceeds" means assets that are used or useful in, or Capital
Stock of any Person engaged in, a Similar Business; provided that the fair
market value of any such assets or Capital Stock shall be determined by the
Board of Directors in good faith, except that in the event the value of any such
assets or Capital Stock may exceed $25.0 million or more, the fair value shall
be determined in writing by an independent investment banking firm of nationally
recognized standing.
"Recapitalization Agreement" means the Recapitalization Agreement, dated
March 2, 1998, among the Company, Corning Incorporated, Xxxxxx, Inc. and CCPC
Acquisition.
"Receivables Facility" means one or more receivables financing facilities,
as amended from time to time, pursuant to which the Company and/or any of its
Restricted Subsidiaries sells its accounts receivable to a Person that is not a
Restricted Subsidiary.
"Receivables Fees" means distributions or payments made directly or by means
of discounts with respect to any participation interest issued or sold in
connection with, and other fees paid to a Person that is not a Restricted
Subsidiary in connection with, any Receivables Facility.
"Redemption Date" shall mean, with respect to any redemption of Securities,
the date of redemption with respect thereto.
"Related Parties" means any Person controlled by a Permitted Holder,
including any partnership or limited liability company of which a Permitted
Holder or its Affiliates is the general partner or managing member, as the case
may be.
"Representative" means the trustee, agent or representative (if any) for an
issue of Senior Indebtedness of the Company.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Subsidiary" means, at any time, any direct or indirect
Subsidiary of the Company that is not then an Unrestricted Subsidiary; provided,
however, that upon the occurrence of an Unrestricted Subsidiary ceasing to be an
Unrestricted Subsidiary, such Subsidiary shall be included in the definition of
"Restricted Subsidiary."
"S&P" means Standard and Poor's Ratings Group.
17
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Senior Credit Facilities" means that certain Credit Agreement dated as of
April 9, 1998 among the Company, The Chase Manhattan Bank, as administrative
agent, Salomon Brothers Inc, as syndication agent, Bankers Trust Company, as
documentation agent and the several lenders from time to time parties thereto,
including any collateral documents, instruments and agreements executed in
connection therewith, and any amendments, supplements, modifications,
extensions, renewals, restatements or refundings thereof and any indentures or
credit facilities or commercial paper facilities with banks or other
institutional lenders that replace, refund or refinance any part of the loans,
notes, other credit facilities or commitments thereunder, including any such
replacement, refunding or refinancing facility or indenture that increases the
amount borrowable thereunder or alters the maturity thereof; provided, however,
that in connection with any facilities which refund, replace or refinance such
Credit Agreement there shall not be more than one facility at any one time that
is identified as the Senior Credit Facilities and, if at any time there is more
than one facility which would constitute the Senior Credit Facilities, the
Company shall designate to the Trustee pursuant to an Officers' Certificate
executed by the principal executive officer and principal financial officer of
the Company which one of such facilities shall be the Senior Credit Facilities
for purposes of this Indenture.
"Senior Indebtedness" means (i) the Obligations under the Senior Credit
Facilities and (ii) any other Indebtedness permitted to be Incurred by the
Company under the terms of this Indenture, unless the instrument under which
such Indebtedness is Incurred expressly provides that it is on a parity with or
subordinated in right of payment to the Securities, including, with respect to
clauses (i) and (ii), interest accruing subsequent to the filing of, or which
would have accrued but for the filing of, a petition for bankruptcy, in
accordance with and at the rate (including any rate applicable upon any default
or event of default, to the extent lawful) specified in the documents evidencing
or governing such Senior Indebtedness, whether or not such interest is an
allowable claim in such bankruptcy proceeding. Notwithstanding anything to the
contrary in the foregoing, Senior Indebtedness shall not include (1) any
liability for federal, state, local or other taxes owed or owing by the Company,
(2) any obligation of the Company to any of its Subsidiaries, (3) any accounts
payable or trade liabilities arising in the ordinary course of business
(including guarantees thereof or instruments evidencing such liabilities) other
than obligations in respect of letters of credit under the Senior Credit
Facilities, (4) any Indebtedness that is Incurred in violation of this
Indenture, (5) Indebtedness which, when Incurred and without respect to any
election under Section 1111(b) of Xxxxx 00, Xxxxxx Xxxxxx Code, is without
recourse to the Company, (6) any Indebtedness, guarantee or
18
obligation of the Company which is subordinate or junior to any other
Indebtedness, guarantee or obligation of the Company, (7) Indebtedness evidenced
by the Securities and (8) Capital Stock of the Company.
"Senior Subordinated Indebtedness" means (a) with respect to the Company,
Indebtedness which ranks pari passu in right of payment to the Securities and
(b) with respect to any Guarantor, Indebtedness which ranks pari passu in right
of payment to the Guarantee of such Guarantor.
"Significant Subsidiary" means any Subsidiary that would be a "significant
subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated
pursuant to the Securities Act, as such Regulation is in effect on the date
hereof.
"Similar Business" means the housewares and appliance businesses and any
activities or businesses incidental, directly related or similar thereto, or any
line of business engaged in by the Company or its Subsidiaries on the Closing
Date or any business activity that is a reasonable extension, development or
expansion thereof or ancillary thereto.
"Subordinated Indebtedness" means (a) with respect to the Company, any
Indebtedness of the Company which is by its terms subordinated in right of
payment to the Securities and (b) with respect to any Guarantor, any
Indebtedness of such Guarantor which is by its terms subordinated in right of
payment to the Guarantee of such Guarantor.
"Subordinated Note Obligations" means any principal of, premium, if any, and
interest on the Securities payable pursuant to the terms of the Securities or
upon acceleration, together with and including any amounts received upon the
exercise of rights of rescission or other rights of action (including claims for
damages) or otherwise, to the extent relating to the purchase price of the
Securities or amounts corresponding to such principal, premium, if any, or
interest on the Securities.
"Subsidiary" means, with respect to any Person, (i) any corporation,
association, or other business entity (other than a partnership, joint venture,
limited liability company or similar 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 of determination owned or controlled, directly
or indirectly, by such Person or one or more of the other Subsidiaries of that
Person or a combination thereof and (ii) any partnership, joint venture, limited
liability company or similar entity of which (x) more than 50% of the capital
accounts, distribution rights, total equity and voting interests or general or
limited partnership interests, as applicable, are owned or controlled, directly
or indirectly, by
19
such Person or one or more of the other Subsidiaries of that Person or a
combination thereof whether in the form of membership, general, special or
limited partnership or otherwise and (y) such Person or any Wholly Owned
Restricted Subsidiary of such Person is a controlling general partner or
otherwise controls such entity.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. xx.xx. 77aaa-77bbbb)
as in effect on the date of this Indenture.
"Total Assets" means the total consolidated assets of the Company and its
Restricted Subsidiaries, as shown on the most recent balance sheet of the
Company.
"Transactions" has the meaning given to it in the Offering Memorandum.
"Treasury Rate" means the yield to maturity at the time of computation of
United States Treasury securities with a constant maturity (as compiled and
published in the most recent Federal Reserve Statistical Release H.15 (519)
which has become publicly available at least two Business Days prior to the
Redemption Date (or, if such Statistical Release is no longer published, any
publicly available source of similar market data)) most nearly equal to the
period from the Redemption Date to May 1, 2003; provided, however, that if the
period from the Redemption Date to May 1, 2003 is not equal to the constant
maturity of a United States Treasury security for which a weekly average yield
is given, the Treasury Rate shall be obtained by linear interpolation
(calculated to the nearest one-twelfth of a year) from the weekly average yields
of United States Treasury securities for which such yields are given, except
that if the period from the Redemption Date to May 1, 2003 is less than one
year, the weekly average yield on actually traded United States Treasury
securities adjusted to a constant maturity of one year shall be used.
"Trustee" means the party named as such in this Indenture until a successor
replaces it and, thereafter, means the successor.
"Trust Officer" means the Chairman of the Board, the President or any other
officer or assistant officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"Uniform Commercial Code" means the New York Uniform Commercial Code as in
effect from time to time.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Company which at
the time of determination is an Unrestricted Subsidiary (as designated by the
Board of Directors of the Company, as provided below) and (ii) any Subsidiary of
an Unrestricted Subsidiary. The Board of Directors of the Company may designate
any Subsidiary of the
20
Company (including any existing Subsidiary and any newly acquired or newly
formed Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary or
any of its Subsidiaries owns any Equity Interests or Indebtedness of, or owns or
holds any Lien on, any property of, the Company or any Subsidiary of the Company
(other than any Subsidiary of the Subsidiary to be so designated), provided that
(a) any Unrestricted Subsidiary must be an entity of which shares of the capital
stock or other equity interests (including partnership interests) entitled to
cast at least a majority of the votes that may be cast by all shares or equity
interests having ordinary voting power for the election of directors or other
governing body are owned, directly or indirectly, by the Company, (b) such
designation complies with Section 4.04 and (c) each of (I) the Subsidiary to be
so designated and (II) its Subsidiaries has not at the time of designation, and
does not thereafter, create, Incur any Indebtedness pursuant to which the lender
has recourse to any of the assets of the Company or any of its Restricted
Subsidiaries. The Board of Directors may designate any Unrestricted Subsidiary
to be a Restricted Subsidiary; provided that, immediately after giving effect to
such designation no Default or Event of Default shall have occurred and be
continuing and either (i) the Company could Incur at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio test described in
Section 4.03(a) or (ii) the Fixed Charge Coverage Ratio for the Company and its
Restricted Subsidiaries would be greater than such ratio for the Company and its
Restricted Subsidiaries immediately prior to such designation, in each case on a
pro forma basis taking into account such designation. Any such designation by
the Board of Directors shall be notified by the Company to the Trustee by
promptly filing with the Trustee a copy of the board resolution giving effect to
such designation and an Officers' Certificate certifying that such designation
complied with the foregoing provisions.
"Voting Stock" of any Person as of any date means the Capital Stock of such
Person that is at the time entitled to vote in the election of the Board of
Directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any Indebtedness
or Disqualified Stock, as the case may be, at any date, the quotient obtained by
dividing (i) the sum of the products of the number of years from the date of
determination to the date of each successive scheduled principal payment of such
Indebtedness or redemption or similar payment with respect to such Disqualified
Stock multiplied by the amount of such payment, by (ii) the sum of all such
payments.
"Wholly Owned Restricted Subsidiary" is any Wholly Owned Subsidiary that is
a Restricted Subsidiary.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such Person,
100% of the outstanding Capital Stock or other ownership interests of which
(other than directors' qualifying shares) shall at the time be owned by such
Person or by one or more Wholly Owned Subsidiaries of such Person and one or
more
21
Wholly Owned Subsidiaries of such Person.
SECTION 1.02. Other Definitions.
Defined in
Term Section
---- ----------
"Affiliate Transaction" ........ 4.07
"Asset Sale Offer" ............. 4.06(b)
"Asset Sale Purchase Date" ..... 4.06(b)
"Bankruptcy Law" ............... 6.01
"Change of Control Offer" ...... 4.08(a)
"Change of Control Payment" ... 4.08(a)
"Change of Control Payment Date" 4.08(b)
"covenant defeasance option" ... 8.01(b)
"CUSIP" ........................ 2.13
"Custodian" .................... 6.01
"Event of Default" ............. 6.01
"Excess Proceeds" .............. 4.06(b)
"legal defeasance option" ...... 8.01(b)
"Legal Holiday" ................ 11.08
"non-payment default" .......... 10.03
"Offered Price" ................ 4.06(b)
"Paying Agent" ................. 2.04
"Payment Blockage Notice" ...... 10.03
"Payment Blockage Period" ...... 10.03
"payment default" .............. 10.03
"protected purchaser" .......... 2.08
"Refinancing Indebtedness" ..... 4.03(b)(xv)
"Refunding Capital Stock" ...... 4.04(b)
"Registrar" .................... 2.04
"Restricted Payments" .......... 4.04(a)
"Retired Capital Stock" ........ 4.04(b)
"Successor Company" ............ 5.01(a)(i)
"Successor Guarantor"........... 5.01(b)(i)
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SECTION 1.03. Incorporation by Reference of Trust Indenture Act. This
Indenture is subject to the mandatory provisions of the TIA, which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Holder or Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company, any Guarantor
and any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
SECTION 1.04. Rules of Construction. Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in the
plural include the singular;
(6) unsecured Indebtedness shall not be deemed to be subordinate
or junior to Secured Indebtedness merely by virtue of its nature as
unsecured Indebtedness;
(7) the principal amount of any noninterest bearing or other
discount security at any date shall be the principal amount thereof
that would be shown
23
on a balance sheet of the issuer dated such date prepared in
accordance with GAAP; and
(8) the principal amount of any Preferred Stock shall be (i) the
maximum liquidation value of such Preferred Stock or (ii) the maximum
mandatory redemption or mandatory repurchase price with respect to such
Preferred Stock, whichever is greater.
ARTICLE 2
The Securities
SECTION 2.01. Amount of Securities; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is $300,000,000. The Securities may be issued in one or more
series. All Securities of any one series shall be substantially identical except
as to denomination.
With respect to any Additional Securities issued after the Closing Date
(except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities pursuant to Section
2.07, 2.08, 2.10 or 3.06 or the Appendix and, except for Securities which,
pursuant to Section 2.03 are deemed never to have been authenticated and
delivered hereunder), there shall be (i) established in or pursuant to a
resolution of the Board of Directors and (ii) (A) set forth or determined in the
manner provided in an Officer's Certificate or (B) established in one or more
indentures supplemental hereto, prior to the issuance of such Additional
Securities:
(1) whether such Additional Securities shall be issued as part of
a new or existing series of Securities and the title of such Additional
Securities (which shall distinguish the Additional Securities of the
series from Securities of any other series);
(2) the aggregate principal amount of such Additional Securities
which may be authenticated and delivered under this Indenture shall be
in an aggregate principal amount not to exceed $100,000,000 (except for
Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of the same
series pursuant to Section 2.07, 2.08, 2.10 or 3.06 or the Appendix and
except for Securities which, pursuant to Section 2.03, are deemed never
to have been authenticated and delivered hereunder);
(3) the issue price and Issuance Date of such Additional
Securities, including the date from which interest on such Additional
Securities shall accrue;
24
(4) if applicable, that such Additional Securities shall be
issuable in whole or in part in the form of one or more Global
Securities (as defined in the Appendix) and, in such case, the
respective depositaries for such Global Securities, the form of any
legend or legends which shall be borne by such Global Securities in
addition to or in lieu of those set forth in Exhibit A hereto and any
circumstances in addition to or in lieu of those set forth in Section
2.3 of the Appendix in which any such Global Security may be exchanged
in whole or in part for Additional Securities registered, or any
transfer of such Global Security in whole or in part may be registered,
in the name or names of Persons other than the depositary for such
Global Security or a nominee thereof; and
(5) if applicable, that such Additional Securities shall not be
issued in the form of Initial Securities as set forth in Exhibit A, but
shall be issued in the form of Exchange Securities as set forth in
Exhibit B.
If any of the terms of any Additional Securities are established by action
taken pursuant to a resolution of the Board of Directors, a copy of an
appropriate record of such action shall be certified by the Secretary or any
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Officers' Certificate or any indenture supplemental hereto
setting forth the terms of the Additional Securities.
SECTION 2.02. Form and Dating. Provisions relating to the Original
Securities, the Additional Securities, the Private Exchange Securities and the
Exchange Securities are set forth in the Appendix, which is hereby incorporated
in and expressly made a part of this Indenture. The (i) Original Securities and
the Trustee's certificate of authentication, (ii) Private Exchange Securities
and the Trustee's certificate of authentication and (iii) any Additional
Securities (if issued as Transfer Restricted Securities (as defined in the
Appendix)) and the Trustee's certificate of authentication shall each be
substantially in the form of Exhibit A hereto, which is hereby incorporated in
and expressly made a part of this Indenture. The Exchange Securities and any
Additional Securities issued other than as Transfer Restricted Securities and
the Trustee's certificate of authentication shall each be substantially in the
form of Exhibit B hereto, which is hereby incorporated in and expressly made a
part of this Indenture. The Securities may have notations, legends or
endorsements required by law, stock exchange rule, agreements to which the
Company is subject, if any, or usage (provided that any such notation, legend or
endorsement is in a form acceptable to the Company). Each Security shall be
dated the date of its authentication.
SECTION 2.03. Execution and Authentication. One or more Officers shall sign
the Securities for the Company by manual or facsimile signature.
25
If an Officer whose signature is on a Security no longer holds that office
at the time the Trustee authenticates the Security, the Security shall be valid
nevertheless.
A Security shall not be valid until an authorized signatory of the Trustee
manually signs the certificate of authentication on the Security. The signature
shall be conclusive evidence that the Security has been authenticated under this
Indenture.
The Trustee shall authenticate and make available for delivery Securities as
set forth in the Appendix.
The Trustee may appoint an authenticating agent reasonably acceptable to the
Company to authenticate the Securities. Any such appointment shall be evidenced
by an instrument signed by a Trust Officer, a copy of which shall be furnished
to the Company. Unless limited by the terms of such appointment, an
authenticating agent may authenticate Securities whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as any
Registrar, Paying Agent or agent for service of notices and demands.
SECTION 2.04. Registrar and Paying Agent. The Company shall maintain an
office or agency where Securities may be presented for registration of transfer
or for exchange (the "Registrar") and an office or agency where Securities may
be presented for payment (the "Paying Agent"). The Registrar shall keep a
register of the Securities and of their transfer and exchange. The Company may
have one or more co- registrars and one or more additional paying agents. The
term "Paying Agent" includes any additional paying agent, and the term
"Registrar" includes any co-registrars. The Company initially appoints the
Trustee as (i) Registrar and Paying Agent in connection with the Securities and
(ii) the Securities Custodian (as defined in the Appendix) with respect to the
Global Securities.
The Company shall enter into an appropriate agency agreement with any
Registrar or Paying Agent not a party to this Indenture, which shall incorporate
the terms of the TIA. The agreement shall implement the provisions of this
Indenture that relate to such agent. The Company shall notify the Trustee of the
name and address of any such agent. If the Company fails to maintain a Registrar
or Paying Agent, the Trustee shall act as such and shall be entitled to
appropriate compensation therefor pursuant to Section 7.07. The Company or any
of its domestically organized Wholly Owned Subsidiaries may act as Paying Agent
or Registrar.
The Company may remove any Registrar or Paying Agent upon written notice to
such Registrar or Paying Agent and to the Trustee; provided, however, that no
26
such removal shall become effective until (1) acceptance of an appointment by a
successor as evidenced by an appropriate agreement entered into by the Company
and such successor Registrar or Paying Agent, as the case may be, and delivered
to the Trustee or (2) notification to the Trustee that the Trustee shall serve
as Registrar or Paying Agent until the appointment of a successor in accordance
with clause (1) above. The Registrar or Paying Agent may resign at any time upon
written notice; provided, however, that the Trustee may resign as Paying Agent
or Registrar only if the Trustee also resigns as Trustee in accordance with
Section 7.08.
SECTION 2.05. Paying Agent To Hold Money in Trust. Prior to each due date of
the principal and interest on any Security, the Company shall deposit with the
Paying Agent (or if the Company or a Subsidiary is acting as Paying Agent,
segregate and hold in trust for the benefit of the Persons entitled thereto) a
sum sufficient to pay such principal and interest when so becoming due. The
Company shall require each Paying Agent (other than the Trustee) to agree in
writing that the Paying Agent shall hold in trust for the benefit of
Securityholders or the Trustee all money held by the Paying Agent for the
payment of principal of or interest on the Securities and shall notify the
Trustee of any default by the Company in making any such payment. If the Company
or a Subsidiary of the Company acts as Paying Agent, it shall segregate the
money held by it as Paying Agent and hold it as a separate trust fund. The
Company at any time may require a Paying Agent to pay all money held by it to
the Trustee and to account for any funds disbursed by the Paying Agent. Upon
complying with this Section, the Paying Agent shall have no further liability
for the money delivered to the Trustee.
SECTION 2.06. Securityholder Lists. The Trustee shall preserve in as current
a form as is reasonably practicable the most recent list available to it of the
names and addresses of Securityholders. If the Trustee is not the Registrar, the
Company shall furnish, or cause the Registrar to furnish, to the Trustee, in
writing at least five Business Days before each interest payment date and at
such other times as the Trustee may request in writing, a list in such form and
as of such date as the Trustee may reasonably require of the names and addresses
of Securityholders.
SECTION 2.07. Transfer and Exchange. The Securities shall be issued in
registered form and shall be transferable only upon the surrender of a Security
for registration of transfer. When a Security is presented to the Registrar with
a request to register a transfer, the Registrar shall register the transfer as
requested if the requirements of Section 8-401(a)(l) of the Uniform Commercial
Code are met. When Securities are presented to the Registrar with a request to
exchange them for an equal principal amount of Securities of other
denominations, the Registrar shall make the exchange as requested if the same
requirements are met. To permit registration of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Securities at the
Registrar's request. The Company may require payment of a sum sufficient to pay
all taxes,
27
assessments or other governmental charges in connection with any transfer or
exchange pursuant to this Section. The Company shall not be required to make and
the Registrar need not register transfers or exchanges of Securities selected
for redemption (except, in the case of Securities to be redeemed in part, the
portion thereof not to be redeemed) or any Securities for a period of 15 days
before a selection of Securities to be redeemed.
Prior to the due presentation for registration of transfer of any Security,
the Company, the Trustee, the Paying Agent and the Registrar may deem and treat
the Person in whose name a Security is registered as the absolute owner of such
Security for the purpose of receiving payment of principal of and interest, if
any, on such Security and for all other purposes whatsoever, whether or not such
Security is overdue, and none of the Company, the Trustee, the Paying Agent or
the Registrar shall be affected by notice to the contrary.
Any Holder of a Global Security shall, by acceptance of such Global
Security, agree that transfers of beneficial interest in such Global Security
may be effected only through a book-entry system maintained by (i) the Holder of
such Global Security (or its agent) or (ii) any Holder of a beneficial interest
in such Global Security, and that ownership of a beneficial interest in such
Global Security shall be required to be reflected in a book entry.
All Securities issued upon any transfer or exchange pursuant to the terms of
this Indenture will evidence the same debt and will be entitled to the same
benefits under this Indenture as the Securities surrendered upon such transfer
or exchange.
SECTION 2.08. Replacement Securities. If a mutilated Security is surrendered
to the Registrar or if the Holder of a Security claims that the Security has
been lost, destroyed or wrongfully taken, the Company shall issue and the
Trustee shall authenticate a replacement Security if the requirements of Section
8-405 of the Uniform Commercial Code are met, such that the Holder (i) satisfies
the Company or the Trustee within a reasonable time after he has notice of such
loss, destruction or wrongful taking and the Registrar does not register a
transfer prior to receiving such notification, (ii) makes such request to the
Company or the Trustee prior to the Security being acquired by a protected
purchaser as defined in Section 8-303 of the Uniform Commercial Code (a
"protected purchaser") and (iii) satisfies any other reasonable requirements of
the Trustee. If required by the Trustee or the Company, such Holder shall
furnish an indemnity bond sufficient in the judgment of the Trustee to protect
the Company, the Trustee, the Paying Agent and the Registrar from any loss that
any of them may suffer if a Security is replaced. The Company and the Trustee
may charge the Holder for their expenses in replacing a Security. In the event
any such mutilated, lost, destroyed or wrongfully taken Security has become or
is about to become due and
28
payable, the Company in its discretion may pay such Security instead of issuing
a new Security in replacement thereof.
Every replacement Security is an additional obligation of the Company.
The provisions of this Section 2.08 are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, lost, destroyed or wrongfully taken Securities.
SECTION 2.09. Outstanding Securities. Securities outstanding at any time are
all Securities authenticated by the Trustee except for those canceled by it,
those delivered to it for cancelation and those described in this Section as not
outstanding. A Security does not cease to be outstanding because the Company or
an Affiliate of the Company holds the Security.
