EXHIBIT 4.3
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EXECUTION COPY
XXXX-XXXXXX SECURITY CORPORATION
TO
THE BANK OF NEW YORK
Trustee
Indenture
Dated as of March 24, 1997
9 5/8% Senior Subordinated Notes due 2007
9 5/8% Series B Senior Subordinated Notes due 2007
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XXXX-XXXXXX SECURITY CORPORATION
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of March 24, 1997
--------------------------------------------------
Trust Indenture Indenture
Act Section Section
--------------- ----------
Section 310(a)(1)................................. 607
(a)(2)................................... 607
(b)...................................... 608
Section 312(c).................................... 701
Section 314(a).................................... 703
(a)(4)................................... 1004
(c)(1)................................... 102
(c)(2)................................... 102
(e)...................................... 102
Section 315(b).................................... 601
Section 316(a)(last sentence)..................... 101 ("Outstanding")
(a)(1)(A)................................ 502, 512
(a)(1)(B)................................ 513
(b)...................................... 508
(c)...................................... 104(d)
Section 317(a)(1)................................. 503
(a)(2)................................... 504
(b)...................................... 1003
Section 318(a).................................... 111
---------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
Table of Contents
Page
PARTIES......................................................................1
RECITALS OF THE COMPANY......................................................1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions................................................. 1
Acquired Indebtedness...................................... 2
Act........................................................ 2
Adjusted Fixed Charge Coverage Ratio....................... 2
Affiliate.................................................. 2
Agent...................................................... 3
Agent Members.............................................. 3
Annual Period.............................................. 3
Authenticating Agent....................................... 3
Average Life............................................... 3
Bank Credit Agreement...................................... 3
Banks...................................................... 3
Board of Directors......................................... 4
Board Resolution........................................... 4
Business Day............................................... 4
Capital Stock.............................................. 4
Capitalized Lease Obligation............................... 4
Cash Equivalents........................................... 4
Change of Control.......................................... 5
Commission................................................. 6
Common Stock............................................... 6
Company.................................................... 6
Company Request or Company Order........................... 6
Consolidated Gross PP&E.................................... 6
Consolidated Interest Expense.............................. 6
Consolidated Net Income.................................... 6
Consolidated Non-cash Charges.............................. 7
Consolidated Tax Expense................................... 7
Corporate Trust Office..................................... 7
corporation................................................ 7
Default.................................................... 7
Defaulted Interest......................................... 7
Dollar or $................................................ 7
Event of Default........................................... 7
Exchange Act............................................... 7
Exchange Notes............................................. 7
Exchange Offer............................................. 8
Exchange Offer Registration Statement...................... 8
Federal Bankruptcy Code.................................... 8
Foreign Entity............................................. 8
Generally Accepted Accounting Principles or GAAP........... 8
Government Obligations..................................... 8
Guarantee.................................................. 8
Guaranteed Debt............................................ 8
Guarantor.................................................. 9
Holder..................................................... 9
Indebtedness............................................... 9
Indenture.................................................. 10
Initial Notes.............................................. 10
Interest Payment Date...................................... 10
Investment................................................. 10
Lien....................................................... 10
ML Funds................................................... 10
Majority Owned Subsidiary.................................. 10
Management Investors....................................... 11
Material Subsidiary........................................ 11
Maturity................................................... 11
Xxxxx'x.................................................... 11
9 1/8% Notes............................................... 11
Non-Payment Event of Default............................... 11
Note Register and Note Registrar........................... 11
Notes...................................................... 11
Officers' Certificate...................................... 11
Opinion of Counsel......................................... 12
Original Issue Date........................................ 12
Outstanding................................................ 12
Pari Passu Indebtedness.................................... 13
Payment Event of Default................................... 13
Payment Blockage Period.................................... 13
Paying Agent............................................... 13
Person..................................................... 13
Permitted Holders.......................................... 13
Permitted Indebtedness..................................... 13
Permitted Investments...................................... 15
Permitted Liens............................................ 16
Place of Payment........................................... 17
Predecessor Note........................................... 17
Preferred Stock............................................ 17
Public Equity Offering..................................... 17
Purchase Date.............................................. 17
Redeemable Capital Stock................................... 17
Redemption Date............................................ 17
Redemption Price........................................... 18
Registration Rights Agreement.............................. 18
Regular Record Date........................................ 18
Repayment Date............................................. 18
Repayment Price............................................ 18
Responsible Officer........................................ 18
S&P........................................................ 18
Senior Indebtedness........................................ 18
Special Record Date........................................ 19
Specified Senior Indebtedness.............................. 19
Stated Maturity............................................ 19
Subordinated Indebtedness.................................. 19
Subsidiary................................................. 19
Trust Indenture Act or TIA................................. 19
Trustee.................................................... 19
United States.............................................. 19
Vice President............................................. 19
Voting Stock............................................... 20
Wholly Owned Subsidiary.................................... 20
SECTION 102. Compliance Certificates and Opinions........................ 20
SECTION 103. Form of Documents Delivered to Trustee...................... 21
SECTION 104. Acts of Holders............................................. 21
SECTION 105. Notices, etc., to Trustee, Company and Agents............... 22
SECTION 106. Notice to Holders; Waiver................................... 23
SECTION 107. Effect of Headings and Table of Contents.................... 24
SECTION 108. Successors and Assigns...................................... 24
SECTION 109. Separability Clause......................................... 24
SECTION 110. Benefits of Indenture....................................... 24
SECTION 111. Governing Law............................................... 24
SECTION 112. Legal Holidays.............................................. 25
ARTICLE TWO
NOTE FORMS
SECTION 201. Forms Generally............................................. 25
SECTION 202. Form of Trustee's Certificate of Authentication............. 26
SECTION 203. Restrictive Legends......................................... 27
SECTION 204. Form of Certificate to Be Delivered upon Termination of
Restricted Period.......................................... 29
ARTICLE THREE
THE NOTES
SECTION 301. Amount...................................................... 30
SECTION 302. Denominations............................................... 31
SECTION 303. Execution, Authentication, Delivery and Dating.............. 31
SECTION 304. Temporary Notes............................................. 32
SECTION 305. Registration, Registration of Transfer and Exchange......... 33
SECTION 306. Mutilated, Destroyed, Lost and Stolen Notes................. 34
SECTION 307. Payment of Interest; Interest Rights Preserved.............. 35
SECTION 308. Persons Deemed Owners....................................... 36
SECTION 309. Cancellation................................................ 36
SECTION 310. Computation of Interest..................................... 37
SECTION 311. Book-Entry Provisions for Global Notes...................... 37
SECTION 312. Transfer Provisions......................................... 38
SECTION 313. Form of Accredited Investor Certificate..................... 46
SECTION 314. Form of Regulation S Certificate............................ 49
SECTION 315. Form of Rule 144A Certificate............................... 51
SECTION 316. CUSIP Numbers............................................... 52
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture..................... 52
SECTION 402. Application of Trust Money.................................. 54
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default........................................... 54
SECTION 502. Acceleration of Maturity; Rescission and Annulment.......... 56
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee................................................. 58
SECTION 504. Trustee May File Proofs of Claim............................ 58
SECTION 505. Trustee May Enforce Claims Without Possession of Notes...... 59
SECTION 506. Application of Money Collected.............................. 60
SECTION 507. Limitation on Suits......................................... 60
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest............................................... 61
SECTION 509. Restoration of Rights and Remedies.......................... 61
SECTION 510. Rights and Remedies Cumulative.............................. 61
SECTION 511. Delay or Omission Not Waiver................................ 62
SECTION 512. Control by Holders.......................................... 62
SECTION 513. Waiver of Past Defaults..................................... 62
SECTION 514. Waiver of Stay or Extension Laws............................ 63
SECTION 515. Undertaking for Costs....................................... 63
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults.......................................... 63
SECTION 602. Certain Rights of Trustee................................... 64
SECTION 603. Trustee Not Responsible for Recitals or Issuance of Notes... 65
SECTION 604. May Hold Notes.............................................. 65
SECTION 605. Money Held in Trust......................................... 66
SECTION 606. Compensation and Reimbursement.............................. 66
SECTION 607. Corporate Trustee Required; Eligibility..................... 67
SECTION 608. Resignation and Removal; Appointment of Successor........... 67
SECTION 609. Acceptance of Appointment by Successor...................... 68
SECTION 610. Merger, Conversion, Consolidation or Succession to Business. 69
SECTION 611. Appointment of Authenticating Agent......................... 69
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE
SECTION 701. Disclosure of Names and Addresses of Holders................ 71
SECTION 702. Reports by Trustee.......................................... 71
SECTION 703. Reports by Company.......................................... 72
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., Only on Certain Terms........ 72
SECTION 802. Successor Substituted....................................... 73
SECTION 803. Notes to Be Secured in Certain Events....................... 74
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.......... 74
SECTION 902. Supplemental Indentures with Consent of Holders............. 75
SECTION 903. Execution of Supplemental Indentures........................ 76
SECTION 904. Effect of Supplemental Indentures........................... 76
SECTION 905. Conformity with Trust Indenture Act......................... 76
SECTION 906. Reference in Notes to Supplemental Indentures............... 76
SECTION 907. Notice of Supplemental Indentures........................... 77
SECTION 908. Effect on Senior Indebtedness............................... 77
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and Interest........ 77
SECTION 1002. Maintenance of Office or Agency............................ 77
SECTION 1003. Money for Notes Payments to Be Held in Trust............... 78
SECTION 1004. Statement as to Compliance................................. 79
SECTION 1005. Payment of Taxes and Other Claims.......................... 80
SECTION 1006. Maintenance of Properties.................................. 80
SECTION 1007. Corporate Existence........................................ 80
SECTION 1008. Limitation on Company and Subsidiary Indebtedness.......... 80
SECTION 1009. Limitation on Restricted Payments.......................... 81
SECTION 1010. Limitation on Issuance of Other Senior Subordinated
Indebtedness............................................... 83
SECTION 1011. Limitation on Dividends and Other Payment Restrictions
Affecting Subsidiaries.................................... 83
SECTION 1012. Limitation on Liens........................................ 84
SECTION 1013. Limitation on Transactions with Affiliates................. 84
SECTION 1014. Limitation on Issuances and Sale of Preferred Stock by
Subsidiaries.............................................. 85
SECTION 1015. Limitations on Issuances of Guarantees of Pari Passu or
Subordinated Indebtedness.................................. 85
SECTION 1016. Purchase of Notes upon Change of Control................... 86
SECTION 1017. Provision of Financial Statements and Reports.............. 87
SECTION 1018. Waiver of Certain Covenants................................ 88
ARTICLE ELEVEN
REDEMPTION OF NOTES
SECTION 1101. Applicability of Article................................... 88
SECTION 1102. Election to Redeem; Notice to Trustee...................... 88
SECTION 1103. Selection by Trustee of Notes to Be Redeemed............... 88
SECTION 1104. Notice of Redemption....................................... 89
SECTION 1105. Deposit of Redemption Price................................ 90
SECTION 1106. Notes Payable on Redemption Date........................... 90
SECTION 1107. Notes Redeemed in Part..................................... 90
SECTION 1108. Redemption................................................. 90
ARTICLE TWELVE
SECTION 1201.............................................................. 91
ARTICLE THIRTEEN
SECTION 1301.............................................................. 91
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Company's Option to Effect Defeasance or Covenant
Defeasance................................................ 91
SECTION 1402. Defeasance and Discharge................................... 91
SECTION 1403. Covenant Defeasance........................................ 92
SECTION 1404. Conditions to Defeasance or Covenant Defeasance............ 92
SECTION 1405. Deposited Money and Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions...................... 94
SECTION 1406. Reinstatement.............................................. 94
ARTICLE FIFTEEN
SUBORDINATION OF NOTES
SECTION 1501. Notes Subordinate to Senior Indebtedness................... 95
SECTION 1502. Payment Over of Proceeds upon Dissolution, etc............. 95
SECTION 1503. Suspension of Payment When Senior Indebtedness in Default.. 97
SECTION 1504. Payment Permitted If No Default............................ 98
SECTION 1505. Subrogation to Rights of Holders of Senior Indebtedness.... 98
SECTION 1506. Provisions Solely to Define Relative Rights................ 98
SECTION 1507. Trustee to Effectuate Subordination........................ 99
SECTION 1508. No Waiver of Subordination Provisions...................... 99
SECTION 1509. Notice to Trustee..........................................100
SECTION 1510. Reliance on Judicial Order or Certificate of Liquidating
Agent.....................................................100
SECTION 1511. Rights of Trustee As a Holder of Senior Indebtedness;
Preservation of Trustee's Rights..........................101
SECTION 1512. Article Applicable to Paying Agents........................101
SECTION 1513. No Suspension of Remedies..................................101
SECTION 1514. Trustee Not Fiduciary for Holders of Senior Indebtedness...101
TESTIMONIUM.............................................................. 89
SIGNATURES AND SEALS..................................................... 89
EXHIBIT A
INDENTURE, dated as of March 24, 1997, between XXXX-XXXXXX
SECURITY CORPORATION, a corporation duly organized and existing under the laws
of the State of Delaware (herein called the "Company"), having its principal
office at 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, and THE BANK OF
NEW YORK, a New York banking corporation, Trustee (herein called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of and issuance of
its 9 5/8% Senior Subordinated Notes due 2007 (the "Initial Notes"), and its
9 5/8% Series B Senior Subordinated Notes due 2007 (the "Exchange Notes", and
together with the Initial Notes, the "Notes"), of substantially the tenor and
amount hereinafter set forth, and to provide therefor the Company has duly
authorized the execution and delivery of this Indenture.
Upon the issuance of the Exchange Notes, if any, or the
effectiveness of the Shelf Registration Statement (as defined herein), this
Indenture will be subject to, and shall be governed by the provisions of the
Trust Indenture Act of 1939, as amended, that are required to be part of or
deemed to be part of and to govern the indentures qualified thereunder.
All things necessary have been done to make the Notes, when duly
executed and duly issued by the Company and authenticated and delivered
hereunder by the Trustee or the Authenticating Agent, the valid obligations of
the Company and to make this Indenture a valid agreement of the Company, in
accordance with their and its terms
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
It is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Notes, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein, and the terms "cash transaction" and
"self-liquidating paper", as used in TIA Section 311, shall have the
meanings assigned to them in the rules of the Commission adopted under
the Trust Indenture Act;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted at the date of the
9 1/8% Note Indenture; and
(4) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"Acquired Indebtedness" means Indebtedness of a Person (i)
existing at the time such Person becomes a Subsidiary or (ii) assumed in
connection with the acquisition of assets from such Person, other than
Indebtedness incurred in connection with, or in contemplation of, such Person
becoming a Subsidiary or such acquisition, as the case may be.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Adjusted Fixed Charge Coverage Ratio" means for any period the
ratio of (a) the sum of Consolidated Net Income, Consolidated Interest
Expense, Consolidated Tax Expense and Consolidated Non-cash Charges deducted
in computing Consolidated Net Income, in each case, for such period, on a
consolidated basis, to (b) Consolidated Interest Expense for such period;
provided that, in making such computation, the Consolidated Interest Expense
attributable to interest on any Indebtedness computed on a pro forma basis and
bearing a floating interest rate shall be computed as if the rate in effect on
the date of computation had been the applicable rate for the entire period.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agent" means with respect to the Bank Credit Agreement, each of
Bankers Trust Company, Canadian Imperial Bank of Commerce and NationsBank,
N.A. and any future agent under the Bank Credit Agreement.
"Agent Members" has the meaning specified in Section 311.
"Annual Period" means a period commencing on January 1 of any
particular calendar year and ending on December 31 of the next succeeding
calendar year.
"Authenticating Agent" means any Person authorized by the Trustee
to act on behalf of the Trustee to authenticate Notes.
"Average Life" means, with respect to any Indebtedness, as of
the date of determination, the quotient obtained by dividing (i) the sum of
the products of (a) the number of years (and any portion thereof) from the
date of determination to the date or dates of each successive scheduled
principal payment of such Indebtedness multiplied by (b) the amount of each
such principal payment by (ii) the sum of all such principal payments;
provided that (A) with respect to Redeemable Capital Stock described in
clause (i) or (ii) of the definition of Redeemable Capital Stock, the only
date of scheduled principal payment shall be deemed, for this purpose, to
be the earliest time at which such Redeemable Capital Stock could be
redeemed, (B) with respect to Redeemable Capital Stock described in clause
(iii) of the definition of Redeemable Capital Stock, the dates of scheduled
principal payments shall be deemed, for this purpose, to be the dates of
scheduled principal payments of the debt securities such Redeemable Capital
Stock is convertible into or exchangeable for, (C) with respect to any
guarantee, the dates of scheduled principal payments shall be deemed to be,
for this purpose, the dates of scheduled principal payments on the
Indebtedness thereby guaranteed and (D) with respect to any Capitalized
Lease Obligation, the dates of scheduled principal payments shall be the
dates of any payments which are required under GAAP to be treated as
principal payments.
"Bank Credit Agreement" means the Credit Agreement among Bankers
Trust Company, Canadian Imperial Bank of Commerce and NationsBank, N.A., as
agents, the other Banks and the Company as in effect on the date hereof and as
such agreement may be amended, renewed, extended, substituted, refinanced,
restructured, replaced, supplemented or otherwise modified from time to time
(including, without limitation, any successive renewals, extensions,
substitutions, refinancings, restructurings, replacements, supplementations or
other modifications of the foregoing).
"Banks" means the banks and other financial institutions from time
to time that are lenders under the Bank Credit Agreement.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment or
any other particular location referred to in this Indenture or in the Notes,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day
on which banking institutions in that Place of Payment or other location are
authorized or obligated by law or executive order to close.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated) of
such Person's capital stock whether now outstanding or issued after the date
of this Indenture, including, without limitation, all Common Stock and
Preferred Stock.
"Capitalized Lease Obligation" means any obligations of the
Company and its Subsidiaries on a consolidated basis under any capital lease
of real or personal property that, in accordance with GAAP, has been recorded
as a capitalized lease obligation.
"Cash Equivalents" means, at any time, (i) any evidence of
Indebtedness with a maturity of 365 days or less from the date of
acquisition thereof issued or directly and fully guaranteed or insured by
the United States of America or any agency or instrumentality thereof
(provided that the full faith and credit of the United States of America is
pledged in support thereof); (ii) time deposits or certificates of deposit
or acceptances with a maturity of one year or less from the date of
acquisition thereof of any financial institution that is a member of the
Federal Reserve System having combined capital and surplus and undivided
profits of not less than $100,000,000; (iii) (a) commercial paper with a
maturity of one year or less from the date of acquisition thereof issued by
the parent of any commercial bank (provided that the financial institution
is a member of the Federal Reserve System) of recognized standing having
capital and surplus in excess of $500,000,000 and (b) commercial paper with
a maturity of one year or less from the date of acquisition thereof issued
by a corporation that is not an Affiliate of the Company organized under
the laws of any state of the United States or the District of Columbia and
rated at least A-1 by S&P or at least P-1 by Moody's or at least an
equivalent rating category of another nationally recognized securities
rating agency; (iv) repurchase agreements and reverse repurchase
agreements relating to marketable direct obligations issued or
unconditionally guaranteed by the government of the United States of
America or issued by any agency thereof and backed by the full faith and
credit of the United States of America, in each case maturing within one
year from the date of acquisition; (v) investments in money market funds
substantially all of whose assets are comprised of securities of the type
described in clauses (i) through (iv) above; and (vi) obligations the
interest with respect to which is excluded from gross income under Section
103 of the Internal Revenue Code of 1986, as amended, with a maturity of
not more than six months from the date of acquisition thereof or with the
right of the holder to put such obligations for purchase at par upon not
more than seven days' notice, and in each case which are rated A-2 or
higher by S&P or rated P-2 or higher by Moody's.
"Change of Control" means the occurrence of any of the following
events: (a) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Exchange Act) other than Permitted Holders is or becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange
Act, except that a person shall be deemed to have "beneficial ownership" of
all securities that such person has the right to acquire, whether such right
is exercisable immediately or only after the passage of time), directly or
indirectly, of more than 50% of the total Voting Stock of the Company and the
Permitted Holders do not have the right or ability by voting power, contract
or otherwise to elect or designate for election a majority of the Board of
Directors of the Company; (b) the Company consolidates with, or merges with or
into, another person or sells, assigns, conveys, transfers, leases or
otherwise disposes of all or substantially all of its assets to any person, or
any person consolidates with, or merges with or into, the Company, in any such
event pursuant to a transaction in which the outstanding Voting Stock of the
Company is converted into or exchanged for cash, securities or other property,
other than any such transaction where (i) the outstanding Voting Stock of the
Company is converted into or exchanged for (1) Voting Stock (other than
Redeemable Capital Stock) of the surviving or transferee corporation or (2)
cash, securities and/or other property in an amount which could be paid by the
Company as a Restricted Payment under the Indenture and (ii) immediately after
such transaction either (x) no "person" or "group" (as such terms are used in
Section 13(d) or 14(d) of the Exchange Act), other than Permitted Holders,
directly or indirectly, is the "beneficial owner" (as defined in Rules 13d-3
and 13d-5 under the Exchange Act, except that a person shall be deemed to have
"beneficial ownership" of all securities that such person has the right to
acquire, whether such right is exercisable immediately or only after the
passage of time), of more than 50% of the total Voting Stock of the surviving
or transferee corporation, or (y) the Permitted Holders have the right or
ability by voting power, contract or otherwise to elect or designate for
election a majority of the Board of Directors of the Company, or (c) during
any consecutive two-year period, individuals who at the beginning of such
period constituted the Board of Directors of the Company (together with any
new directors whose election by such Board of Directors or whose nomination
for election by the stockholders of the Company was approved by a vote of
66-2/3% of the directors then still in office who were either directors at
the beginning of such period or whose election or nomination for election
was previously so approved) cease for any reason to constitute a majority
of the Board of Directors of the Company then in office.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Common Stock" means the Company's Common Stock, par value $.01
per share, and the Company's Non-Voting Common Stock, par value $.01 per
share.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman, its President, any
Vice President, its Treasurer or an Assistant Treasurer, and delivered to the
Trustee.
"Consolidated Gross PP&E" means, with respect to the Company as of
the end of any fiscal year of the Company, the amount of property, plant and
equipment of the Company and its Subsidiaries, determined on a consolidated
basis, as shown on an audited balance sheet of the Company as of the end of
such fiscal year, without giving effect to accumulated depreciation and
amortization in respect of such property, plant and equipment.
"Consolidated Interest Expense" means for any period the sum of
(i) the aggregate of the interest expense on Indebtedness of the Company and
its consolidated Subsidiaries for such period, on a consolidated basis, plus
(ii) that portion of operating lease rentals representative of the interest
factor (which shall be deemed to be one-third of operating lease rentals), in
each case as determined in accordance with GAAP.
"Consolidated Net Income" means for any period the consolidated
net income of the Company and its consolidated Subsidiaries for such period as
determined in accordance with GAAP adjusted by excluding (i) any gain or loss
realized upon the termination of any employee pension plan, (ii) net
extraordinary gains or net extraordinary losses (less all reasonable fees and
expenses relating thereto), as the case may be, (iii) the portion of net
income (or loss) of the Company and its Subsidiaries allocable to minority
interests in unconsolidated persons to the extent that cash dividends or
distributions have not actually been received by the Company or one of its
Subsidiaries, (iv) net income (or loss) of any person combined with the
Company or one of its Subsidiaries on a "pooling of interests" basis
attributable to any period prior to the date of combination, (v) net gains or
losses (less all reasonable fees and expenses relating thereto) in respect of
dispositions of assets other than in the ordinary course of business, and (vi)
the net income of any Subsidiary of the Company to the extent that the
declaration of dividends or similar distributions by that Subsidiary of that
income is not at the time permitted, directly or indirectly, by operation of
the terms of its charter or any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulations applicable to that Subsidiary
or its stockholders.
"Consolidated Non-cash Charges" means, for any period, the
aggregate depreciation, amortization and other non-cash charges of the Company
and its Subsidiaries for such period, as determined in accordance with GAAP
(excluding any such non-cash charge which requires an accrual of or reserve
for cash charges for any future period).
"Consolidated Tax Expense" of the Company means for any period the
aggregate of the tax expense of the Company and its consolidated Subsidiaries
for such period, determined in accordance with GAAP.
"Corporate Trust Office" means the principal corporate trust
office of the Trustee, at which at any particular time its corporate trust
business shall be administered, which office on the date of execution of this
Indenture is located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"corporation" includes corporations, associations, companies and
business trusts.
"Default" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means The Depository Trust Company, its nominees and
successors.
"Dollar" or "$" means a dollar or other equivalent unit in such
coin or currency of the United States of America as at the time shall be legal
tender for the payment of public and private debts.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Notes" has the meaning stated in the first recital of
this Indenture and refers to any Exchange Notes containing terms substantially
identical to the Initial Notes (except that (i) such Exchange Notes shall not
contain terms with respect to transfer restrictions and shall be registered
under the Securities Act, and (ii) certain provisions relating to an increase
in the stated rate of interest theroeon shall be eliminated) that are issued
and exchanged for the Initial Notes in accordance with the Exchange Offer, as
provided for in the Registration Rights Agreement and this Indenture.
"Exchange Offer" means the offer by the Company to the Holders of
the Initial Notes to exchange all of the Initial Notes for Exchange Notes, as
provided for in the Registration Rights Agreement.
"Exchange Offer Registration Statement" means the Exchange Offer
Registration Statement as defined in the Registration Rights Agreement.
"Federal Bankruptcy Code" means the Bankruptcy Act of Title 11 of
the United States Code, as amended from time to time.
"Foreign Entity" means any Subsidiary of the Company either (i)
more than 80% of the sales, earnings or assets (determined on a consolidated
basis) of which are located or derived from operations outside of the United
States of America or (ii) which is a "controlled foreign corporation" within
the meaning of Section 952 of the Internal Revenue Code.
"Generally Accepted Accounting Principles" or "GAAP" means
generally accepted accounting principles in the United States, consistently
applied, that were in effect on the date of the 9 1/8% Note Indenture.
"Global Notes" has the meaning set forth in Section 201.
"Government Obligations" means securities which are direct
obligations 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 are not callable or redeemable at the option of the
issuer thereof and shall also include a depository receipt issued by a bank or
trust company as custodian with respect to any such Government Obligation or a
specific payment of interest on or principal of any such Government Obligation
held by such custodian for the account of the holder of a 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
Obligation or the specific payment of interest or principal of the Government
Obligation evidenced by such depository receipt.
"Guarantee" has the meaning specified in Section 1015.
"Guaranteed Debt" of any Person means, without duplication, all
Indebtedness of any other Person guaranteed directly or indirectly in any
manner by such Person, or in effect guaranteed directly or indirectly by such
Person through an agreement (i) to pay or purchase such Indebtedness or to
advance or supply funds for the payment or purchase of such Indebtedness,
(ii) to purchase, sell or lease (as lessee or lessor) property, or to purchase
or sell services, primarily for the purpose of enabling the debtor to make
payment of such Indebtedness or to assure the holder of such Indebtedness
against loss, (iii) to supply funds to, or in any other manner invest in, the
debtor (including any agreement to pay for property or services to be acquired
by such debtor irrespective of whether such property is received or such
services are rendered), (iv) to maintain working capital or equity capital of
the debtor, or otherwise to maintain the net worth, solvency or other
financial condition of the debtor or (v) otherwise to assure a creditor
against loss; provided that the term "guarantee" shall not include
endorsements for collection or deposit, in either case in the ordinary course
of business, or any obligation or liability of such Person in respect of
leasehold interests assigned by such Person to any other Person.
"Guarantor" has the meaning specified in Section 1015.
"Holder" means the Person in whose name a Note is registered in
the Note Register.
"Indebtedness" means, with respect to any Person, without
duplication, (i) all indebtedness of such Person for borrowed money or for the
deferred purchase price of property or services, excluding any trade accounts
payable and other accrued current liabilities incurred in the ordinary course
of business, but including, without limitation, all obligations, contingent or
otherwise, of such Person in connection with any letters of credit and
acceptances issued under letter of credit facilities, acceptance facilities or
other similar facilities, (ii) all obligations of such Person evidenced by
bonds, notes, debentures or other similar instruments, (iii) all indebtedness
created or arising under any conditional sale or other title retention
agreement with respect to property acquired by such Person (even if the rights
and remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such property), but excluding
trade accounts payable arising in the ordinary course of business, (iv) all
Capitalized Lease Obligations of such Person, (v) all Indebtedness referred to
in (but not excluded from) clause (i), (ii), (iii) or (iv) above of other
Persons and all dividends of other Persons, the payment of which is secured by
(or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien upon or in property
(including, without limitation, accounts and contract rights) owned by such
Person, even though such Person has not assumed or become liable for the
payment of such Indebtedness, (vi) all Guaranteed Debt of such Person, (vii)
all Redeemable Capital Stock issued by such Person valued at the greater of
its voluntary or involuntary maximum fixed repurchase price plus accrued and
unpaid dividends, (viii) all obligations under interest rate contracts of such
Person and (ix) any amendment, supplement, modification, deferral, renewal,
extension or refunding of any liability of the types referred to in clauses
(i) through (viii) above. For purposes hereof, the "maximum fixed repurchase
price" of any Redeemable Capital Stock that does not have a fixed repurchase
price shall be calculated in accordance with the terms of such Redeemable
Capital Stock as if such Redeemable Capital Stock were purchased on any date
on which Indebtedness shall be required to be determined pursuant to the
Indenture, and if such price is based upon, or measured by, the fair market
value of such Redeemable Capital Stock, such fair market value to be
determined in good faith by the board of directors of the issuer of such
Redeemable Capital Stock.
"Indenture" means this instrument as originally executed and as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Initial Notes", has the meaning specified in the recitals to this
Indenture.
"Institutional Accredited Investor" means an institution that is
an "accredited investor" as that term is defined in Rule 501(a)(1), (2), (3)
or (7) of Regulation D under the Securities Act.
"Interest Payment Date", when used with respect to any Note, means
the Stated Maturity of an installment of interest on such Note.
"Investment" means, with respect to any person, any direct or
indirect loan or other extension of credit or capital contribution to (by
means of any transfer of cash or other property to others or any payment for
property or services for the account or use of others), or any purchase or
acquisition by such person of any Capital Stock, bonds, notes, debentures or
other securities or evidences of Indebtedness issued by, any other person.
"Investments" shall exclude extensions of trade credit on commercially
reasonable terms in accordance with normal trade practices.
"Lien" means any mortgage, charge, pledge, lien, security interest
or encumbrance of any kind.
"ML Funds" means Xxxxxxx Xxxxx KECALP L.P. 1986, Xxxxxxx Xxxxx
KECALP L.P. 1987, Merchant Banking L.P. No. 1, ML Venture Partners II, L.P.,
Xxxxxxx Xxxxx Capital Appreciation Partnership No. VIII, L.P., ML Offshore LBO
Partnership No. VIII, ML Employees LBO Partnership No. 1, L.P., ML IBK
Positions, Inc. and any Affiliates of the foregoing that beneficially own,
directly or indirectly, shares of Capital Stock of the Company.
"Majority Owned Subsidiary" means any Subsidiary of the Company of
which 80% of the outstanding shares of Voting Stock are owned directly or
indirectly by the Company.
"Management Investors" means members of the Company's or
BW-Automotive's management who are party to the Management Stock Subscription
Agreement.
"Material Subsidiary" means (i) any Subsidiary of the Company now
existing or hereafter acquired or formed by the Company which (x) for the most
recent completed fiscal year of the Company commencing on or after January 1,
1996 accounted for more than 5% of the consolidated revenues of the Company,
or (y) as at the end of such fiscal year, was the owner of more than 5% of the
consolidated assets of the Company, all as shown on the consolidated financial
statements of the Company for such fiscal year; and (ii) any other Subsidiary
so designated by the Company, by an Officers' Certificate delivered to the
Trustee.
"Maturity", when used with respect to any Note, means the date on
which the principal of such Note becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration,
notice of redemption, notice of option to elect repayment or otherwise.
"Moody's" means Xxxxx'x Investors Service, Inc. and its
successors.
"9 1/8% Note Indenture" means the indenture dated as of May 3,
1993 between the Company and The First National Bank of Chicago, as
trustee, as amended or supplemented from time to time.
"9 1/8% Notes" means the Company's 9 1/8% Senior Subordinated
Notes due 2003.
"Non-Payment Event of Default" has the meaning specified in
Section 1503.
"Non-U.S. Person" means a person who is not a U.S. person as
defined in Regulation S.
"Note Register" and "Note Registrar" have the respective meanings
specified in Section 305.
"Notes" has the meaning stated in the first recital of this
Indenture.
"Officers' Certificate" means a certificate signed by the
Chairman, the President or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary of the Company,
and delivered to the Trustee.
"Offshore Global Note" has the meaning set forth in Section 201.
"Offshore Note Exchange Date" has the meaning set forth in Section
203.
"Offshore Physical Note" has the meaning set forth in Section 201.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for the Company, including an employee of the Company, and who
shall be reasonably acceptable to the Trustee.
"Original Issue Date", means the date of original issuance of the
Notes.
"Outstanding", when used with respect to Notes, means, as of the
date of determination, all Notes theretofore authenticated and delivered under
this Indenture, except:
(i) Notes theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Notes, or portions thereof, for whose payment or redemption
or repayment at the option of the Holder money in the necessary amount
has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust
by the Company (if the Company shall act as its own Paying Agent) for
the Holders of such Notes; provided that, if such Notes are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been
made;
(iii) Notes, except to the extent provided in Sections 1402 and
1403, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article Fourteen; and
(iv) Notes which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Notes have been authenticated and
delivered pursuant to this Indenture, other than any such Notes in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Notes are held by a bona fide purchaser in
whose hands such Notes are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, and for the
purpose of making the calculations required by TIA Section 313, Notes owned by
the Company or any other obligor upon the Notes or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be
protected in making such calculation or in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Notes which
a Responsible Officer of the Trustee actually knows to be so owned shall be so
disregarded. Notes so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right to act with respect to such Notes and that the
pledgee is not the Company or any other obligor upon the Notes or any
Affiliate of the Company or such other obligor.
"Pari Passu Indebtedness" means the 9 1/8% Notes and any other
Indebtedness which ranks pari passu in right of payment and upon liquidation
to the Notes.
"Payment Event of Default" has the meaning specified in Section
1503.
"Payment Blockage Period" has the meaning specified in Section
1503.
"Paying Agent" means any Person (including the Company acting as
Paying Agent) authorized by the Company to pay the principal of (or premium,
if any, on) or interest on any Notes on behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"Permitted Holders" means the ML Funds and the Management
Investors.
"Permitted Indebtedness" means:
(a) Indebtedness of the Company (and guarantees of such
Indebtedness of the Company by its Subsidiaries) under the Bank Credit
Agreement in an aggregate principal amount not to exceed $285,000,000
(minus all principal payments made in respect of any term loans
thereunder, and minus the amount by which any commitments under any
revolving loan or letter of credit facility are permanently reduced);
(b) Indebtedness of the Company evidenced by the Notes or of any
Guarantor in respect of any guarantee of the Notes;
(c) Indebtedness arising out of (i) letters of credit incurred
in the ordinary course of business and (ii) other letters of credit in
an aggregate principal amount not to exceed $35,000,000 at any time;
(d) Indebtedness arising under the Company's accounts receivable
facility in effect on the date of this Indenture;
(e) Indebtedness of the Company or any of its Subsidiaries
outstanding on the date of this Indenture, other than Indebtedness
pursuant to clause (a) and (d) hereof;
(f) Indebtedness in respect of Capitalized Lease Obligations
incurred in any particular Annual Period in an aggregate principal
amount not to exceed 7-1/2% of the Dollar amount of the Company's
Consolidated Gross PP&E as of the end of the immediately preceding full
fiscal year;
(g) Indebtedness of a Majority Owned Subsidiary of the Company
(x) to the Company or (y) to another Majority Owned Subsidiary of the
Company, provided that any disposition, pledge or transfer of any such
Indebtedness to a Person (other than a disposition, pledge or transfer
to the Company or a Wholly Owned Subsidiary or to or for the benefit of
the Banks as provided under the Bank Credit Agreement) shall be deemed
to be an incurrence of such Indebtedness by such Majority Owned
Subsidiary not permitted by this clause (g);
(h) Indebtedness of the Company to a Majority Owned Subsidiary
of the Company which is unsecured and subordinated in right of payment
from and after such time as the Notes shall become due and payable
(whether at a Stated Maturity, by acceleration or otherwise) to the
payment and performance of the Company's obligations under this
Indenture and the Notes, provided that any disposition, pledge or
transfer of any such Indebtedness to a Person (other than a disposition,
pledge or transfer to the Company or a Wholly Owned Subsidiary or to or
for the benefit of the Banks as provided under the Bank Credit
Agreement) shall be deemed to be an incurrence of such Indebtedness by
the Company not permitted by this clause (h);
(i) Indebtedness incurred by Foreign Entities, including
guarantees of the Company and its Subsidiaries of such Indebtedness, not
exceeding at any one time outstanding $50,000,000 in aggregate principal
amount;
(j) obligations of the Company pursuant to interest rate
contracts designed to protect the Company against fluctuations in
interest rates in respect of Indebtedness of the Company, which
obligations do not exceed the aggregate principal amount of such
Indebtedness;
(k) Guaranteed Debt resulting from endorsement of negotiable
instruments for collection in the ordinary course of business;
(l) any renewals, extensions, substitutions, refinancings or
replacements (each, for purposes of this clause, a "refinancing") by the
Company of any Permitted Indebtedness described in clauses (b), (d) and
(e) of this definition of "Permitted Indebtedness", (or successive
extensions, renewals, substitutions, refinancings or replacements) so
long as (1) any such new Indebtedness shall be in a principal amount
that does not exceed the principal amount (or, if such Indebtedness
being refinanced provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of acceleration
thereof, such lesser amount as of the date of determination) so
refinanced, plus the amount of any premium required to be paid under the
terms of the instrument governing such Indebtedness being so refinanced
or the amount of any premium reasonably determined by the Company as
necessary to accomplish such refinancing through means of a tender offer
or privately negotiated transaction and (2) such new Indebtedness has an
Average Life and final Stated Maturity of principal that exceeds the
Average Life and final Stated Maturity of such Indebtedness;
(m) obligations in respect of any guarantee of any Pari Passu
Indebtedness or Subordinated Indebtedness permitted under Section 1015
of this Indenture; and
(n) $100,000,000 less any amounts of outstanding Indebtedness
permitted by clause (i) above outstanding at any one time.
"Permitted Investments" means any of the following: (a) (i) any
Investment in any Majority Owned Subsidiaries by the Company or any other
Subsidiary or (ii) any Investment in the Company by any Subsidiary or (iii)
any Investment by the Company or any Majority Owned Subsidiary in another
Person, if as a result of such Investment such other Person is merged or
consolidated with or into the Company or such Majority Owned Subsidiary; (b)
Investments in existence on the date of this Indenture; (c) loans or advances
to employees made in the ordinary course of business and consistent with past
practices of the Company and its Subsidiaries; (d) any Cash Equivalents; (e)
sales of goods or services on trade credit terms, consistent with the past
practices of the Company or any Subsidiary or as otherwise consistent with
trade credit terms in common use in the industry; (f) negotiable instruments
held for collection, lease, utility and other similar deposits, or stock,
obligations or securities received in settlement of debts owing to the Company
or a Subsidiary as a result of foreclosure, perfection or enforcement of any
Lien, in each case as to debt that arose in the ordinary course of business of
the Company or any such Subsidiary; (g) any Investment in any Person acquired
or retained in connection with any asset sale or other disposition of assets,
provided that any such sale or other disposition is made for the fair value of
such assets and for at least 75% cash; and (h) Investments, in addition to the
Investments described in the foregoing clauses (a) through (g), in the
aggregate amount of $50,000,000 at any one time outstanding determined in the
case of each Investment by reference to the amount of the Investment at the
time originally made.