If a Security is replaced pursuant to Section 2.08, it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Security is held by a protected purchaser.
If the Paying Agent segregates and holds in trust, in accordance with this
Indenture, on a Redemption Date or maturity date money sufficient to pay all
principal and interest payable on that date with respect to the Securities (or
portions thereof) to be redeemed or maturing, as the case may be, and the Paying
Agent is not prohibited from paying such money to the Securityholders on that
date pursuant to the terms of this Indenture, then on and after that date such
Securities (or portions thereof) cease to be outstanding and interest on them
ceases to accrue.
SECTION 2.10. Temporary Securities. In the event that Definitive Securities
(as defined in the Appendix) are to be issued under the terms of this Indenture,
until such Definitive Securities are ready for delivery, the Company may prepare
and the Trustee shall authenticate temporary Securities. Temporary Securities
shall be substan tially in the form of Definitive Securities but may have
variations that the Company considers appropriate for temporary Securities.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate Definitive Securities and deliver them in exchange for temporary
Securities upon surrender of such temporary Securities at the office or agency
of the Company, without charge to the Holder. In addition, the Temporary
Regulation S Global Security (as defined in the Appendix) may also be issued in
temporary form.
SECTION 2.11. Cancelation. The Company at any time may deliver Securities to
the Trustee for cancelation. The Registrar and the Paying Agent shall forward to
the Trustee any Securities surrendered to them for registration of transfer,
29
exchange or payment. The Trustee and no one else shall cancel all Securities
surrendered for registration of transfer, exchange, payment or cancelation and
deliver canceled Securities to the Company pursuant to written direction by an
Officer. The Company may not issue new Securities to replace Securities it has
redeemed, paid or delivered to the Trustee for cancelation. The Trustee shall
not authenticate Securities in place of canceled Securities other than pursuant
to the terms of this Indenture.
SECTION 2.12. Defaulted Interest. If the Company defaults in a payment of
interest on the Securities, the Company shall pay the defaulted interest (plus
interest on such defaulted interest to the extent lawful) in any lawful manner.
The Company may pay the defaulted interest to the Persons who are
Securityholders on a subsequent special record date. The Company shall fix or
cause to be fixed any such special record date and payment date to the
reasonable satisfaction of the Trustee and shall promptly mail or cause to be
mailed to each Securityholder a notice that states the special record date, the
payment date and the amount of defaulted interest to be paid.
SECTION 2.13. CUSIP Numbers. The Company in issuing the Securities may use
"CUSIP" numbers (if then generally in use) and, if so, the Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to Holders; provided,
however, that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company shall
promptly notify the Trustee after the Company becomes aware, through written
notice, of a change in the "CUSIP" numbers.
ARTICLE 3
Redemption
SECTION 3.01. Notices to Trustee. If the Company elects to redeem Securities
pursuant to paragraph 5 of the Securities, it shall notify the Trustee in
writing of the Redemption Date and the principal amount of Securities to be
redeemed.
The Company shall give each notice to the Trustee provided for in this
Section at least 60 days before the Redemption Date unless the Trustee consents
to a shorter period. Such notice shall be accompanied by an Officers'
Certificate from the Company to the effect that such redemption will comply with
the conditions herein. If fewer than all the Securities are to be redeemed, the
record date relating to such redemption shall be selected by the Company and
given to the Trustee, which record date
30
shall be not fewer than 15 days after the date of notice to the Trustee. Any
such notice may be canceled at any time prior to notice of such redemption being
mailed to any Holder and shall thereby be void and of no effect.
SECTION 3.02. Selection of Securities To Be Redeemed. If fewer than all the
Securities are to be redeemed, the Trustee shall select the Securities to be
redeemed in compliance with the requirements of the principal national
securities exchange, if any, on which such Securities are listed, or, if such
Securities are not so listed, on a pro rata basis, by lot or by such other
method as the Trustee shall deem fair and appropriate (and in such manner as
complies with applicable legal requirements); provided that no Securities of
$1,000 or less shall be purchased or redeemed in part. Provisions of this
Indenture that apply to Securities called for redemption also apply to portions
of Securities called for redemption. The Trustee shall notify the Company
promptly of the Securities or portions of Securities to be redeemed.
SECTION 3.03. Notice of Redemption. At least 30 days but not more than 60
days before a date for redemption of Securities, the Company, or the Trustee at
the Company's direction, shall mail a notice of redemption by first-class mail,
postage prepaid, to each Holder of Securities to be redeemed at such Holder's
registered address; provided that in the event the Trustee is to mail such
notice, the Company shall deliver to the Trustee, at least 45 days prior to the
Redemption Date, an Officer's Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as provided
in the following items.
The notice shall identify the Securities to be redeemed and shall state:
(1) the Redemption Date;
(2) the redemption price and the amount of accrued interest to the
Redemption Date;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(5) if fewer than all the outstanding Securities are to be
redeemed, the certificate numbers and principal amounts of the
particular Securities to be redeemed (or the portion thereof);
31
(6) that, unless the Company defaults in making such redemption
payment, interest on Securities (or portion thereof) called for
redemption ceases to accrue on and after the Redemption Date;
(7) the CUSIP number, if any, printed on the Securities being
redeemed; and
(8) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed
on the Securities.
At the Company's request, the Trustee shall give the notice of redemption in
the Company's name and at the Company's expense. In such event, the Company
shall provide the Trustee with the information required by this Section.
SECTION 3.04. Effect of Notice of Redemption. Once notice of redemption is
mailed, Securities called for redemption become due and payable on the
Redemption Date and at the redemption price stated in the notice. Upon surrender
to the Paying Agent, such Securities shall be paid at the redemption price
stated in the notice, plus accrued interest, if any, to the Redemption Date;
provided, however, that if the Redemption Date is after a regular record date or
a special record date and on or prior to the interest payment date, the accrued
interest shall be payable to the Securityholder of the redeemed Securities
registered on the relevant record date. Failure to give notice or any defect in
the notice to any Holder shall not affect the validity of the notice to any
other Holder.
SECTION 3.05. Deposit of Redemption Price. Prior to 10:00 a.m. on the
Redemption Date, the Company shall deposit with the Paying Agent (or, if the
Company or a Subsidiary is the Paying Agent, shall segregate and hold in trust)
money sufficient to pay the redemption price of and accrued interest on all
Securities to be redeemed on that date other than Securities or portions of
Securities called for redemption that have been delivered by the Company to the
Trustee for cancelation.
SECTION 3.06. Securities Redeemed in Part. A new Security in principal
amount equal to the unredeemed portion of any Security redeemed in part will be
issued in the name of the Holder thereof upon cancelation of the original
Security. On and after the Redemption Date unless the Company defaults in
payment of the redemption price, interest shall cease to accrue on Securities or
portions thereof called for redemption.
32
ARTICLE 4
Covenants
SECTION 4.01. Payment of Securities. The Company shall promptly pay the
principal of and interest on the Securities on the dates and in the manner
provided in the Securities and in this Indenture. Principal and interest shall
be considered paid on the date due if on such date the Trustee or the Paying
Agent holds in accordance with this Indenture money sufficient to pay all
principal and interest then due and the Trustee or the Paying Agent, as the case
may be, is not prohibited from paying such money to the Securityholders on that
date pursuant to the terms of this Indenture.
The Company shall pay interest on overdue principal at the rate specified
therefor in the Securities, and it shall pay interest on overdue installments of
interest at the same rate to the extent lawful.
SECTION 4.02. SEC Reports. Notwithstanding that the Company may not be
subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act
or otherwise report on an annual and quarterly basis on forms provided for such
annual and quarterly reporting pursuant to rules and regulations promulgated by
the Commission, the Company shall file with the Commission (and make available
to the Trustee and Holders (without exhibits), without cost to each Holder,
within 15 days after it files them with the Commission), (a) within 90 days
after the end of each fiscal year, annual reports on Form 10-K (or any successor
or comparable form) containing the information required to be contained therein
(or required in such successor or comparable form); (b) within 45 days after the
end of each of the first three fiscal quarters of each fiscal year, reports on
Form 10-Q (or any successor or comparable form); (c) promptly from time to time
after the occurrence of an event required to be therein reported, such other
reports on Form 8-K (or any successor or comparable form); and (d) any other
information, documents and other reports which the Company would be required to
file with the Commission if it were subject to Section 13 or 15(d) of the
Exchange Act; provided, however, the Company shall not be so obligated to file
such reports with the Commission if the Commission does not permit such filing,
in which event the Company will make available such information to prospective
purchasers of Securities, in addition to providing such information to the
Trustee and the Holders, in each case within 15 days after the time the Company
would be required to file such information with the Commission, if it were
subject to Sections 13 or 15(d) of the Exchange Act. Notwithstanding the
foregoing, such requirements shall be deemed satisfied prior to the Exchange
Offer or the effectiveness of the Shelf Registration Statement by the filing
with the Commission of an exchange offer registration statement and/or a shelf
registration statement as required by the Registration Agreement (as defined in
the Appendix), and any amendments thereto, with such financial information that
satisfies Regulation S-X of the Securities Act.
33
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 Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 4.03. Limitation on Incurrence of Indebtedness and Issuance of
Disqualified Stock. (a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to Incur any Indebtedness (including Acquired
Indebtedness) and the Company shall not issue any shares of Disqualified Stock
and shall not permit any of its Restricted Subsidiaries to issue any shares of
preferred stock; provided, however, that the Company may Incur Indebtedness
(including Acquired Indebtedness) or issue shares of Disqualified Stock if the
Fixed Charge Coverage Ratio for the Company's and its Restricted Subsidiaries'
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 Disqualified Stock is issued would have been at
least 1.75 to 1.00, 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 Disqualified Stock had been issued, as the case may
be, and the application of proceeds therefrom had occurred at the beginning of
such four-quarter period.
(b) The foregoing limitations shall not apply to:
(i) the existence of Indebtedness under Credit Facilities on the
Closing Date together with the Incurrence by the Company of
Indebtedness under Credit Facilities and the issuance and creation of
letters of credit and bankers' acceptances thereunder (with letters of
credit and bankers' acceptances being deemed to have a principal amount
equal to the face amount thereof) up to an aggregate principal amount
of $550.0 million outstanding at any one time;
(ii) the Incurrence by the Company of Indebtedness represented by
the Securities issued on the Closing Date;
(iii) Existing Indebtedness (other than Indebtedness described in
clauses (i) and (ii));
(iv) Indebtedness (including Capitalized Lease Obligations)
Incurred by the Company or any of its Restricted Subsidiaries, to
finance the purchase, lease or improvement of property (real or
personal) or equipment (whether through the direct purchase of assets
or the Capital Stock of any Person owning
34
such assets) in an aggregate principal amount which, when
aggregated with the principal amount of all other Indebtedness then
outstanding and Incurred pursuant to this clause (iv) and including all
Refinancing indebtedness Incurred to refund, refinance or replace any
other Indebtedness Incurred pursuant to this Section 4.03(b)(iv), does
not exceed 20% of Total Assets;
(v) Indebtedness Incurred by the Company or any of its Restricted
Subsidiaries constituting reimbursement obligations with respect to
letters of credit issued in the ordinary course of business, including
without limitation letters of credit in respect of workers'
compensation claims or self-insurance, or other Indebtedness with
respect to reimbursement type obligations regarding workers'
compensation claims; provided, however, that upon the drawing of such
letters of credit or the Incurrence of such Indebtedness, such
obligations are reimbursed within 30 days following such drawing or
Incurrence;
(vi) Indebtedness arising from agreements of the Company or a
Restricted Subsidiary providing for indemnification, adjustment of
purchase price or similar obligations, in each case, Incurred or
assumed in connection with the disposition of any business, assets or a
Subsidiary, other than guarantees of Indebtedness Incurred by any
Person acquiring all or any portion of such business, assets or a
Subsidiary for the purpose of financing such acquisition; provided,
however, that (a) such Indebtedness is not reflected on the balance
sheet of the Company or any Restricted Subsidiary (contingent
obligations referred to in a footnote to financial statements and not
otherwise reflected on the balance sheet shall not be deemed to be
reflected on such balance sheet for purposes of this clause (a)) and
(b) the maximum assumable liability in respect of all such Indebtedness
shall at no time exceed the gross proceeds including noncash proceeds
(the fair market value of such noncash proceeds being measured at the
time received and without giving effect to any subsequent changes in
value) actually received by the Company and its Restricted Subsidiaries
in connection with such disposition;
(vii) Indebtedness of the Company to a Restricted Subsidiary;
provided that any such Indebtedness is subordinated in right of payment
to the Securities; provided further that any subsequent issuance or
transfer of any Capital Stock or any other event which results in any
such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any
other subsequent transfer of any such Indebtedness (except to the
Company or another Restricted Subsidiary) shall be deemed, in each case
to be an Incurrence of such Indebtedness;
(viii) Indebtedness of a Restricted Subsidiary to the Company or
another Restricted Subsidiary; provided that (a) any such Indebtedness
is made pursuant
35
to an intercompany note and (b) if a Guarantor Incurs such
Indebtedness from a Restricted Subsidiary that is not a Guarantor such
Indebtedness is subordinated in right of payment to the Guarantee of
such Guarantor; provided further that any subsequent transfer of any
such Indebtedness (except to the Company or another Restricted
Subsidiary) shall be deemed, in each case to be an Incurrence of such
Indebtedness;
(ix) shares of preferred stock of a Restricted Subsidiary issued
to the Company or another Restricted Subsidiary; provided that any
subsequent issuance or transfer of any Capital Stock or any other event
which results in any such Restricted Subsidiary ceasing to be a
Restricted Subsidiary or any other subsequent transfer of any such
shares of preferred stock (except to the Company or another Restricted
Subsidiary) shall be deemed in each case to be an issuance of such
shares of preferred stock;
(x) Hedging Obligations that are Incurred in the ordinary course
of business (but in any event excluding Hedging Obligations entered
into for speculative purposes);
(xi) obligations in respect of performance and surety bonds and
completion guarantees provided by the Company or any Restricted
Subsidiary in the ordinary course of business;
(xii) Indebtedness of any Guarantor in respect of such Guarantor's
Guarantee;
(xiii) Indebtedness and Disqualified Stock of the Company or any
of its Restricted Subsidiaries not otherwise permitted under this
Section 4.03 in an aggregate principal amount or liquidation
preference, which when aggregated with the principal amount and
liquidation preference of all other Indebtedness and Disqualified Stock
then outstanding and Incurred pursuant to this Section 4.03(b)(xiii),
does not at any one time outstanding exceed the sum of (a) $150.0
million and (b) 100% of the net cash proceeds received by the Company
since immediately after the Transactions from the issue or sale of
Equity Interests of the Company or net cash proceeds contributed to the
capital of the Company (in each case other than Disqualified Stock) as
determined in accordance with clauses (a)(3)(ii) and (a)(3)(iii) of
Section 4.04 to the extent such net cash proceeds have not been applied
pursuant to such clauses to make Restricted Payments or to make other
payments or exchanges pursuant to 4.04(b) or to make Permitted
Investments (other than clauses (a) and (c) of such definition) (it
being understood that any Indebtedness Incurred under this Section
4.03(b)(xiii) shall cease to be deemed Incurred or outstanding for
purposes of this Section 4.03(b)(xiii) but shall
36
be deemed to be Incurred for purposes of Section 4.03(a) from and
after the first date on which the Company could have Incurred such
Indebtedness under Section 4.03(a) without reliance upon this Section
4.03(b)(xiii));
(xiv) (a) any guarantee by the Company of Indebtedness or other
obligations of any of its Restricted Subsidiaries so long as the
Incurrence of such Indebtedness Incurred by such Restricted Subsidiary
is permitted under the terms of this Indenture and (b) any guarantee by
a Restricted Subsidiary of Indebtedness of the Company, provided that
such guarantee is Incurred in accordance with Section 4.11;
(xv) the Incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness which serves to refund, refinance or
restructure any Indebtedness Incurred as permitted under Section
4.03(a) and clauses (ii) and (iii) of this Section 4.03(b), this clause
(xv) and clause (xvi) below or any Indebtedness issued to so refund,
refinance or restructure such Indebtedness including additional
Indebtedness Incurred to pay premiums and fees in connection therewith
(the "Refinancing Indebtedness") prior to its respective maturity;
provided, however, that such Refinancing Indebtedness (a) has a
Weighted Average Life to Maturity at the time such Refinancing
Indebtedness is Incurred which is not less than the remaining Weighted
Average Life to Maturity of Indebtedness being refunded or refinanced,
(b) to the extent such Refinancing Indebtedness refinances Indebtedness
subordinated or pari passu to the Securities, such Refinancing
Indebtedness is subordinated or pari passu to the Securities at least
to the same extent as the Indebtedness being refinanced or refunded and
(c) shall not include (1) Indebtedness of a Subsidiary that refinances
Indebtedness of the Company or (2) Indebtedness of the Company or a
Restricted Subsidiary that refinances Indebtedness of an Unrestricted
Subsidiary; and provided further that clauses (a) and (b) of this
Section 4.03(xv) shall not apply to any refunding or refinancing of any
Senior Indebtedness; and
(xvi) Indebtedness or Disqualified Stock of Persons that are
acquired by the Company or any of its Restricted Subsidiaries or merged
into a Restricted Subsidiary in accordance with the terms of this
Indenture; provided that such Indebtedness or Disqualified Stock is not
Incurred in contemplation of such acquisition or merger; and provided
further that after giving effect to such acquisition or merger, either
(a) the Company would be permitted to Incur at least $1.00 of
additional Indebtedness pursuant to the Fixed Charge Coverage Ratio
test set forth in Section 4.03(a) or (b) the Fixed Charge Coverage
Ratio is greater than immediately prior to such acquisition or merger.
37
(c) For purposes of determining compliance with this Section 4.03, in
the event that an item of Indebtedness meets the criteria of more than one
of the categories of permitted Indebtedness described in clauses (i) through
(xvi) of Section 4.03(b) or is entitled to be Incurred pursuant to Section
4.03(a), the Company shall, in its sole discretion, classify such item of
Indebtedness in any manner that complies with this Section 4.03 and such
item of Indebtedness shall be treated as having been Incurred pursuant to
only one of such clauses or pursuant to Section 4.03(a) except as otherwise
set forth in Section 4.03(b)(xiii). Accrual of interest, the accretion of
accreted value and the payment of interest in the form of additional
Indebtedness shall not be deemed to be an Incurrence of Indebtedness for
purposes of this Section 4.03.
(d) For purposes of determining compliance with any U.S.
dollar-denominated restriction on the Incurrence of Indebtedness, the U.S.
dollar-equivalent principal amount of Indebtedness denominated in a foreign
currency shall be calculated based on the relevant currency exchange rate in
effect on the date such Indebtedness was Incurred, in the case of term debt,
or first committed, in the case of revolving credit debt; provided that (1)
the U.S. dollar-equivalent principal amount of any such Indebtedness
outstanding or committed on the Closing Date shall be calculated based on
the relevant currency exchange rate in effect on March 31, 1998, and (2) if
such Indebtedness is Incurred to refinance other Indebtedness denominated in
a foreign currency, and such refinancing would cause the applicable U.S.
dollar-denominated restriction to be exceeded if calculated at the relevant
currency exchange rate in effect on the date of such refinancing, such U.S.
dollar-denominated restriction shall be deemed not to have been exceeded so
long as the principal amount of such refinancing Indebtedness does not
exceed the principal amount of such Indebtedness being refinanced. The
principal amount of any Indebtedness Incurred to refinance other
Indebtedness, if Incurred in a different currency from the Indebtedness
being refinanced, shall be calculated based on the currency exchange rate
applicable to the currencies in which such respective Indebtedness is
denominated that is in effect on the date of such refinancing.
38
SECTION 4.04. Limitation on Restricted Payments. (a) The Company shall not,
and shall not permit any of its Restricted Subsidiaries to, directly or
indirectly: (i) declare or pay any dividend or make any distribution on account
of the Company's or any of its Restricted Subsidiaries' Equity Interests,
including any dividend or distribution payable in connection with any merger or
consolidation (other than (A) dividends or distributions by the Company payable
in Equity Interests (other than Disqualified Stock) of the Company or in
options, warrants or other rights to purchase such Equity Interests or (B)
dividends or distributions by a Restricted Subsidiary so long as, in the case of
any dividend or distribution payable on or in respect of any class or series of
securities issued by a Subsidiary other than a Wholly Owned Subsidiary, the
Company or a Restricted Subsidiary receives at least its pro rata share of such
dividend or distribution in accordance with its Equity Interests in such class
or series of securities); (ii) purchase, redeem, defease or otherwise acquire or
retire for value any Equity Interests of the Company or any direct or indirect
parent of the Company; (iii) make any principal payment on, or redeem,
repurchase, defease or otherwise acquire or retire for value in each case, prior
to any scheduled repayment, or maturity, any Subordinated Indebtedness (other
than (x) Indebtedness permitted under clauses (vii) and (viii) of Section
4.03(b) or (y) the purchase, repurchase or other acquisition of Subordinated
Indebtedness purchased in anticipation of satisfying a sinking fund obligation,
principal installment or final maturity, in each case due within one year of the
date of purchase, repurchase or acquisition); 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 such Restricted Payment:
(1) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof;
(2) immediately after giving effect to such transaction on a pro
forma basis, the Company could Incur $1.00 of additional Indebtedness
pursuant to Section 4.03(a); and
(3) such Restricted Payment, together with the aggregate amount of
all other Restricted Payments made by the Company and its Restricted
Subsidiaries after the Closing Date (including Restricted Payments
permitted by clauses (i), (ii) (with respect to the payment of
dividends on Refunding Capital Stock pursuant to clause (b) thereof),
(iv) (only to the extent that amounts paid pursuant to such clause are
greater than amounts that could have been paid pursuant to such clause
if $5.0 million and $10.0 million were substituted in such clause for
$10.0 million and $20.0 million, respectively), (vi), (ix) and (x) of
Section 4.04(b), but excluding all other Restricted Payments permitted
by Section 4.04(b)), 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 the fiscal quarter that first begins after the
39
Closing Date to the end of the Company's most recently ended
fiscal quarter for which internal financial statements are available at
the time of such Restricted Payment (or, in the case such Consolidated
Net Income for such period is a deficit, minus 100% of such deficit),
plus (ii) 100% of the aggregate net cash proceeds and the fair market
value, as determined in good faith by the Board of Directors, of
marketable securities and Qualified Proceeds 33 received by the Company
since immediately after the closing of the Transactions from the issue
or sale of Equity Interests of the Company (including Retired Capital
Stock (as defined below), but excluding cash proceeds, marketable
securities and Qualified Proceeds received from the sale of (A) Equity
Interests to members of management, directors or consultants of the
Company and its Subsidiaries after the Closing Date to the extent such
amounts have been applied to Restricted Payments made in accordance
with Section 4.04(b)(iv) and (B) Designated Preferred Stock) or debt
securities of the Company that have been converted into such Equity
Interests of the Company (other than Refunding Capital Stock (as
defined below) or Equity Interests or convertible debt securities of
the Company sold to a Restricted Subsidiary of the Company and other
than Disqualified Stock or debt securities that have been converted
into Disqualified Stock), plus (iii) 100% of the aggregate amount of
cash, marketable securities and Qualified Proceeds contributed to the
capital of the Company following the Closing Date (other than by a
Restricted Subsidiary of the Company), plus (iv) 100% of the aggregate
amount received in cash, the fair market value of marketable securities
and Qualified Proceeds (other than Restricted Investments) received by
means of (A) the sale or other disposition (other than to the Company
or a Restricted Subsidiary) of Restricted Investments made by the
Company and its Restricted Subsidiaries and repurchases and redemptions
of such Restricted Investments from the Company and its Restricted
Subsidiaries and repayments of loans or advances which constitute
Restricted Investments by the Company and its Restricted Subsidiaries
or (B) the sale (other than to the Company or a Restricted Subsidiary)
of the stock of an Unrestricted Subsidiary or a distribution from an
Unrestricted Subsidiary (other than in each case to the extent the
Investment in such Unrestricted Subsidiary was made by the Company or a
Restricted Subsidiary pursuant to clauses (vii) or (xi) of Section
4.04(b) or to the extent such Investment constituted a Permitted
Investment) or a dividend from an Unrestricted Subsidiary plus (v) in
the case of the redesignation of an Unrestricted Subsidiary as a
Restricted Subsidiary, the fair market value of the Investment in such
Unrestricted Subsidiary, as determined by the Board of Directors in
good faith or if such fair market value may exceed $25 million, in
writing by an independent investment banking firm of nationally
recognized standing, at the time of the redesignation of such
Unrestricted Subsidiary as a Restricted Subsidiary (other than an
Unrestricted Subsidiary to the extent the Investment in such
Unrestricted Subsidiary was made by the Company or a Restricted
40
Subsidiary pursuant to clauses (vii) or (xi) of Section 4.04(b) or
to the extent such Investment constituted a Permitted Investment).