"Permitted Liens" means:
(a) any Lien existing as of the date of this Indenture;
(b) any Lien securing any Senior Indebtedness or any guarantee
thereof;
(c) any Lien arising by reason of (1) any judgment, decree or
order of any court, so long as (i) such judgment, decree or order
together with any other judgment, decree or order of the Company or any
of its Subsidiaries is less than $1,000,000, excluding any judgment,
order or decree complying with clause (ii) hereof, or (ii) such Lien is
adequately bonded and any appropriate legal proceedings which may have
been duly initiated for the review of such judgment, decree or order
shall not have been finally terminated or the period within which such
proceedings may be initiated shall not have expired; (2) taxes not yet
delinquent or which are being contested in good faith; (3) security for
payment of workmen's compensation or other insurance; (4) good faith
deposits in connection with tenders, contracts (other than contracts for
the payment of money) or leases; (5) deposits to secure public or
statutory obligations, or in lieu of surety or appeal bonds; or (6)
operation of law in favor of mechanics, materialmen, laborers, employees
or suppliers, incurred in the ordinary course of business for sums which
are not yet delinquent or are being contested in good faith by
negotiations or by appropriate proceedings which suspend the collection
thereof;
(d) easements, rights-of-way, zoning restrictions and other
similar charges or encumbrances in respect of real property not
interfering in any material respect with the ordinary conduct of the
business of the Company or any of its Subsidiaries;
(e) any interest or title of a lessor under any Capitalized
Lease Obligation;
(f) Liens in favor of the purchaser and its assignee of the
Company's and its Subsidiaries' receivables with respect to receivables
purchased pursuant to the receivables financing facility permitted under
this Indenture;
(g) Liens on the assets or property of a Subsidiary which is a
Foreign Entity securing the Indebtedness incurred by such Foreign Entity
and permitted under this Indenture;
(h) any Liens which may be granted to secure the Notes or any
Guarantees; or
(i) any extension, renewal or replacement, in whole or in part,
of any Lien described in the foregoing clause (a), provided that any
such extension, renewal or replacement shall be no more restrictive in
any material respect than the Lien so extended, renewed or replaced and
shall not extend to any additional property or assets.
"Physical Notes" has the meaning set forth in Section 201.
"Place of Payment" means the place or places where the principal
of (and premium, if any, on) and interest on the Notes are payable as
specified as contemplated by Sections 301 and 1002.
"Predecessor Note" of any particular Note means every previous
Note evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 306 in exchange for or in lieu of
a mutilated, destroyed, lost or stolen Note shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Note.
"Preferred Stock" means, with respect to any person, any and all
shares, interests, participations or other equivalents (however designated) of
such person's preferred or preference stock whether now outstanding, or issued
after the issuance of the Notes, and including, without limitation, all
classes and series of preferred or preference stock of such person.
"Private Placement Legend" has the meaning set forth in Section
203.
"Public Equity Offering" means an underwritten primary public
offering by the Company of its Common Stock pursuant to an effective
registration under the Securities Act.
"Purchase Date" has the meaning set forth in Section 1016.
"QIB" means a "Qualified Institutional Buyer" within the meaning
of Rule 144A under the Securities Act.
"Redeemable Capital Stock" means any Capital Stock of the Company
or any Subsidiary that, either by its terms, by the terms of any security into
which it is convertible or exchangeable or otherwise, (i) is or upon the
happening of an event or passage of time would be required to be redeemed on
or prior to the final Stated Maturity of the Notes or (ii) is redeemable at
the option of the holder thereof at any time prior to such final Stated
Maturity or (iii) is convertible into or exchangeable for debt securities at
any time prior to such final Stated Maturity.
"Redemption Date", when used with respect to any Note to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Note to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of March 24, 1997, among the Company and the Holders of
Initial Notes.
"Regular Record Date" has the meaning specified in Section 301.
"Repayment Date" means, when used with respect to any Note to be
repaid at the option of the Holder, the date fixed for such repayment pursuant
to this Indenture.
"Repayment Price" means, when used with respect to any Note to be
repaid at the option of the Holder, the price at which it is to be repaid
pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee,
means any vice president, any assistant secretary, any assistant treasurer,
any trust officer or assistant trust officer, or any other officer of the
Trustee customarily performing functions similar to those performed by any of
the above-designated officers, and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"Securities Act" means the Securities Act of 1933, as amended.
"S&P" means Standards & Poor's Ratings Group, a division of
XxXxxx-Xxxx, Inc. and its successors.
"Senior Indebtedness" means the principal of (and premium, if any,
on) and interest on (including interest accruing after the occurrence of an
event of default or after the filing of a petition initiating any proceeding
pursuant to any bankruptcy law whether or not such interest is an allowable
claim in any such proceeding) and other amounts due on or in connection with
any Indebtedness of the Company, whether outstanding on the date of this
Indenture or hereafter created, incurred or assumed, including under the Bank
Credit Agreement, unless, in the case of any particular Indebtedness, the
instrument creating or evidencing the same or pursuant to which the same is
outstanding expressly provides that such Indebtedness shall not be senior in
right of payment to the Notes. Notwithstanding the foregoing, "Senior
Indebtedness" shall not include (A) Indebtedness evidenced by the Notes, (B)
Indebtedness evidenced by the 9 1/8% Notes and other Pari Passu Indebtedness,
(C) Indebtedness of the Company that is expressly subordinated in right of
payment to any Senior Indebtedness of the Company, the 9 1/8% Notes or the
Notes, (D) Indebtedness of the Company that by operation of law is subordinate
to any general unsecured obligations of the Company, (E) Indebtedness of the
Company to any Subsidiary, (F) to the extent it might constitute Indebtedness,
any liability for federal, state or local taxes or other taxes, owed or owing
by the Company and (G) to the extent it might constitute Indebtedness, trade
account payables owed or owing by the Company.
"Special Record Date" for the payment of any Defaulted Interest on
the Notes means a date fixed by the Trustee pursuant to Section 307.
"Specified Senior Indebtedness" means (i) all Indebtedness under
the Bank Credit Agreement to the extent any may be outstanding at any time,
and (ii) any other Senior Indebtedness which (x) at the time of incurrence
exceeds $25,000,000 in aggregate principal amount and (y) is specifically
designated in the instrument evidencing such Senior Indebtedness as "Specified
Senior Indebtedness" by the Company.
"Stated Maturity", when used with respect to principal of the Note
or any installment of interest thereon, means the date specified in such Note
as the fixed date on which the principal of such Note or such installment of
interest is due and payable.
"Subordinated Indebtedness" means Indebtedness of the Company
subordinated in right of payment to the Notes.
"Subsidiary" means any corporation of which at the time of
determination the Company, directly and/or indirectly through one or more
Subsidiaries, owns more than 50% of the shares of Voting Stock.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of
1939 as in force at the date as of which this Indenture was executed, except
as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder.
"United States" means the United States of America (including the
states and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
"U.S. Global Note" has the meaning set forth in Section 201.
"U.S. Physical Note" has the meaning set forth in Section 201.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"Voting Stock" means any class or classes of Capital Stock
pursuant to which the holders thereof have the general voting power under
ordinary circumstances to elect at least a majority of the board of directors,
managers or trustees of any person (irrespective of whether or not, at the
time, stock of any other class or classes shall have, or might have, voting
power by reason of the happening of any contingency).
"Wholly Owned Subsidiary" means any subsidiary of the Company of
which 100% of the outstanding Capital Stock is owned by the Company or another
Wholly Owned Subsidiary of the Company. For purposes of this definition, any
directors' qualifying shares or investments by foreign nationals mandated by
applicable law shall be disregarded in determining the ownership of a
Subsidiary.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture (including any covenant
compliance with which constitutes a condition precedent) relating to the
proposed action have been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent, if any, have
been complied with, except that in the case of any such application or request
as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
covenant or condition provided for in this Indenture (other than pursuant to
Section 1004) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(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 each 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, in the opinion of each such
individual, such covenant or condition has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or
taken by Holders of the Outstanding Notes may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such Holders
in person or by agents duly appointed in writing. Except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as
the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and conclusive in
favor of the Trustee and the Company, if made in the manner provided in
this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof.
Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of authority. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of Notes held by
any Person, and the date of holding the same, shall be proved by the Note
Register.
(d) If the Company shall solicit from the Holders of Notes any
request, demand, authorization, direction, notice, consent, waiver or other
Act, the Company may, at its option, by or pursuant to Board Resolution, fix
in advance a record date for the determination of Holders entitled to give
such request, demand, authorization, direction, notice, consent, waiver or
other Act, but the Company shall have no obligation to do so. Notwithstanding
TIA Section 316(c), such record date shall be the record date specified in or
pursuant to such Board Resolution, which shall be a date not earlier than the
date 30 days prior to the first solicitation of Holders generally in
connection therewith and not later than the date such solicitation is
completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close
of business on such record date shall be deemed to be Holders for the purposes
of determining whether Holders of the requisite proportion of Outstanding
Notes have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Notes shall be computed as of such record date;
provided that no such authorization, agreement or consent by the Holders on
such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than eleven months
after the record date.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Note shall bind every future
Holder of the same Note and the Holder of every Note issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made
upon such Note.
SECTION 105. Notices, etc., to Trustee, Company and Agents.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other documents provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Trustee Administration, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this Indenture
or at any other address previously furnished in writing to the
Trustee by the Company, or
(3) the Agents by the Company, the Trustee or any Holder shall
be sufficient for any purpose hereunder if made, given, furnished or
delivered, in writing to or with the Agents addressed to it as set
forth in the Bank Credit Agreement, or at any other address
previously furnished in writing to the Company and the Trustee by the
Agents.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to Holders
of Notes by the Company or the Trustee, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each such Holder affected by such event, at
his address as it appears in the Note Register, not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of
such notice. In any case where notice to Holders is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed, to
any particular Holder shall affect the sufficiency of such notice with respect
to other Holders. Any notice mailed to a Holder in the manner herein
prescribed shall be conclusively deemed to have been received by such Holder,
whether or not such Holder actually receives such notice.
In case, by reason of the suspension of or irregularities in
regular mail service or by reason of any other cause, it shall be impractical
to mail notice of any event to Holders when such notice is required to be
given pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be satisfactory to the Trustee shall be deemed to be
sufficient giving of such notice for every purpose hereunder.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee,
but such filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
SECTION 107. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 108. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 109. Separability Clause.
In case any provision in this Indenture or in any Note shall be
invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 110. Benefits of Indenture.
Nothing in this Indenture or in the Notes, express or implied,
shall give to any Person, other than the parties hereto, any Authenticating
Agent, any Paying Agent, any Notes Registrar and their successors hereunder
and the Holders and, with respect to any provisions hereof relating to the
subordination of the Notes or the rights of holders of Senior Indebtedness,
the holders of Senior Indebtedness, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 111. Governing Law.
This Indenture and the Notes shall be governed by and construed in
accordance with the law of the State of New York, without regard to conflicts
of laws principles thereof. Upon the effectiveness of the Shelf Registration
Statement or the consummation of the Exchange Offer, this Indenture will be
subject to the provisions of the Trust Indenture Act of 1939, as amended, that
are required to be part of this Indenture and shall, to the extent applicable,
be governed by such provisions.
SECTION 112. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, or
Stated Maturity or Maturity of any Note shall not be a Business Day at any
Place of Payment, then (notwithstanding any other provision of this Indenture
or of any Note) payment of interest or principal (and premium, if any) need
not be made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and
effect as if made on the Interest Payment Date or Redemption Date or at the
Stated Maturity or Maturity; provided that no interest shall accrue for the
period from and after such Interest Payment Date, Redemption Date, Stated
Maturity or Maturity, as the case may be.
ARTICLE TWO
NOTE FORMS
SECTION 201. Forms Generally.
The Initial Notes shall be known as the "9 5/8% Senior
Subordinated Notes due 2007" and the Exchange Notes shall be known as the "9
5/8% Series B Senior Subordinated Notes due 2007", in each case, of the
Company. The Notes and the Trustee's certificate of authentication shall be
in substantially the forms set forth in this Article, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Notes, as
evidenced by their execution of the Notes. Any portion of the text of any
Note may be set forth on the reverse thereof, with an appropriate reference
thereto on the face of the Note. Each Note shall be dated the date of its
authentication.
The definitive Notes shall be printed, lithographed or engraved on
steel-engraved borders or may be produced in any other manner, all as
determined by the officers of the Company executing such Notes, as evidenced
by their execution of such Notes.
Initial Notes offered and sold in reliance on Rule 144A under the
Securities Act may be issued in the form of one or more permanent global Notes
substantially in the form set forth in Exhibit A (the "U.S. Global Note")
deposited with the Trustee, as custodian for the Depositary or its nominee,
duly executed by the Company and authenticated by the Trustee as hereinafter
provided. The aggregate principal amount of the U.S. Global Note may from
time to time be increased or decreased by adjustments made on the records of
the Trustee, as custodian for the Depositary or its nominee, as hereinafter
provided.
Initial Notes offered and sold in offshore transactions in
reliance on Regulation S under the Securities Act shall be issued in the form
of a single permanent global Note in substantially in the form set forth in
Sections 204 and 205 (the "Offshore Global Note") deposited with the Trustee,
as custodian for the Depositary or its nominee, duly executed by the Company
and authenticated by the Trustee as hereinafter provided. The aggregate
principal amount at maturity of the Offshore Global Note may from time to time
be increased or decreased by adjustments made in the records of the Trustee,
as custodian for the Depositary or its nominee, as herein provided.
Initial Notes which are offered and sold to Institutional
Accredited Investors which are not QIBs (excluding Non-U.S. Persons) shall be
issued in the form of permanent certificated Notes in substantially the form
set forth in Sections 204 and 205 (the "U.S. Physical Notes"). Notes issued
pursuant to Section 306 in exchange for or upon transfer of beneficial
interests in the U.S. Global Note or the Offshore Global Note shall be in the
form of U.S. Physical Notes or in the form of permanent certificated Notes
substantially in the form set forth in Sections 204 and 205 (the "Offshore
Physical Notes"), respectively, as hereinafter provided.
The Offshore Physical Notes and U.S. Physical Notes are sometimes
collectively herein referred to as the "Physical Notes". The U.S. Global Note
and the Offshore Global Note are sometimes collectively referred to as the
"Global Notes".
SECTION 202. Form of Trustee's Certificate of Authentication.
Subject to Section 611, the Trustee's certificate of
authentication shall be in substantially the following form:
This is one of the Notes referred to in the within-mentioned
Indenture.
THE BANK OF NEW YORK,
as Trustee
By
----------------------------
Authorized Signatory
SECTION 203. Restrictive Legends.
Unless and until (i) an Initial Note is sold pursuant to an
effective Shelf Registration Statement or (ii) an Initial Note is exchanged
for an Exchange Note in an Exchange Offer pursuant to an effective Exchange
Offer Registration Statement, in each case pursuant to the Registration Rights
Agreement, (A) each U.S. Global Note and U.S. Physical Note shall bear the
following legend set forth below (the "Private Placement Legend") on the face
thereof and (B) the Offshore Physical Notes and Offshore Global Note shall
bear the Private Placement Legend on the face thereof until at least 41 days
after the date hereof (the "Offshore Note Exchange Date") and receipt by the
Company and the Trustee of a certificate substantially in the form provided in
Section 204:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
OR OTHER SECURITIES LAWS. 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 THE TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF
THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) (AN
"ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING
THIS SECURITY IN AN "OFFSHORE TRANSACTION" PURSUANT TO RULE 903 OR 904
OF REGULATION S, (2) AGREES THAT IT WILL NOT PRIOR TO (X) THE DATE WHICH
IS TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(K)
UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER) AFTER
THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF ANY PREDECESSOR OF
THIS SECURITY) OR THE LAST DAY ON WHICH THE COMPANY OR ANY AFFILIATE OF
THE COMPANY WAS THE OWNER OF THIS SECURITY OR ANY PREDECESSOR OF THIS
SECURITY AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY
APPLICABLE LAWS (THE "RESALE RESTRICTION TERMINATION DATE"), OFFER,
SELL, OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY OR
ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH
HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS
THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A
PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT 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 TO NON-U.S. PERSONS THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, PURSUANT TO RULE 904 OF REGULATION S, (E) TO AN
ACCREDITED INVESTOR THAT IS ACQUIRING THE SECURITIES FOR ITS OWN
ACCOUNT, OR FOR THE ACCOUNT OF SUCH ACCREDITED INVESTOR, 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
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO
WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND, THIS LEGEND WILL BE REMOVED UPON THE REQUEST
OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. IF ANY
PROPOSED TRANSFER IS BEING MADE IN ACCORDANCE WITH (2)(D), (E) OR
(F) ABOVE, THE HOLDER ACKNOWLEDGES THAT THE COMPANY RESERVES THE
RIGHT TO REQUIRE THE DELIVERY OF SUCH CERTIFICATIONS, LEGAL OPINIONS
OR OTHER INFORMATION SATISFACTORY TO THE COMPANY TO CONFIRM THAT THE
PROPOSED TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN
A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION",
"UNITED STATES" AND "U.S. PERSON" HAVE THE RESPECTIVE MEANINGS GIVEN
TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
Each Global Note, whether or not an Initial Note, shall also bear
the following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC") TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
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 CEDE & CO. 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 SECTIONS 311 AND 312 OF THE INDENTURE.
SECTION 204. Form of Certificate to Be Delivered upon Termination
of Restricted Period.
On or after May 4, 0000
XXX XXXX XX XXX XXXX
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Trustee Administration
Re: XXXX-XXXXXX SECURITY CORPORATION (the "Company")
9 5/8% Senior Subordinated Notes due 2007 (the "Notes")
Ladies and Gentlemen:
This letter relates to $__________ principal amount of Notes
represented by the offshore global note certificate (the "Offshore Global
Note"). Pursuant to Section 204 of the Indenture dated as of March 24, 1997
relating to the Notes (the "Indenture"), we hereby certify that (1) we are the
beneficial owner of such principal amount of Notes represented by the Offshore
Global Note and (2) we are a Non-U.S. Person to whom the Notes could be
transferred in accordance with Rule 904 of Regulation S promulgated under the
Securities Act of 1933, as amended ("Regulation S"). Accordingly, you are
hereby requested to issue an Offshore Physical Note representing the
undersigned's interest in the principal amount of Notes represented by the
Global Note, all in the manner provided by the Indenture.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby. Terms used in this
certificate have the meanings set forth in Regulation S.
Very truly yours,
[Name of Holder]
By:
--------------------------------------
Authorized Signature
ARTICLE THREE
THE NOTES
SECTION 301. Amount.
The aggregate principal amount of Notes which may be authenticated
and delivered under this Indenture is limited to $125,000,000, except for
Notes authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Notes pursuant to Section 304, 305, 306,
311, 312, 906, 1015 or 1107 or pursuant to an Exchange Offer.