(b) The foregoing provisions shall not prohibit:
(i) the payment of any dividend within 60 days after the date of
declaration thereof, if at the date of declaration such payment would
have complied with the provisions of this Indenture;
(ii) (a) the redemption, repurchase, retirement or other
acquisition of any Equity Interests ("Retired Capital Stock") or
Subordinated Indebtedness of the Company in exchange for, or out of the
proceeds of the substantially concurrent sale (other than to a
Restricted Subsidiary) of, Equity Interests of the Company (other than
any Disqualified Stock) ("Refunding Capital Stock") and (b) the
declaration and payment of dividends on the Refunding Capital Stock in
an aggregate amount per year no greater than the aggregate amount of
dividends per annum that was declarable and payable on such Retired
Capital Stock immediately prior to such retirement;
(iii) the redemption, repurchase or other acquisition or
retirement of Subordinated Indebtedness of the Company made by exchange
for, or out of the proceeds of the substantially concurrent sale of,
new Indebtedness of the Company which is Incurred in compliance with
Section 4.03 so long as (A) the principal amount of such new
Indebtedness does not exceed the principal amount of the Subordinated
Indebtedness being so redeemed, repurchased, acquired or retired for
value (plus the amount of any premium required to be paid under the
terms of the instrument governing the Subordinated Indebtedness being
so redeemed, repurchased, acquired or retired), (B) such Indebtedness
is subordinated to Senior Indebtedness and the Securities at least to
the same extent as such Subordinated Indebtedness so purchased,
exchanged, redeemed, repurchased, acquired or retired for value, (C)
such Indebtedness has a final scheduled maturity date equal to or later
than the final scheduled maturity date of the Subordinated Indebtedness
being so redeemed, repurchased, acquired or retired and (D) such
Indebtedness has a Weighted Average Life to Maturity equal to or
greater than the remaining Weighted Average Life to Maturity of the
Subordinated Indebtedness being so redeemed, repurchased, acquired or
retired;
(iv) a Restricted Payment to pay for the repurchase, retirement or
other acquisition or retirement for value of common Equity Interests of
the Company held by any future, present or former employee, director or
consultant of the Company or any Subsidiary pursuant to any management
equity plan or stock option plan or any other management or employee
benefit plan or agreement;
41
provided, however, that the aggregate Restricted Payments made
under this Section 4.04(b)(iv) does not exceed in any calendar year
$10.0 million (with unused amounts in any calendar year being carried
over to succeeding calendar years subject to a maximum (without giving
effect to the following proviso) of $20.0 million in any calendar
year); provided further that such amount in any calendar year may be
increased by an amount not to exceed (A) the cash proceeds from the
sale of Equity Interests of the Company to members of management,
directors or consultants of the Company and its Subsidiaries that
occurs after the Closing Date (to the extent the cash proceeds from the
sale of such Equity Interest have not otherwise been applied to the
payment of Restricted Payments by virtue of Section 4.04(a)(3)) plus
(B) the cash proceeds of key man life insurance policies received by
the Company and its Restricted Subsidiaries after the Closing Date less
(C) the amount of any Restricted Payments previously made pursuant to
clauses (A) and (B) of this Section 4.04(b)(iv); and provided further
that cancelation of Indebtedness owing to the Company from members of
management of the Company or any of its Restricted Subsidiaries in
connection with a repurchase of Equity Interests of the Company shall
not be deemed to constitute a Restricted Payment for purposes of this
Section 4.04 or any other provision of this Indenture;
(v) the declaration and payment of dividends to holders of any
class or series of Disqualified Stock of the Company issued in
accordance with Section 4.03 to the extent such dividends are included
in the definition of Fixed Charges;
(vi) (A) the declaration and payment of dividends to holders of
any class or series of Designated Preferred Stock (other than
Disqualified Stock) issued after the Closing Date or (B) the
declaration and payment of dividends on Refunding Capital Stock in
excess of the dividends declarable and payable thereon pursuant to
Section 4.04(b)(ii); provided, however, in either case, that for the
most recently ended four full fiscal quarters for which internal
financial statements are available immediately preceding the date of
issuance of such Designated Preferred Stock or the declaration of such
dividends on Refunding Capital Stock, after giving effect to such
issuance or declaration on a pro forma basis, the Company and its
Restricted Subsidiaries would have had a Fixed Charge Coverage Ratio of
at least 1.75 to 1.00;
(vii) Investments in Unrestricted Subsidiaries having an aggregate
fair market value, taken together with all other Investments made
pursuant to this Section 4.04(b)(vii) that are at that time outstanding
(without giving effect to the sale of an Unrestricted Subsidiary to the
extent the proceeds of such sale do not consist of cash, marketable
securities and/or Qualified Proceeds or distributions made pursuant to
Section 4.04(b)(xiv)), not to exceed $25.0 million at the time of
42
such Investment (with the fair market value of each Investment
being measured at the time made and without giving effect to subsequent
changes in value);
(viii) repurchases of Equity Interests deemed to occur upon
exercise of stock options if such Equity Interests represent a portion
of the exercise price of such options;
(ix) the payment of dividends on the Company's Common Stock,
following the first public offering of the Company's Common Stock after
the Closing Date, of up to 6% per annum of the net proceeds received by
the Company in such public offering, other than public offerings with
respect to the Company's Common Stock registered on Form S-8;
(x) a Restricted Payment to pay for the repurchase, retirement or
other acquisition or retirement for value of Equity Interests of the
Company in existence on the Closing Date and which are not held by KKR
or any of their Affiliates on the Closing Date (including any Equity
Interests issued in respect of such Equity Interests as a result of a
stock split, recapitalization, merger, combination, consolidation or
otherwise, but excluding any management equity plan or stock option
plan or similar agreement), provided that notwithstanding the foregoing
proviso, the Company and its Restricted Subsidiaries shall be permitted
to make Restricted Payments under this Section 4.04(b)(x) only if after
giving effect thereto, the Company would be permitted to Incur at least
$1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage
Ratio test set forth in Section 4.03(a);
(xi) Investments that are made with Excluded Contributions;
(xii) other Restricted Payments in an aggregate amount not to
exceed $20.0 million;
(xiii) distributions or payments of Receivables Fees;
(xiv) the distribution, as a dividend or otherwise, of shares of
Capital Stock of, or Indebtedness owed to the Company or a Restricted
Subsidiary of the Company by, Unrestricted Subsidiaries (with the
exception of Investments in Unrestricted Subsidiaries acquired pursuant
to clause (j) of the definition of Permitted Investments);
(xv) cash dividends and other payments to CCPC Acquisition in
amounts equal to (A) the amounts required for CCPC Acquisition to pay
any Federal, state or local income taxes to the extent that such income
taxes are
43
attributable to the income of the Company and its Subsidiaries and
(B) the amounts required for CCPC Acquisition to pay franchise taxes,
administrative and similar expenses related to its existence and to its
ownership of the Company; and
(xvi) cash dividends and other payments required to be made under
the Recapitalization Agreement;
provided however, that at the time of, and after giving effect to, any
Restricted Payment permitted under clauses (ii)(b), (iii) through (v), (vi)
through (x), (xii) and (xiv) of this Section 4.04(b), no Default or Event or
Default shall have occurred and be continuing or would occur as a consequence
thereof. To the extent the issuance of Equity Interests and the receipt of
capital contributions are applied to permit the issuance of Indebtedness
pursuant to Section 4.03(b)(xiii), the issuance of such Equity Interests and the
receipt of such capital contributions shall not be applied to permit payments
under this Section 4.04 or Permitted Investments (other than clauses (a) and (c)
of the definition thereof).
As of the Closing Date, all of the Company's Subsidiaries shall be
Restricted Subsidiaries. The Company shall not permit any Unrestricted
Subsidiary to become a Restricted Subsidiary except pursuant to the second to
last sentence of the definition of "Unrestricted Subsidiary." For purposes of
designating any Restricted Subsidiary as an Unrestricted Subsidiary, all
outstanding Investments by the Company and its Restricted Subsidiaries (except
to the extent repaid) in the Subsidiary so designated shall be deemed to be
Restricted Payments in an amount determined as set forth in the last sentence of
the definition of "Investments." Such designation shall be permitted only if a
Restricted Payment in such amount would be permitted at such time (whether
pursuant to Section 4.04(a) or under clauses (vii), (xi) and (xii) of Section
4.04(b)) and if such Subsidiary otherwise meets the definition of an
Unrestricted Subsidiary. Unrestricted Subsidiaries shall not be subject to any
of the restrictive covenants set forth in this Indenture.
SECTION 4.05. Dividend and Other Payment Restrictions Affecting
Subsidiaries. The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or consensual restriction
on the ability of any Restricted Subsidiary to:
(a) (i) pay dividends or make any other distributions to the Company or
any of its Restricted Subsidiaries (1) on its Capital Stock or (2) with
respect to any other interest or participation in, or measured by, its
profits, or (ii) pay any Indebtedness owed to the Company or any of its
Restricted Subsidiaries; 37
(b) make loans or advances to the Company or any of its Restricted
Subsidiaries; or
44
(c) sell, lease or transfer any of its properties or assets to the
Company or any of its Restricted Subsidiaries, except (in each case) for
such encumbrances or restrictions existing under or by reason of:
(1) contractual encumbrances or restrictions in effect on the
Closing Date, including, without limitation, pursuant to Existing
Indebtedness or the Senior Credit Facilities and their related
documentation;
(2) this Indenture and the Securities;
(3) purchase money obligations for property acquired in the
ordinary course of business that impose restrictions of the nature
discussed in clause (c) above on the property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(5) any agreement or other instrument of a Person acquired by the
Company or any Restricted Subsidiary in existence at the time of such
acquisition (but not created in contemplation thereof), 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;
(6) contracts for the sale of assets, including, without
limitation customary restrictions with respect to a Subsidiary pursuant
to an agreement that has been entered into for the sale or disposition
of all or substantially all of the Capital Stock or assets of such
Subsidiary;
(7) secured Indebtedness otherwise permitted to be Incurred
pursuant to Sections 4.03 and 4.12 that limit the right of the debtor
to dispose of the assets securing such Indebtedness;
(8) restrictions on cash or other deposits or net worth imposed by
customers under contracts entered into in the ordinary course of
business;
(9) other Indebtedness or Disqualified Stock of Restricted
Subsidiaries permitted to be Incurred subsequent to the Closing Date
pursuant to Section 4.03;
45
(10) customary provisions in joint venture agreements and other
similar agreements entered into in the ordinary course of business;
(11) customary provisions contained in leases and other agreements
entered into in the ordinary course of business;
(12) any encumbrances or restrictions of the type referred to in
clauses (a), (b) and (c) of this Section 4.05 imposed by any
amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings of the contracts,
instruments or obligations referred to in clauses (1) through (11),
provided that such amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings are,
in the good faith judgment of the Company's Board of Directors, no more
restrictive with respect to such dividend and other payment
restrictions than those contained in the dividend or other payment
restrictions prior to such amendment, modification, restatement,
renewal, increase, supplement, refunding, replacement or refinancing;
or
(13) restrictions created in connection with any Receivables
Facility that, in the good faith determination of the Board of
Directors of the Company, are necessary or advisable to effect such
Receivables Facility.
SECTION 4.06. Asset Sales. (a) The Company shall not, and shall not permit
any of its Restricted Subsidiaries to, cause, make or suffer to exist an Asset
Sale, unless (x) the Company, or such Restricted Subsidiary, as the case may be,
receives consideration at the time of such Asset Sale at least equal to the fair
market value (as determined in good faith by the Company) of the assets sold or
otherwise disposed of and (y) at least 75% of the consideration therefor
received by the Company, or such Restricted Subsidiary, as the case may be, is
in the form of cash or Cash Equivalents; provided that the amount of (i) any
liabilities (as shown on the Company's or such Restricted Subsidiary's most
recent balance sheet or in the notes thereto) of the Company or any Restricted
Subsidiary (other than liabilities that are by their terms subordinated to the
Securities), that are assumed by the transferee of any such assets, (ii) any
securities received by the Company or such Restricted Subsidiary from such
transferee that are converted by the Company or such Restricted Subsidiary into
cash (to the extent of the cash received) within 180 days following the closing
of such Asset Sale and (iii) any Designated Noncash Consideration received by
the Company or any of its Restricted Subsidiaries in such Asset Sale having an
aggregate fair market value, taken together with all other Designated Noncash
Consideration received pursuant to this clause (iii) that is at that time
outstanding, not to exceed the greater of (x) $50.0 million or (y) 15% of Total
46
Assets at the time of the receipt of such Designated Noncash Consideration (with
the fair market value of each item of Designated Noncash Consideration being
measured at the time received and without giving effect to subsequent changes in
value), shall be deemed to be cash for purposes of this provision and for no
other purpose.
(b) Within 365 days after the Company's or any Restricted Subsidiary's
receipt of the Net Proceeds of any Asset Sale, the Company or such
Restricted Subsidiary, at its option, may (i) apply the Net Proceeds from
such Asset Sale to permanently reduce (x) Obligations under the Senior
Credit Facilities (and to correspondingly reduce commitments with respect
thereto), (y) other Senior Indebtedness or Senior Subordinated Indebtedness
(and to correspondingly reduce commitments with respect thereto) (provided
that if the Company shall so reduce Obligations under Senior Subordinated
Indebtedness, it shall equally and ratably reduce Obligations under the
Securities if the Securities are then prepayable or, if the Securities may
not then be prepaid, the Company shall make an offer (in accordance with the
procedures set forth below for an Asset Sale Offer) to all Holders to
purchase at 100% of the principal amount thereof, plus the amount of accrued
but unpaid interest, if any, on the amount of Securities that would
otherwise be prepaid) or (z) Indebtedness of a Wholly Owned Restricted
Subsidiary (other than Indebtedness owed to the Company or another
Restricted Subsidiary), (ii) apply the Net Proceeds from such Asset Sale to
an investment in any one or more businesses, capital expenditures or
acquisitions of other assets in each case, used or useful in a Similar
Business and/or (iii) apply the Net Proceeds from such Asset Sale to an
investment in properties or assets that replace the properties and assets
that are the subject of such Asset Sale. Any Net Proceeds from the Asset
Sale that are not invested or applied as provided and within the time period
set forth in the first sentence of this Section 4.06(b) shall be deemed to
constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds
exceeds $15.0 million, the Company shall make an offer to all Holders (an
"Asset Sale Offer") to purchase the maximum principal amount of Securities,
that is an integral multiple of $1,000, 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, if any, to the
date fixed for the closing of such offer (the "Offered Price"). Within 10
Business Days after the date on which the aggregate amount of Excess
Proceeds exceeds $15.0 million, the Company shall give to each Holder, with
a copy to the Trustee, a notice stating:
(i) that the Holder has the right to require the Company to
repurchase such Holder's Securities at the Offered Price, subject to
proration in the event the Excess Proceeds are less than the aggregate
Offered Price of all Securities tendered;
(ii) the date of purchase of Securities pursuant to the Asset Sale
Offer (the "Asset Sale Purchase Date"), which shall be no earlier than
30 days nor later than 60 days from the date such notice is mailed;
47
(iii) that the Offered Price will be paid to Holders electing to
have Securities purchased on the Asset Sale Purchase Date, provided
that a Holder must surrender its Security to the Paying Agent at the
address specified in the notice prior to the close of business at least
five Business Days prior to the Asset Sale Purchase Date;
(iv) any Security not tendered will continue to accrue interest
pursuant to its terms;
(v) that unless the Company defaults in the payment of the Offered
Price, any Security accepted for payment pursuant to the Asset Sale
Offer shall cease to accrue interest on and after the Asset Sale
Purchase Date;
(vi) that Holders will be entitled to withdraw their tendered
Securities and their election to require the Company to purchase such
Securities, provided that the Company receives, not later than the
close of business on the third Business Day preceding the Asset Sale
Purchase Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the
Securities tendered for purchase, and a statement that such Holder is
withdrawing its election to have such Securities purchased;
(vii) that the Holders whose Securities are being purchased only
in part will be issued new Securities equal in principal amount to the
unpurchased portion of the Securities surrendered; which unpurchased
portion must be equal to $1,000 in principal amount or an integral
multiple thereof; and
(viii) the instructions a Holder must follow in order to have his
Securities purchased in accordance with this Section 4.06.
(c) To the extent that the aggregate amount of Securities 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. If the aggregate principal amount of Securities surrendered by
Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall
select the Securities to be purchased in the manner described in Section
4.06(d). Upon completion of any such Asset Sale Offer, the amount of Excess
Proceeds shall be reset at zero.
(d) If more Securities are tendered pursuant to an Asset Sale Offer
than the Company is required to purchase, selection of such Securities for
purchase shall be made by the Trustee in compliance with the requirements of
the principal national securities exchange, if any, on which such Securities
are listed, or, if such Securities are not so listed, on a pro rata basis,
by lot or by such other method as the Trustee shall deem fair
48
and appropriate (and in such manner as complies with applicable legal
requirements); provided that no Securities of $1,000 or less shall be
purchased in part.
(e) Notices of purchase shall be mailed by first class mail, postage
prepaid, at least 30 but not more than 60 days before the Asset Sale
Purchase Date to each Holder of Securities to be purchased at such Holder's
registered address. If any Security is to be purchased in part only, any
notice of purchase that relates to such Security shall state the portion of
the principal amount thereof that has been or is to be purchased. A new
Security in principal amount equal to the unpurchased portion of any
Security purchased in part shall be issued in the name of the Holder thereof
upon cancelation of the original Security. On and after the Asset Sale
Purchase Date unless the Company defaults in payment of the Offered Price,
interest shall cease to accrue on Securities or portions thereof purchased.
(f) The Company 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 or regulations are applicable in connection with the
repurchase of the Securities pursuant to an Asset Sale Offer. To the extent
that the provisions of any securities laws or regulations conflict with the
provisions of this Indenture, the Company shall comply with the applicable
securities laws and regulations and shall not be deemed to have breached its
obligations described in this Indenture by virtue thereof.
SECTION 4.07. Transactions with Affiliates. (a) The Company shall not, 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
transaction, contract, agreement, understanding, loan, advance or guarantee
with, or for the benefit of, any Affiliate of the Company (each of the
foregoing, an "Affiliate Transaction") involving aggregate payments or
consideration in excess of $5.0 million, unless (i) such Affiliate Transaction
is on terms that are not materially less favorable to the Company or the
relevant Restricted Subsidiary than those that would have been obtained in a
comparable transaction by the Company or such Restricted Subsidiary with an
unrelated Person and (ii) the Company delivers to the Trustee with respect to
any Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $10.0 million, a resolution adopted by the
majority of the Board of Directors approving such Affiliate Transaction and set
forth in an Officers' Certificate certifying that such Affiliate Transaction
complies with Section 4.07(a)(i).
(b) The foregoing provisions shall not apply to the following: (i)
transactions between or among the Company and/or any of its Restricted
Subsidiaries; (ii) Restricted Payments permitted by Section 4.04; (iii) the
payment of customary annual management, consulting, monitoring and advisory
fees and related expenses to KKR and its Affiliates;
49
(iv) the payment of reasonable and customary fees paid to, and indemnity
provided on behalf of, officers, directors, employees or consultants of the
Company or any Restricted Subsidiary; (v) payments by the Company or any of
its Restricted Subsidiaries to KKR and its Affiliates made for any financial
advisory, financing, underwriting or placement services or in respect of
other investment banking activities, including, without limitation, in
connection with acquisitions or divestitures which payments are approved by
a majority of the Board of Directors of the Company in good faith; (vi)
transactions in which the Company or any of its Restricted Subsidiaries, as
the case may be, delivers to the Trustee a letter from an Independent
Financial Advisor stating that such transaction is fair to the Company or
such Restricted Subsidiary from a financial point of view or meets the
requirements of Section 4.07(a)(i); (vii) payments or loans to employees or
consultants which are approved by a majority of the Board of Directors of
the Company in good faith; (viii) any agreement as in effect as of the
Closing Date (including, without limitation, each of the agreements entered
into in connection with the Transactions) or any amendment thereto (so long
as any such amendment is not disadvantageous to the Holders in any material
respect) or any transaction contemplated thereby; (ix) the existence of, or
the performance by the Company or any of its Restricted Subsidiaries of its
obligations under the terms of, any stockholders agreement (including any
registration rights agreement or purchase agreement related thereto) to
which it is a party as of the Closing Date and any similar agreements which
it may enter into thereafter; provided, however, that the existence of, or
the performance by the Company or any of its Restricted Subsidiaries of
obligations under any future amendment to any such existing agreement or
under any similar agreement entered into after the Closing Date shall only
be permitted by this clause (ix) to the extent that the terms of any such
amendment or new agreement are not otherwise disadvantageous to the Holders
in any material respect; (x) the Transactions and the payment of all fees
and expenses related to the Transactions (including the payment of any
adjustment to the Cash Dividend or the Contingent Payment); (xi)
transactions with customers, clients, suppliers, or purchasers or sellers of
goods or services, in each case in the ordinary course of business and
otherwise in compliance with the terms of this Indenture which are fair to
the Company or its Restricted Subsidiaries, in the reasonable determination
of the Board of Directors of the Company or the senior management thereof,
or are on terms at least as favorable as might reasonably have been obtained
at such time from an unaffiliated party; (xii) sales of accounts receivable,
or participations therein, in connection with any Receivables Facility; and
(xiii) the issuance of Equity Interests (other than Disqualified Stock) of
the Company to any Permitted Holder and their Related Parties.
SECTION 4.08. Change of Control. (a) Upon the occurrence of a Change of
Control, unless the Company has elected to redeem the Securities in connection
with such Change of Control pursuant to paragraph 5 of the Securities, the
Company shall make an offer to purchase all of the Securities pursuant to the
offer described below (the "Change of
50
Control Offer") at a price in cash (the "Change of Control Payment") equal to
101% of the aggregate principal amount thereof plus accrued and unpaid interest,
if any, to the date of purchase (subject to the right of holders of record on
the relevant record date to receive interest due on the relevant interest
payment date).
(b) Within 30 days following any Change of Control, the Company shall
mail a notice to each Holder, with a copy to the Trustee, with the following
information: (1) a Change of Control Offer is being made pursuant to this
Section 4.08 and that all Securities properly tendered pursuant to such
Change of Control Offer will be accepted for payment; (2) the purchase price
and the purchase date, which shall be no earlier than 30 days nor later than
60 days from the date such notice is mailed, except as may be otherwise
required by applicable law (the "Change of Control Payment Date"); (3) any
Security not properly tendered will remain outstanding and continue to
accrue interest; (4) unless the Company defaults in the payment of the
Change of Control Payment, all Securities accepted for payment pursuant to
the Change of Control Offer will cease to accrue interest on the Change of
Control Payment Date; (5) Holders electing to have any Securities purchased
pursuant to a Change of Control Offer will be required to surrender the
Securities, with the form entitled "Option of Holder to Elect Purchase" on
the reverse of the Securities completed, to the Paying Agent specified in
the notice at the address specified in the notice prior to the close of
business on the third Business Day preceding the Change of Control Payment
Date; (6) Holders will be entitled to withdraw their tendered Securities and
their election to require the Company to purchase such Securities, provided
that the Paying Agent receives, not later than the close of business on the
last day of the Offer Period, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the principal amount of
Securities tendered for purchase, and a statement that such Holder is
withdrawing his tendered Securities and his election to have such Securities
purchased; and (7) that Holders whose Securities are being purchased only in
part will be issued new Securities equal in principal amount to the
unpurchased portion of the Securities surrendered, which unpurchased portion
must be equal to $1,000 in principal amount or an integral multiple thereof.
(c) On the Change of Control Payment Date, the Company shall, to the
extent permitted by law, (1) accept for payment all Securities or portions
thereof properly tendered pursuant to the Change of Control Offer, (2)
deposit with the Paying Agent an amount equal to the aggregate Change of
Control Payment in respect of all Securities or portions thereof so tendered
and (3) deliver, or cause to be delivered, to the Trustee for cancelation
the Securities so accepted together with an Officers' Certificate stating
that such Securities or portions thereof have been tendered to and purchased
by the Company. The Paying Agent shall promptly mail to each Holder the
Change of Control Payment for such Securities, and the Trustee shall
promptly authenticate and mail to each Holder a new Security equal in
principal amount to any unpurchased portion of the Securities surrendered,
if any, provided, that each such new Security shall be in a principal amount
51
of $1,000 or an integral multiple thereof. The Company shall publicly
announce the results of the Change of Control Offer on or as soon as
practicable after the Change of Control Payment Date.
(d) Prior to complying with the provisions of this Section 4.08, but in
any event within 30 days following a Change of Control, the Company shall
either repay all outstanding Senior Indebtedness or obtain the requisite
consents, if any, under any outstanding Senior Indebtedness in each case
necessary to permit the repurchase of the Securities required by this
Section 4.08.
(e) The Company 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 or regulations are applicable in connection with the
repurchase of the Securities pursuant to a Change of Control Offer. To the
extent that the provisions of any securities laws or regulations conflict
with the provisions of this Indenture, the Company shall comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations described in this Indenture by virtue thereof.
SECTION 4.09. Compliance Certificate. The Company shall (i) deliver to the
Trustee within 120 days after the end of each fiscal year of the Company,
commencing with the fiscal year ending on December 31, 1998, an Officers'
Certificate stating that in the course of the performance by the signers of
their duties as Officers of the Company they would normally have knowledge of
any Default and whether or not the signers know of any Default that occurred
during such period and (ii) within five Business Days, upon becoming aware of
any Default or Event of Default or any default under any document, instrument or
agreement representing Indebtedness of the Company or any Guarantor, deliver to
the Trustee a statement specifying such Default or Event of Default. The
certificate or statement shall describe the Default, if any, its status and what
action the Company is taking or proposes to take with respect thereto. The
Company also shall comply with Section 314(a)(4) of the TIA.
SECTION 4.10. Further Instruments and Acts. Upon request of the Trustee, the
Company shall execute and deliver such further instruments and do such further
acts as may be reasonably necessary or proper to carry out more effectively the
purpose of this Indenture.
SECTION 4.11. Limitation on Guarantees of Indebtedness by Restricted
Subsidiaries. (a) The Company shall not permit any Restricted Subsidiary to
guarantee the payment of any Indebtedness of the Company unless (i) such
Restricted Subsidiary simultaneously executes and delivers a supplemental
indenture providing for a Guarantee of payment of the Securities by such
Restricted Subsidiary except that with respect to a guarantee of Indebtedness of
the Company (A) if the Securities are subordinated in right
52
of payment to such Indebtedness, the Guarantee under the supplemental
indenture shall be subordinated to such Restricted Subsidiary's guarantee
with respect to such Indebtedness substantially to the same extent as the
Securities are subordinated to such Indebtedness under this Indenture and (B)
if such Indebtedness is by its express terms subordinated in right of payment
to the Securities, any such guarantee of such Restricted Subsidiary with
respect to such Indebtedness shall be subordinated in right of payment to
such Restricted Subsidiary's Guarantee with respect to the Securities
substantially to the same extent as such Indebtedness is subordinated to the
Securities; (ii) such Restricted Subsidiary waives and shall not in any
manner whatsoever claim or take the benefit or advantage of, any rights of
reimbursement, indemnity or subrogation or any other rights against the
Company or any other Restricted Subsidiary as a result of any payment by such
Restricted Subsidiary under its Guarantee; and (iii) such Restricted
Subsidiary shall deliver to the Trustee an Opinion of Counsel to the effect
that (A) such Guarantee of the Securities has been duly executed and
authorized and (B) such Guarantee of the Securities constitutes a valid,
binding and enforceable obligation of such Restricted Subsidiary, except
insofar as enforcement thereof may be limited by bankruptcy, insolvency or
similar laws (including, without limitation, all laws relating to fraudulent
transfers) and except insofar as enforcement thereof is subject to general
principles of equity; provided that this Section 4.11(a) shall not be
applicable to any guarantee of any Restricted Subsidiary (x) that (A) existed
at the time such Person became a Restricted Subsidiary of the Company and (B)
was not incurred in connection with, or in contemplation of, such Person
becoming a Restricted Subsidiary of the Company or (y) that guarantees the
payment of Obligations of the Company or any Restricted Subsidiary under the
Senior Credit Facilities or any other Senior Indebtedness and any refunding,
refinancing or replacement thereof, in whole or in part, provided that such
refunding, refinancing or replacement thereof constitutes Senior Indebtedness
and provided further that any such Senior Indebtedness and any refunding,
refinancing or replacement thereof is not Incurred pursuant to a registered
offering of securities under the Securities Act or a private placement of
securities (including under Rule 144A) pursuant to an exemption from the
registration requirements of the Securities Act, which private placement
provides for registration rights under the Securities Act.
(b) Notwithstanding the provisions of Section 4.11(a) and the other
provisions of this Indenture, any Guarantee by a Restricted Subsidiary of
the Securities shall provide by its terms that it shall be automatically and
unconditionally released and discharged upon (i) any sale, exchange or
transfer, to any Person not an Affiliate of the Company, of all of the
Company's Capital Stock in, or all or substantially all the assets of, such
Restricted Subsidiary (which sale, exchange or transfer is not prohibited by
this Indenture) or (ii) the release or discharge of the guarantee which
resulted in the creation of such Guarantee, except a discharge or release by
or as a result of payment under such guarantee.
53
SECTION 4.12. Liens. (a) The Company shall not, and shall not permit any of
its Restricted Subsidiaries to, directly or indirectly Incur or suffer to exist
any Lien that secures obligations under any Senior Subordinated Indebtedness or
Subordinated Indebtedness on any asset or property of the Company or such
Restricted Subsidiary, or any income or profits therefrom, or assign or convey
any right to receive income therefrom, unless the Securities are equally and
ratably secured (or senior to, in the event the Lien relates to Subordinated
Indebtedness) with the obligations so secured or until such time as such
obligations are no longer secured by a Lien.
(b) No Guarantor shall directly or indirectly Incur or suffer to exist
any Lien that secures obligations under any Senior Subordinated Indebtedness
or Subordinated Indebtedness of such Guarantor on any asset or property of
such Guarantor or any income or profits therefrom, or assign or convey any
right to receive income therefrom, unless the Guarantee of such Guarantor is
equally and ratably secured (or senior to, in the event the Lien relates to
Subordinated Indebtedness) with the obligations so secured or until such
time as such obligations are no longer secured by a Lien.
SECTION 4.13. Limitation on Other Senior Subordinated Indebtedness. The
Company shall not, and shall not permit any Guarantor to, directly or
indirectly, Incur any Indebtedness (including Acquired Indebtedness) that is
subordinate in right of payment to any Indebtedness of the Company or any
Indebtedness of any Guarantor, as the case may be, unless such Indebtedness is
either (a) pari passu in right of payment with the Securities or such
Guarantor's Guarantee, as the case may be or (b) subordinate in right of payment
to the Securities, or such Guarantor's Guarantee, as the case may be.
ARTICLE 5
Successor Company
SECTION 5.01. Merger, Consolidation, or Sale of All or Substantially All
Assets. (a) The Company shall not consolidate or merge with or into or wind up
into (whether or not the Company is the surviving corporation), 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 any Person unless:
(i) the Company is the surviving corporation or the Person formed
by or surviving any such consolidation or merger (if other than the
Company) or to which such sale, assignment, transfer, lease, conveyance
or other disposition will have been made is a corporation organized or
existing under the laws of the United States, any state thereof, the
District of Columbia, or any territory thereof (the Company or such
Person, as the case may be, being herein called the "Successor
Company");
54
(ii) the Successor Company (if other than the Company) expressly
assumes all the obligations of the Company under this Indenture and the
Securities pursuant to a supplemental indenture or other documents or
instruments in form reasonably satisfactory to the Trustee;
(iii) immediately after such transaction no Default or Event of
Default exists;
(iv) immediately after giving pro forma effect to such
transaction, as if such transaction had occurred at the beginning of
the applicable four-quarter period, (A) the Successor Company would be
permitted to Incur at least $1.00 of additional Indebtedness pursuant
to the Fixed Charge Coverage Ratio test set forth in Section 4.03(a) or
(B) the Fixed Charge Coverage Ratio for the Successor Company and its
Restricted Subsidiaries would be greater than such Ratio for the
Company and its Restricted Subsidiaries immediately prior to such
transaction;
(v) each Guarantor, if any, unless it is the other party to the
transactions described above, in which case Section 5.01(b) shall
apply, shall have by supplemental indenture confirmed that its
Guarantee shall apply to such Person's obligations under this Indenture
and the Securities; and
(vi) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if
any) comply with this Indenture.
The Successor Company shall succeed to, and be substituted for, the Company
under this Indenture and the Securities. Notwithstanding the foregoing Section
5.01(a)(iv), (a) any Restricted Subsidiary may consolidate with, merge into or
transfer all or part of its properties and assets to the Company and (b) the
Company may merge with an Affiliate incorporated solely for the purpose of
reincorporating the Company in another State of the United States so long as the
amount of Indebtedness of the Company and its Restricted Subsidiaries is not
increased thereby.
55
(b) Each Guarantor, if any, shall not, and the Company shall not permit
a Guarantor to, consolidate or merge with or into or wind up into (whether
or not such Guarantor is the surviving corporation), 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, any Person
unless:
(i) such Guarantor is the surviving corporation or the Person
formed by or surviving any such consolidation or merger (if other than
such Guarantor) or to which such sale, assignment, transfer, lease,
conveyance or other disposition will have been made is a corporation
organized or existing under the laws of the United States, any state
thereof, the District of Columbia, or any territory thereof (such
Guarantor or such Person, as the case may be, being herein called the
"Successor Guarantor");
(ii) the Successor Guarantor (if other than such Guarantor)
expressly assumes all the obligations of such Guarantor under this
Indenture and such Guarantor's Guarantee pursuant to a supplemental
indenture or other documents or instruments in form reasonably
satisfactory to the Trustee;
(iii) immediately after such transaction no Default or Event of
Default exists; and
(iv) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if
any) comply with this Indenture.
The Successor Guarantor shall succeed to, and be substituted for, such
Guarantor under this Indenture and such Guarantor's Guarantee.
ARTICLE 6
Defaults and Remedies
SECTION 6.01. Events of Default. An "Event of Default" occurs if:
(1) the Company defaults in payment when due and payable, upon
redemption, acceleration or otherwise, of principal of, or premium, if
any, on the Securities whether or not such payment shall be prohibited
by Article 10;
56
(2) the Company defaults in the payment when due of interest on or
with respect to the Securities whether or not such payment shall be
prohibited by Article 10 and such default continues for a period of 30
days;
(3) the Company or any Guarantor defaults in the performance, or
breaches any covenant, warranty or other agreement contained in this
Indenture or any Guarantee (other than a default in the performance, or
breach of a covenant, warranty or agreement which is specifically dealt
with in clauses (1) or (2) of this Section 6.01) and such default or
breach continues for a period of 30 days after the notice specified
below;
(4) default under any mortgage, indenture or instrument under
which there is issued or by which there is secured or evidenced any
Indebtedness for money borrowed by the Company or any of its Restricted
Subsidiaries or the payment of which is guaranteed by the Company or
any of its Restricted Subsidiaries (other than Indebtedness owed to the
Company or a Restricted Subsidiary), whether such Indebtedness or
guarantee now exists or is created after the Closing Date, if both (A)
such default either (1) results from the failure to pay any such
Indebtedness at its stated final maturity (after giving effect to any
applicable grace periods) or (2) relates to an obligation other than
the obligation to pay principal of any such Indebtedness at its stated
final maturity and results in the holder or holders of such
Indebtedness causing such Indebtedness to become due prior to its
stated maturity and (B) the principal amount of such Indebtedness,
together with the principal amount of any other such Indebtedness in
default for failure to pay principal at stated final maturity (after
giving effect to any applicable grace periods), or the maturity of
which has been so accelerated, aggregate $20.0 million or more at any
one time outstanding;
(5) the Company or any of its Significant Subsidiaries pursuant to
or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against it
in an involuntary case;
(C) consents to the appointment of a Custodian of it or for
all or substantially all of its property; or
(D) makes a general assignment for the benefit of its
creditors;
or takes any comparable action under any foreign laws relating to insolvency;
57
(6) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that remains unstayed and in effect for 60
days and:
(A) is for relief against the Company or any of its
Significant Subsidiaries in an involuntary case;
(B) appoints a Custodian of the Company or any of its
Significant Subsidiaries or for all or substantially all of the
property of the Company or any of its Significant Subsidiaries; or
(C) orders the winding up or liquidation of the Company or
any of its Significant Subsidiaries,
provided that clauses (A), (B) and (C) shall not apply to an
Unrestricted Subsidiary, unless such action or proceeding has a
material adverse effect on the interests of the Company or any of its
Significant Subsidiaries;
(7) The failure by the Company or any of its Significant
Subsidiaries to pay final judgments aggregating in excess of $20.0
million, which final judgments remain unpaid, undischarged and unstayed
for a period of more than 60 days after such judgment becomes final,
and in the event such judgment is covered by insurance, an enforcement
proceeding has been commenced by any creditor upon such judgment or
decree which is not promptly stayed; or
(8) The Guarantee of any Significant Subsidiary shall for any
reason cease to be in full force and effect or be declared null and
void or any Officer of the Company or any Guarantor that is a
Significant Subsidiary denies that it has any further liability under
its Guarantee or gives notice to such effect (other than by reason of
the termination of this Indenture or the release of any such Guarantee
in accordance with this Indenture).
The foregoing shall constitute Events of Default whatever the reason for any
such Event of Default and whether it is voluntary or involuntary or is effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body.
The term "Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any similar
Federal or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator, custodian or similar official under any
Bankruptcy Law.
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A Default under clause (3) above is not an Event of Default until the
Trustee or the Holders of at least 30% in principal amount of the outstanding
Securities notify the Company of the Default and the Company does not cure such
Default within the time specified in clause (3) after receipt of such notice.
Such notice must specify the Default, demand that it be remedied and state that
such notice is a "Notice of Default"
The Company shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any Event of Default under clause (4) or (8) and any event which with the giving
of notice or the lapse of time would become an Event of Default under clause (3)
or (7), its status and what action the Company is taking or proposes to take
with respect thereto.
SECTION 6.02. Acceleration. If any Event of Default (other than of a type
specified in clause Section 6.01(5) or (6)) occurs and is continuing under this
Indenture, the Trustee or the Holders of at least 30% in principal amount of the
then outstanding Securities may declare the principal, premium, if any, interest
and any other monetary obligations on all the then outstanding Securities to be
due and payable immediately; provided, however, that, so long as any
Indebtedness permitted to be incurred under this Indenture as part of the Senior
Credit Facilities shall be outstanding, no such acceleration shall be effective
until the earlier of (i) acceleration of any such Indebtedness under the Senior
Credit Facilities or (ii) five Business Days after the giving of written notice
to the Company and the administrative agent under the Senior Credit Facilities
of such acceleration. Upon the effectiveness of such declaration, such principal
and interest shall be due and payable immediately. Notwithstanding the
foregoing, in the case of an Event of Default arising under Section 6.01(5) or
(6), all outstanding Securities shall ipso facto become due and payable without
further action or notice.
SECTION 6.03. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of principal of or interest on the Securities or to enforce the performance of
any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of the
Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquies cence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.04. Waiver of Past Defaults. The Holders of a majority in
aggregate principal amount of the then outstanding Securities issued thereunder
by notice to the Trustee may on behalf of the Holders of all of such Securities
waive any existing
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Default or Event of Default and its consequences except (i) a continuing Default
or Event of Default in the payment of interest on, premium, if any, or the
principal of any such Security held by a non-consenting Holder, (ii) a Default
arising from the failure to redeem or purchase any Security when required
pursuant to the terms of this Indenture or (iii) a Default in respect of a
provision that under Section 9.02 cannot be amended without the consent of each
Securityholder affected. In the event of any Event of Default specified in
Section 6.01(4), such Event of Default and all consequences thereof (including
without limitation any acceleration or resulting payment default) shall be
annulled, waived and rescinded, automatically and without any action by the
Trustee or the Holders, if within 20 days after such Event of Default arose (x)
the Indebtedness or guarantee that is the basis for such Event of Default has
been discharged, or (y) the holders thereof have rescinded or waived the
acceleration, notice or action (as the case may be) giving rise to such Event of
Default, or (z) if the default that is the basis for such Event of Default has
been cured. When a Default is waived, it is deemed cured, but no such waiver
shall extend to any subsequent or other Default.
SECTION 6.05. Control by Majority. The Holders of a majority in principal
amount of the Securities may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or of exercising any trust or
power conferred on the Trustee. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture or, subject to Section 7.01,
that the Trustee determines is unduly prejudicial to the rights of other
Securityholders or would involve the Trustee in personal liability; provided,
however, that the Trustee may take any other action deemed proper by the Trustee
that is not inconsistent with such direction. Prior to taking any action
hereunder, the Trustee shall be entitled to indemni fication satisfactory to it
in its sole discretion against all losses and expenses caused by taking or not
taking such action.
SECTION 6.06. Limitation on Suits. Except to enforce the right to receive
payment of principal, premium (if any) or interest when due, no Securityholder
may pursue any remedy with respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice stating that an
Event of Default is continuing;
(2) the Holders of at least 30% in principal amount of the
Securities make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable
security or indemnity against any loss, liability or expense;
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(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of security or indemnity;
and
(5) the Holders of a majority in principal amount of the
Securities do not give the Trustee a direction inconsistent with the
request during such 60-day period.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over another
Securityholder.
SECTION 6.07. Rights of Holders to Receive Payment. Notwithstanding any
other provision of this Indenture, the right of any Holder to receive payment of
principal of and liquidated damages and interest on the Securities held by such
Holder, on or after the respective due dates expressed in the Securities, or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of Default speci fied
in Section 6.01(1) or (2) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
for the whole amount then due and owing (together with interest on any unpaid
interest to the extent lawful) and the amounts provided for in Section 7.07.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may 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 and the Securityholders allowed in
any judicial proceedings relative to the Company, any Subsidiary or any
Guarantor, their creditors or their property and, unless prohibited by law or
applicable regulations, may vote on behalf of the Holders in any election of a
trustee in bankruptcy or other Person performing similar functions and may
participate as a member, voting or otherwise, of any official committee of
creditors appointed in such matter, and any Custodian in any such judicial
proceeding is hereby authorized by each Holder to make payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and its counsel, and any other amounts due the Trustee under Section
7.07.
SECTION 6.10. Priorities. If the Trustee collects any money or property
pursuant to this Article 6, it shall pay out the money or property in the
following order:
FIRST: to the Trustee for amounts due under Section 7.07;
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SECOND: to Securityholders for amounts due and unpaid on the Securities for
principal and interest, ratably, and any liquidated damages without preference
or priority of any kind, according to the amounts due and payable on the
Securities for principal, any liquidated damages and interest, respectively,
except that payment shall first be made to the holders of Senior Indebtedness to
the extent required by Article 10; and
THIRD: to the Company or any other obligor on the Securities.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 6.10. At least 15 days before such
record date, the Trustee shall mail to each Securityholder and the Company a
notice that states the record date, the payment date and amount to be paid.
SECTION 6.11. Undertaking for Costs. In any suit for the enforcement of any
right or remedy under this Indenture or in any suit against the Trustee for any
action taken or omitted by it as Trustee, a court in its discretion may require
the filing by any party litigant in the suit of an undertaking to pay the costs
of the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees, against any party 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 6.11 does not apply to a suit by the Trustee, a
suit by a Holder pursuant to Section 6.07 or a suit by Holders of more than 10%
in principal amount of the Securities.
SECTION 6.12. Waiver of Stay or Extension Laws. Neither the Company nor any
Guarantor (to the extent it may lawfully do so) shall at any time insist upon,
or plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Indenture; and
the Company and each Guarantor (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and shall not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
shall suffer and permit the execution of every such power as though no such law
had been enacted.
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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 the rights and powers vested in it by
this Indenture and use the same degree of care and skill in their exercise as a
prudent Person would exercise or use under the circumstances in the conduct of
such Person's own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements
of this Indenture, but shall not be obligated to recalculate or verify
the contents thereof.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful
misconduct, except that:
(1) this paragraph does not limit the effect of Section 7.01(b);
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company.
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(f) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that
repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(h) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section 7.01 and to the provisions of the
TIA.
SECTION 7.02. Rights of Trustee. (a) The Trustee may rely on any document
believed by it to be genuine and to have been signed or presented by the proper
person. The Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
the Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible for
the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights
or powers; provided, however, that the Trustee's conduct does not constitute
wilful misconduct or negligence.
(e) The Trustee may consult with counsel, and the advice or Opinion of
Counsel with respect to legal matters relating to this Indenture and the
Securities shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it
hereunder in good faith and in accordance with the advice or opinion of such
counsel.
(f) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond, debenture, note or other paper or document unless requested in writing
to do so by the Holders of not less than a majority in principal amount of
the Securities at the time outstanding, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters as
it may see fit, and, if the Trustee shall determine to make such further
inquiry or
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investigation, it shall be entitled to examine the books, records
and premises of the Company, personally or by agent or attorney.
(g) 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 pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might reasonably 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 Securities and may
otherwise deal with the Company or its Affiliates with the same rights it would
have if it were not Trustee. Any Paying Agent, Registrar or co-paying agent may
do the same with like rights. However, the Trustee must comply with Sections
7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer. The Trustee shall not be responsible for
and makes no representation as to the validity or adequacy of this Indenture or
the Securities, it shall not be accountable for the Company's use of the
proceeds from the Securities, and it shall not be responsible for any statement
of the Company in this Indenture or in any document issued in connection with
the sale of the Securities or in the Securities other than the Trustee's
certificate of authentication.
SECTION 7.05. Notice of Defaults. If a Default occurs and is continuing and
if it is known to the Trustee, the Trustee shall mail to each Securityholder
notice of the Default within the earlier of 90 days after it occurs or 30 days
after it is known to a Trust Officer. Except in the case of a Default in payment
of principal of or interest on any Security (including payments pursuant to the
mandatory redemption provisions of such Security, if any), the Trustee may
withhold the notice if and so long as a committee of its Trust Officers in good
faith determines that withholding the notice is in the interests of
Securityholders.
SECTION 7.06. Reports by Trustee to Holders. As promptly as practicable
after each June 30 beginning with the June 30 following the first anniversary of
this Indenture, and in any event prior to August 31 in each subsequent year, the
Trustee shall mail to each Securityholder a brief report dated as of June 30
that complies with Section 313(a) of the TIA. The Trustee shall also comply with
Section 313(b) of the TIA.
A copy of each report at the time of its mailing to Securityholders shall be
filed with the SEC and each stock exchange (if any) on which the Securities are
listed. The Company agrees to notify promptly the Trustee whenever the
Securities become listed on any stock exchange and of any delisting thereof.