The Initial Notes shall be known and designated as the "9 5/8%
Senior Subordinated Notes due 2007" and the Exchange Notes shall be known and
designated as the "9 5/8% Series B Senior Subordinated Notes due 2007", in
each case, of the Company. The Stated Maturity of the Notes shall be March
15, 2007, and they shall bear interest at the rate of 9 5/8% per annum from
March 24, 1997, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, payable on September 15, 1997 and
semi-annually thereafter on March 15th and September 15th in each year, until
the principal thereof is paid in full and to the Person in whose name the Note
(or any predecessor Note) is registered at the close of business on the March
1st or September 1st next preceding such Interest Payment Date (each a
"Regular Record Date").
The principal of (and premium, if any) and interest on the Notes
shall be payable at the office or agency of the Company maintained for such
purpose in The City of New York, or at such other office or agency of the
Company as may be maintained for such purpose; provided, however, that, at the
option of the Company, interest may be paid (a) by check mailed to addresses
of the Persons entitled thereto as such addresses shall appear on the Note
Register or (b) by wire transfer to an account maintained by the payee located
in the United States provided that appropriate written wire instructions have
been provided prior to the relevant record date.
Holders shall have the right to require the Company to purchase
their Notes, in whole or in part, in the event of a Change of Control pursuant
to Section 1016.
The Notes shall be redeemable as provided in Article Eleven and in
the Notes.
The Indebtedness evidenced by the Notes shall be subordinated in
right of payment to Senior Indebtedness as provided in Article Fifteen.
SECTION 302. Denominations.
The Notes shall be issuable only in registered form without
coupons and only in denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Notes shall be executed on behalf of the Company by its
Chairman, its President or a Vice President, under its corporate seal
reproduced thereon attested by its Secretary or an Assistant Secretary. The
signature of any of these officers on the Notes may be the manual or facsimile
signatures of the present or any future such authorized officer and may be
imprinted or otherwise reproduced on the Notes.
Notes bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the
Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Notes or
did not hold such offices at the date of such Notes.
On Company Order, the Trustee shall authenticate for original
issue Exchange Notes in an aggregate principal amount not to exceed
$125,000,000; provided that such Exchange Notes shall be issuable only upon
the valid surrender for cancellation of Initial Notes of a like aggregate
principal amount in accordance with an Exchange Offer pursuant to the
Registration Rights Agreement. In each case, the Trustee shall be entitled to
receive an Officers' Certificate and an Opinion of Counsel of the Company that
it may reasonably request in connection with such authentication of Exchange
Notes. Such order shall specify the amount of Exchange Notes to be
authenticated and the date on which the original issue of Exchange Notes is to
be authenticated.
Each Note shall be dated the date of its authentication.
No Note shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
duly executed by the Trustee by manual signature of an authorized signatory,
and such certificate upon any Note shall be conclusive evidence, and the only
evidence, that such Note has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture. Notwithstanding the
foregoing, if any Note shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Note to the Trustee for cancellation as provided in Section 310 together with
a written statement (which need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel) stating that such Note has never been
issued and sold by the Company, for all purposes of this Indenture such Note
shall be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture.
In case the Company or any Guarantor under Section 1015, if any,
pursuant to Article Eight, shall be consolidated or merged with or into any
other Person or shall convey, transfer, lease or otherwise dispose of its
properties and assets substantially as an entirety to any Person, and the
successor Person resulting from such consolidation, or surviving such merger,
or into which the Company or such Guarantor shall have been merged, or the
Person which shall have received a conveyance, transfer, lease or other
disposition as aforesaid, shall have executed an indenture supplemental hereto
with the Trustee pursuant to Article Eight, any of the Notes authenticated or
delivered prior to such consolidation, merger, conveyance, transfer, lease or
other disposition may, from time to time, at the request of the successor
Person, be exchanged for other Notes executed in the name of the successor
Person with such changes in phraseology and form as may be appropriate, but
otherwise in substance of like tenor as the Notes surrendered for such
exchange and of like principal amount; and the Trustee, upon Company Request
of the successor Person, shall authenticate and deliver Notes as specified in
such request for the purpose of such exchange. If Notes shall at any time be
authenticated and delivered in any new name of a successor Person pursuant to
this Section 303 in exchange or substitution for or upon registration of
transfer of any Notes, such successor Person, at the option of the Holders but
without expense to them, shall provide for the exchange of all Notes at the
time Outstanding for Notes authenticated and delivered in such new name.
SECTION 304. Temporary Notes.
Pending the preparation of definitive Notes, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Notes which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Notes in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as
conclusively the officers executing such Notes may determine, as conclusively
evidenced by their execution of such Notes.
If temporary Notes are issued, the Company will cause definitive
Notes to be prepared without unreasonable delay. After the preparation of
definitive Notes, the temporary Notes shall be exchangeable for definitive
Notes, upon surrender of the temporary Notes at the office or agency of the
Company in a Place of Payment, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Notes, the Company shall execute
and, upon Company Order, the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Notes of authorized
denominations. Until so exchanged the temporary Notes shall in all respects
be entitled to the same benefits under this Indenture as definitive Notes.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office
of the Trustee a register for the Notes (the register maintained in the
Corporate Trust Office of the Trustee and in any other office or agency of the
Company in a Place of Payment being herein sometimes collectively referred to
as the "Note Register") in which, subject to such reasonable regulations as it
may prescribe, the Company shall provide for the registration of Notes and of
transfers of Notes. The Note Register shall be in written form or any other
form capable of being converted into written form within a reasonable time.
At all reasonable times, the Note Register shall be open to inspection by the
Trustee. The Trustee is hereby initially appointed as note registrar (the
"Note Registrar") for the purpose of registering Notes and transfers of Notes
as herein provided.
Upon surrender for registration of transfer of any Note at the
office or agency in a Place of Payment, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated
transferee, one or more new Notes, of any authorized denominations and of a
like aggregate principal amount and tenor.
At the option of the Holder, Notes may be exchanged for other
Notes, of any authorized denomination and of a like aggregate principal
amount, upon surrender of the Notes to be exchanged at such office or agency.
Whenever any Notes are so surrendered for exchange, the Company shall execute,
and the Trustee shall authenticate and deliver, the Notes which the Holder
making the exchange is entitled to receive; provided that no exchange of
Initial Notes for Exchange Notes shall occur until an Exchange Offer
Registration Statement shall have been declared effective by the Commission,
the Trustee shall have received an Officers' Certificate confirming that the
Exchange Offer Registration Statement has been declared effective by the
Commission and the Initial Notes to be exchanged for the Exchange Notes shall
be cancelled by the Trustee.
All Notes issued upon any registration of transfer or exchange of
Notes shall be the valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Notes
surrendered upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Note Registrar) be
duly endorsed, or be accompanied by a written instrument of transfer, in form
satisfactory to the Company and the Note Registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer
or exchange of Notes, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Notes, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange Notes during a period beginning at the opening of
business 15 days before the day of mailing of a notice of redemption of Notes
under Section 1103 and ending at the close of business on the day of the
mailing of the relevant notice of redemption, or (ii) to register the transfer
of or exchange any Note so selected for redemption in whole or in part, except
the unredeemed portion of any Note being redeemed in part, or (iii) to issue,
register the transfer of or exchange any Note which has been surrendered for
repayment at the option of the Holder, except the portion, if any, of such
Note not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Notes.
If any mutilated Note is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Note of like tenor and principal amount and bearing a number
not contemporaneously outstanding, or, in case any such mutilated Note has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Note, pay such Note.
If there shall be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Note
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice
to the Company or the Trustee that such Note has been acquired by a bona fide
purchaser, the Company shall execute and upon Company Order the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen Note,
a new Note of like tenor and principal amount and bearing a number not
contemporaneously outstanding, or, in case any such destroyed, lost or stolen
Note has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Note issued pursuant to this Section in lieu of any
destroyed, lost or stolen Note, shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Note shall be at any time enforceable by anyone, and shall be entitled
to all the benefits of this Indenture equally and proportionately with any and
all other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Unless and until (i) an Initial Note is sold pursuant to an
effective Registration Statement, or (ii) an Initial Note is exchanged for an
Exchange Note in the Exchange Offer pursuant to an effective Registration
Statement, in each case pursuant to the Registration Rights Agreement, the
following provisions shall apply:
Interest on any Note which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name such Note (or one or more Predecessor Notes) is registered at the
close of business on the Regular Record Date for such interest at the office
or agency of the Company maintained for such purpose pursuant to Section 1002;
provided, however, that each installment of interest on any Note may at the
Company's option be paid by (i) mailing a check for such interest, payable to
or upon the written order of the Person entitled thereto pursuant to Section
309, to the address of such Person as it appears on the Note Register or (ii)
transfer to an account maintained by the payee located in the United States.
Any interest on any Note which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date shall forthwith cease
to be payable to the Holder on the relevant Regular Record Date by virtue of
having been such Holder, and such defaulted interest and, if applicable,
interest on such defaulted interest (to the extent lawful) at the rate
specified in the Notes (such defaulted interest and, if applicable, interest
thereon herein collectively called "Defaulted Interest") may be paid by the
Company, at its election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Notes (or their respective
Predecessor Notes) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Note and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such
deposit on or prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than
10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be given in the manner provided in
Section 106, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so given, such Defaulted
Interest shall be paid to the Persons in whose name the Registered Notes
(or their respective Predecessor Notes) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Notes in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Notes may be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section
305, each Note delivered under this Indenture upon registration of transfer of
or in exchange for or in lieu of any other Note shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Note.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Note is registered as the owner of such Note for
the purpose of receiving payment of principal of (and premium, if any, on) and
(subject to Sections 305 and 307) interest on such Note and for all other
purposes whatsoever, whether or not such Note be overdue, and none of the
Company, the Trustee or any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 309. Cancellation.
All Notes surrendered for payment, redemption, repayment at the
option of the Holder, registration of transfer or exchange shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee.
All Notes so delivered to the Trustee shall be promptly cancelled by it. The
Company may at any time deliver to the Trustee for cancellation any Notes
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee (or to any
other Person for delivery to the Trustee) for cancellation any Notes
previously authenticated hereunder which the Company has not issued and sold,
and all Notes so delivered shall be promptly cancelled by the Trustee. If the
Company shall so acquire any of the Notes, however, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness represented by
such Notes unless and until the same are surrendered to the Trustee for
cancellation. No Notes shall be authenticated in lieu of or in exchange for
any Notes cancelled as provided in this Section, except as expressly permitted
by this Indenture. All cancelled Notes held by the Trustee shall be disposed
of by the Trustee in accordance with its customary procedures unless by
Company Order the Company shall direct that cancelled Notes be returned to it.
SECTION 310. Computation of Interest.
Interest on the Notes shall be computed on the basis of a 360-day
year of twelve 30-day months.
SECTION 311. Book-Entry Provisions for Global Notes.
(a) Each Global Note initially shall (i) be registered in the
name of the Depositary for such Global Notes or the nominee of such
Depositary, (ii) be delivered to the Trustee as custodian for such Depositary
and (iii) bear legends as set forth in Section 203.
Members of, or participants in, the Depositary ("Agent Members")
shall have no rights under this Indenture with respect to any Global Note, 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 Note for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company or the Trustee
from giving effect to any written certification, proxy or other authorization
furnished by the Depositary or impair, as between the Depositary and its Agent
Members, the operation of customary practices governing the exercise of the
rights of a beneficial owner of any Note. The registered holder of a Global
Note 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 Notes.
(b) Interests of beneficial owners in a Global Note may be
transferred in accordance with the applicable rules and procedures of the
Depositary and the provisions of Section 312. Transfers of a Global Note
shall be limited to transfers of such Global Note in whole, but not in part,
to the Depositary, its successors or their respective nominees, except (i) as
otherwise set forth in Section 312 and (ii) U.S. Physical Notes or Offshore
Physical Notes shall be transferred to all beneficial owners in exchange for
their beneficial interests in the U.S. Global Note or the Offshore Global
Note, respectively, in the following circumstances: (x) the Depositary
notifies the Company that it is unwilling or unable to continue as Depositary
for the applicable Global Note or 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 or (y) an Event of Default has
occurred and is continuing and Holders of more than 25% in aggregate principal
amount of the Notes at the time Outstanding represented by the Global Notes
advise the Trustee through the Depositary in writing that the continuation of
a book-entry system through the Depositary with respect to the Global Notes is
no longer required. In connection with a transfer of an entire Global Note to
beneficial owners pursuant to clause (ii) of this paragraph (b), the
applicable Global Note shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall
authenticate and deliver, to each beneficial owner identified by the
Depositary in exchange for its beneficial interest in the applicable Global
Note, an equal aggregate principal amount at maturity of U.S. Physical Notes
(in the case of the U.S. Global Note) or Offshore Physical Notes (in the case
of the Offshore Global Note), as the case may be, of authorized denominations.
(c) Any beneficial interest in one of the Global Notes that is
transferred to a person who takes delivery in the form of an interest in the
other Global Note will, upon transfer, cease to be an interest in such Global
Note and become an interest in the other Global Note and, accordingly, will
thereafter be subject to all transfer restrictions, if any, and other
procedures applicable to beneficial interests in such other Global Note for as
long as it remains such an interest.
(d) Any U.S. Physical Note delivered in exchange for an interest
in the U.S. Global Note pursuant to paragraph (b) of this Section shall,
unless such exchange is made on or after the Resale Restriction Termination
Date and except as otherwise provided in Section 312, bear the Private
Placement Legend.
SECTION 312. Transfer Provisions.
Unless and until (i) an Initial Note is sold pursuant to an
effective Registration Statement, or (ii) an Initial Note is exchanged for an
Exchange Note in the Exchange Offer pursuant to an effective Registration
Statement, in each case, pursuant to the Registration Rights Agreement, the
following provisions shall apply:
(a) General. The provisions of this Section 312 shall apply to
all transfers involving any Physical Note and any beneficial interest in any
Global Note.
(b) Certain Definitions. As used in this Section 312 only,
"delivery" of a certificate by a transferee or transferor means the delivery
to the Registrar or Co-Registrar by such transferee or transferor of the
applicable certificate duly completed; "holding" includes both possession of a
Physical Note and ownership of a beneficial interest in a Global Note, as the
context requires; "transferring" a Global Note means transferring that portion
of the principal amount of the transferor's beneficial interest therein that
the transferor has notified the Co-Registrar that it has agreed to transfer;
and "transferring" a Physical Note means transferring that portion of the
principal amount thereof that the transferor has notified the Registrar or
Co-Registrar that it has agreed to transfer.
As used in this Indenture, "Accredited Investor Certificate" means
a certificate substantially in the form set forth in Section 313; "Regulation
S Certificate" means a certificate substantially in the form set forth in
Section 314; "Rule 144A Certificate" means a certificate substantially in the
form set forth in Section 315; and "Non-Registration Opinion and Supporting
Evidence" means a written opinion of counsel reasonably acceptable to the
Company to the effect that, and such other certification or information as the
Company may reasonably require to confirm that, the proposed transfer is being
made pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act.
(c) [Intentionally Omitted]
(d) Deemed Delivery of a Rule 144A Certificate in Certain
Circumstances. A Rule 144A Certificate, if not actually delivered, will be
deemed delivered if (A) (i) the transferor advises the Company and the Trustee
in writing that the relevant offer and sale were made in accordance with the
provisions of Rule 144A (or, in the case of a transfer of a Physical Note, the
transferor checks the box provided on the Physical Note to that effect) and
(ii) the transferee advises the Company and the Trustee in writing that (x) it
and, if applicable, each account for which it is acting in connection with the
relevant transfer, is a qualified institutional buyer within the meaning of
Rule 144A, (y) it is aware that the transfer of Notes to it is being made in
reliance on the exemption from the provisions of Section 5 of the Securities
Act provided by Rule 144A, and (z) prior to the proposed date of transfer it
has been given the opportunity to obtain from the Company the information
referred to in Rule 144A(d)(4), and has either declined such opportunity or
has received such information (or, in the case of a transfer of a Physical
Note, the transferee signs the certification provided on the Physical Note to
that effect); or (B) the transferor holds the U.S. Global Note and is
transferring to a transferee that will take delivery in the form of the U.S.
Global Note.
(e) Procedures and Requirements.
1. If the proposed transfer occurs prior to the Offshore Note
Exchange Date, and the proposed transferor holds:
(A) a U.S. Physical Note which is surrendered to the
Co-Registrar, and the proposed transferee or transferor, as applicable:
(i) delivers an Accredited Investor Certificate and, if
required by the Company, a Non-Registration Opinion and Supporting
Evidence, or delivers (or is deemed to have delivered) a Rule 144A
Certificate and the proposed transferee requests delivery in the
form of Physical Notes, then the Co-Registrar shall (x) register
such transfer in the name of such transferee and record the date
thereof in its books and records, (y) cancel such surrendered U.S.
Physical Note and (z) deliver a new U.S. Physical Note to such
transferee duly registered in the name of such transferee in
principal amount equal to the principal amount being transferred
of such surrendered U.S. Physical Note.
(ii) delivers (or is deemed to have delivered) a Rule 144A
Certificate and the proposed transferee is or is acting through an
Agent Member and requests that the proposed transferee receive a
beneficial interest in the U.S. Global Note, then the Co-Registrar
shall (x) cancel such surrendered U.S. Physical Note, (y) record
an increase in the principal amount of the U.S. Global Note equal
to the principal amount being transferred of such surrendered U.S.
Physical Note and (z) notify the Depositary in accordance with the
procedures of the Depositary that it approves of such transfer.
(iii) delivers a Regulation S Certificate and the proposed
transferee is or is acting through an Agent Member and requests
that the proposed transferee receive a beneficial interest in the
Offshore Global Note, then the Co-Registrar shall (x) cancel such
surrendered U.S. Physical Note, (y) record an increase in the
principal amount of the Offshore Global Note equal to the
principal amount being transferred of such surrendered U.S.
Physical Note and (z) notify the Depositary in accordance with the
procedures of the Depositary that it approves of such transfer.
In the case described in Section 312(e)(1)(A)(i), the Co-Registrar
shall deliver to the transferor a new U.S. Physical Note in principal
amount equal to the principal amount not being transferred of such
surrendered U.S. Physical Note.
(B) the U.S. Global Note, and the proposed transferee or
transferor, as applicable:
(i) delivers an Accredited Investor Certificate and, if
required by the Company, a Non-Registration Opinion and Supporting
Evidence, or delivers (or is deemed to have delivered) a Rule 144A
Certificate and the proposed transferee requests delivery in the
form of Physical Notes, then the Co-Registrar shall (w) register
such transfer in the name of such transferee and record the date
thereof in its books and records, (x) record a decrease in the
principal amount of the U.S. Global Note in an amount equal to the
beneficial interest therein being transferred, (y) deliver a new
U.S. Physical Note to such transferee duly registered in the name
of such transferee in principal amount equal to the amount of such
decrease and (z) notify the Depositary in accordance with the
procedures of the Depositary that it approves of such transfer.
(ii) delivers (or is deemed to have delivered) a Rule 144A
Certificate and the proposed transferee is or is acting through an
Agent Member and requests that the proposed transferee receive a
beneficial interest in the U.S. Global Note, then the transfer
shall be effected in accordance with the procedures of the
Depositary therefor.
(iii) delivers a Regulation S Certificate and the proposed
transferee is or is acting through an Agent Member and requests
that the proposed transferee receive a beneficial interest in the
Offshore Global Note, then the Co-Registrar shall (w) register
such transfer in the name of such transferee and record the date
thereof in its books and records, (x) record a decrease in the
principal amount of the U.S. Global Note in an amount equal to the
beneficial interest therein being transferred, (y) record an
increase in the principal amount of the Offshore Global Note equal
to the amount of such decrease and (z) notify the Depositary in
accordance with the procedures of the Depositary that it approves
of such transfer.