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SECTION 7.07. Compensation and Indemnity. The Company shall pay to the
Trustee from time to time reasonable compensation for its services. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred or made by it,
including costs of collection, in addition to the compensation for its services.
Such expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Trustee's agents, counsel, accountants and
experts. The Company and each Guarantor, if any, jointly and severally shall
indemnify the Trustee against any and all loss, liability or expense (including
reasonable attorneys' fees) incurred by or in connection with the administration
of this trust and the performance of its duties hereunder. The Trustee shall
notify the Company of any claim for which it may seek indemnity promptly upon
obtaining actual knowledge thereof; provided, however, that any failure so to
notify the Company shall not relieve the Company or any Guarantor of its
indemnity obligations hereunder. The Company shall defend the claim and the
indemnified party shall provide reasonable cooperation at the Company's expense
in the defense of such claim. Such indemnified parties together may have one
separate counsel and the Company and any Guarantor, as applicable, shall pay the
fees and expenses of such counsel; provided, however, that the Company shall not
be required to pay such fees and expenses if it assumes such indemnified
parties' defense and, in such indemnified parties' reasonable judgment, there is
no conflict of interest between the Company and any Guarantor, as applicable,
and such parties in connection with such defense. The Company need not reimburse
any expense or indemnify against any loss, liability or expense incurred by an
indemnified party through such party's own wilful misconduct, negligence or bad
faith.
The Trustee's right to receive payment of any amounts due under this Section
7.07 shall not be subordinated to any other liability or indebtedness of the
Company (even though the Securities may be so subordinated).
To secure the Company's payment obligations in this Section, the Trustee
shall have a lien prior to the Securities on all money or property held or
collected by the Trustee other than money or property held in trust to pay
principal of and interest and any liquidated damages on particular Securities.
The Company's payment obligations pursuant to this Section 7.07 shall
survive the satisfaction or discharge of this Indenture, any rejection or
termination of this Indenture under any bankruptcy law or the resignation or
removal of the Trustee. When the Trustee incurs expenses after the occurrence of
a Default specified in Section 6.01(5) or (6) with respect to the Company, the
expenses are intended to constitute expenses of administration under the
Bankruptcy Law.
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SECTION 7.08. Replacement of Trustee. The Trustee may resign at any time by
so notifying the Company. The Holders of a majority in principal amount of the
Securities may remove the Trustee by so notifying the Trustee and may appoint a
successor Trustee. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee
or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Company or by the Holders of a
majority in principal amount of the Securities and such Holders do not
reasonably promptly appoint a successor Trustee, or if a vacancy exists in the
office of Trustee for any reason (the Trustee in such event being referred to
herein as the retiring Trustee), the Company shall promptly appoint a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to
the retiring Trustee and to the Company. Thereupon the resignation or removal of
the retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Indenture. The
successor Trustee shall mail a notice of its succession to Securityholders. The
retiring Trustee shall promptly transfer all property held by it as Trustee to
the successor Trustee, subject to the lien provided for in Section 7.07.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee or the Holders of
10% in principal amount of the Securities may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this Section, the
Company's obligations under Section 7.07 shall continue for the benefit of the
retiring Trustee.
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SECTION 7.09. Successor Trustee by Merger. If the Trustee consolidates with,
merges or converts into, or transfers all or substantially all its corporate
trust business or assets to, another corporation or banking association, the
resulting, surviving or transferee corporation without any further act shall be
the successor Trustee.
In case at the time such successor or successors by merger, conversion or
consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of the Securities shall have been authenticated but not delivered,
any such successor to the Trustee may adopt the certificate of authentication of
any predecessor trustee, and deliver such Securities so authenticated; and in
case at that time any of the Securities shall not have been authenticated, any
successor to the Trustee may authenticate such Securities either in the name of
any predecessor hereunder or in the name of the successor to the Trustee; and in
all such cases such certificates shall have the full force which it is anywhere
in the Securities or in this Indenture provided that the certificate of the
Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall at all
times satisfy the requirements of TIA Section 310(a). The Trustee shall have
a combined capital and surplus of at least $100,000,000 as set forth in its
most recent published annual report of condition. The Trustee shall comply
with TIA Section 310(b); provided, however, that there shall be excluded from
the operation of TIA Section 310(b)(1) any indenture or indentures under
which other securities or certificates of interest or participation in other
securities of the Company are outstanding if the requirements for such
exclusion set forth in TIA Section 310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against Company. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated.
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ARTICLE 8
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Securities; Defeasance. (a) Subject
to Section 8.01(c), this Indenture shall be discharged and shall cease to be of
further effect as to all Securities issued hereunder, when either (a) all such
Securities theretofore authenticated and delivered (except lost, stolen or
destroyed Securities which have been replaced or paid and Securities for whose
payment money has theretofore been deposited in trust) have been delivered to
the Trustee for cancelation; or (b) (i) all such Securities not theretofore
delivered to such Trustee for cancelation have become due and payable by reason
of the making of a notice of redemption or otherwise or will become due and
payable within one year or are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name and at the expense of the Company and the Company or
any Guarantor has irrevocably deposited or caused to be deposited with such
Trustee as trust funds in trust solely for the benefit of the Holders, cash in
U.S. dollars, non-callable Government Securities, or a combination thereof, in
such amounts as will be sufficient without consideration of any reinvestment of
interest to pay and discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancelation for principal, premium, if
any, and accrued interest to the date of maturity or redemption; (ii) no Default
or Event of Default shall have occurred and be continuing on the date of such
deposit or shall occur as a result of such deposit and such deposit will not
result in a breach or violation of, or constitute a default under, any other
instrument to which the Company or any Guarantor is a party or by which the
Company or any Guarantor is bound; (iii) the Company or any Guarantor has paid
or caused to be paid all sums payable by it under this Indenture and the
Securities; and (iv) the Company has delivered irrevocable instructions to the
Trustee under this Indenture to apply the deposited money toward the payment of
such Securities at maturity or the Redemption Date, as the case may be. In
addition, the Company must deliver an Officers' Certificate and an Opinion of
Counsel to the Trustee stating that all conditions precedent to satisfaction and
discharge have been satisfied. The Trustee, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of the
Indenture upon the occurrence of the foregoing.
(b) Subject to Sections 8.01(c) and 8.02, the Company at any time may
terminate (i) all of its obligations under the Securities and this Indenture
("legal defeasance option") or (ii) its obligations under Sections 4.02,
4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12 and 4.13 and the
operation of Sections 5.01, 6.01(3), 6.01(4), 6.01(5) (with respect to
Significant Subsidiaries of the Company only), 6.01(6) (with respect to
Significant Subsidiaries of the Company only), 6.01(7) and 6.01(8)
("covenant defeasance option"). The Company may exercise its legal
defeasance option
69
notwithstanding its prior exercise of its covenant defeasance option. In the
event that the Company terminates all of its obligations under the
Securities and this Indenture by exercising either its legal defeasance
option or its covenant defeasance option, the obligations under any
Guarantee shall each be terminated simultaneously with the termination of
such obligations.
If the Company exercises its legal defeasance option, payment of the
Securities may not be accelerated because of an Event of Default. If the Company
exer cises its covenant defeasance option, payment of the Securities may not be
accelerated because of an Event of Default specified in Section 6.01(3) (as such
Section relates to Sections 4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09,
4.10, 4.11, 4.12 and 4.13), 6.01(4), 6.01(5) (with respect to Significant
Subsidiaries of the Company only), 6.01(6) (with respect to Significant
Subsidiaries of the Company only), 6.01(7) and 6.01(8) or because of the failure
of the Company to comply with Section 5.01.
Upon satisfaction of the conditions set forth herein and upon request of the
Company, the Trustee shall acknowledge in writing the discharge of those
obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 2.10, 6.07,
7.07, 7.08 and in this Article 8 shall survive until the Securities have
been paid in full. Thereafter, the Company's obligations in Sections 7.07,
8.04 and 8.05 shall survive.
SECTION 8.02. Conditions to Defeasance. In order to exercise either Legal
Defeasance or Covenant Defeasance with respect to the Securities:
(i) the Company must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders, cash in U.S. dollars,
non-callable Government Securities, or a combination thereof, in such
amounts as will be sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to pay the principal
of, premium, if any, and interest due on the outstanding Securities on
the stated maturity date or on the applicable Redemption Date, as the
case may be, of such principal, premium, if any, or interest on the
outstanding Securities;
(ii) in the case of Legal Defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel in the United States
confirming that, subject to customary assumptions and exclusions, (A)
the Company has received from, or there has been published by, the
United States Internal Revenue Service a ruling or (B) since the
Closing Date, there has been a change in the applicable U.S. federal
income tax law, in either case to the effect that, and based thereon
such Opinion of Counsel in the United States shall confirm that,
subject to customary
70
assumptions and exclusions, the Holders will not recognize income,
gain or loss for U.S. federal income tax purposes as a result of such
Legal Defeasance and will be subject to U.S. 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 Covenant Defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel in the United States
confirming that, subject to customary assumptions and exclusions, the
Holders will not recognize income, gain or loss for U.S. federal income
tax purposes as a result of such Covenant Defeasance and will be
subject to such 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;
(iv) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or, with respect to certain
bankruptcy or insolvency Events of Default, on the 91st day after such
date of deposit;
(v) such Legal Defeasance or Covenant Defeasance shall not result
in a breach or violation of, or constitute a default under, the Senior
Credit Facilities or any other material agreement or instrument (other
than this Indenture) to which, the Company or any Guarantor is a party
or by which the Company or any Guarantor is bound;
(vi) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that, as of the date of such opinion and subject
to customary assumptions and exclusions 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 under any applicable U.S. federal or state
law, and that the Trustee has a perfected security interest in such
trust funds for the ratable benefit of the Holders;
(vii) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with
the intent of defeating, hindering, delaying or defrauding any
creditors of the Company or any Guarantor or others; and
(viii) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel in the United States
(which Opinion of Counsel may be subject to customary assumptions and
exclusions) each stating that all conditions precedent provided for or
relating to the Legal Defeasance or the Covenant Defeasance, as the
case may be, have been complied with.
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Before or after a deposit, the Company may make arrangements satisfactory to
the Trustee for the redemption of Securities at a future date in accordance with
Article 3.
SECTION 8.03. Application of Trust Money. The Trustee shall hold in trust
money or Government Securities deposited with it pursuant to this Article 8. It
shall apply the deposited money and the money from Government Securities through
the Paying Agent and in accordance with this Indenture to the payment of
principal of and interest on the Securities. Money and securities so held in
trust are not subject to Article 10.
SECTION 8.04. Repayment to Company. The Trustee and the Paying Agent shall
promptly turn over to the Company upon request any excess money or securities
held by them at any time.
Subject to any applicable abandoned property law, the Trustee and the Paying
Agent shall pay to the Company upon written request any money held by them for
the payment of principal or interest that remains unclaimed for two years, and,
thereafter, Securityholders entitled to the money must look to the Company for
payment as general creditors.
SECTION 8.05. Indemnity for Government Obligations. The Company shall pay
and shall indemnify the Trustee against any tax, fee or other charge imposed on
or assessed against deposited Government Securities or the principal and
interest received on such Government Securities.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is unable to
apply any money or Government Securities in accordance with this Article 8 by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company's obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to this Article 8 until such time as the Trustee or Paying Agent is
permitted to apply all such money or Government Securities in accordance with
this Article 8; provided, however, that, if the Company has made any payment of
interest on or principal of any Securities because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money or Government Securities
held by the Trustee or Paying Agent.
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ARTICLE 9
Amendments
SECTION 9.01. Without Consent of Holders. The Company, any Guarantor (with
respect to a Guarantee or the supplemental indenture to which it is a party) and
the Trustee may amend this Indenture, the Securities or the Guarantees without
notice to or consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article 5;
(3) to provide for uncertificated Securities in addition to or in
place of certificated Securities; provided, however, that the
uncertificated Securities are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code;
(4) to provide for the assumption of the Company's or any
Guarantor's obligations to Holders;
(5) to add Guarantees with respect to the Securities or to secure
the Securities;
(6) to make any change that would provide any additional rights or
benefits to the Holders or that does not adversely affect the legal
rights under this Indenture of any such Holder;
(7) to add to the covenants for the benefit of the Holders or to
surrender any right or power herein conferred upon the Company;
(8) to comply with any requirements of the SEC in connection with
qualifying, or maintaining the qualification of, this Indenture under
the TIA;
(9) to evidence and provide for the acceptance and appointment
under this Indenture of a successor Trustee pursuant to Article 7; or
(10) to provide for the issuance of the Exchange Securities,
Private Exchange Securities or Additional Securities, which shall have
terms substantially identical in all material respects to the Original
Securities (except that the transfer restrictions contained in the
Original Securities shall be modified or eliminated, as appropriate),
and which shall be treated, together with any outstanding Original
Securities, as a
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single issue of securities.
After an amendment under this Section becomes effective, the Company shall
mail to Securityholders a notice briefly describing such amendment. The failure
to give such notice to all Securityholders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section.
SECTION 9.02. With Consent of Holders. The Company, any Guarantor and the
Trustee may amend this Indenture, the Securities or the Guarantees without
notice to any Securityholder but with the written consent of the Holders of at
least a majority in principal amount of the Securities then outstanding
(including consents obtained in connection with a tender offer or exchange for
the Securities) and, subject to Article 6, any existing default or compliance
with any provision of this Indenture or the Securities may be waived with the
consent of the Holders of a majority in principal amount of the then outstanding
Securities (including consents obtained in connection with a purchase of or
tender offer or exchange offer for Securities). However, without the consent of
each Securityholder affected, an amendment may not (with respect to any
Securities held by a non-consenting Holder):
(i) reduce the principal amount of Securities whose Holders must
consent to an amendment, supplement or waiver;
(ii) reduce the principal of or change the fixed maturity of any
Security or alter or waive the provisions with respect to the
redemption of the Securities (other than provisions relating to
Sections 4.06 or 4.08);
(iii) reduce the rate of or change the time for payment of
interest on any Security;
(iv) waive a Default or Event of Default in the payment of
principal of or premium, if any, or interest on the Securities (except
a rescission of acceleration of the Securities by the Holders of at
least a majority in aggregate principal amount of such Securities and a
waiver of the payment default that resulted from such acceleration), or
in respect of a covenant or provision contained in this Indenture, any
Guarantee or the Securities which cannot be amended or modified without
the consent of all Holders;
(v) make any Security payable in money other than that stated in
such Securities;
(vi) make any change to Section 6.04 or 6.07;
74
(vii) make any change to the second sentence of this Section 9.02;
(viii) impair the right of any Holder to receive payment of
principal of, or interest on such Holder's Securities on or after the
due dates therefor or to institute suit for the enforcement of any
payment on or with respect to such Holder's Securities; or
(ix) make any change to Article 10 that would adversely affect the
Holders.
It shall not be necessary for the consent of the Holders under this Section
to approve the particular form of any proposed amendment, but it shall be
sufficient if such consent approves the substance thereof.
After an amendment under this Section 9.02 becomes effective, the Company
shall mail to Securityholders a notice briefly describing such amendment. The
failure to give such notice to all Securityholders, or any defect therein, shall
not impair or affect the validity of an amendment under this Section 9.02.
SECTION 9.03. Compliance with Trust Indenture Act. Every amendment to this
Indenture or the Securities shall comply with the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents and Waivers. A consent to an
amendment or a waiver by a Holder of a Security shall bind the Holder and every
subsequent Holder of that Security or portion of the Security that evidences the
same debt as the consenting Holder's Security, even if notation of the consent
or waiver is not made on the Security. However, any such Holder or subsequent
Holder may revoke the consent or waiver as to such Holder's Security or portion
of the Security if the Trustee receives the notice of revocation before the date
the amendment or waiver becomes effective. After an amendment or waiver becomes
effective, it shall bind every Securityholder. An amendment or waiver becomes
effective once both (i) the requisite number of consents have been received by
the Company or the Trustee and (ii) such amendment or waiver has been executed
by the Company and the Trustee.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Securityholders entitled to give their consent or
take any other action described above or required or permitted to be taken
pursuant to this Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were Securityholders at such
record date (or their duly designated proxies), and only those Persons, shall be
entitled to give such consent or to revoke any consent previously given or to
take any such action, whether or not such Persons continue to be Holders after
such record date. No such consent shall be valid or effective for more than 120
days after such record date.
75
SECTION 9.05. Notation on or Exchange of Securities. If an amendment changes
the terms of a Security, the Trustee may require the Holder of the Security to
deliver it to the Trustee. The Trustee may place an appropriate notation on the
Security regarding the changed terms and return it to the Holder. Alternatively,
if the Company or the Trustee so determines, the Company in exchange for the
Security shall issue and the Trustee shall authenticate a new Security that
reflects the changed terms. Failure to make the appropriate notation or to issue
a new Security shall not affect the validity of such amendment.
SECTION 9.06. Trustee To Sign Amendments. The Trustee shall sign any
amendment authorized pursuant to this Article 9 if the amendment does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may but need not sign it. In signing such amendment the
Trustee shall be entitled to receive indemnity reasonably satisfactory to it and
to receive, and (subject to Section 7.01) shall be fully protected in relying
upon, an Officers' Certificate and an Opinion of Counsel stating that such
amendment is authorized or permitted by this Indenture and that such amendment
is the legal, valid and binding obligation of the Company and any Guarantors
enforceable against them in accordance with its terms, subject to customary
exceptions, and complies with the provisions hereof (including Section 9.03).
SECTION 9.07. Payment for Consent. Neither the Company nor any Affiliate of
the Company shall, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to any Holder for
or as an inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture or the Securities unless such consideration is
offered to be paid to all Holders that so consent, waive or agree to amend in
the time frame set forth in solicitation documents relating to such consent,
waiver or agreement.
ARTICLE 10
Subordination
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SECTION 10.01. Agreement To Subordinate. The Company agrees, and each
Securityholder by accepting a Security agrees, that the Indebtedness evidenced
by the Securities is subordinated in right of payment, to the extent and in the
manner provided in this Article 10, to the prior payment in full in cash or Cash
Equivalents of all Senior Indebtedness of the Company and that the subordination
is for the benefit of and enforceable by the holders of such Senior
Indebtedness. The Securities shall in all respects rank pari passu with all
other Senior Subordinated Indebtedness of the Company and shall rank senior to
all existing and future Subordinated Indebtedness of the Company; and only
Indebtedness of the Company that is Senior Indebtedness of the Company shall
rank senior to the Securities in accordance with the provisions set forth
herein. For purposes of this Article 10, the Indebtedness evidenced by the
Securities shall be deemed to include the liquidated damages payable pursuant to
the provisions set forth in the Securities and the Registration Agreement. All
provisions of this Article 10 shall be subject to Section 10.12.
SECTION 10.02. Liquidation, Dissolution, Bankruptcy. Upon any distribution
to creditors of the Company in a liquidation or dissolution of the Company or in
a bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to the Company or its property, an assignment for the benefit of
creditors or any marshaling of the Company's assets and liabilities, the holders
of Senior Indebtedness shall be entitled to receive payment in full in cash or
Cash Equivalents of such Senior Indebtedness and all outstanding Letter of
Credit Obligations shall be fully cash collateralized before the Holders will be
entitled to receive any payment with respect to the Subordinated Note
Obligations, and until all Senior Indebtedness is paid in full in cash or Cash
Equivalents, any distribution to which the Holders would be entitled shall be
made to the holders of Senior Indebtedness (except that Holders may receive (i)
shares of stock and any debt securities that are subordinated at least to the
same extent as the Securities to (a) Senior Indebtedness and (b) any securities
issued in exchange for Senior Indebtedness and (ii) payments and other
distributions made from the trusts described in Section 8.01).
SECTION 10.03. Default on Senior Indebtedness. The Company shall not make
any payment upon or in respect of the Subordinated Note Obligations (except that
Holders may receive (i) shares of stock and any debt securities that are
subordinated at least to the same extent as the Securities to (a) Senior
Indebtedness and (b) any securities issued in exchange for Senior Indebtedness
and (ii) payments and other distributions made from the trusts described in
Section 8.01) until all Senior Indebtedness has been paid in full in cash or
Cash Equivalents if (i) a default in the payment of the principal of, premium,
if any, or interest on, or of unreimbursed amounts under drawn letters of credit
or in respect of bankers' acceptances or fees relating to letters of credit or
bankers' acceptances constituting, Designated Senior Indebtedness occurs and is
continuing beyond any applicable period of grace in the indenture, agreement or
other
77
document governing such Designated Senior Indebtedness (a "payment default")
or (ii) any other default occurs and is continuing with respect to Designated
Senior Indebtedness that permits holders of the Designated Senior
Indebtedness as to which such default relates to accelerate its maturity
without further notice (except such notice as may be required to effect such
acceleration) or the expiration of any applicable grace periods (a
"non-payment default") and the Trustee receives a notice of such default (a
"Payment Blockage Notice") from a representative of holders of such
Designated Senior Indebtedness. Payments on the Securities, including any
missed payments, may and shall be resumed (a) in the case of a payment
default, upon the date on which such default is cured or waived or shall have
ceased to exist or such Designated Senior Indebtedness shall have been
discharged or paid in full in cash or Cash Equivalents and all outstanding
Letter of Credit Obligations shall have been fully cash collateralized and
(b) in case of a nonpayment default, the earlier of (x) the date on which
such nonpayment default is cured or waived, (y) 179 days after the date on
which the applicable Payment Blockage Notice is received (each such period,
the "Payment Blockage Period") or (z) the date such Payment Blockage Period
shall be terminated by written notice to the Trustee from the requisite
holders of such Designated Senior Indebtedness necessary to terminate such
period or from their representative. No new Payment Blockage Period may be
commenced unless and until 365 days have elapsed since the effectiveness of
the immediately preceding Payment Blockage Notice. However, if any Payment
Blockage Notice within such 365-day period is given by or on behalf of any
holders of Designated Senior Indebtedness (other than the agent under the
Senior Credit Facilities), the agent under the Senior Credit Facilities may
give another Payment Blockage Notice within such period. In no event,
however, shall the total number of days during which any Payment Blockage
Period or Periods is in effect exceed 179 days in the aggregate during any
365 consecutive day period. 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 unless such default shall have been cured or waived for a period of
not less than 90 days.
SECTION 10.04. Acceleration of Payment of Securities. If payment of the
Securities is accelerated because of an Event of Default, the Company or the
Trustee shall promptly notify the holders of the Designated Senior Indebtedness
(or their Representative) of the acceleration. If any Designated Senior
Indebtedness is outstanding, the Company shall not pay the Securities until five
Business Days after such holders or the Representative of the Designated Senior
Indebtedness receive notice of such acceleration and, thereafter, shall pay the
Securities only if this Article 10 otherwise permits payment at that time.
SECTION 10.05. When Distribution Must Be Paid Over. If a distribution is
made to Securityholders that because of this Article 10 should not have been
made to them, the Securityholders who receive the distribution shall hold it in
trust for holders of
78
Senior Indebtedness of the Company and pay it over to them as their interests
may appear.
SECTION 10.06. Subrogation. After all Senior Indebtedness of the Company
is paid in full and until the Securities are paid in full, Securityholders
shall be subrogated to the rights of holders of such Senior Indebtedness to
receive distributions applicable to Senior Indebtedness. A distribution made
under this Article 10 to holders of such Senior Indebtedness which otherwise
would have been made to Securityholders is not, as between the Company and
Securityholders, a payment by the Company on such Senior Indebtedness.
SECTION 10.07. Relative Rights. This Article 10 defines the relative rights
of Securityholders and holders of Senior Indebtedness of the Company. Nothing in
this Indenture shall:
(1) impair, as between the Company and Securityholders, the
obligation of the Company, which is absolute and unconditional, to pay
principal of and interest on and liquidated damages in respect of, the
Securities in accordance with their terms; or
(2) prevent the Trustee or any Securityholder from exercising its
available remedies upon a Default, subject to the rights of holders of
Senior Indebtedness of the Company to receive distributions otherwise
payable to Securityholders.