(C) the Offshore Global Note, and the proposed transferee or
transferor, as applicable:
(i) delivers an Accredited Investor Certificate and, if
required by the Company, a Non-Registration Opinion and Supporting
Evidence, or delivers (or is deemed to have delivered) a Rule 144A
Certificate and the proposed transferee requests delivery in the
form of Physical Notes, then the Co-Registrar shall (w) register
such transfer in the name of such transferee and record the date
thereof in its books and records, (x) record a decrease in the
principal amount of the Offshore Global Note in an amount equal to
the beneficial interest therein being transferred, (y) deliver a
new U.S. Physical Note to such transferee duly registered in the
name of such transferee in principal amount equal to the amount of
such decrease and (z) notify the Depositary in accordance with the
procedures of the Depositary that it approves of such transfer.
(ii) delivers (or is deemed to have delivered) a Rule 144A
Certificate and the proposed transferee is or is acting through an
Agent Member and requests that the proposed transferee receive a
beneficial interest in the U.S. Global Note, then the Registrar or
Co-Registrar shall (x) record a decrease in the principal amount
of the Offshore Global Note in an amount equal to the beneficial
interest therein being transferred, (y) record an increase in the
principal amount of the U.S. Global Note equal to the amount of
such decrease and (z) notify the Depositary in accordance with the
procedures of the Depositary that it approves of such transfer.
(iii) delivers a Regulation S Certificate and the proposed
transferee is or is acting through an Agent Member and requests
that the proposed transferee receive a beneficial interest in the
Offshore Global Note, then the transfer shall be effected in
accordance with the procedures of the Depositary therefor;
provided, however, that until the Offshore Note Exchange Date
occurs, beneficial interests in the Offshore Global Note may be
held only in or through accounts maintained at the Depositary by
Euroclear or Cedel (or by Agent Members acting for the account
thereof), and no person shall be entitled to effect any transfer
or exchange that would result in any such interest being held
otherwise than in or through such an account.
2. If the proposed transfer occurs on or after the Offshore
Notes Exchange Date and the proposed transferor holds:
(A) a U.S. Physical Note which is surrendered to the Registrar
or Co-Registrar, and the proposed transferee or transferor, as
applicable:
(i) delivers an Accredited Investor Certificate and, if
required by the Company, a Non-Registration Opinion and Supporting
Evidence, or delivers (or is deemed to have delivered) a Rule 144A
Certificate and the proposed transferee requests delivery in the
form of Physical Notes, then the procedures set forth in Section
312(e)(1)(A)(i) shall apply.
(ii) delivers (or is deemed to have delivered) a Rule 144A
Certificate and the proposed transferee is or is acting through an
Agent Member and requests that the proposed transferee receive a
beneficial interest in the Offshore Global Note, then the
procedures set forth in Section 312(e)(1)(A)(ii) shall apply.
(iii) delivers a Regulation S Certificate, then the
Co-Registrar shall cancel such surrendered U.S. Physical Note and
at the direction of the transferee, either:
(x) register such transfer in the name of such
transferee, record the date thereof in its books and records
and deliver a new Offshore Physical Note to such transferee
in principal amount equal to the principal amount being
transferred of such surrendered U.S. Physical Note, or
(y) if the proposed transferee is or is acting
through an Agent Member, record an increase in the principal
amount of the Offshore Global Note equal to the principal
amount being transferred of such surrendered U.S. Physical
Note and notify the Depositary in accordance with the
procedures of the Depositary that it approves of such
transfer.
In any of the cases described in this Section 312(e)(2)(A)(i) or
(iii)(x), the Co-Registrar shall deliver to the transferor a new U.S.
Physical Note in principal amount equal to the principal amount not
being transferred of such surrendered U.S. Physical Note.
(B) the U.S. Global Note, and the proposed transferee or
transferor, as applicable:
(i) delivers an Accredited Investor Certificate and, if
required by the Company, a Non-Registration Opinion and Supporting
Evidence, or delivers (or is deemed to have delivered) a Rule 144A
Certificate and the proposed transferee requests delivery in the
form of Physical Notes, then the procedures set forth in Section
312(e)(1)(B)(i) shall apply.
(ii) delivers (or is deemed to have delivered) a Rule 144A
Certificate and the proposed transferee is or is acting through an
Agent Member and requests that the proposed transferee receive a
beneficial interest in the U.S. Global Note, then the procedures
set forth in Section 312(e)(1)(B)(ii) shall apply.
(iii) delivers a Regulation S Certificate, then the
Co-Registrar shall (x) record a decrease in the principal amount
of the U.S. Global Note in an amount equal to the beneficial
interest therein being transferred, (y) notify the Depositary in
accordance with the procedures of the Depositary that it approves
of such transfer and (z) at the direction of the transferee,
either:
(x) register such transfer in the name of such
transferee, record the date thereof in its books and records
and deliver a new Offshore Physical Note to such transferee
in principal amount equal to the amount of such decrease, or
(y) if the proposed transferee is or is acting
through an Agent Member, record an increase in the principal
amount of the Offshore Global Note equal to the amount of
such decrease.
(C) an Offshore Physical Note which is surrendered to the
Registrar or Co-Registrar, and the proposed transferee or transferor, as
applicable:
(i) delivers (or is deemed to have delivered) a Rule 144A
Certificate and the proposed transferee is or is acting through an
Agent Member and requests delivery in the form of the U.S. Global
Note, then the Co-Registrar shall (x) cancel such surrendered
Offshore Physical Note, (y) record an increase in the principal
amount of the U.S. Global Note equal to the principal amount being
transferred of such surrendered Offshore Physical Note and (z)
notify the Depositary in accordance with the procedures of the
Depositary that it approves of such transfer.
(ii) where the proposed transferee is or is acting through
an Agent Member, requests that the proposed transferee receive a
beneficial interest in the Offshore Global Note, then the
Co-Registrar shall (x) cancel such surrendered Offshore Physical
Note, (y) record an increase in the principal amount of the
Offshore Global Note equal to the principal amount being
transferred of such surrendered Offshore Physical Note and (z)
notify the Depositary in accordance with the procedures of the
Depositary that it approves of such transfer.
(iii) does not make a request covered by Section
312(e)(2)(C)(i) or Section 312(e)(2)(C)(ii), then the Co-Registrar
shall (x) register such transfer in the name of such transferee
and record the date thereof in its books and records, (y) cancel
such surrendered Offshore Physical Note and (z) deliver a new
Offshore Physical Note to such transferee duly registered in the
name of such transferee in principal amount equal to the principal
amount being transferred of such surrendered Offshore Physical
Note.
In any of the cases described in this Section 312(e)(2)(C), the
Co-Registrar shall deliver to the transferor a new U.S. Physical Note in
principal amount equal to the principal amount not being transferred of such
surrendered U.S. Physical Note.
(D) the Offshore Global Note, and the proposed transferee or
transferor, as applicable:
(i) delivers (or is deemed to have delivered) a Rule 144A
Certificate and the proposed transferee is or is acting through an
Agent Member and requests delivery in the form of the U.S. Global
Note, then the Co-Registrar shall (x) record a decrease in the
principal amount of the Offshore Global Note in an amount equal to
the beneficial interest therein being transferred, (y) record an
increase in the principal amount of the U.S. Global Note equal to
the amount of such decrease and (z) notify the Depositary in
accordance with the procedures of the Depositary that it approves
of such transfer.
(ii) where the proposed transferee is or is acting through
an Agent Member, requests that the proposed transferee receive a
beneficial interest in the Offshore Global Note, then the transfer
shall be effected in accordance with the procedures of the
Depositary therefor.
(iii) does not make a request covered by Section
312(e)(2)(D)(i) or Section 312(e)(2)(D)(ii), then the Co-Registrar
shall (w) register such transfer in the name of such transferee
and record the date thereof in its books and records, (x) record a
decrease in the principal amount of the Offshore Global Note in an
amount equal to the beneficial interest therein being transferred,
(y) deliver a new Offshore Physical Note to such transferee duly
registered in the name of such transferee in principal amount
equal to the amount of such decrease and (z) notify the Depositary
in accordance with the procedures of the Depositary that it
approves of such transfer.
(f) Execution, Authentication and Delivery of Physical Notes.
In any case in which the Co-Registrar is required to deliver a Physical Note
to a transferee, the Company shall execute, and the Trustee shall authenticate
and deliver, such Physical Note.
(g) Certain Additional Terms Applicable to Physical Notes. (i)
Any transferee entitled to receive a Physical Note may request that the
principal amount thereof be evidenced by one or more Physical Notes in any
authorized denomination or denominations and the Registrar or Co-Registrar
shall comply with such request if all other transfer restrictions are
satisfied.
(ii) In the event that a transferor transfers less than the
entire principal amount of a Physical Note surrendered for transfer, following
the transfer the Registrar or Co-Registrar shall deliver to the transferor a
new Physical Note of the same type in principal amount equal to the
untransferred portion of the surrendered Physical Note.
(h) Transfers Not Covered by Section 312(e). The Co-Registrar
shall effect and record, upon receipt of a written request from the Company so
to do, a transfer not otherwise permitted by Section 312(e), such recording to
be done in accordance with the otherwise applicable provisions of Section
312(e), upon the furnishing by the proposed transferor or transferee of a
Non-Registration Opinion and Supporting Evidence.
(i) General. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in the
Indenture. Neither the Registrar nor the Co-Registrar shall register a
transfer of any Note unless such transfer complies with the restrictions with
respect thereto set forth in this Indenture. Neither the Registrar nor the
Co-Registrar shall be required to determine (but may rely upon a determination
made by the Company) the sufficiency of any such certifications, legal
opinions or other information.
SECTION 313. Form of Accredited Investor Certificate.
Transferee Letter of Representation
Xxxx-Xxxxxx Security Corporation
x/x Xxx Xxxx xx Xxx Xxxx, as Trustee
000 Xxxxxxx Xxxxxx, 00xx Xxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
In connection with our proposed purchase of $_______ aggregate
principal amount of the 9 5/8% Senior Subordinated Notes due 2007 (the
"Notes") of Xxxx-Xxxxxx Security Corporation (the "Company"), we confirm that:
1. We understand that the Notes have not been registered under
the Securities Act of 1933, as amended (the "Securities Act"), and,
unless so registered, may not be sold except as permitted in the
following sentence. We agree on our own behalf and on behalf of any
investor account for which we are purchasing Notes to offer, sell or
otherwise transfer such Notes prior to (x) the date which is two years
(or such shorter period of time as permitted by Rule 144(k) under the
Securities Act) after the later of the date of original issue of the
Notes (or of any predecessor of this security) or the last day on which
the Company or any affiliate of the Company was the owner of this
security or any predecessor of this security, and (y) such later date,
if any, as may be required by applicable laws (the "Resale Restriction
Termination Date") only (a) to the Company, (b) pursuant to a
registration statement which has been declared effective under the
Securities Act, (c) so long as the Notes are eligible for resale
pursuant to Rule 144A under the Securities Act, to a person we
reasonably believe is a "qualified institutional buyer" under Rule
144A (a "QIB") that purchases for its own account or for the account
of a QIB and 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 to "foreign purchasers" (as defined below)
in offshore transactions meeting the requirements of Rule 904 of
Regulation S under the Securities Act, (e) to an institutional
"accredited investor" within the meaning of subparagraph (a)(1), (2),
(3) or (7) of Rule 501 under the Securities Act (an "Accredited
Investor") that is purchasing for its own account or for the account
of such an institutional "accredited investor" that furnishes a
letter substantially in the form of this letter to the Trustee, which
shall provide, among other things, that the transferee is an
Accredited Investor within the meaning of subparagraph (a)(1), (2),
(3) or (7) of Rule 501 under the Securities Act and that it is
acquiring such Notes for investment purposes and not for distribution
in violation of the Securities Act, or (f) pursuant to an exemption
from registration provided by Rule 144 under the Securities Act (if
available) or any other available exemption. In connection with any
transfer of any Note, we will check the box provided on the reverse
thereof relating to the manner of such transfer and surrender such
Note to the Trustee.
2. We are an Accredited Investor or a QIB purchasing Notes for
our own account or for the account of one or more Accredited Investors,
and we are acquiring Notes 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 the securities law of any state of
the United States and we have such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks
of our investment in the Notes, and we and any accounts for which we are
acting are each able to bear the economic risk of our or its investment
in the Notes for an indefinite period.
3. We are acquiring the Notes purchased by us for our own
account or for one or more accounts as to each of which we exercise sole
investment discretion and we and any such account are (a) a QIB, aware
that the sale is being made in reliance on Rule 144A under the
Securities Act, (b) an Accredited Investor, or (c) a person other than a
U.S. person ("foreign purchasers"), which term shall include dealers or
other professional fiduciaries in the United States acting on a
discretionary basis for foreign beneficial owners (other than an estate
or trust) in offshore transactions meeting the requirements of Rule 903
of Regulation S under the Securities Act.
4. We have received a copy of the Offering Memorandum and
acknowledge that we have had access to such financial and other
information, and have been afforded the opportunity to ask such
questions of representatives of the Company and receive answers thereto,
as we deem necessary in order to verify the information contained in the
Offering Memorandum.
We understand that the Trustee will not be required to
accept for registration of transfer any Notes acquired by us, except
upon presentation of evidence satisfactory to the Company and the
Trustee that the foregoing restrictions on transfer have been complied
with. We further understand that the Notes purchased by us will be in
the form of definitive physical certificates and that such certificates
will bear a legend reflecting the substance of this paragraph. We
further agree to provide to any person acquiring any of the Notes from
us a notice advising such person that transfers of such Notes are
restricted as stated herein and that certificates representing such
Notes will bear a legend to that effect.
We represent that you, the Company, the Trustee and others
are entitled to rely upon the truth and accuracy of our acknowledgments,
representations and agreements set forth herein, and we agree to notify
you promptly in writing if any of our acknowledgments, representations
or agreements herein cease to be accurate and complete. You are also
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceeding or official
inquiry with respect to the matters covered hereby.
We represent to you that we have full power to make the
foregoing acknowledgments, representations and agreements on our own
behalf and on behalf of any investor account for which we are acting as
fiduciary agent.
As used herein, the terms "offshore transaction", "United
States" and "U.S. person" have the respective meanings given to them in
Regulation S under the Securities Act.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Very truly yours,
(NAME OF PURCHASER)
By:__________________________
Date:_________________________
Upon transfer, the Notes would be registered in the name of the
new beneficial owner as follows:
Name:_________________________
Address:_______________________
_______________________
_______________________
SECTION 314. Form of Regulation S Certificate.
Regulation S Certificate
To: The Bank of New York,
as Trustee (the "Trustee")
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Trustee Administration
Re: Indenture (the "Indenture") dated as of March 24, 1997 between
Xxxx-Xxxxxx Security Corporation (the "Company") and the Trustee
Ladies and Gentlemen:
This Certificate relates to our proposed transfer of $____
principal amount of Notes issued under the Indenture. Terms are used in this
Certificate as defined in Regulation S under the Securities Act of 1933, as
amended (the "Securities Act"). We hereby certify as follows:
1. The offer of the Notes was not made to a person in the
United States (unless such person or the account held by it for which it
is acting is excluded from the definition of "U.S. person" pursuant to
Rule 902(o) of Regulation S under the circumstances described in Rule
902(i)(3) of Regulation S) or specifically targeted at an identifiable
group of U.S. citizens abroad.
2. Either (a) at the time the buy order was originated, the
buyer was outside the United States or we and any person acting on our
behalf reasonably believed that the buyer was outside the United States
or (b) the transaction was executed in, on or through the facilities of
a designated offshore securities market, and neither we nor any person
acting on our behalf knows that the transaction was pre-arranged with a
buyer in the United States.
3. Neither we, any of our affiliates, nor any person acting on
our or their behalf has made any directed selling efforts in the United
States.
4. The proposed transfer of Notes is not part of a plan or
scheme to evade the registration requirements of the Securities Act.
5. If we are a dealer or a person receiving a selling
concession or other fee or remuneration in respect of the Notes, and the
proposed transfer takes place before the Offshore Note Exchange Date
referred to in the Indenture, or we are an officer or director of the
Company or a distributor, we certify that the proposed transfer is being
made in accordance with the provisions of Rule 904(c) of Regulation S.
You and the Company are entitled to rely upon this Certificate and
are irrevocably authorized to produce this Certificate or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
[NAME OF SELLER]
By:__________________________
Name:
Title:
Address:
Date of this Certificate: __________ __, 199_
SECTION 315. Form of Rule 144A Certificate.
Rule 144A Certificate
To: The Bank of New York,
as Trustee (the "Trustee")
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Trustee Administration
Re: Indenture (the "Indenture") dated as of March 24, 1997 between
Xxxx-Xxxxxx Security Corporation (the "Company"), and the Trustee
Ladies and Gentlemen:
This Certificate relates to our proposed purchase of $____
principal amount of Notes issued under the Indenture. We and, if applicable,
each account for which we are acting, are "qualified institutional buyers"
within the meaning of Rule 144A ("Rule 144A") under the Securities Act of
1933, as amended (the "Securities Act"). We are aware that the transfer of
Notes to us is being made in reliance on the exemption from the provisions of
Section 5 of the Securities Act provided by Rule 144A. Prior to the date of
this Certificate we have been given the opportunity to obtain from the Company
the information referred to in Rule 144A(d)(4), and have either declined such
opportunity or have received such information.
You and the Company are entitled to rely upon this Certificate and
are irrevocably authorized to produce this Certificate or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
[NAME OF PURCHASER]
By:__________________________
Name:
Title:
Address:
Date of this Certificate: __________ __, 199_
SECTION 316. CUSIP Numbers.
The Company in issuing the Notes may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided that any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Notes or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Notes, and any such redemption shall not be affected by
any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the CUSIP numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect with respect to Notes (except as to any surviving rights of
registration of transfer or exchange of Notes expressly provided for) and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture when
(1) either
(A) all Notes theretofore authenticated and delivered
(other than (i) Notes which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 306,
and (ii) Notes for whose payment money has theretofore been
deposited in trust with the Trustee or any Paying Agent or
segregated and held in trust by the Company and thereafter repaid
to the Company, as provided in Section 1003) have been delivered
to the Trustee for cancellation; or
(B) all Notes and, in the case of (i) or (ii) below, not
theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Company, 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, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee
as trust funds in trust for the purpose an amount sufficient to
pay and discharge the entire indebtedness on such Notes not
theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest to the date of such
deposit (in the case of Notes which have become due and payable)
or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 606, the
obligations of the Company to any Authenticating Agent under Section 611 and,
if money shall have been deposited with the Trustee pursuant to subclause (B)
of clause (1) of this Section, the obligations of the Trustee under Section
402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003,
all money deposited with the Trustee pursuant to Section 401 shall be held in
trust and applied by it, in accordance with the provisions of the Notes and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee; but such money need not be segregated from other funds except to the
extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be 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):
(1) default in the payment of any interest on any Note when such
interest becomes due and payable, and continuance of such default for a
period of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Note at its Maturity; or
(3) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a default in the
performance, or breach of a covenant or warranty which is specifically
dealt with elsewhere in this Section), and continuance of such default
or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal
amount of all Outstanding Notes a written notice specifying such default
or breach and requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder; or
(4) (a) an event of default shall have occurred under any
mortgage, bond, indenture, loan agreement or other document evidencing
any Indebtedness of the Company or any Subsidiary, which Indebtedness is
outstanding in a principal amount of at least $10,000,000 in the
aggregate, and such default shall result in such Indebtedness becoming,
whether by declaration or otherwise, due and payable prior to the date
on which it would otherwise become due and payable or (b) a default in
any payment when due at final maturity of any such Indebtedness; or
(5) any Person entitled to take the actions described in this
Section 501(5), after the occurrence of any event of default under any
agreement or instrument evidencing any Indebtedness in excess of
$10,000,000 in the aggregate of the Company or any Subsidiary, shall
commence judicial proceedings to foreclose upon assets of the Company or
any of its Subsidiaries having an aggregate value in excess of
$10,000,000, or shall have exercised any right under applicable law or
applicable security documents to take ownership of such assets in lieu
of foreclosure; or
(6) final judgments or orders rendered against the Company or
any Subsidiary which require the payment in money, either
individually or in an aggregate amount, that is more than $10,000,000
and either (a) an enforcement proceeding shall have been commenced by
any creditor upon such judgment or order or (b) there shall have been
a period of 60 days during which a stay of enforcement of such
judgment or order, by reason of pending appeal or otherwise, was not
in effect; or
(7) the entry by a court having jurisdiction in the premises of
(a) a decree or order for relief in respect of the Company or any
Material Subsidiary in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or (b) a decree or order adjudging the Company or any
Material Subsidiary a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company or any Material Subsidiary
under any applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or any Material Subsidiary or of any substantial
part of its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for relief or
any such other decree or order unstayed and in effect for a period of 60
consecutive days; or
(8) the commencement by the Company or any Material Subsidiary
of a voluntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or of any
other case or proceeding to be adjudicated a bankrupt or insolvent, or
the consent by the Company or any Material Subsidiary to the entry of a
decree or order for relief in respect of the Company or such Material
Subsidiary in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar
law or to the commencement of any bankruptcy or insolvency case or
proceeding against it, or the filing by the Company or any Material
Subsidiary of a petition or answer or consent seeking reorganization or
relief under any applicable Federal or State law, or the consent by the
Company or any Material Subsidiary to the filing of such petition or the
appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of the
Company or such Material Subsidiary or of any substantial part of its
property, or the making by it of an assignment for the benefit of
creditors, or the admission by the Company or any Material Subsidiary in
writing of its inability to pay its debts generally as they become due,
or the taking of corporate action by the Company or any Material
Subsidiary in furtherance of any such action; or
(9) any Guarantee required to be in full force and effect by the
terms of this Indenture ceases to be in full force and effect or is
declared null and void, or any Guarantor denies that it has any further
liability under any 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) and such condition
shall have continued for a period of 60 days after written notice of
such failure requiring the Guarantor and the Company to remedy the same
shall have been given (x) to the Company by the Trustee or (y) to the
Company and the Trustee by Holders of at least 25% in aggregate
principal amount of the Notes then Outstanding.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified
in clause (7) or (8) of Section 501) occurs and is continuing, then in every
such case the Trustee or the Holders of not less than 25% in principal amount
of the Outstanding Notes may declare the principal amount of all of the Notes
to be due and payable immediately, by a notice in writing to the Company (and
to the Trustee if given by Holders), and, if the Bank Credit Agreement is in
effect, to the Agents, and upon any such declaration such principal amount
shall become immediately due and payable. If an Event of Default described in
clause (7) or (8) of Section 501 occurs and is continuing, then the principal
amount of all the Notes shall ipso facto become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holder.
At any time after a declaration of acceleration has been made
and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, the
Holders of a majority in principal amount of the Outstanding Notes, by
written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay,
(A) all overdue interest on all Outstanding Notes,
(B) all unpaid principal of (and premium, if any, on) any
Outstanding Notes which have become due otherwise than by such
declaration of acceleration, and interest on such unpaid principal
at the rate or rates prescribed therefor in such Notes,
(C) interest on overdue interest at the rate or rates
prescribed therefor in such Notes, and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel; and
(2) all Events of Default, other than the non-payment of amounts
of principal of (or premium, if any, on) or interest on Notes which have
become due solely by such declaration of acceleration, have been cured
or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Notwithstanding the preceding paragraph, in the event of a
declaration of acceleration in respect of the Notes because of an Event of
Default specified in Section 501(4) or (5) shall have occurred and be
continuing, such declaration of acceleration shall be automatically annulled
if the Indebtedness that is the subject of such Event of Default has been
discharged or the holders thereof have rescinded their declaration of
acceleration in respect of such Indebtedness, and written notice of such
discharge or rescission, as the case may be, shall have been given to the
Trustee by the Company and countersigned by the holders of such Indebtedness
or a trustee, fiduciary or agent for such holders, within 60 days after such
declaration of acceleration in respect of the Notes, and no other Event of
Default has occurred during such 60-day period which has not been cured or
waived during such period.
Upon a determination by the Company that the Bank Credit Agreement
is no longer in effect, the Company shall promptly give to the Trustee written
notice thereof, which notice shall be countersigned by the Agent. Unless and
until the Trustee shall have received such written notice with respect to the
Bank Credit Agreement, the Trustee, subject to the provisions of Section 601,
shall be entitled in all respects to assume that the Bank Credit Agreement is
in effect (unless a Responsible Officer of the Trustee shall have actual
knowledge to the contrary).
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of
interest on any Note when such interest becomes due and payable and such
default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Note at the Maturity thereof,
then the Company will, upon demand of the Trustee, pay to the Trustee for the
benefit of the Holders of such Notes, the whole amount then due and payable on
such Notes for principal (and premium, if any) and interest, and interest on
any overdue principal (and premium, if any) and on any overdue interest, at
the rate or rates prescribed therefor in such Notes, and, in addition thereto,
such further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Notes and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon such Notes,
wherever situated.
If an Event of Default occurs and is continuing, the Trustee may
in its discretion proceed to protect and enforce its rights and the rights of
the Holders by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid
of the exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company or any other obligor upon
the Notes or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Notes
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of overdue principal, premium, if any, or
interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise,
(i) to file and prove a claim for the whole amount of principal
(and premium, if any) and interest owing and unpaid in respect of the
Notes and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel) and of the Holders
allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the Notes
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
Notes.
All rights of action and claims under this Indenture or the Notes
may be prosecuted and enforced by the Trustee without the possession of any of
the Notes or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Notes in respect of which such judgment
has been recovered.
SECTION 506. Application of Money Collected.
Subject to Article Fifteen, any money collected by the Trustee
pursuant to this Article shall be applied in the following order, at the date
or dates fixed by the Trustee and, in case of the distribution of such money
on account of principal (or premium, if any) or interest, upon presentation of
the Notes and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under
Section 606;
Second: To the payment of the amounts then due and unpaid for
principal of (and premium, if any, on) and interest on the Notes in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Notes for principal
(and premium, if any) and interest, respectively; and
Third: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 507. Limitation on Suits.
No Holder of any Note shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the
Trustee and to the Agent under the Bank Credit Agreement, if the Bank
Credit Agreement is in effect, of a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Notes shall have made a written request to the Trustee to
institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Notes;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders, or to obtain or to seek to obtain priority or preference over
any other of such Holders or to enforce any right under this Indenture, except
in the manner herein provided and for the equal and ratable benefit of all
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder
of any Note shall have the right, which is absolute and unconditional, to
receive payment, as provided herein (including, if applicable, Article
Fourteen) of the principal of (and premium, if any, on) and (subject to
Section 307) interest on, such Note on the respective Stated Maturities
expressed in such Note (or, in the case of redemption, on the Redemption Date)
and to institute suit for the enforcement of any such payment, and such rights
shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders of
Notes shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the
Holders shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders of Notes is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent permitted by
law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Note
to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time
to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 512. Control by Holders.
The Holders of not less than a majority in principal amount of the
Outstanding Notes shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, provided that
(1) such direction shall not be in conflict with any rule of law
or with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it
in personal liability or be unjustly prejudicial to the Holders of Notes
not consenting.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Notes may on behalf of the Holders of all the Notes waive any past
default hereunder and its consequences, except a default
(1) in respect of the payment of the principal of (or premium,
if any, on) or interest on any Note, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Note affected.
Upon any such waiver, any such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 514. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension
law wherever enacted, now or at any time hereafter in force, which may affect
the covenants or the performance of this Indenture; and the Company (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
SECTION 515. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted
by it as a Trustee, a court in its discretion may require the filing by any
party litigant in the suit of an undertaking to pay the costs of the suit, and
the court in its discretion may assess reasonable costs, including reasonable
attorney's fees and expenses, against any party litigant in the suit, having
due regard to the merits and good faith of the claims or defenses made by the
party litigant. This Section 515 does not apply to a suit by the Trustee
hereof, or a suit by Holders of more than 10% in principal amount of the then
Outstanding Notes.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults.
Within 90 days after the occurrence of any Default hereunder, the
Trustee shall transmit in the manner and to the extent provided in TIA Section
313(c), notice of such default hereunder known to the Trustee, unless such
Default shall have been cured or waived; provided, however, that, except in
the case of a Default in the payment of the principal of (or premium, if any,
on) or interest on any Note, the Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive committee
or a trust committee of directors and/or Responsible Officers of the Trustee
in good faith determine that the withholding of such notice is in the interest
of the Holders; and provided further that in the case of any Default of the
character specified in Section 501(3) with respect to Notes, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof.
SECTION 602. Certain Rights of Trustee.
Subject to the provisions of TIA Sections 315(a) through 315(d)
(determined as if the TIA were applicable to this Indenture at all times):
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel of its selection and
the advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(5) 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 of Notes 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 be incurred by it in compliance with such request or direction;
(6) 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, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document, 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 investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(8) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture; and
(9) the Trustee shall not be deemed to have notice of any Event
of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact
such a default is received by the Trustee at the Corporate Trust Office
of the Trustee, and such notice references the Notes and this Indenture.
The Trustee shall not be required to expend or risk its own funds
or otherwise incur any 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 for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
SECTION 603. Trustee Not Responsible for Recitals or Issuance of
Notes.
The recitals contained herein and in the Notes, except for the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Notes, except that
the Trustee represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Notes and perform its obligations hereunder and
that the statements made by it in its Statement of Eligibility on Form T-1
supplied to the Company are true and accurate, subject to the qualifications
set forth therein. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of Notes or the proceeds
thereof.
SECTION 604. May Hold Notes.
The Trustee, any Authenticating Agent, any Paying Agent, any Note
Registrar or any other agent of the Company or of the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Notes
and, subject to TIA Sections 310(b) and 311, may otherwise deal with the
Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Note Registrar or such other agent.
SECTION 605. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed in writing with the Company.
SECTION 606. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time such compensation as
shall be agreed in writing between the Company and the Trustee for all
services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify each of the Trustee or any predecessor Trustee
and its agents for, and to hold it harmless against, any and all loss,
liability, damage, claim or expense, including taxes (other than taxes
based on the income of the Trustee) incurred without negligence or bad
faith on its part, arising out of or in connection with the acceptance
or administration of the trust or trusts hereunder, including the costs
and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
The obligations of the Company under this Section to compensate
the Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture. As security for the performance of such
obligations of the Company, the Trustee shall have a claim prior to the Notes
upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the payment of principal of (and premium, if any, on)
or interest on particular Notes.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 501(7) or Section 501(8), the
expenses (including the reasonable charges and expenses of its counsel) and
the compensation for the services are intended to constitute expenses of
administration under any applicable Federal or State bankruptcy, insolvency or
other similar law.
SECTION 607. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1) and shall have a
combined capital and surplus of at least $50,000,000. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of federal, state, territorial or District of Columbia
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article.
SECTION 608. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective until
the acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 609.
(b) The Trustee may resign at any time with respect to the Notes
by giving written notice thereof to the Company. If the instrument of
acceptance by a successor Trustee required by Section 609 shall not have been
delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Notes.
(c) The Trustee may be removed at any time with respect to the
Notes by Act of the Holders of not less than a majority in principal amount of
the Outstanding Notes, delivered to the Trustee and to the Company. If the
instrument of acceptance by a successor Trustee required by Section 609 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of removal, the Trustee being removed may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Notes.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Note for at least six
months, or
(2) the Trustee shall cease to be eligible under Section 607 and
shall fail to resign after written request therefor by the Company or by
any Holder who has been a bona fide Holder of a Note for at least six
months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove the
Trustee with respect to all Notes, or (ii) subject to TIA Section 315(e), any
Holder who has been a bona fide Holder of a Note for at least six months may,
on behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with respect to all
Notes and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee
for any cause, with respect to the Notes, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee. If, within one
year after such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee with respect to the Notes shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Notes delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee with respect to the Notes and to
that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Notes shall have been so appointed
by the Company or the Holders and accepted appointment in the manner
hereinafter provided, any Holder who has been a bona fide Holder of a Note
for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment
of a successor Trustee with respect to the Notes.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Notes and each appointment of a
successor Trustee with respect to the Notes to the Holders of Notes in the
manner provided for in Section 106. Each notice shall include the name of the
successor Trustee with respect to the Notes and the address of its Corporate
Trust Office.
SECTION 609. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Notes, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on the
request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring
Trustee and shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder.
(b) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all rights, powers and trusts
referred to in paragraph (a) of this Section.
(c) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 610. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to all or substantially all
the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be otherwise qualified
and eligible under this Article, without the execution or filing of any
paper or any further act on the part of any of the parties hereto. In case
any Notes shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and deliver the
Notes so authenticated with the same effect as if such successor Trustee
had itself authenticated such Notes; and in case at that time any of the
Notes shall not have been authenticated, any successor Trustee may
authenticate such Notes either in the name of any predecessor hereunder or
in the name of the successor Trustee; and in all such cases such
certificates shall have the full force which it is anywhere in the Notes or
in this Indenture provided that the certificate of the Trustee shall have;
provided, however, that the right to adopt the certificate of
authentication of any predecessor Trustee or to authenticate Notes in the
name of any predecessor Trustee shall apply only to its successor or
successors by merger, conversion or consolidation.
SECTION 611. Appointment of Authenticating Agent.
At any time when any of the Notes remain Outstanding, the Trustee
may appoint an Authenticating Agent or Agents with respect to the Notes which
shall be authorized to act on behalf of the Trustee to authenticate Notes and
the Trustee shall give written notice of such appointment to all Holders of
Notes with respect to which such Authenticating Agent will serve, in the
manner provided for in Section 106. Notes so authenticated shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Any such appointment
shall be evidenced by an instrument in writing signed by a Responsible Officer
of the Trustee, and a copy of such instrument shall be promptly furnished to
the Company. Wherever reference is made in this Indenture to the
authentication and delivery of Notes by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating
Agent and a certificate of authentication executed on behalf of the Trustee by
an Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any state thereof or the
District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by federal or state authority. If such
corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of said supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which
such Authenticating Agent shall be a party, or any corporation succeeding
to the corporate agency or corporate trust business of an Authenticating
Agent, shall continue to be an Authenticating Agent, provided such
corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the
Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give written notice
of such appointment to all Holders of Notes, in the manner provided for in
Section 106. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named
as an Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time
to time such compensation for its services under this Section as shall be
agreed in writing between the Company and such Authenticating Agent.
If an appointment is made pursuant to this Section, the Notes may
have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in the following
form:
This is one of the Notes designated therein referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By
-----------------------------
as Authenticating Agent
By
-----------------------------
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of Notes, by receiving and holding the same, agrees
with the Company and the Trustee that none of the Company or the Trustee or
any agent of either of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the
Holders in accordance with TIA Section 312, regardless of the source from
which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
TIA Section 312(b).
SECTION 702. Reports by Trustee.
Within 60 days after May 15 of each year commencing with the first
May 15 after the first issuance of Notes pursuant to this Indenture, the
Trustee shall transmit to the Holders of Notes, in the manner and to the
extent provided in TIA Section 313(c), a brief report dated as of such May 15
if required by TIA Section 313(a).
SECTION 703. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from time
to time by rules and regulations prescribe) which the Company may be
required to file with the Commission pursuant to Section 13 or Section
15(d) of the Exchange Act; or, if the Company is not required to file
information, documents or reports pursuant to either of such Sections,
then it shall file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 and
15 of the Exchange Act in respect of a security listed and registered on
a national securities exchange as may be prescribed from time to time in
such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(3) transmit to all Holders, in the manner and to the extent
provided in TIA Section 313(c), within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents and
reports required to be filed by the Company pursuant to paragraphs (1)
and (2) of this Section as may be required by rules and regulations
prescribed from time to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., Only on Certain
Terms.
The Company shall not, in a single transaction or a series of
transactions, consolidate with or merge with or into any other Person or sell,
assign, convey, transfer, lease or otherwise dispose of its properties and
assets substantially as an entirety to any Person, and the Company will not
permit any of its Subsidiaries to enter into any such transaction or series of
transactions if such transaction or series of transactions, in the aggregate,
would result in a sale, assignment, conveyance, transfer, lease or other
disposition of all or substantially all of the properties and assets of the
Company or the Company and its Subsidiaries, taken as a whole, to any other
Person, unless:
(a) either (1) the Company shall be the continuing corporation
or (2) the Person (if other than the Company) formed by such
consolidation or into which the Company or such Subsidiary is merged or
the Person which acquires by sale, assignment, conveyance, transfer or
lease the properties and assets of the Company or such Subsidiary, as
the case may be, substantially as an entirety (i) shall be a
corporation, partnership or trust organized and validly existing under
the laws of the United States or any State thereof or the District of
Columbia and (ii) shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to
the Trustee, the due and punctual payment of the principal of (and
premium, if any) and interest on all the Notes and the performance and
observance of every covenant of this Indenture on the part of the
Company to be performed or observed;
(b) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time, or
both, would become an Event of Default, shall have occurred and be
continuing;
(c) immediately after giving effect to any such transaction on a
pro forma basis (including, without limitation, any Indebtedness
incurred or anticipated to be incurred in connection with or in respect
of such transaction or series of transactions) the Company (in the case
of clause (1) of Subsection (a) above) or such Person (in the case of
clause (2) of Subsection (a) above), after giving effect to such
transaction or series of transactions on a pro forma basis, could incur
$1.00 of additional Indebtedness (other than Permitted Indebtedness)
pursuant to Section 1008; and
(d) the Company or such Person shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, sale, assignment, conveyance, transfer
or lease and, if a supplemental indenture is required in connection with
such transaction, such supplemental indenture, comply with this Article
and that all conditions precedent herein provided for relating to such
transaction have been satisfied.
SECTION 802. Successor Substituted.
Upon any consolidation or merger, or any sale, assignment,
conveyance, transfer, lease or other disposition of the properties and assets
of the Company substantially as an entirety in accordance with Section 801,
the successor Person formed by such consolidation or into which the Company is
merged or the successor Person to which such sale, assignment, conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor had been named as the Company herein; and
thereafter, except in the case of a lease, the Company shall be discharged
from all obligations and covenants under the Indenture and the Notes.
SECTION 803. Notes to Be Secured in Certain Events.
If, upon any such consolidation of the Company with or merger
of the Company into any other corporation, or upon any sale, assignment,
conveyance, lease, transfer or other disposition of the property of the
Company substantially as an entirety to any other Person in accordance with
Section 801, any property or assets of the Company would thereupon become
subject to any Lien, then unless such Lien could be created pursuant to
Section 1012 without equally and ratably securing the Notes, the Company,
prior to or simultaneously with such consolidation, merger, sale,
assignment, conveyance, lease, transfer or other disposition, will, as to
such property or assets, secure the Notes equally and ratably with (or
prior to) the obligation or liability which upon such consolidation,
merger, sale, assignment, conveyance, lease, transfer or other disposition
is to become secured as to such property or assets by such Lien, or will
cause such Notes to be so secured.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized
by or pursuant to a Board Resolution, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto, in
form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company
as obligor hereunder and under the Notes; or
(2) to add to the covenants of the Company for the benefit of
the Holders of Notes or to surrender any right or power herein conferred
upon the Company; or;
(3) to add Events of Default for the benefit of Holders of the
Notes; or
(4) to secure the Notes pursuant to the requirements of Section
803 or 1012 or otherwise; or
(5) to provide for the acceptance of appointment hereunder by a
successor Trustee;
(6) to cure any ambiguity, defect or inconsistency in this
Indenture, provided such action does not adversely affect the interests
of Holders of Notes in any material respect; or
(7) to supplement any of the provisions of this Indenture to the
extent necessary to permit or facilitate the defeasance and discharge of
the Notes; provided that such action shall not adversely effect the
interests of the Holders of Notes in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of all Outstanding Notes that are affected thereby, by Act of
said Holders delivered to the Company and the Trustee, the Company, when
authorized by or pursuant to a Board Resolution, and the Trustee may enter
into an indenture or indentures supplemental hereto for the purpose of adding
any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Notes under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Note affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Note, or
(2) reduce the principal amount of, or the rate of interest on,
or any premium payable upon the redemption of, any such Note, or
(3) adversely affect any right of repayment at the option of any
Holder of any Note, or
(4) change any Place of Payment or the coin or currency of
payment of the principal of, or any such premium or interest on, any
such Note, or
(5) impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof (or, in the
case of redemption or repayment at the option of the Holder, on or after
the Redemption Date or Repayment Date, as the case may be), or
(6) reduce the percentage in principal amount of the Outstanding
Notes, the consent of whose Holders is required for any such
supplemental indenture, for any waiver of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences provided for in this Indenture, or
(7) modify any of the provisions of this Section, Section 513 or
Section 1010, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Note affected
thereby, or
(8) modify any of the provisions of this Indenture relating to
the subordination of the Notes in a manner adverse to the Holders
thereof.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Notes theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in
effect.