SECTION 10.08. Subordination May Not Be Impaired by Company. No right of any
holder of Senior Indebtedness of the Company to enforce the subordination of the
Indebtedness evidenced by the Securities shall be impaired by any act or failure
to act by the Company or by its failure to comply with this Indenture.
SECTION 10.09. Rights of Trustee and Paying Agent. Notwithstanding Section
10.03, the Trustee or Paying Agent may continue to make payments on the
Securities and shall not be charged with knowledge of the existence of facts
that would prohibit the making of any such payments unless, not less than two
Business Days prior to the date of such payment, a Trust Officer of the Trustee
receives notice satisfactory to it that payments may not be made under this
Article 10. The Company, the Registrar, the Paying Agent, a Representative or a
holder of Senior Indebtedness of the Company may give the notice; provided,
however, that, if an issue of Senior Indebtedness of the Company has a
Representative, only the Representative may give the notice.
The Trustee in its individual or any other capacity may hold Senior
Indebtedness of the Company with the same rights it would have if it were not
Trustee. The Registrar and the Paying Agent may do the same with like rights.
The Trustee shall
79
be entitled to all the rights set forth in this Article 10 with respect to
any Senior Indebtedness of the Company which may at any time be held by it,
to the same extent as any other holder of such Senior Indebtedness; and
nothing in Article 7 shall deprive the Trustee of any of its rights as such
holder. Nothing in this Article 10 shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 7.07.
SECTION 10.10. Distribution or Notice to Representative. Whenever a
distribution is to be made or a notice given to holders of Senior Indebtedness
of the Company, the distribution may be made and the notice given to their
Representative (if any).
SECTION 10.11. Article 10 Not To Prevent Events of Default or Limit Right To
Accelerate. The failure to make a payment pursuant to the Securities by reason
of any provision in this Article 10 shall not be construed as preventing the
occurrence of a Default. Nothing in this Article 10 shall have any effect on the
right of the Secu rityholders or the Trustee to accelerate the maturity of the
Securities.
SECTION 10.12. Trust Moneys Not Subordinated. Notwithstanding anything
contained herein to the contrary, payments from money or the proceeds of
Government Securities held in trust under Article 8 by the Trustee for the
payment of principal of and interest on the Securities shall not be subordinated
to the prior payment of any Senior Indebtedness of the Company or subject to the
restrictions set forth in this Article 10, and none of the Securityholders shall
be obligated to pay over any such amount to the Company or any holder of Senior
Indebtedness of the Company or any other creditor of the Company.
SECTION 10.13. Trustee Entitled To Rely. Upon any payment or distribution
pursuant to this Article 10, the Trustee and the Securityholders shall be
entitled to rely (i) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section
10.02 are pending, (ii) upon a certificate of the liquidating trustee or
agent or other Person making such payment or distribution to the Trustee or
to the Securityholders or (iii) upon the Representatives for the holders of
Senior Indebtedness of the Company for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders
of such Senior Indebtedness and other Indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article 10. In the event
that the Trustee determines, in good faith, that evidence is required with
respect to the right of any Person as a holder of Senior Indebtedness of the
Company to participate in any payment or distribution pursuant to this
Article 10, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of such Senior
Indebtedness held by such Person, the extent to which such Person is entitled
to participate in such payment
80
or distribution and other facts pertinent to the rights of such Person under
this Article 10, and, if such evidence is not furnished, the Trustee may
defer any payment to such Person pending judicial determination as to the
right of such Person to receive such payment. The provisions of Sections 7.01
and 7.02 shall be applicable to all actions or omissions of actions by the
Trustee pursuant to this Article 10.
SECTION 10.14. Trustee To Effectuate Subordination. Each Securityholder by
accepting a Security authorizes and directs the Trustee on his behalf to take
such action as may be necessary or appropriate to acknowledge or effectuate the
subordination between the Securityholders and the holders of Senior Indebtedness
of the Company as provided in this Article 10 and appoints the Trustee as
attorney-in-fact for any and all such purposes.
SECTION 10.15. Trustee Not Fiduciary for Holders of Senior Indebtedness. The
Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness of the Company and shall not be liable to any such holders if it
shall mistakenly pay over or distribute to Securityholders or the Company or any
other Person, money or assets to which any holders of Senior Indebtedness of the
Company shall be entitled by virtue of this Article 10 or otherwise.
SECTION 10.16. Reliance by Holders of Senior Indebtedness on Subordination
Provisions. Each Securityholder by accepting a Security acknowledges and agrees
that the foregoing subordination provisions are, and are intended to be, an
inducement and a consideration to each holder of any Senior Indebtedness of the
Company, whether such Senior Indebtedness was created or acquired before or
after the issuance of the Securities, to acquire and continue to hold, or to
continue to hold, such Senior Indebtedness and such holder of such Senior
Indebtedness shall be deemed conclusively to have relied on such subordination
provisions in acquiring and continuing to hold, or in continuing to hold, such
Senior Indebtedness.
SECTION 10.17. Trustee's Compensation Not Prejudiced. Nothing in this
Article 10 shall apply to amounts due to the Trustee pursuant to other sections
of this Indenture.
SECTION 10.18. Defeasance. The terms of this Article 10 shall not apply to
payments from money or the proceeds of Government Securities held in trust by
the Trustee for the payment of principal of and interest on the Securities
pursuant to the provisions described in Section 8.03.
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ARTICLE 11
Miscellaneous
SECTION 11.01. Trust Indenture Act Controls. If any provision of this
Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 11.02. Notices. Any notice or communication shall be in writing and
delivered in person or mailed by first-class mail addressed as follows:
if to the Company:
Corning Consumer Products Company
E-Building, Xxxxxxxx Xxxx
Xxxxxxx, Xxx Xxxx 00000
Attention of: Xxxxxx X'Xxxxx, Esq.
if to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx--Xxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Attention of: Corporate Trust Trustee
Administration
The Company or the Trustee by notice to the other may designate additional
or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Securityholder shall be mailed to
the Securityholder at the Securityholder's address as it appears on the
registration books of the Registrar and shall be sufficiently given if so mailed
within the time prescribed.
Failure to mail a notice or communication to a Securityholder or any defect
in it shall not affect its sufficiency with respect to other Securityholders. If
a notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
Notices to the Trustee shall be deemed effective only upon actual receipt.
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SECTION 11.03. Communication by Holders with Other Holders. Securityholders
may communicate pursuant to TIA Section 312(b) with other Securityholders with
respect to their rights under this Indenture or the Securities. The Company, 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 Company to the Trustee to take or refrain from
taking any action under this Indenture, the Company shall furnish to the
Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 11.05. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture shall include:
(1) a statement that the individual making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
SECTION 11.06. When Securities Disregarded. In determining whether the
Holders of the required principal amount of Securities have concurred in any
direc tion, waiver or consent, Securities owned by the Company, any Guarantor or
by any Person directly or indirectly controlling or controlled by or under
direct or indirect
83
common control with the Company or any Guarantor shall be disregarded and deemed
not to be outstanding, except that, for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Securities which the Trustee knows are so owned shall be so disregarded.
Subject to the foregoing, only Securities outstanding at the time shall be
considered in any such determination.
SECTION 11.07. Rules by Trustee, Paying Agent and Registrar. The Trustee may
make reasonable rules for action by or a meeting of Securityholders. The
Registrar and the Paying Agent may make reasonable rules for their functions.
SECTION 11.08. Legal Holidays. A "Legal Holiday" is a Saturday, a Sunday or
a day on which banking institutions are not required to be open in the State of
New York. If a payment date is a Legal Holiday, payment shall be made on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue
for the intervening period. If a regular record date is a Legal Holiday, the
record date shall not be affected.
SECTION 11.09. GOVERNING LAW. THIS INDENTURE AND THE SECURITIES SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE
EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
SECTION 11.10. No Recourse Against Others. No director, officer, employee,
incorporator or stockholder of the Company or any Guarantor, shall have any
liability for any obligations of the Company or the Guarantors under the
Securities, the Guarantees 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 Security waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Securities. Such
waiver may not be effective to waive liabilities under the federal securities
laws and it is the view of the Commission that such a waiver is against public
policy.
SECTION 11.11. Successors. All agreements of the Company and each Guarantor
in this Indenture and the Securities shall bind its successors. All agreements
of the Trustee in this Indenture shall bind its successors.
SECTION 11.12. Multiple 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. One signed copy is enough to prove this
Indenture.
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SECTION 11.13. Table of Contents; Headings. The table of contents,
cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not intended
to be considered a part hereof and shall not modify or restrict any of the terms
or provisions hereof.
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IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
CORNING CONSUMER PRODUCTS COMPANY,
by
---------------------------------
Name:
Title:
THE BANK OF NEW YORK, as Trustee,
by
---------------------------------
Name:
Title:
86
APPENDIX A
PROVISIONS RELATING TO ORIGINAL SECURITIES,
ADDITIONAL SECURITIES, PRIVATE EXCHANGE SECURITIES
AND EXCHANGE SECURITIES
1. Definitions
1.1 Definitions
For the purposes of this Appendix A the following terms shall have the
meanings indicated below:
"Applicable Procedures" means, with respect to any transfer or transaction
involving a Temporary or Permanent Regulation S Global Security or beneficial
interest therein, the rules and procedures of the Depositary for such Global
Security, Euroclear and Cedel, in each case to the extent applicable to such
transaction and as in effect from time to time.
"Cedel" means Cedel Bank, S.A., or any successor securities clearing agency.
"Definitive Security" means a certificated Initial Security or Exchange
Security (bearing the Restricted Securities Legend if the transfer of such
Security is restricted by applicable law) that does not include the Global
Securities Legend.
"Depositary" means The Depository Trust Company, its nominees and their
respective successors.
"Euroclear" means the Euroclear Clearance System or any successor securities
clearing agency.
"Global Securities Legend" means the legend set forth under that caption in
Exhibit A to this Indenture.
"IAI" means an institutional "accredited investor" as described in Rule
501(a)(1), (2), (3) or (7) under the Securities Act.
"Initial Purchasers" means Chase Securities Inc., Salomon Brothers Inc and
Citicorp Securities, Inc.
"Private Exchange" means an offer by the Company, pursuant to the
Registration Agreement, to issue and deliver to certain purchasers, in exchange
for the
Initial Securities held by such purchasers as part of their initial
distribution, a like aggregate principal amount of Private Exchange Securities.
"Private Exchange Securities" means the Securities of the Company issued in
exchange for Initial Securities pursuant to this Indenture in connection with
the Private Exchange pursuant to the Registration Agreement.
"Purchase Agreement" means (i) the Purchase Agreement dated April 30, 1998,
among the Company and the Initial Purchasers and (ii) any other similar Purchase
Agreement relating to Additional Securities.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Registered Exchange Offer" means the offer by the Company, pursuant to the
Registration Agreement, to certain Holders of Initial Securities, to issue and
deliver to such Holders, in exchange for their Initial Securities, a like
aggregate principal amount of Exchange Securities registered under the
Securities Act.
"Registration Agreement" means (i) the Exchange and Registration Rights
Agreement dated May 5, 1998, among the Company and the Initial Purchasers and
(ii) any other similar Exchange and Registration Rights Agreement relating to
Additional Securities.
"Regulation S" means Regulation S under the Securities Act, as amended.
"Regulation S Securities" means all Initial Securities offered and sold
outside the United States in reliance on Regulation S.
"Restricted Period", with respect to any Securities, means the period of 40
consecutive days beginning on and including the later of (i) the day on which
such Securities are first offered to persons other than distributors (as defined
in Regulation S under the Securities Act) in reliance on Regulation S and (ii)
the Issuance Date with respect to such Securities.
"Restricted Securities Legend" means the legend set forth in Section
2.3(e)(i) herein.
"Rule 501" means Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
"Rule 144A" means Rule 144A under the Securities Act, as amended.
"Rule 144A Securities" means all Initial Securities offered and sold to QIBs
in reliance on Rule 144A.
"Securities Act" means the Securities Act of 1933, as amended.
2
"Securities Custodian" means the custodian with respect to a Global Security
(as appointed by the Depositary) or any successor person thereto, who shall
initially be the Trustee.
"Shelf Registration Statement" means a registration statement filed by the
Company in connection with the offer and sale of Initial Securities pursuant to
the Registration Agreement.
"Transfer Restricted Securities" means Definitive Securities and any other
Securities that bear or are required to bear the Restricted Securities Legend.
1.2 Other Definitions
Term: Defined in Section:
----- -------------------
"Agent Members".................................................................................. 2.1(b)
"IAI Global Security"............................................................................ 2.1(a)
"Global Securities".............................................................................. 2.1(a)
"Permanent Regulation S Global Security"......................................................... 2.3(d)
"Regulation S Global Securities"................................................................. 2.1(a)
"Rule 144A Global Security"...................................................................... 2.1(a)
"Temporary Regulation S Global Security"......................................................... 2.1(a)
2. The Securities
2.1 Form and Dating
The Initial Securities issued on the date hereof will be (i) offered and
sold by the Company pursuant to the Purchase Agreement and (ii) resold,
initially only to (A) QIBs in reliance on Rule 144A and (B) Persons other than
U.S. Persons (as defined in Regulation S) in reliance on Regulation S. Such
Initial Securities may thereafter be transferred to, among others, QIBs,
purchasers in reliance on Regulation S and, except as set forth below, IAIs in
accordance with Rule 501. Additional Securities offered after the date hereof
may be offered and sold by the Company from time to time pursuant to one or more
Purchase Agreements in accordance with applicable law.
(a) Global Securities. Rule 144A Securities shall be issued initially
in the form of one or more permanent global Securities in definitive, fully
registered form (collectively, the "Rule 144A Global Security") and
Regulation S Securities shall be issued initially in the form of one or more
temporary global Securities (collectively, the "Temporary Regulation S
Global Security"), in each case without interest coupons and bearing the
Global
3
Securities Legend and Restricted Securities Legend, which shall be
deposited on behalf of the purchasers of the Securities represented thereby
with the Securities Custodian, and regis tered in the name of the Depositary
or a nominee of the Depositary, duly executed by the Company and
authenticated by the Trustee as provided in this Indenture. One or more
global securities in definitive, fully registered form without interest
coupons and bearing the Global Securities Legend and the Restricted
Securities Legend (collectively, the "IAI Global Security") shall also be
issued on the Closing Date, deposited with the Securities Custodian, and
registered in the name of the Depositary or a nominee of the Depositary,
duly executed by the Company and authenticated by the Trustee as provided in
this Indenture to accommodate transfers of beneficial interests in the
Securities to IAIs subsequent to the initial distribution. Except as set
forth in Section 2.3, beneficial ownership interests in the Temporary
Regulation S Global Security will not be exchangeable for interests in the
Rule 144A Global Security, the IAI Global Security, a Permanent Regulation S
Global Security (as defined below) or any other Security without a
Restricted Securities Legend until the expiration of the Restricted Period.
Upon the expiration of the Restricted Period, beneficial interests in the
Securities represented by the Temporary Regulation S Global Security may be
exchanged for interests in the Permanent Regulation S Global Security as
described below in Section 2.3(d). The Rule 144A Global Security, the IAI
Global Security, the Temporary Regulation S Global Security and the
Permanent Regulation S Global Security are each referred to herein as a
Global Security and are collectively referred to herein as "Global
Securities." The Temporary Regulation S Global Security and the Permanent
Regulation S Global Security are referred to herein as "Regulation S Global
Securities." The aggregate principal amount of the Global Securities may
from time to time be increased or decreased by adjustments made on the
records of the Trustee and the Depositary or its nominee as hereinafter
provided.
(b) Book-Entry Provisions. This Section 2.1(b) shall apply only to a
Global Security deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance with Section
2.2 and pursuant to an order of the Company, authenticate and deliver initially
one or more Global Securities that (a) shall be registered in the name of the
Depositary for such Global Security or Global Securities or the nominee of such
Depositary and (b) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instructions or held by the Trustee as Securities
Custodian.
Members of, or participants in, the Depositary ("Agent Members") shall have
no rights under this Indenture with respect to any Global Security held on their
behalf by the Depositary or by the Trustee as Securities Custodian or under such
Global Security, and the Depositary may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner of such Global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
4
authorization furnished by the Depositary or impair, as between the Depositary
and its Agent Members, the operation of customary practices of such Depositary
governing the exercise of the rights of a holder of a beneficial interest in any
Global Security.
(c) Definitive Securities. Except as provided in Section 2.3 or 2.4,
owners of beneficial interests in Global Securities will not be entitled to
receive physical delivery of certificated Securities.
2.2 Authentication. The Trustee shall authenticate and make available for
delivery upon a written order of the Company signed by two Officers (1) Original
Securities for original issue on the date hereof in an aggregate principal
amount of $200,000,000, (2) subject to the terms of this Indenture, Additional
Securities in an aggregate principal amount of up to $100,000,000 and (3) the
(A) Exchange Securities for issue only in a Registered Exchange Offer and (B)
Private Exchange Securities for issue only in the Private Exchange, in the case
of each of (A) and (B) pursuant to the Registration Agreement and for a like
principal amount of Initial Securities exchanged pursuant thereto. Such order
shall specify the amount of the Securities to be authenticated, the date on
which the original issue of Securities is to be authenticated and whether the
Securities are to be Initial Securities, Exchange Securities or Private Exchange
Securities. The aggregate principal amount of Securities outstanding at any time
may not exceed $300,000,000 except as provided in Section 2.08 of this
Indenture.
2.3 Transfer and Exchange. (a) Transfer and Exchange of Definitive
Securities. When Definitive Securities are presented to the Registrar with a
request:
(x) to register the transfer of such Definitive Securities; or
(y) to exchange such Definitive Securities for an equal principal
amount of Definitive Securities of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if
its reasonable requirements for such transaction are met; provided, however,
that the Definitive Securities surrendered for transfer or exchange:
(i) shall be duly endorsed or accompanied by a written instrument
of transfer in form reasonably satisfactory to the Company and the
Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing; and
5
(ii) are accompanied by the following additional information and
documents, as applicable:
(A) if such Definitive Securities are being delivered to the
Registrar by a Holder for registration in the name of such Holder,
without transfer, a certification from such Holder to that effect
(in the form set forth on the reverse side of the Initial
Security); or
(B) if such Definitive Securities are being transferred to
the Company, a certification to that effect (in the form set forth
on the reverse side of the Initial Security); or
(C) if such Definitive Securities are being transferred
pursuant to an exemption from registration in accordance with Rule
144 under the Securities Act or in reliance upon another exemption
from the registration requirements of the Securities Act, (i) a
certification to that effect (in the form set forth on the reverse
side of the Initial Security) and (ii) if the Company so requests,
an Opinion of Counsel or other evidence reasonably satisfactory to
it as to the compliance with the restrictions set forth in the
legend set forth in Section 2.3(e)(i).
(b) Restrictions on Transfer of a Definitive Security for a
Beneficial Interest in a Global Security. A Definitive Security may not
be exchanged for a beneficial interest in a Global Security except upon
satisfaction of the requirements set forth below. Upon receipt by the
Trustee of a Definitive Security, duly endorsed or accompanied by a
written instrument of transfer in form reasonably satisfactory to the
Company and the Registrar, together with:
(i) certification (in the form set forth on the reverse side
of the Initial Security) that such Definitive Security is being
transferred (A) to a QIB in accordance with Rule 144A, (B) to an
IAI that has furnished to the Trustee a signed letter
substantially in the form of Exhibit D or (C) outside the United
States in an offshore transaction within the meaning of Regulation
S and in compliance with Rule 904 under the Securities Act
together with a letter substantially in the form of Exhibit C; and
(ii) written instructions directing the Trustee to make, or
to direct the Securities Custodian to make, an adjustment on its
books and records with respect to such Global Security to reflect
an increase in the aggregate principal amount of the Securities
represented by the Global Security, such instructions to contain
information regarding the Depositary account to be credited with
such increase,
6
then the Trustee shall cancel such Definitive Security and cause, or direct the
Securities Custodian to cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Securities Custodian, the
aggregate principal amount of Securities represented by the Global Security to
be increased by the aggregate principal amount of the Definitive Security to be
exchanged and shall credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in the Global Security
equal to the principal amount of the Definitive Security so canceled. If no
Global Securities are then outstanding and the Global Security has not been
previously exchanged for certificated securities pursuant to Section 2.4, the
Company shall issue and the Trustee shall authenticate, upon written order of
the Company in the form of an Officers' Certificate, a new Global Security in
the appropriate principal amount.
7
(c) Transfer and Exchange of Global Securities. (i) The transfer
and exchange of Global Securities or beneficial interests therein shall
be effected through the Depositary, in accordance with this Indenture
(including applicable restrictions on transfer set forth herein, if
any) and the procedures of the Depositary therefor. A transferor of a
beneficial interest in a Global Security shall deliver a written order
given in accordance with the Depositary's procedures containing
information regarding the participant account of the Depositary to be
credited with a beneficial interest in such Global Security or another
Global Security and such account shall be credited in accordance with
such order with a beneficial interest in the applicable Global Security
and the account of the Person making the transfer shall be debited by
an amount equal to the beneficial interest in the Global Security being
transferred. Transfers by an owner of a beneficial interest in the Rule
144A Global Security or the IAI Global Security to a transferee who
takes delivery of such interest through the Regulation S Global
Security, whether before or after the expiration of the Restricted
Period, will be made only upon receipt by the Trustee of a
certification from the transferor to the effect that such transfer is
being made in accordance with Regulation S or (if available) Rule 144
under the Securities Act and that, if such transfer is being made prior
to the expiration of the Restricted Period, the interest transferred
will be held immediately thereafter through Euroclear or Cedel. In the
case of a transfer of a beneficial interest in either the Temporary
Regulation S Global Security or the Rule 144A Global Security for an
interest in the IAI Global Security, the transferee must furnish a
signed letter substantially in the form of Exhibit D to the Trustee. In
the case of a transfer of an interest in either the Temporary
Regulation S Global Security or the Permanent Regulation S Global
Security to an interest in a Rule 144A Global Security or IAI Global
Security, the transferor must furnish a letter substantially in the
form of Exhibit C to the Trustee.
(ii) If the proposed transfer is a transfer of a beneficial
interest in one Global Security to a beneficial interest in
another Global Security, the Registrar shall reflect on its books
and records the date and an increase in the principal amount of
the Global Security to which such interest is being transferred in
an amount equal to the principal amount of the interest to be so
transferred, and the Registrar shall reflect on its books and
records the date and a corresponding decrease in the principal
amount of Global Security from which such interest is being
transferred.
(iii) Notwithstanding any other provisions of this Appendix
(other than the provisions set forth in Section 2.4), a Global
Security may not be transferred as a whole except by the
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.
(iv) In the event that a Global Security is exchanged for
Definitive Securities pursuant to Section 2.4 prior to the
consummation of the Registered Exchange Offer
8
or the effectiveness of the Shelf Registration Statement with
respect to such Securities, such Securities may be exchanged only
in accordance with such procedures as are substantially consistent
with the provisions of this Section 2.3 (including the
certification requirements set forth on the reverse of the Initial
Securities intended to ensure that such transfers comply with Rule
144A, Regulation S or such other applicable exemption from
registration under the Securities Act, as the case may be) and
such other procedures as may from time to time be adopted by the
Company.
(d) Restrictions on Transfer of Temporary Regulation S Global Security.