SECTION 906. Reference in Notes to Supplemental Indentures.
Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so
determine, new Notes so modified as to conform, in the opinion of the Trustee
and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Notes.
SECTION 907. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 902, the Company
shall give notice thereof to the Holders of each Outstanding Note affected, in
the manner provided for in Section 106, setting forth in general terms the
substance of such supplemental indenture.
SECTION 908. Effect on Senior Indebtedness.
No Supplemental Indenture shall adversely affect the rights of the
holders of Senior Indebtedness under Article Fifteen of this Indenture without
the consent of such holders.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and
Interest.
The Company covenants and agrees for the benefit of the Holders of
Notes that it will duly and punctually pay the principal of (and premium, if
any, on) and interest on the Notes in accordance with the terms of the Notes
and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment of the Notes
and in The City of New York an office or agency where Notes may be presented
or surrendered for payment, where Notes may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Notes and this Indenture may be served.
The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
same as its agent to receive such respective presentations, surrenders,
notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind any such designation;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in
accordance with the requirements set forth above for Notes for such purposes.
The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency. The Company hereby designates as a Place of Payment for the
Notes the office or agency of the Company in the Borough of Manhattan, The
City of New York, and initially appoints the Trustee at its Corporate Trust
Office as Paying Agent in such city and as its agent to receive all such
presentations, surrenders, notices and demands.
SECTION 1003. Money for Notes Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to the Notes, it will, on or before each due date of the principal of
(and premium, if any, on) or interest on any of the Notes, segregate and hold
in trust for the benefit of the Persons entitled thereto a sum sufficient to
pay the principal (and premium, if any) or interest so becoming due until such
sums shall be paid to such Persons or otherwise disposed of as herein provided
and will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for the
Notes, it will, prior to or on each due date of the principal of (and premium,
if any, on) or interest on any Notes, deposit with a Paying Agent a sum
sufficient to pay the principal (and premium, if any) or interest so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to
such principal, premium or interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
The Company will cause each Paying Agent (other than the Trustee)
for the Notes to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the provisions of
this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any, on) and interest on the Notes in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Notes) in the making of any payment of
principal of (or premium, if any, on) or interest on the Notes; and
(3) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which sums were held by the Company
or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such sums.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of (and
premium, if any, on) or interest on any Note and remaining unclaimed for
one year after such principal (and premium, if any) or interest has become
due and payable shall be paid to the Company on Company Request, or (if
then held by the Company) shall be discharged from such trust; and the
Holder of such Note shall thereafter, as an unsecured general creditor,
look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company
cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, notice that
such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such notification or
publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
SECTION 1004. Statement as to Compliance.
The Company will deliver to the Trustee, within 120 days after the
end of each fiscal year, a brief certificate from the principal executive
officer, principal financial officer or principal accounting officer as to his
or her knowledge of the Company's compliance with all conditions and covenants
under this Indenture. For purposes of this Section 1004, such compliance
shall be determined without regard to any period of grace or requirement of
notice under this Indenture.
SECTION 1005. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all taxes,
assessments and governmental charges levied or imposed upon the Company or any
Subsidiary or upon the income, profits or property of the Company or any
Subsidiary, and (2) all lawful claims for labor, materials and supplies which,
if unpaid, might by law become a Lien upon the property of the Company or any
Subsidiary; provided, however, that the Company shall not be required to pay
or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate proceedings.
SECTION 1006. Maintenance of Properties.
The Company will cause all properties owned by the Company or
any Subsidiary or used or held for use in the conduct of its business or
the business of any Subsidiary to be maintained and kept in reasonably good
condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment
of the Company may be necessary so that the business carried on in
connection therewith may be conducted at all times; provided, however, that
nothing in this Section shall prevent the Company from discontinuing the
maintenance of any such properties if such action is, in the judgment of
the Company, desirable in the conduct of the business of the Company or any
Subsidiary and not disadvantageous in any material respect to the Holders.
SECTION 1007. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its
corporate existence and the rights (charter and statutory) and franchises of
the Company and each Subsidiary; provided, however, that the Company shall not
be required to preserve any such right or franchise if the Board of Directors
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and its Subsidiaries as a whole and
that the loss thereof is not disadvantageous in any material respect to the
Holders of Notes.
SECTION 1008. Limitation on Company and Subsidiary Indebtedness.
The Company will not, and will not permit any Subsidiary to,
create, incur, assume or directly or indirectly guarantee or in any other
manner become directly or indirectly liable for the payment of, or
otherwise incur (collectively, "incur"), any Indebtedness (including any
Acquired Indebtedness) other than Permitted Indebtedness, unless, the
Company's Adjusted Fixed Charge Coverage Ratio for its last four completed
fiscal quarters immediately preceding the incurrence of such Indebtedness,
taken as one period and after giving pro forma effect to (i) the incurrence
of such Indebtedness and (if applicable) the application of the net
proceeds therefrom, as if such Indebtedness was incurred, and the
application of such proceeds occurred, on the first day of such four-
quarter period, (ii) the incurrence, repayment or retirement of any other
Indebtedness by the Company and its Subsidiaries since the first day of
such four-quarter period as if such Indebtedness was incurred, repaid or
retired on the first day of such four-quarter period (except that, in
making such computation, the amount of Indebtedness under any revolving
credit facility shall be computed based upon the average daily balance of
such Indebtedness during such four-quarter period) and (iii) the
acquisition (whether by purchase, merger or otherwise) or disposition
(whether by sale, merger or otherwise) of any company, entity or business
acquired or disposed of by the Company or its Subsidiaries, as the case may
be, since the first day of such four-quarter period, as if such acquisition
or disposition occurred on the first day of such four-quarter period, would
have been at least equal to 2.0 to 1.0.
SECTION 1009. Limitation on Restricted Payments.
(a) The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly take any of the following actions:
(i) declare or pay any dividend on, or make any distribution to holders of,
Capital Stock of the Company (other than dividends or distributions payable,
solely in the Company's own Capital Stock (other than Redeemable Capital
Stock)), (ii) purchase, redeem, defease or otherwise acquire or retire for
value any Capital Stock of the Company or any options, warrants or other
rights to acquire such Capital Stock, (iii) make any principal payment on, or
redeem, repurchase or defease, or otherwise acquire or retire for value, prior
to any scheduled principal payment or maturity, Indebtedness which is
Subordinated Indebtedness, (iv) make any Investment (other than a Permitted
Investment) in any Person or (v) incur, create or assume any guarantee of
Indebtedness of any Affiliate (other than with respect to (a) guarantees of
Indebtedness of any Subsidiary by the Company or by any Subsidiary or (b)
guarantees of Indebtedness of the Company by any Subsidiary) (such payments or
any other actions described in (i), (ii), (iii), (iv) and (v), collectively,
"Restricted Payments") unless at the time of and after giving effect to the
proposed Restricted Payment (the amount of such payment, if other than
cash, as determined by the Board of Directors, whose determination will be
conclusive if evidenced by a Board Resolution), (1) no Event of Default or
event that, after notice or lapse of time or both would become an Event of
Default, shall have occurred or be continuing, and (2) the Company could
incur $1.00 of additional Indebtedness (other than Permitted Indebtedness)
pursuant to Section 1008, and (3) the aggregate amount of all Restricted
Payments after April 1, 1993 shall not exceed the sum of (A) 50% of the
Consolidated Net Income accrued during the period beginning on April 1,
1993 and ending on the last day of the Company's last fiscal quarter ending
prior to the date of such proposed Restricted Payment (or, if such
aggregate Consolidated Net Income shall be a loss, minus 100% of such loss)
plus (B) the aggregate net proceeds, including the fair market value of
property or assets other than cash (as determined by the Board of
Directors, whose determination will be conclusive if evidenced by a Board
Resolution), received by the Company from the issue or sale (other than to
a Subsidiary) after April 1, 1993 of Capital Stock of the Company (other
than Redeemable Capital Stock), or of any options, warrants or other rights
to purchase such Capital Stock plus (C) the aggregate net cash proceeds
received by the Company from the issue or sale (other than to a Subsidiary)
after April 1, 1993 of any debt securities or Redeemable Capital Stock
evidencing Indebtedness of the Company that thereafter has been converted
into or exchanged for Capital Stock of the Company (other than Redeemable
Capital Stock) plus (D) to the extent not otherwise included in the
Consolidated Net Income of the Company, an amount equal to the net
reduction in Investments (other than reductions in Permitted Investments)
in any Person other than a Subsidiary resulting from the payments in cash
of interest on Indebtedness, dividends, repayments of loans or advances, or
other transfers of assets, in each case to the Company or a Subsidiary
after the date of the Indenture from any such Person, not to exceed the
total amount of Investments (other than Permitted Investments) in such
Person by the Company and its Subsidiaries.
(b) None of the provisions set forth in paragraph (a) above
shall be deemed to prohibit (i) the payment of any dividend within 60 days
after the date of declaration thereof, if such declaration complied with the
foregoing provisions on the date of such declaration, (ii) the redemption,
repurchase or other acquisition or retirement of any shares of any class of
Capital Stock of the Company or of any Subsidiary in exchange for, or out of
the proceeds of, a substantially concurrent issue and sale (other than to a
Subsidiary) of other shares of Capital Stock of the Company, (iii) so long as
no Default or Event of Default shall have occurred and be continuing, payments
with respect to the cancellation or repurchase of stock or stock options
granted or to be granted to employees of the Company and its Subsidiaries
under the Xxxx-Xxxxxx Security Corporation Management Stock Option Plan or the
Xxxx-Xxxxxx Security Corporation 1993 Stock Option Plan or pursuant to the
Xxxx-Xxxxxx Holdings Corporation Management Stock Subscription Agreement, as
amended, in each case, in effect on the date of this Indenture, provided that
the Company could incur $1.00 of additional Indebtedness (other than Permitted
Indebtedness) under Section 1008 hereof; or (iv) the purchase, redemption,
defeasance or other acquisition or retirement for value of any Subordinated
Indebtedness in exchange for, or out of the net cash proceeds of (x) a
substantially concurrent issuance and sale (other than to a Subsidiary) of,
shares of Capital Stock (other than Redeemable Capital Stock) of the Company
or (y) a substantially concurrent incurrence (other than to a Subsidiary) of,
new Subordinated Indebtedness so long as (A) the principal amount of such new
Indebtedness does not exceed the principal amount (or, if such Subordinated
Indebtedness being refinanced provides for an amount less than the principal
amount thereof to be due and payable upon a declaration of acceleration
thereof, such lesser amount as of the date of determination) of the
Subordinated Indebtedness being so purchased, redeemed, defeased, acquired or
retired, plus the lesser of the amount of any premium required to be paid in
connection with such refinancing pursuant to the terms of the Subordinated
Indebtedness being refinanced or the amount of any premium reasonably
determined by the Company as necessary to accomplish such refinancing, plus,
in either case, the amount of reasonable expenses of the Company incurred in
connection with such refinancing, (B) such new Subordinated Indebtedness is
subordinated to the Notes to the same extent as such Subordinated Indebtedness
so purchased, redeemed, defeased, acquired or retired and (C) such new
Subordinated Indebtedness has an Average Life longer than the Average Life of
the Notes and a final stated maturity of principal later than the final Stated
Maturity of principal of the Notes. The action described in clauses (ii) and
(iv)(x) of this paragraph (b) shall be a Restricted Payment that shall be
permitted to be made in accordance with this paragraph but shall reduce the
amount that would otherwise be available for Restricted Payments under
paragraph (a) above.
SECTION 1010. Limitation on Issuance of Other Senior Subordinated
Indebtedness.
The Company will not create, incur or suffer to exist any
Indebtedness, other than the Notes, that is subordinate in right of payment
and upon liquidation to any Senior Indebtedness unless such Indebtedness is
also pari passu with, or subordinate in right of payment and upon liquidation
to, the Notes pursuant to subordination provisions substantially similar to
those contained in Article Fifteen.
SECTION 1011. Limitation on Dividends and Other Payment
Restrictions Affecting Subsidiaries.
The Company will not, and will not permit any Subsidiary to,
create or otherwise cause to exist or become effective any consensual
encumbrance or consensual restriction of any kind, other than those included
in the terms of the Notes, the Bank Credit Agreement as originally executed or
any successor Bank Credit Agreement containing such encumbrances or
restrictions that are no more restrictive than as set forth in the Bank Credit
Agreement as originally executed, or those in existence immediately prior to
the date of this Indenture, on the ability of any Subsidiary to (a) pay
dividends or make any other distribution on its Capital Stock to the Company
or any Subsidiary, (b) pay any Indebtedness owed to the Company or any
Subsidiary, (c) make loans or advances to the Company or any Subsidiary, (d)
transfer any of its property or assets to the Company or any Subsidiary, or
(e) guarantee any Indebtedness of the Company or any Subsidiary, except in
each case for such encumbrances or restrictions as are (i) in the case of (d),
permitted to be incurred under Section 1012, or (ii) existing under or by
reason of any agreement or other instrument of a Person, or binding with
respect to assets, acquired by the Company or any 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, or such assets, so acquired.
SECTION 1012. Limitation on Liens.
The Company will not, and will not permit any Subsidiary to,
directly or indirectly, create, incur, assume or suffer to exist any Lien of
any kind upon any of its property or assets, now owned or hereafter acquired,
without making effective provision whereby all of the Notes shall be directly
secured equally and ratably with (or prior to) the obligation or liability
secured by such Lien, except for Permitted Liens.
SECTION 1013. Limitation on Transactions with Affiliates.
The Company will not enter into, renew, extend, or permit any
Subsidiary to enter into, renew or extend, any agreement relating to the sale,
purchase or lease of any assets, property or services from or to any Affiliate
of the Company (other than a Wholly Owned Subsidiary) unless (i) such
transaction or series of transactions is or are on terms that are no less
favorable to the Company or such Subsidiary, as the case may be, than would be
available in a comparable transaction with an unaffiliated third party and
(ii) (A) with respect to any transaction or series of transactions involving
aggregate payments in excess of $5,000,000, but less than $10,000,000, the
Company delivers an Officer's Certificate to the Trustee certifying that such
transaction or transactions complies with clause (i) above and (B) with
respect to a transaction or series of transactions, involving aggregate
payments equal to or greater than $10,000,000, such transaction or
transactions shall have received the approval of a majority of the
disinterested directors of the Board of Directors of the Company; provided,
however, that this Section 1013 shall not apply to, (i) the payment of fees to
Xxxxxxx Xxxxx Capital Partners, Inc. or Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated or any of their Affiliates for consulting, investment banking or
financial advisory services rendered by such Person to the Company or any of
its Subsidiaries, (ii) actions in connection with Indebtedness to the Company
incurred by certain members of management of the Company to purchase shares of
Common Stock, which indebtedness is outstanding on the date of this Indenture,
(iii) sales of goods and services by the Company or any of its Subsidiaries to
Affiliates of the Company in the ordinary course of business, (iv)
transactions pursuant to the Distribution and Indemnity Agreement dated as of
January 27, 1993, the Tax Sharing Agreement dated as of January 27, 1993, the
Benefits Agreement dated as of January 27, 1993, and the Service Agreement
dated as of January 27, 1993, in each case as in effect on the date of the
Indenture, and (v) the Contribution Agreement dated November 28, 1996, the
Stockholders Agreement dated January 24, 1997 and all agreements related
thereto and (vi) services rendered to Xxxxxx, Fargo & Co. by the Company's
senior executive officers.
SECTION 1014. Limitation on Issuances and Sale of Preferred Stock
by Subsidiaries.
The Company will not permit (i) any of its Subsidiaries to issue
any Preferred Stock to any Person (other than to the Company or to a Wholly
Owned Subsidiary of the Company) and (ii) any Person (other than the Company
or a Wholly Owned Subsidiary of the Company) to own any Preferred Stock of any
Subsidiary of the Company; provided, however, that nothing in this Section
1014 will prohibit Preferred Stock issued by a Person prior to the time (a)
such Person becomes a Subsidiary of the Company, (b) such Person merges with
or into a Subsidiary of the Company or (c) a Subsidiary of the Company merges
with or into such Person; provided further that such Preferred Stock was not
issued or incurred by such Person in anticipation of the transaction
contemplated by subclause (a), (b), or (c) above.
SECTION 1015. Limitations on Issuances of Guarantees of Pari
Passu or Subordinated Indebtedness.
(a) The Company will not permit any Subsidiary, directly or
indirectly, to assume, guarantee or in any other manner become liable with
respect to any Indebtedness that is Pari Passu Indebtedness or Subordinated
Indebtedness, unless (i) such Subsidiary simultaneously executes and delivers
a supplemental indenture to this Indenture providing for a guarantee of
payment of the Notes by such Subsidiary, provided that (A) if any such
assumption, guarantee or other liability is subordinated, the guarantee under
such supplemental indenture shall be subordinated to no more than the same
extent as the Notes are subordinated to Senior Indebtedness and (B) with
respect to Subordinated Indebtedness, any such assumption, guarantee or other
liability of such Subsidiary with respect to such Subordinated Indebtedness
shall be subordinated to such Subsidiary's assumption, guarantee or other
liability with respect to the Notes at least to the same extent as such
Subordinated Indebtedness is subordinated to the Notes and (ii) such
Subsidiary waives and will 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 Subsidiary as a result of
any payment by such Subsidiary under its Guarantee (as defined below) until
such time as the Notes have been paid in full; provided that this paragraph
(a) shall not apply to any guarantee, assumption or other liability of any
Subsidiary that (x) existed at the time such Person became a Subsidiary and
(y) was not incurred in connection with, or in contemplation of, such Person
becoming a Subsidiary.
(b) Each guarantee created pursuant to the provision described
in the paragraph (a) above (or any other guarantee by any Subsidiary of
payment of the Notes provided, that (i) such Subsidiary simultaneously
executes and delivers a supplemental indenture to this Indenture providing for
a guarantee of payment of the Notes by such Subsidiary and providing that (A)
such other guarantee shall be subordinated to no more than the same extent as
the Notes are subordinated to Senior Indebtedness and (B) such other guarantee
shall be senior to at least the same extent as the Notes are senior to
Subordinated Indebtedness, and (ii) such Subsidiary takes the action referred
to in clause (ii) of paragraph (a) above is referred to as a "Guarantee" and
the issuer of each such Guarantee is referred to as a "Guarantor."
Notwithstanding the foregoing, any Guarantee by a Subsidiary of the Notes
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 Subsidiary (which sale, exchange
or transfer is not prohibited by this Indenture) or (ii) in the case of any
Guarantee created pursuant to the provisions of paragraph (a) above, the
release or discharge of the assumption, guarantee or other liability which
resulted in the creation of such Guarantee, except a discharge or release by
or as a result of payment under such assumption, guarantee or other liability.