(i) Prior to the expiration of the Restricted Period, interests in the
Temporary Regulation S Global Security may only be held through Euroclear or
Cedel. During the Restricted Period, beneficial ownership interests in the
Temporary Regulation S Global Security may only be sold, pledged or
transferred through Euroclear or Cedel in accordance with the Applicable
Procedures and only (A) to the Company, (B) so long as such security is
eligible for resale pursuant to Rule 144A, to a person whom the selling
holder reasonably believes is a QIB that purchases for its own account or
for the account of a QIB to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, (C) in an offshore
transaction in accordance with Regulation S, (D) pursuant to an exemption
from registration under the Securities Act provided by Rule 144 (if
applicable) under the Securities Act, (E) to an IAI purchasing for its own
account, or for the account of such an IAI, in a minimum principal amount of
Securities of $250,000 or (F) pursuant to an effective registration
statement under the Securities Act, in each case in accordance with any
applicable securities laws of any state of the United States. Prior to the
expiration of the Restricted Period, transfers by an owner of a beneficial
interest in the Temporary Regulation S Global Security to a transferee who
takes delivery of such interest through the Rule 144A Global Security or the
IAI Global Security will be made only in accordance with Applicable
Procedures and upon receipt by the Trustee of a written certification from
the transferor of the beneficial interest in the form provided on the
reverse of the Initial Security to the effect that such transfer is being
made to (i) a person whom the transferor reasonably believes is a QIB within
the meaning of Rule 144A in a transaction meeting the requirements of Rule
144A or (ii) an IAI purchasing for its own account, or for the account of
such an IAI, in a minimum principal amount of the Securities of $250,000.
Such written certification will no longer be required after the expiration
of the Restricted Period. In the case of a transfer of a beneficial interest
in the Regulation S Global Security for an interest in the IAI Global
Security, the transferee must furnish a signed letter substantially in the
form of Exhibit D to the Trustee.
(ii) Upon the expiration of the Restricted Period, beneficial
ownership interests in the Temporary Regulation S Global Security may
be exchanged for interests in a permanent global security in
definitive, fully registered form without the Restricted Security
Legend (the "Permanent Regulation S Global Security") upon
certification to the Trustee that such interests are owned either by
non-U.S. persons or
9
U.S. persons who purchased such interests pursuant to an exemption
from, or transfer not subject to, the registration requirements of the
Securities Act. Upon the expiration of the Restricted Period, the
Company shall prepare and execute the Permanent Regulation S Global
Security in accordance with the terms of this Indenture and deliver it
to the Trustee for authentication. The Trustee shall retain the
Permanent Regulation S Global Security as Securities Custodian. Any
transfers of beneficial ownership interests in the Temporary Regulation
S Global Security made in reliance on Regulation S shall thenceforth be
recorded by the Trustee by making an appropriate increase in the
principal amount of the Permanent Regulation S Global Security and a
corresponding decrease in the principal amount of the Temporary
Regulation S Global Security. At such time as the principal amount of
the Temporary Regulation S Global Security has been reduced to zero,
the Trustee shall cancel the Temporary Regulation S Global Security and
deliver it to the Company.
(e) Legend.
(i) Except as permitted by the following paragraphs (ii), (iii) or
(iv), each Security certificate evidencing the Global Securities and
the Definitive Securities (and all Securities issued in exchange
therefor or in substitution thereof) shall bear a legend in
substantially the following form (each defined term in the legend being
defined as such for purposes of the legend only):
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL
OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUANCE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR
OF SUCH SECURITY), ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE
10
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE
IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL
ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A
MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO ANY OTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH
OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST
OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
Each Definitive Security will also bear the following additional legend:
"IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR
AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER
AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE
FOREGOING RESTRICTIONS."
11
(ii) Upon any sale or transfer of a Transfer Restricted Security
that is a Definitive Security, the Registrar shall permit the Holder
thereof to exchange such Transfer Restricted Security for a Definitive
Security that does not bear the legends set forth above and rescind any
restriction on the transfer of such Transfer Restricted Security if the
Holder certifies in writing to the Registrar that its request for such
exchange was made in reliance on Rule 144 (such certification to be in
the form set forth on the reverse of the Initial Security).
(iii) After a transfer of any Initial Securities or Private
Exchange Securities during the period of the effectiveness of a Shelf
Registration Statement with respect to such Initial Securities or
Private Exchange Securities, as the case may be, all require ments
pertaining to the Restricted Securities Legend on such Initial
Securities or such Private Exchange Securities will cease to apply and
any requirements that any such Initial Securities or such Private
Exchange Securities be issued in global form will continue to apply.
(iv) Upon the consummation of a Registered Exchange Offer with
respect to the Initial Securities pursuant to which Holders of such
Initial Securities are offered Exchange Securities in exchange for
their Initial Securities, all requirements pertaining to Initial
Securities that Initial Securities be issued in global form will
continue to apply, and Exchange Securities in global form without the
Restricted Securities Legend will be available to Holders that exchange
such Initial Securities in such Registered Exchange Offer.
(v) Upon the consummation of a Private Exchange with respect to
the Original or Additional Securities pursuant to which Holders of such
Original or Additional Securities are offered Private Exchange
Securities in exchange for their Original or Additional Securities, all
requirements pertaining to such Original or Additional Securities that
Original or Additional Securities be issued in global form will
continue to apply, and Private Exchange Securities in global form with
the Restricted Securities Legend will be available to Holders that
exchange such Original or Additional Securities in such Private
Exchange.
(vi) Upon a sale or transfer after the expiration of the
Restricted Period of any Initial Security acquired pursuant to
Regulation S, all requirements that such Initial Security bear the
Restricted Securities Legend will cease to apply and the requirements
requiring any such Initial Security be issued in global form will
continue to apply.
(vii) Any Additional Securities sold in a registered offering
shall not be required to bear the Restricted Securities Legend.
12
(f) Cancelation or Adjustment of Global Security. At such time as all
beneficial interests in a Global Security have either been exchanged for
Definitive Securities, transferred, redeemed, repurchased or canceled, such
Global Security shall be returned by the Depositary to the Trustee for
cancelation or retained and canceled by the Trustee. At any time prior to
such cancelation, if any beneficial interest in a Global Security is
exchanged for Definitive Securities, transferred in exchange for an interest
in another Global Security, redeemed, repurchased or canceled, the principal
amount of Securities represented by such Global Security shall be reduced
and an adjustment shall be made on the books and records of the Trustee (if
it is then the Securities Custodian for such Global Security) with respect
to such Global Security, by the Trustee or the Securities Custodian, to
reflect such reduction.
(g) Obligations with Respect to Transfers and Exchanges of Securities.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate, Definitive
Securities and Global Securities at the Registrar's request.
(ii) No service charge shall be made for any registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any transfer tax, assessments, or similar
governmental charge payable in connection therewith (other than any
such transfer taxes, assessments or similar governmental charge payable
upon exchange or transfer pursuant to Section 3.06, 4.06, 4.08 and
9.05).
(iii) Prior to the due presentation for registration of transfer
of any Security, the Company, the Trustee, the Paying Agent or the
Registrar may deem and treat the person in whose name a Security is
registered as the absolute owner of such Security for the purpose of
receiving payment of principal of and interest on such Security and for
all other purposes whatsoever, whether or not such Security is overdue,
and none of the Company, the Trustee, the Paying Agent or the Registrar
shall be affected by notice to the contrary.
(iv) All Securities issued upon any transfer or exchange pursuant
to the terms of this Indenture shall evidence the same debt and shall
be entitled to the same benefits under this Indenture as the Securities
surrendered upon such transfer or exchange.
(h) No Obligation of the Trustee.
13
(i) The Trustee shall have no responsibility or obligation to any
beneficial owner of a Global Security, a member of, or a participant in
the Depositary or any other Person with respect to the accuracy of the
records of the Depositary or its nominee or of any participant or
member thereof, with respect to any ownership interest in the
Securities or with respect to the delivery to any participant, member,
beneficial owner or other Person (other than the Depositary) of any
notice (including any notice of redemption or repurchase) or the
payment of any amount, under or with respect to such Securities. All
notices and communications to be given to the Holders and all payments
to be made to Holders under the Securities shall be given or made only
to the registered Holders (which shall be the Depositary or its nominee
in the case of a Global Security). The rights of beneficial owners in
any Global Security shall be exercised only through the Depositary
subject to the applicable rules and procedures of the Depositary. The
Trustee may rely and shall be fully protected in relying upon
information furnished by the Depositary with respect to its members,
participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to
any transfer of any interest in any Security (including any transfers
between or among Depositary participants, members or beneficial owners
in any Global Security) other than to require delivery of such
certificates and other documentation or evidence as are expressly
required by, and to do so if and when expressly required by, the terms
of this Indenture, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.
2.4 Definitive Securities
(a) A Global Security deposited with the Depositary or with the Trustee
as Securities Custodian pursuant to Section 2.1 shall be transferred to the
beneficial owners thereof in the form of Definitive Securities in an
aggregate principal amount equal to the principal amount of such Global
Security, in exchange for such Global Security, only if such transfer
complies with Section 2.3 and (i) the Depositary notifies the Company that
it is unwilling or unable to continue as a Depositary for such Global
Security or if at any time the Depositary ceases to be a "clearing agency"
registered under the Exchange Act, and a successor depositary is not
appointed by the Company within 90 days of such notice, or (ii) an Event of
Default has occurred and is continuing or (iii) the Company, in its sole
discretion, notifies the Trustee in writing that it elects to cause the
issuance of certificated Securities under this Indenture.
(b) Any Global Security that is transferable to the beneficial owners
thereof pursuant to this Section 2.4 shall be surrendered by the Depositary
to the Trustee, to be so transferred, in whole or from time to time in part,
without charge, and the Trustee shall authenticate and deliver, upon such
transfer of each portion of such Global Security, an equal aggregate
principal amount of Definitive Securities of authorized denominations. Any
portion
14
of a Global Security transferred pursuant to this Section shall be
executed, authenticated and delivered only in denominations of $1,000 and
any integral multiple thereof and registered in such names as the Depositary
shall direct. Any certificated Initial Security in the form of a Definitive
Security delivered in exchange for an interest in the Global Security shall,
except as otherwise provided by Section 2.3(e), bear the Restricted
Securities Legend.
(c) Subject to the provisions of Section 2.4(b), the registered Holder
of a Global Security may grant proxies and otherwise authorize any Person,
including Agent Members and Persons that may hold interests through Agent
Members, to take any action which a Holder is entitled to take under this
Indenture or the Securities.
(d) In the event of the occurrence of any of the events specified in
Section 2.4(a)(i), (ii) or (iii), the Company will promptly make available
to the Trustee a reasonable supply of Definitive Securities in fully
registered form without interest coupons.
15
EXHIBIT A
[FORM OF FACE OF INITIAL SECURITY]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW YORK, TO
THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Restricted Securities Legend]
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY
BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUANCE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR
OF SUCH SECURITY), ONLY
(A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO
WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES
WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN
"ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7)
UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR
ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL
AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A
VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT
TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO
EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER
AFTER THE RESALE RESTRICTION TERMINATION DATE.
Each Definitive Security will also bear the following additional legend:
"IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR
AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER
AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE
FOREGOING RESTRICTIONS."
2
No. $__________
9 5/8% Senior Subordinated Note due 2008
CUSIP No. ______
CORNING CONSUMER PRODUCTS COMPANY, a Delaware corporation, promises to pay
to Cede & Co., or registered assigns, the principal sum [of Dollars] [listed on
the Schedule of Increases or Decreases in Global Security attached hereto](1) on
May 1, 2008.
Interest Payment Dates: May 1 and November 1.
Record Dates: April 15 and October 15.
--------
(1) Use the Schedule of Increases and Decreases language if Note is in Global
Form.
3
Additional provisions of this Security are set forth on the other side of
this Security.
IN WITNESS WHEREOF, the parties have caused this instrument to be duly
executed.
CORNING CONSUMER PRODUCTS COMPANY,
by
--------------------------------------
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
THE BANK OF NEW YORK,
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
By:
----------------------------
Authorized Signatory
4
[FORM OF REVERSE SIDE OF SECURITY]
9 5/8% Senior Subordinated Note due 2008
1. Interest
(a) CORNING CONSUMER PRODUCTS COMPANY, a Delaware corporation (such
corporation, and its successors and assigns under the Indenture hereinafter
referred to, being herein called the "Company"), promises to pay interest on the
principal amount of this Security at the rate per annum shown above. The Company
will pay interest semiannually on May 1 and November 1 of each year, commencing
November 1, 1998. Interest on the Securities will accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from May
5, 1998. Interest will be computed on the basis of a 360-day year of twelve
30-day months. The Company shall pay interest on overdue principal at the rate
borne by the Securities, and it shall pay interest on overdue installments of
interest at the same rate to the extent lawful.
(b) Liquidated Damages. The holder of this Security is entitled to the
benefits of an Exchange and Registration Rights Agreement, dated as of May 5,
1998, among the Company and the Initial Purchasers named therein (the
"Registration Agreement"). Capitalized terms used in this paragraph (b) but not
defined herein have the meanings assigned to them in the Registration Agreement.
If (i) the applicable Registration Statement is not filed with the Commission on
or prior to 100 days after the Issuance Date (or, in the case of a Shelf
Registration Statement required to be filed in response to a change in law or
applicable interpretations of the Commission's staff, if later, within 45 days
after publication of the change in law or interpretations, but in no event
before 100 calender days after the Issuance Date), (ii) the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case may be,
is not declared effective within 200 days after the Issuance Date (or, in the
case of a Shelf Registration Statement required to be filed in response to a
change in law or applicable interpretations of the Commission's staff, if later,
within 90 days after publication of the change in law or interpretations, but in
no event before 200 days after the Issuance Date), (iii) the Registered Exchange
Offer is not consummated on or prior to 230 days after the Issuance Date (other
than in the event the Company files a Shelf Registration Statement), or (iv) the
Shelf Registration Statement is filed and declared effective within 200 days
after the Issuance Date but shall thereafter cease to be effective (at any time
that the Company is obligated to maintain the effectiveness thereof) without
being succeeded within 90 days by an additional Registration Statement filed and
declared effective (each such event referred to in clauses (i) through (iv), a
"Registration Default"), the Company will be obligated to pay liquidated damages
to each Holder of Transfer Restricted Securities, during the period of one or
more such Registration Defaults, with respect to the first 90-day period
immediately following the occurrence of the first Registration Default in an
amount equal to
5
.25% per annum (which rate shall be increased by an additional .25% per annum
for each subsequent 90-day period that any liquidated damages continue to
accrue; provided that the rate at which liquidated damages accrue may in no
event exceed 1.00% per annum) in respect of the Securities constituting Transfer
Restricted Securities held by such Holder until (i) the applicable Registration
Statement is filed, (ii) the Exchange Offer Registration Statement is declared
effective and the Registered Exchange Offer is consummated, (iii) the Shelf
Registration Statement is declared effective or (iv) the Shelf Registration
Statement again becomes effective, as the case may be. Following the cure of all
Registration Defaults, the accrual of liquidated damages shall cease.
Notwithstanding the foregoing provisions, the Company may issue a notice that
the Shelf Registration Statement is unusable pending the announcement of a
material corporate transaction and may issue any notice suspending use of the
Shelf Registration Statement required under applicable securities laws to be
issued and, in the event that the aggregate number of days in any consecutive
twelve-month period for which all such notices are issued and effective exceeds
30 days in the aggregate, then the Company shall be obligated to pay liquidated
damages to each Holder of Transfer Restricted Securities in an amount equal to
0.25% per annum (which rate shall be increased by an additional 0.25% per annum
for each subsequent 90-day period that liquidated damages continue to accrue;
provided that the rate at which liquidated damages accrue may in no event exceed
1.00% per annum) in respect of the Securities constituting Transfer Restricted
Securities. Upon the Company declaring that the Shelf Registration Statement is
usable after the period of time described in the preceding sentence the accrual
of liquidated damages shall cease; provided, however, that if after any such
cessation of the accrual of liquidated damages the Shelf Registration Statement
again ceases to be usable beyond the period permitted above, liquidated damages
shall again accrue pursuant to the foregoing provisions. The Trustee shall have
no responsibility with respect to the determination of the amount of any such
liquidated damages. For purposes of the foregoing, "Transfer Restricted
Securities" means (i) each Initial Security until the date on which such Initial
Security has been exchanged for a freely transferable Exchange Security in the
Registered Exchange Offer, (ii) each Initial Security or Private Exchange
Security until the date on which such Initial Security or Private Exchange
Security has been effectively registered under the Securities Act and disposed
of in accordance with a Shelf Registration Statement or (iii) each Initial
Security or Private Exchange Security until the date on which such Initial
Security or Private Exchange Security is distributed to the public pursuant to
Rule 144 under the Securities Act or is saleable pursuant to Rule 144(k) under
the Securities Act. The liquidated damages due shall be payable on each interest
payment date to the record holder entitled to receive the interest payment to be
made on such date.
6
2. Method of Payment
The Company will pay interest on the Securities (except defaulted interest)
to the Persons who are registered holders of Securities at the close of business
on the April 15 or October 15 next preceding the interest payment date even if
Securities are canceled after the record date and on or before the interest
payment date. Holders must surrender Securities to a Paying Agent to collect
principal payments. The Company will pay principal and interest in money of the
United States of America that at the time of payment is legal tender for payment
of public and private debts. Payments in respect of the Securities represented
by a Global Security (including principal, premium and interest) will be made by
wire transfer of immediately available funds to the accounts specified by The
Depository Trust Company. The Company will make all payments in respect of a
certificated Security (including principal, premium and interest), by mailing a
check to the registered address of each Holder thereof; provided, however, that
payments on the Securities may also be made, in the case of a Holder of at least
$1,000,000 aggregate principal amount of Securities, by wire transfer to a U.S.
dollar account maintained by the payee with a bank in the United States if such
Holder elects payment by wire transfer by giving written notice to the Trustee
or the Paying Agent to such effect designating such account no later than 15
days immediately preceding the relevant due date for payment (or such other date
as the Trustee may accept in its discretion).
3. Paying Agent and Registrar
Initially, THE BANK OF NEW YORK, a New York banking association (the
"Trustee"), will act as Paying Agent and Registrar. The Company may appoint and
change any Paying Agent, Registrar or co-registrar without notice. The Company
or any of its domestically incorporated Wholly Owned Subsidiaries may act as
Paying Agent, Registrar or co-registrar.
4. Indenture
The Company issued the Securities under an Indenture dated as of May 5, 1998
(the "Indenture"), between the Company and the Trustee. The terms of the
Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date of the Indenture (the "TIA"). Terms
defined in the Indenture and not defined herein have the meanings ascribed
thereto in the Indenture. The Securities are subject to all such terms, and
Securityholders are referred to the Indenture and the TIA for a statement of
those terms.
The Securities are senior subordinated unsecured obligations of the Company
limited to $300,000,000 aggregate principal amount at any one time outstanding
(subject to Sections 2.01 and 2.08 of the Indenture). This Security is one of
the Original Securities referred to in the Indenture issued in an aggregate
principal amount of $200,000,000. The
7
Securities include the Initial Securities and any Exchange Securities issued in
exchange for Initial Securities. The Initial Securities and the Exchange
Securities are treated as a single class of securities under the Indenture. The
Indenture imposes certain limitations on the ability of the Company and its
Restricted Subsidiaries to, among other things, make certain Investments and
other Restricted Payments, incur Indebtedness and issue Disqualified Stock,
enter into consensual restrictions upon the payment of certain dividends and
distributions by such Restricted Subsidiaries, enter into or permit certain
transactions with Affiliates, create or incur Liens, make asset sales, guarantee
Indebtedness, or incur Indebtedness that is senior to Senior Subordinated
Indebtedness but junior to Senior Indebtedness. The Indenture also imposes
limitations on the ability of the Company to consolidate or merge with or into
any other Person or convey, transfer or lease all or substantially all of the
property of the Company.
5. Optional Redemption
Except as described below, the Securities will not be redeemable at the
Company's option prior to May 1, 2003. From and after May 1, 2003, the
Securities shall be subject to redemption at any time at the option of the
Company, 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 thereon, if any, to the
applicable Redemption Date (subject to the right of holders of record on the
relevant record date to receive interest due on the relevant interest payment
date), if redeemed during the twelve-month period beginning on May 1 of each of
the years indicated below:
Year Redemption Price
---- ----------------
2003................................................ 104.813%
2004................................................ 103.208%
2005................................................ 101.604%
2006 and thereafter................................. 100.000%
In addition, at any time or from time to time, on or prior to May 1, 2001,
the Company may, at its option, redeem up to 35% of the aggregate principal
amount of Securities originally issued under the Indenture on the Closing Date
at a redemption price equal to 109.625% of the aggregate principal amount
thereof, plus accrued and unpaid interest thereon, if any, to the Redemption
Date (subject to the right of holders of record on the relevant record date to
receive interest due on the relevant interest payment date), with the
8
net proceeds of one or more Equity Offerings; provided that at least 65% of the
aggregate principal amount of Securities originally issued under the Indenture
on the Closing Date remains outstanding immediately after the occurrence of each
such redemption; provided further that each such redemption occurs within 90
days of the date of closing of each such Equity Offering.
At any time on or prior to May 1, 2003, the Securities may also be redeemed
as a whole at the option of the Company upon the occurrence of a Change of
Control, upon not less than 30 nor more than 60 days prior notice (but in no
event more than 90 days after the occurrence of such Change of Control or
transfer event) mailed by first-class mail to each Holder's registered address,
at a redemption price equal to 100% of the principal amount thereof plus the
Applicable Premium as of, and accrued and unpaid interest, if any, to, the
Redemption Date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date).
6. Sinking Fund
The Securities are not subject to any sinking fund.
7. 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
Securities to be redeemed at his or her registered address. Securities in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000. If money sufficient to pay the redemption price of and
accrued interest on all Securities (or portions thereof) to be redeemed on the
Redemption Date is deposited with the Paying Agent on or before the Redemption
Date and certain other conditions are satisfied, on and after such date interest
ceases to accrue on such Securities (or such portions thereof) called for
redemption.
8. Change of Control
Upon a Change of Control, unless the Company has elected to redeem the
Securities in connection with such Change of Control, the Company shall, subject
to certain conditions specified in the Indenture, make an offer to repurchase
all of the Securities then outstanding at a purchase price in cash equal to 101%
of the aggregate principal amount thereof plus accrued and unpaid interest, if
any, to the date of purchase (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date that is on or prior to the date of purchase) as provided in, and subject to
the terms of, the Indenture.
9
9. Subordination
The Securities are subordinated to Senior Indebtedness, as defined in the
Indenture. To the extent provided in the Indenture, Senior Indebtedness must be
paid before the Securities may be paid. The Company and each Guarantor, if any,
agree, and each Securityholder by accepting a Security agrees, to the
subordination provisions contained in the Indenture and any supplemental
indenture and authorizes the Trustee to give it effect and appoints the Trustee
as attorney-in-fact for such purpose.
10. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in denominations of
$1,000 and whole multiples of $1,000. A Holder may transfer or exchange
Securities in accordance with the Indenture. Upon any transfer or exchange, the
Registrar and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements or transfer documents and to pay any taxes required by
law or permitted by the Indenture. The Regis trar need not register the transfer
of or exchange any Securities selected for redemption (except, in the case of a
Security to be redeemed in part, the portion of the Security not to be redeemed)
or to transfer or exchange any Securities for a period of 15 days prior to a
selection of Securities to be redeemed.
11. Persons Deemed Owners
The registered Holder of this Security may be treated as the owner of it for
all purposes.
12. Unclaimed Money
If money for the payment of principal or interest remains unclaimed for two
years, the Trustee or Paying Agent shall pay the money back to the Company at
its written request unless an abandoned property law designates another Person.
After any such payment, Holders entitled to the money must look only to the
Company and not to the Trustee for payment.
10
13. Discharge and Defeasance
Subject to certain conditions, the Company at any time may terminate some of
or all its obligations under the Securities and the Indenture if the Company
deposits with the Trustee money or Government Securities for the payment of
principal and interest on the Securities to redemption or maturity, as the case
may be.
14. Amendment, Waiver
11
Subject to certain exceptions, the Company, any Guarantor and the Trustee
may amend the Indenture, the Securities or the Guarantees with the written
consent of the Holders of at least a majority in principal amount of the
Securities then outstanding (including consents obtained in connection with a
tender offer or exchange for the Securities) and, subject to Article 6, any
existing default or compliance with any provision of this Indenture or the
Securities may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Securities (including consents
obtained in connection with a purchase of or tender offer or exchange offer
for Securities). Subject to certain exceptions set forth in the Indenture,
without the consent of any Holder of Securities, the Company and the Trustee
may amend the Indenture or the Securities to cure any ambiguity, omission,
defect or inconsistency; to comply with Article 5 of the Indenture; to
provide for uncertificated Securities in addition to or in place of
certificated Securities; provided, however, that the uncertificated
Securities are issued in registered form for purposes of Section 163(f) of
the Code or in a manner such that the uncertificated Securities are described
in Section 163(f)(2)(B) of the Code; to provide for the assumption of the
Company's or any Guarantor's obligations to Holders; to add Guarantees with
respect to the Securities or to secure the Securities; to make any change
that would provide any additional rights or benefits to the Holders or that
does not adversely affect the legal rights under the Indenture of any such
Holder; to add to the covenants for the benefit of the Holders or to
surrender any right or power herein conferred upon the Company; to comply
with any requirements of the SEC in connection with qualifying, or
maintaining the qualification of, the Indenture under the TIA; to evidence
and provide for the acceptance and appointment under the Indenture of a
successor Trustee pursuant to Article 7 of the Indenture; or to provide for
the issuance of the Exchange Securities, Private Exchange Securities or
Additional Securities, which shall have terms substantially identical in all
material respects to the Original Securities (except that the transfer
restrictions contained in the Original Securities shall be modified or
eliminated, as appropriate), and which shall be treated, together with any
outstanding Original Securities, as a single issue of securities.
12
15. Defaults and Remedies
If an Event of Default occurs (other than an Event of Default relating to
certain events of bankruptcy, insolvency or reorganization of the Company) and
is continuing, the Trustee or the Holders of at least 30% in principal amount of
the outstanding Securities may declare the principal of and accrued but unpaid
interest on all the Securities to be due and payable provided, however, that, so
long as any Indebtedness permitted to be incurred under the Indenture as part of
the Senior Credit Facilities shall be outstanding, no such acceleration shall be
effective until the earlier of (i) acceleration of any such Indebtedness under
the Senior Credit Facilities or (ii) five Business Days after the giving of
written notice to the Company and the administrative agent under the Senior
Credit Facilities of such acceleration. If an Event of Default relating to
certain events of bankruptcy, insolvency or reorganization of the Company
occurs, the principal of and interest on all the Securities shall become
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holders. Under certain circumstances, the Holders of a
majority in principal amount of the outstanding Securities may rescind any such
acceleration with respect to the Securities and its consequences.
If an Event of Default occurs and is continuing, the Trustee will be under
no obligation to exercise any of the rights or powers under the Indenture at the
request or direction of any of the Holders unless such Holders have offered to
the Trustee reasonable indemnity or security against any loss, liability or
expense. Except to enforce the right to receive payment of principal, premium
(if any) or interest when due, no Holder may pursue any remedy with respect to
the Indenture or the Securities unless (i) such Holder has previously given the
Trustee notice that an Event of Default is continuing, (ii) Holders of at least
30% in principal amount of the outstanding Securities have requested the Trustee
in writing to pursue the remedy, (iii) such Holders have offered the Trustee
reasonable security or indemnity against any loss, liability or expense, (iv)
the Trustee has not complied with such request within 60 days after the receipt
of the request and the offer of security or indemnity and (v) the Holders of a
majority in principal amount of the outstanding Securities have not given the
Trustee a direction inconsistent with such request within such 60-day period.
Subject to certain restrictions, the Holders of a majority in principal amount
of the outstanding Securities are given the right to direct the time, method and
place of conducting any proceeding for any remedy available to the
13
Trustee or of exercising any trust or power conferred on the Trustee. The
Trustee, however, may refuse to follow any direction that conflicts with law or
the Indenture or that the Trustee determines is unduly prejudicial to the rights
of any other Holder or that would involve the Trustee in personal liability.
Prior to taking any action under the Indenture, the Trustee will be entitled to
indemnification satisfactory to it in its sole discretion against all losses and
expenses caused by taking or not taking such action.
16. Trustee Dealings with the Company
Subject to certain limitations imposed by the TIA, the Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with and collect obligations owed
to it by the Company or its Affiliates and may otherwise deal with the Company
or its Affiliates with the same rights it would have if it were not Trustee.
17. No Recourse Against Others
No director, officer, employee, incorporator or stockholder of the Company
or of any Guarantor, shall have any liability for any obligations of the Company
or the Guarantors under the Securities, the Guarantees or the Indenture or for
any claim based on, in respect of, or by reason of such obligations or their
creation. Each Holder by accepting a Security waives and releases all such
liability. The waiver and release are part of the consideration for issuance of
the Securities. Such waiver may not be effective to waive liabilities under the
federal securities laws and it is the view of the Commission that such a waiver
is against public policy.
18. Authentication
This Security shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
14
19. Abbreviations
Customary abbreviations may be used in the name of a Securityholder or an
assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
20. Governing Law
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES
OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
21. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Securities and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Securityholders. No representation is
made as to the accuracy of such numbers either as printed on the Securities or
as contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company will furnish to any Holder of Securities upon written request
and without charge to the Holder a copy of the Indenture which has in it the
text of this Security.
15
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Security on the
books of the Company. The agent may substitute another to act for him.
------------------------------------------------------------
Date: Your Signature:
------------------ ---------------------
------------------------------------------------------------
Sign exactly as your name appears on the other side of this Security.
16
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF
TRANSFER RESTRICTED SECURITIES
This certificate relates to $_________ principal amount of Securities held in
(check applicable space) ____ book-entry or _____ definitive form by the
undersigned.
The undersigned (check one box below):
/ / has requested the Trustee by written order to deliver in exchange for its
beneficial interest in the Global Security held by the Depositary a Security
or Securities in definitive, registered form of authorized denominations and
an aggregate principal amount equal to its beneficial interest in such
Global Security (or the portion thereof indicated above);
/ / has requested the Trustee by written order to exchange or register the
transfer of a Security or Securities.
In connection with any transfer of any of the Securities evidenced by this
certificate occurring prior to the expiration of the period referred to in Rule
144(k) under the Securities Act, the undersigned confirms that such Securities
are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1) / / to the Company; or
(2) / / pursuant to an effective registration statement under the Securities
Act of 1933; or
(3) / / inside the United States to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act of 1933) that
purchases for its own account or for the account of a qualified
institutional buyer to whom notice is given that such transfer is
being made in reliance on Rule 144A, in each case pursuant to and
in compliance with Rule 144A under the Securities Act of 1933; or
(4) / / outside the United States in an offshore transaction within the
meaning of Regulation S under the Securities Act in compliance with
Rule 904 under the Securities Act of 1933; or
17
(5) / / to an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933) that
has furnished to the Trustee a signed letter containing certain
representations and agreements; or
(6) / / pursuant to another available exemption from registration provided
by Rule 144 under the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register any
of the Securities evidenced by this certificate in the name of any Person
other than the registered holder thereof; provided, however, that if box
(4), (5) or (6) is checked, the Trustee may require, prior to registering
any such transfer of the Securities, such legal opinions, certifications and
other information as the Company has reasonably requested to confirm that
such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities
Act of 1933.
------------------------
Your Signature
Signature Guarantee:
Date:
------------------------- -----------------------------
Signature must be guaranteed Signature of Signature
by a participant in a Guarantee
recognized signature guaranty
medallion program or other
signature guarantor acceptable
to the Trustee
------------------------------------------------------------
18
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Security
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, and is aware that the sale to it is being made in reliance on Rule 144A
and acknowledges that it has received such information regarding the Company as
the undersigned has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon the undersigned's foregoing representations in order to claim the exemption
from registration provided by Rule 144A.
Dated:
-------------------- ---------------------------
NOTICE: To be executed by
an executive officer
19
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Security is $[ ]. The following
increases or decreases in this Global Security have been made:
Date of Amount of decrease in Amount of increase in Principal amount of this Signature of authorized
Exchange Principal Amount of this Principal Amount of this Global Security following signatory of Trustee or
Global Security Global Security such decrease or increase Securities Custodian
20
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company pursuant
to Section 4.06 (Asset Sale) or 4.08 (Change of Control) of the Indenture, check
the box:
Asset Saleo / / Change of Control / /
If you want to elect to have only part of this Security purchased by the
Company pursuant to Section 4.06 or 4.08 of the Indenture, state the amount:
$
Date: Your Signature:
--------------------- --------------------------------
(Sign exactly as your name appears on the other side of the Security)
Signature Guarantee:
------------------------------------------------------------
Signature must be guaranteed by a participant in a recognized
signature guaranty medallion program or other signature
guarantor acceptable to the Trustee
21
EXHIBIT B
[FORM OF FACE OF EXCHANGE SECURITY]
No. $__________
9 5/8% Senior Subordinated Note due 2008
CUSIP No. ______
CORNING CONSUMER PRODUCTS COMPANY, a Delaware corporation, promises to
pay to Cede & Co., or registered assigns, the principal sum [of Dollars]
[listed on the Schedule of Increases or Decreases in Global Security attached
hereto](2) on May 1, 2008.
Interest Payment Dates: May 1 and November 1.
Record Dates: April 15 and October 15.
--------
(2) Use the Schedule of Increases and Decreases language if Note is in Global
Form.
Additional provisions of this Security are set forth on the other side of
this Security.
IN WITNESS WHEREOF, the parties have caused this instrument to be duly
executed.
CORNING CONSUMER PRODUCTS COMPANY,
by
--------------------------------------------------
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
THE BANK OF NEW YORK,
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
By:
---------------------------
Authorized Signatory
----------
*/ If the Security is to be issued in global form, add the Global Securities
Legend and the attachment from Exhibit A captioned "TO BE ATTACHED TO GLOBAL
SECURITIES SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY".
2
[FORM OF REVERSE SIDE OF EXCHANGE SECURITY]
9 5/8% Senior Subordinated Note due 2008
1. Interest
CORNING CONSUMER PRODUCTS COMPANY, a Delaware corporation (such corporation,
and its successors and assigns under the Indenture hereinafter referred to,
being herein called the "Company"), promises to pay interest on the principal
amount of this Security at the rate per annum shown above. The Company will pay
interest semiannually on May 1 and November 1 of each year, commencing November
1, 1998. Interest on the Securities will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from May 5, 1998.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. The Company shall pay interest on overdue principal at the rate borne by
the Securities, and it shall pay interest on overdue installments of interest at
the same rate to the extent lawful.
3
2. Method of Payment
The Company will pay interest on the Securities (except defaulted interest)
to the Persons who are registered holders of Securities at the close of business
on the April 15 or October 15 next preceding the interest payment date even if
Securities are canceled after the record date and on or before the interest
payment date. Holders must surrender Securities to a Paying Agent to collect
principal payments. The Company will pay principal and interest in money of the
United States of America that at the time of payment is legal tender for payment
of public and private debts. Payments in respect of the Securities represented
by a Global Security (including principal, premium and interest) will be made by
wire transfer of immediately available funds to the accounts specified by The
Depository Trust Company. The Company will make all payments in respect of a
certificated Security (including principal, premium and interest), by mailing a
check to the registered address of each Holder thereof; provided, however, that
payments on the Securities may also be made, in the case of a Holder of at least
$1,000,000 aggregate principal amount of Securities, by wire transfer to a U.S.
dollar account maintained by the payee with a bank in the United States if such
Holder elects payment by wire transfer by giving written notice to the Trustee
or the Paying Agent to such effect designating such account no later than 15
days immediately preceding the relevant due date for payment (or such other date
as the Trustee may accept in its discretion).
3. Paying Agent and Registrar
Initially, THE BANK OF NEW YORK, a New York banking association (the
"Trustee"), will act as Paying Agent and Registrar. The Company may appoint and
change any Paying Agent, Registrar or co-registrar without notice. The Company
or any of its domestically incorporated Wholly Owned Subsidiaries may act as
Paying Agent, Registrar or co-registrar.
4. Indenture
The Company issued the Securities under an Indenture dated as of May 5, 1998
(the "Indenture"), between the Company and the Trustee. The terms of the
Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date of the Indenture (the "TIA"). Terms
defined in the Indenture and not defined herein have the meanings ascribed
thereto in the Indenture. The Securities are subject to all such terms, and
Securityholders are referred to the Indenture and the TIA for a statement of
those terms.
The Securities are senior unsecured obligations of the Company limited to
$300,000,000 million aggregate principal amount at any one time outstanding, of
which $200,000,000 in aggregate principal amount will be initially issued on the
Closing Date. Subject to the conditions set forth in the Indenture, the Company
may issue up to an
4
additional $100,000,000 million aggregate principal amount of Additional
Securities. This Security is one of the Initial Securities referred to in the
Indenture. The Securities include the Original Securities, the Additional
Securities and any Exchange Securities and Private Exchange Securities issued in
exchange for the Initial Securities pursuant to the Indenture. The Original
Securities, the Additional Securities, the Exchange Securities and the Private
Exchange Securities are treated as a single class of securities under the
Indenture. The Indenture imposes certain limitations on the ability of the
Company and its Restricted Subsidiaries to, among other things, make certain
Investments and other Restricted Payments, incur Indebtedness and issue
Disqualified Stock, enter into consensual restrictions upon the payment of
certain dividends and distributions by such Restricted Subsidiaries, enter into
or permit certain transactions with Affiliates, create or incur Liens, make
asset sales, guarantee Indebtedness, or incur Indebtedness that is senior to
Senior Subordinated Indebtedness but junior to Senior Indebtedness. The
Indenture also imposes limitations on the ability of the Company to consolidate
or merge with or into any other Person or convey, transfer or lease all or
substantially all of the property of the Company.
5. Optional Redemption
Except as described below, the Securities will not be redeemable at the
Company's option prior to May 1, 2003. From and after May 1, 2003, the
Securities shall be subject to redemption at any time at the option of the
Company, 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 thereon, if any, to the
applicable Redemption Date (subject to the right of holders of record on the
relevant record date to receive interest due on the relevant interest payment
date), if redeemed during the twelve-month period beginning on May 1 of each of
the years indicated below:
Year Redemption Price
---- ----------------
2003.................................................. 104.813%
2004.................................................. 103.208%
2005.................................................. 101.604%
2006 and thereafter................................... 100.000%
In addition, at any time or from time to time, on or prior to May 1, 2001,
the Company may, at its option, redeem up to 35% of the aggregate principal
amount of Securities originally issued under the Indenture on the Closing Date
at a redemption price equal to 109.625% of the aggregate principal amount
thereof, plus accrued and unpaid
5
interest thereon, if any, to the Redemption Date (subject to the right of
holders of record on the relevant record date to receive interest due on the
relevant interest payment date), with the net proceeds of one or more Equity
Offerings; provided that at least 65% of the aggregate principal amount of
Securities originally issued under the Indenture on the Closing Date remains
outstanding immediately after the occurrence of each such redemption; provided
further that each such redemption occurs within 90 days of the date of closing
of each such Equity Offering.
At any time on or prior to May 1, 2003, the Securities may also be redeemed
as a whole at the option of the Company upon the occurrence of a Change of
Control, upon not less than 30 nor more than 60 days prior notice (but in no
event more than 90 days after the occurrence of such Change of Control or
transfer event) mailed by first-class mail to each Holder's registered address,
at a redemption price equal to 100% of the principal amount thereof plus the
Applicable Premium as of, and accrued and unpaid interest, if any, to, the
Redemption Date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date).
6. Sinking Fund
The Securities are not subject to any sinking fund.
7. 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
Securities to be redeemed at his or her registered address. Securities in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000. If money sufficient to pay the redemption price of and
accrued interest on all Securities (or portions thereof) to be redeemed on the
Redemption Date is deposited with the Paying Agent on or before the Redemption
Date and certain other conditions are satisfied, on and after such date interest
ceases to accrue on such Securities (or such portions thereof) called for
redemption.
8. Change of Control
Upon a Change of Control, unless the Company has elected to redeem the
Securities in connection with such Change of Control, the Company shall, subject
to certain conditions specified in the Indenture, make an offer to repurchase
all of the Securities then outstanding at a purchase price in cash equal to 101%
of the aggregate principal amount thereof plus accrued and unpaid interest, if
any, to the date of purchase (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date that is on or prior to the date of purchase) as provided in, and subject to
the terms of, the Indenture.
6
9. Subordination
The Securities are subordinated to Senior Indebtedness, as defined in the
Indenture. To the extent provided in the Indenture, Senior Indebtedness must be
paid before the Securities may be paid. The Company and each Guarantor, if any,
agree, and each Securityholder by accepting a Security agrees, to the
subordination provisions contained in the Indenture and any supplemental
indenture and authorizes the Trustee to give it effect and appoints the Trustee
as attorney-in-fact for such purpose.
10. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in denominations of
$1,000 and whole multiples of $1,000. A Holder may transfer or exchange
Securities in accordance with the Indenture. Upon any transfer or exchange, the
Registrar and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements or transfer documents and to pay any taxes required by
law or permitted by the Indenture. The Regis trar need not register the transfer
of or exchange any Securities selected for redemption (except, in the case of a
Security to be redeemed in part, the portion of the Security not to be redeemed)
or to transfer or exchange any Securities for a period of 15 days prior to a
selection of Securities to be redeemed.
11. Persons Deemed Owners
The registered Holder of this Security may be treated as the owner of it for
all purposes.
12. Unclaimed Money
If money for the payment of principal or interest remains unclaimed for two
years, the Trustee or Paying Agent shall pay the money back to the Company at
its written request unless an abandoned property law designates another Person.
After any such payment, Holders entitled to the money must look only to the
Company and not to the Trustee for payment.
13. Discharge and Defeasance
Subject to certain conditions, the Company at any time may terminate some of
or all its obligations under the Securities and the Indenture if the Company
deposits with the Trustee money or Government Securities for the payment of
principal and interest on the Securities to redemption or maturity, as the case
may be.
7
14. Amendment, Waiver
Subject to certain exceptions, the Company, any Guarantor and the Trustee
may amend the Indenture, the Securities or the Guarantees with the written
consent of the Holders of at least a majority in principal amount of the
Securities then outstanding (including consents obtained in connection with a
tender offer or exchange for the Securities) and, subject to Article 6, any
existing default or compliance with any provision of this Indenture or the
Securities may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Securities (including consents obtained
in connection with a purchase of or tender offer or exchange offer for
Securities). Subject to certain exceptions set forth in the Indenture, without
the consent of any Holder of Securities, the Company and the Trustee may amend
the Indenture or the Securities to cure any ambiguity, omission, defect or
inconsistency; to comply with Article 5 of the Indenture; to provide for
uncertificated Securities in addition to or in place of certificated Securities;
provided, however, that the uncertificated Securities are issued in registered
form for purposes of Section 163(f) of the Code or in a manner such that the
uncertificated Securities are described in Section 163(f)(2)(B) of the Code; to
provide for the assumption of the Company's or any Guarantor's obligations to
Holders; to add Guarantees with respect to the Securities or to secure the
Securities; to make any change that would provide any additional rights or
benefits to the Holders or that does not adversely affect the legal rights under
the Indenture of any such Holder; to add to the covenants for the benefit of the
Holders or to surrender any right or power herein conferred upon the Company; to
comply with any requirements of the SEC in connection with qualifying, or
maintaining the qualification of, the Indenture under the TIA; to evidence and
provide for the acceptance and appointment under the Indenture of a successor
Trustee pursuant to Article 7 of the Indenture; or to provide for the issuance
of the Exchange Securities, Private Exchange Securities or Additional
Securities, which shall have terms substantially identical in all material
respects to the Original Securities (except that the transfer restrictions
contained in the Original Securities shall be modified or eliminated, as
appropriate), and which shall be treated, together with any outstanding Original
Securities, as a single issue of securities.
8
15. Defaults and Remedies
If an Event of Default occurs (other than an Event of Default relating to
certain events of bankruptcy, insolvency or reorganization of the Company) and
is continuing, the Trustee or the Holders of at least 30% in principal amount of
the outstanding Securities may declare the principal of and accrued but unpaid
interest on all the Securities to be due and payable provided, however, that, so
long as any Indebtedness permitted to be incurred under the Indenture as part of
the Senior Credit Facilities shall be outstanding, no such acceleration shall be
effective until the earlier of (i) acceleration of any such Indebtedness under
the Senior Credit Facilities or (ii) five Business Days after the giving of
written notice to the Company and the administrative agent under the Senior
Credit Facilities of such acceleration. If an Event of Default relating to
certain events of bankruptcy, insolvency or reorganization of the Company
occurs, the principal of and interest on all the Securities shall become
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holders. Under certain circumstances, the Holders of a
majority in principal amount of the outstanding Securities may rescind any such
acceleration with respect to the Securities and its consequences.
If an Event of Default occurs and is continuing, the Trustee will be under
no obligation to exercise any of the rights or powers under the Indenture at the
request or direction of any of the Holders unless such Holders have offered to
the Trustee reasonable indemnity or security against any loss, liability or
expense. Except to enforce the right to receive payment of principal, premium
(if any) or interest when due, no Holder may pursue any remedy with respect to
the Indenture or the Securities unless (i) such Holder has previously given the
Trustee notice that an Event of Default is continuing, (ii) Holders of at least
30% in principal amount of the outstanding Securities have requested the Trustee
in writing to pursue the remedy, (iii) such Holders have offered the Trustee
reasonable security or indemnity against any loss, liability or expense, (iv)
the Trustee has not complied with such request within 60 days after the receipt
of the request and the offer of security or indemnity and (v) the Holders of a
majority in principal amount of the outstanding Securities have not given the
Trustee a direction inconsistent with such request within such 60-day period.
Subject to certain restrictions, the Holders of a majority in principal amount
of the outstanding Securities are given the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. The Trustee, however,
may refuse to follow any direction that conflicts with law or the Indenture or
that the Trustee determines is unduly prejudicial to the rights of any other
Holder or that would involve the Trustee in personal liability. Prior to taking
any action under the Indenture, the Trustee will be entitled to indemnification
satisfactory to it in its sole discretion against all losses and expenses caused
by taking or not taking such action.
9
16. Trustee Dealings with the Company
Subject to certain limitations imposed by the TIA, the Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with and collect obligations owed
to it by the Company or its Affiliates and may otherwise deal with the Company
or its Affiliates with the same rights it would have if it were not Trustee.
17. No Recourse Against Others
No director, officer, employee, incorporator or stockholder of the Company
or of any Guarantor, shall have any liability for any obligations of the Company
or the Guarantors under the Securities, the Guarantees or the Indenture or for
any claim based on, in respect of, or by reason of such obligations or their
creation. Each Holder by accepting a Security waives and releases all such
liability. The waiver and release are part of the consideration for issuance of
the Securities. Such waiver may not be effective to waive liabilities under the
federal securities laws and it is the view of the Commission that such a waiver
is against public policy.
18. Authentication
This Security shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
19. Abbreviations
Customary abbreviations may be used in the name of a Securityholder or an
assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
20. Governing Law
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES
OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
21. CUSIP Numbers
10
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Securities and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Securityholders. No representation is
made as to the accuracy of such numbers either as printed on the Securities or
as contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company will furnish to any Holder of Securities upon written request
and without charge to the Holder a copy of the Indenture which has in it the
text of this Security.
11
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Security on the books of the
Company. The agent may substitute another to act for him.
------------------------------------------------------------
Date: Your Signature:
----------------- --------------------------
------------------------------------------------------------
Sign exactly as your name appears on the other side of this Security. Signature
must be guaranteed by a participant in a recognized signature guaranty medallion
program or other signature guarantor acceptable to the Trustee.
12
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company pursuant
to Section 4.06 (Asset Sale) or 4.08 (Change of Control) of the Indenture, check
the box:
Asset Sale / / Change of Control / /
If you want to elect to have only part of this Security purchased by the
Company pursuant to Section 4.06 or 4.08 of the Indenture, state the amount:
$
Date: Your Signature:
----------------- ---------------------------------
(Sign exactly as your name appears
on the other side of the Security)
Signature Guarantee:
---------------------------------------------
Signature must be guaranteed by a participant in a
recognized signature guaranty medallion program or other
signature guarantor acceptable to the Trustee.
13