SECTION 1016. Purchase of Notes upon Change of Control.
(a) Upon the occurrence of a Change of Control, and subject to
the compliance by the Company with the requirements of paragraph (b) of this
Section 1016, each Holder shall have the right to require that the Company
repurchase such Holder's Notes in whole or in part in integral multiples of
$1,000, at a purchase price (the "Purchase Price") in cash in an amount equal
to 101% of the principal amount thereof plus accrued and unpaid interest, if
any, to the date of purchase, in accordance with the procedures set forth in
paragraphs (c) and (d) of this Section.
(b) Within 30 days following a Change of Control and prior to
the mailing of the notice to Holders provided for in paragraph (c) below, the
Company covenants to either (x) repay in full all Indebtedness under the Bank
Credit Agreement or to offer to repay in full all such Indebtedness and to
repay the Indebtedness of each Bank who has accepted such offer or (y) obtain
the requisite consent under the Bank Credit Agreement to permit the repurchase
of the Notes as provided for in this Section 1016. The Company shall first
comply with this paragraph (b) before it shall be required to repurchase the
Notes pursuant to this Section 1016 and any failure to comply with this
paragraph (b) shall constitute a default for purposes of clause (iv) of
Section 501.
(c) Within 30 days following any Change of Control, the Company
shall give to each Holder of the Notes in the manner provided in Section 106,
a notice stating:
(1) that a Change of Control has occurred and that such Holder
has the right to require the Company to purchase such Holder's Notes in
cash;
(2) a purchase date (the "Purchase Date") which shall be no
earlier than 30 days nor later than 60 days from the date such notice is
mailed;
(3) the purchase price for the purchase; and
(4) the instructions determined by the Company, consistent with
this Section 1016, that a Holder must follow in order to have its Notes
repurchased in accordance with this Section 1016.
(d) Holders electing to have Notes purchased pursuant to this
Section 1016 will be required to surrender such Notes to the Company at the
address specified in the notice at least five Business Days prior to the
Purchase Date. Holders will be entitled to withdraw their election if the
Company receives, not later than three Business Days prior to the Purchase
Date, a facsimile transmission or letter setting forth the name of the Holder,
the principal amount of the Notes delivered for purchase by the Holder as to
which his election is to be withdrawn and a statement that such Holder is
withdrawing his election to have such Notes purchased. Holders whose Notes
are purchased only in part will be issued new Notes equal in principal amount
to the unpurchased portion of the Notes surrendered.
SECTION 1017. Provision of Financial Statements and Reports.
The Company will file on a timely basis with the Commission, to
the extent such filings are accepted by the Commission and whether or not the
Company has a class of securities registered under the Exchange Act, the
annual reports, quarterly reports and other documents that the Company would
be required to file if it were subject to Section 13 or 15 of the Exchange
Act. The Company will also be required (a) to file with the Trustee, and
provide to each Holder of Notes, without cost to such Holder, copies of such
reports and documents within 15 days after the date on which the Company files
such reports and documents with the Commission or the date on which the
Company would be required to file such reports and documents if the Company
were so required, and (b) if filing such reports and documents with the
Commission is not accepted by the Commission or is prohibited under the
Exchange Act, to supply at the Company's cost copies of such reports and
documents to any prospective Holder of Notes promptly upon written request.
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 1018. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Section 803 or Sections 1005 to
1017, inclusive, if before the time for such compliance the Holders of at
least a majority in principal amount of all Outstanding Notes affected by such
term, provision or covenant, by Act of such Holders, waive such compliance in
such instance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any
such term, provision or condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF NOTES
SECTION 1101. Applicability of Article.
The Notes shall be redeemable in accordance with the terms of such
Notes and in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Notes shall be evidenced
by or pursuant to a Board Resolution. In case of any redemption at the
election of the Company, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and
of the principal amount of the Notes to be redeemed and shall deliver to the
Trustee such documentation and records as shall enable the Trustee to select
the Notes to be redeemed pursuant to Section 1103. In the case of any
redemption of Notes prior to the expiration of any restriction on such
redemption provided in the terms of such Notes or elsewhere in this Indenture,
the Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
SECTION 1103. Selection by Trustee of Notes to Be Redeemed.
If less than all the Notes are to be redeemed, the particular
Notes to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Notes not previously
called for redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of
portions of the principal of Notes; provided, however, that no such partial
redemption shall reduce the portion of the principal amount of a Note not
redeemed to less than the minimum authorized denomination for the Notes
established pursuant to Section 301.
The Trustee shall promptly notify the Company in writing of the
Notes selected for redemption and, in the case of any Notes selected for
partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Notes shall relate, in
the case of any Note redeemed or to be redeemed only in part, to the portion
of the principal amount of such Note which has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided for in
Section 106 not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Notes to be redeemed.
All notices of redemption shall identify the Notes (including
CUSIP number) to be redeemed and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Notes are to be
redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Notes to be
redeemed,
(4) that on the Redemption Date the Redemption Price
(together with accrued interest, if any, to the Redemption Date
payable as provided in Section 1106) will become due and payable
upon each such Note, or the portion thereof, to be redeemed and,
if applicable, that interest thereon will cease to accrue on and
after said date, and
(5) the place or places where such Notes, maturing after
the Redemption Date, are to be surrendered for payment of the
Redemption Price.
Notice of redemption of Notes to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) an
amount of money sufficient to pay the Redemption Price of, and accrued
interest on, all the Notes which are to be redeemed on that date.
SECTION 1106. Notes Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Notes so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price stated therein (together with accrued interest, if any, to
the Redemption Date), and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Notes shall cease to bear interest. Upon surrender of any such Note for
redemption in accordance with said notice, such Note shall be paid by the
Company at the Redemption Price, together with accrued interest, if any, to
the Redemption Date; provided, however, that installments of interest on Notes
whose Stated Maturity is on or prior to the Redemption Date shall be payable
to the Holders of such Notes, or one or more Predecessor Notes, registered as
such at the close of business on the relevant Record Dates according to their
terms and the provisions of Section 307.
If any Note called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate of interest set
forth in the Note.
SECTION 1107. Notes Redeemed in Part.
Any Note which is to be redeemed only in part (pursuant to the
provisions of this Article) shall be surrendered at a Place of Payment
therefor (with, if the Company or the Trustee so requires, due endorsement by,
or a written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or such Holder's attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Note without service
charge, a new Note or Notes, of any authorized denomination as requested by
such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Note so surrendered.
SECTION 1108. Redemption.
The Notes may or shall be, as the case may be, redeemed, as a
whole or from time to time in part, subject to the conditions and the
Redemption Prices specified in the form of Note, together with accrued and
unpaid interest, if any, to the Redemption Date (subject to the right of
Holders of record on relevant record dates to receive interest due on an
Interest Payment Date), on the Redemption Date.
ARTICLE TWELVE
SECTION 1201. [Reserved.]
ARTICLE THIRTEEN
SECTION 1301. [Reserved.]
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Company's Option to Effect Defeasance or Covenant
Defeasance.
The Company may, at its option and at any time, effect defeasance
of the Notes under Section 1402, or covenant defeasance of the Notes under
Section 1403 in accordance with the terms of the Notes and in accordance with
this Article.
SECTION 1402. Defeasance and Discharge.
Upon the Company's exercise of the above option, the Company shall
be deemed to have been discharged from its obligations with respect to the
Outstanding Notes on the date the conditions set forth in Section 1404 are
satisfied (hereinafter, "defeasance"). For this purpose, such defeasance
means that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by the Outstanding Notes, which shall thereafter be
deemed to be "Outstanding" only for the purposes of Section 1405 and the other
Sections of this Indenture referred to in (A) and (B) below, and to have
satisfied all its other obligations under the Notes and this Indenture insofar
as the Notes are concerned (and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of such Outstanding Notes to receive,
solely from the trust fund described in Section 1404 and as more fully set
forth in such Section, payments in respect of the principal of (and premium,
if any, on) and interest on such Notes when such payments are due, (B) the
Company's obligations with respect to such Notes under Sections 305, 306, 1002
and 1003, (C) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and (D) this Article Fourteen. Subject to compliance with this
Article Fourteen, the Company may exercise its option under this Section 1402
notwithstanding the prior exercise of its option under Section 1403 with
respect to such Notes.
SECTION 1403. Covenant Defeasance.
Upon the Company's exercise of the above option applicable to this
Section with respect to the Notes, the Company shall be released from its
obligations under Section 803 and Sections 1005 through 1017 and with respect
to the Outstanding Notes on and after the date the conditions set forth in
Section 1404 are satisfied (hereinafter, "covenant defeasance"), and such
Notes shall thereafter be deemed not to be "Outstanding" for the purposes of
any direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "Outstanding" for all other purposes hereunder. For
this purpose, such covenant defeasance means that, with respect to such
Outstanding Notes, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any
such covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of reference in any such
covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a Default or an Event of Default under
Section 501(3) or otherwise, as the case may be, but, except as specified
above, the remainder of this Indenture and such Notes shall be unaffected
thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either
Section 1402 or Section 1403 to the Outstanding Notes:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the
requirements of Section 607 who shall agree to comply with the
provisions of this Article Fourteen applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of such Notes, (A) an amount in cash, or (B) Government
Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide,
not later than one day before the due date of any payment of principal
(including any premium) and interest, if any, on such Notes, money in an
amount, or (C) a combination thereof, in each case in such amounts as
will be sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or other qualifying trustee) to pay and
discharge, the principal of (and premium, if any, on) and interest on
such Outstanding Notes on the Stated Maturity (or Redemption Date, if
applicable) of such principal (and premium, if any) or installment or
interest; provided that the Trustee shall have been irrevocably
instructed to apply such money or the proceeds of such Government
Obligations to said payments with respect to such Notes. Before such a
deposit, the Company may give to the Trustee, in accordance with Section
1102 hereof, a notice of its election to redeem all or any portion of
such Outstanding Notes at a future date in accordance with the terms of
the Notes and Article Eleven hereof, which notice shall be irrevocable.
Such irrevocable redemption notice, if given, shall be given effect in
applying the foregoing.
(2) No Default or Event of Default with respect to such Notes
shall have occurred and be continuing on the date of such deposit or,
insofar as paragraphs (5) and (6) of Section 501 are concerned, at any
time during the period ending on the 91st day after the date of such
deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(3) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture.
(4) In the case of an election under Section 1402, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(x) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (y) since the date of execution of
this Indenture, there has been a change in the applicable federal income
tax law, in either case to the effect that, and based thereon such
opinion shall confirm that, the Holders of such Notes will not recognize
income, gain or loss for federal income tax purposes as a result of such
defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such defeasance had not occurred.
(5) In the case of an election under Section 1403, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of such Notes will not recognize income, gain or loss
for federal income tax purposes as a result of such covenant defeasance
and will be subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such
covenant defeasance had not occurred.
(6) In the case of defeasance or covenant defeasance, such
defeasance shall not be in violation of the terms of any agreement or
instrument to which the Company is a party or to which any of its
properties are subject, and the Agents under the Bank Credit
Agreement shall have delivered a certificate to the Trustee and the
Company that such defeasance shall not be in violation of the terms
of the Bank Credit Agreement.
(7) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section
1402 or the covenant defeasance under Section 1403 (as the case may be)
have been complied with.
SECTION 1405. Deposited Money and Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003,
all money and Government Obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 1405, the "Trustee") pursuant to Section 1404 in
respect of such Outstanding Notes shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Notes and this Indenture,
to the payment, either directly or through any Paying Agent (including the
Company acting as its own Paying Agent) as the Trustee may determine, to the
Holders of such Notes of all sums due and to become due thereon in respect of
principal (and premium, if any) and interest, but such money need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 1404 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of such Outstanding Notes.
Anything in this Article Fourteen to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations (or other property and any
proceeds therefrom) held by it as provided in Section 1404 which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect an equivalent defeasance or covenant defeasance, as applicable, in
accordance with this Article.
SECTION 1406. Reinstatement.
If the Trustee or any Paying Agent is unable to apply any money
in accordance with Section 1405 by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company's obligations under this
Indenture and such Notes shall be revived and reinstated as though no
deposit had occurred pursuant to Section 1402 or 1403, as the case may be,
until such time as the Trustee or Paying Agent is permitted to apply all
such money in accordance with Section 1405; provided, however, that if the
Company makes any payment of principal of (or premium, if any, on) or
interest on any such Note following the reinstatement of its obligations,
the Company shall be subrogated to the rights of the Holders of such Notes
to receive such payment from the money held by the Trustee or Paying Agent.
ARTICLE FIFTEEN
SUBORDINATION OF NOTES
SECTION 1501. Notes Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a Note, by
his or her acceptance thereof, likewise covenants and agrees, that, to the
extent and in the manner hereinafter set forth in this Article, the
indebtedness represented by the Notes and the payment of the principal of (and
premium, if any) and interest on each and all of the Notes are hereby
expressly made subordinate and subject in right of payment as provided in this
Article to the prior payment in full in cash or Cash Equivalents of all Senior
Indebtedness; provided, however, that the Notes, the indebtedness represented
thereby and the payment of the principal of (and premium, if any) and interest
on the Notes, in all respects shall rank equally with, or prior to, all
existing and future Indebtedness of the Company that is expressly subordinated
to any Senior Indebtedness.
SECTION 1502. Payment Over of Proceeds upon Dissolution, etc.
In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other similar
case or proceeding in connection therewith, relative to the Company or to its
creditors, as such, or to its assets, or (b) any liquidation, dissolution or
other winding up of the Company, whether voluntary or involuntary and whether
or not involving insolvency or bankruptcy, or (c) any assignment for the
benefit of creditors or any other marshalling of assets or liabilities of the
Company, then and in any such event
(1) the holders of Senior Indebtedness shall be entitled to
receive payment in full, in cash or Cash Equivalents, of all amounts due
on or in respect of all Senior Indebtedness, or provision shall be made
for such payment, before the Holders of the Notes are entitled to
receive any payment or distribution of any kind or character on account
of principal of (or premium, if any) or interest on the Notes; and
(2) any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities, by set-off
or otherwise, to which the Holders or the Trustee would be entitled but
for the provisions of this Article shall be paid by the liquidating
trustee or agent or other person making such payment or distribution,
whether a trustee in bankruptcy, a receiver or liquidating trustee or
otherwise, directly to the holders of Senior Indebtedness or their
representative or representatives or to the trustee or trustees under
any indenture under which any instruments evidencing any of such Senior
Indebtedness may have been issued, ratably according to the aggregate
amounts remaining unpaid on account of the Senior Indebtedness held or
represented by each, to the extent necessary to make payment in full in
cash or Cash Equivalents of all Senior Indebtedness remaining unpaid,
after giving effect to any concurrent payment or distribution to the
holders of such Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions
of this Section, the Trustee or the Holder of any Note shall have
received any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities, in respect
of principal (and premium, if any) and interest on the Notes before all
Senior Indebtedness is paid in full or payment thereof provided for in
cash or Cash Equivalents, then and in such event such payment or
distribution shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or
other Person making payment or distribution of assets of the Company for
application to the payment of all Senior Indebtedness remaining unpaid,
to the extent necessary to pay all Senior Indebtedness in full in cash
or Cash Equivalents, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness.
The consolidation of the Company with, or the merger of the
Company into, another Person or the liquidation or dissolution of the Company
following the conveyance, transfer or lease of its properties and assets
substantially as an entirety to another Person upon the terms and conditions
set forth in Article Eight shall not be deemed a dissolution, winding up,
liquidation, reorganization, assignment for the benefit of creditors or
marshalling of assets and liabilities of the Company for the purposes of this
Section if the Person formed by such consolidation or into which the Company
is merged or the Person which acquires by conveyance, transfer or lease such
properties and assets substantially as an entirety, as the case may be, shall,
as a part of such consolidation, merger, conveyance, transfer or lease, comply
with the conditions set forth in Article Eight.
SECTION 1503. Suspension of Payment When Senior Indebtedness in
Default.
(a) Unless Section 1502 shall be applicable, upon (1) the
occurrence of any default in the payment of principal, (premium, if any) or
interest on any Specified Senior Indebtedness beyond any applicable grace
period with respect thereto (a "Payment Event of Default") and (2) receipt by
the Trustee from the Agent or any other representative of any holder of
Specified Senior Indebtedness of written notice of such occurrence, no payment
or distribution of any assets of the Company of any kind or character shall be
made by the Company on account of principal of (or premium, if any) or
interest on the Notes or on account of the purchase or redemption or other
acquisition of Notes unless and until such Payment Event of Default shall have
been cured or waived in writing or shall have ceased to exist or such Senior
Indebtedness shall have been discharged, after which the Company shall resume
making any and all required payments in respect of the Notes, including any
missed payments.
(b) Unless Section 1502 shall be applicable, upon (1) the
occurrence of any event (other than a Payment Event of Default) the occurrence
of which entitles one or more Persons to accelerate Specified Senior
Indebtedness (a "Non-Payment Event of Default") and (2) receipt by the Trustee
from the Agent or any other representative of any holder of Specified Senior
Indebtedness of written notice of such occurrence, then no payment or
distribution of any assets of the Company of any kind or character shall be
made by the Company on account of any principal of (or premium, if any) or
interest on the Notes or on account of the purchase or redemption or other
acquisition of Notes for a period ("Payment Blockage Period") commencing upon
the date of receipt by the Trustee of such notice from the Agent or any other
representative of a holder of Specified Senior Indebtedness and ending on the
earlier of (subject to any blockage of payments that may then be in effect
under subsection (a) of this Section) (x) 179 days after the date of receipt
of such written notice by the Trustee, (y) the date on which such Non-payment
Event of Default shall have been cured or waived in writing or shall have
ceased to exist or such Specified Senior Indebtedness shall have been
discharged or (z) the date on which such Payment Blockage Period shall have
been terminated by written notice to the Company or the Trustee from the Agent
or other representative of the holders of the Specified Senior Indebtedness of
the Company initiating such Payment Blockage Period, after which, in the case
of clause (x), (y) or (z), the Company shall resume making any and all
required payments in respect of the Notes, including any missed payments.
Notwithstanding any other provision of this Agreement, only one Payment
Blockage Period may be commenced within any consecutive 365-day period, and no
event of default with respect to Specified Senior Indebtedness which existed
or was continuing on the date of the commencement of any Payment Blockage
Period with respect to the Specified Senior Indebtedness initiating such
Payment Blockage Period shall be, or can be, made the basis for the
commencement of a second Payment Blockage Period whether or not within a
period of 365 consecutive days unless such event of default shall have been
cured or waived for a period of not less than 90 consecutive days. In no
event will a Payment Blockage Period extend beyond 179 days.
(c) In the event that, notwithstanding the foregoing, the
Company shall make any payment to the Trustee or the Holder of any Note
prohibited by the foregoing provisions of this Section, then and in such event
such payment shall be paid over and delivered forthwith to the Company.
SECTION 1504. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture
or in any of the Notes shall prevent the Company, at any time except during
the pendency of any case, proceeding, dissolution, liquidation or other
winding up, assignment for the benefit of creditors or other marshalling of
assets and liabilities of the Company referred to in Section 1502 or under the
conditions described in Section 1503, from making payments at any time of
principal of (and premium, if any) or interest on the Notes.
SECTION 1505. Subrogation to Rights of Holders of Senior
Indebtedness.
Subject to the prior payment in full in cash or Cash Equivalents
of all Senior Indebtedness, the Holders of the Notes shall be subrogated to
the rights of the holders of such Senior Indebtedness to receive payments and
distributions of cash, property and securities applicable to the Senior
Indebtedness until the principal of (and premium, if any) and interest on the
Notes shall be paid in full. For purposes of such subrogation, no payments or
distributions to the holders of Senior Indebtedness of any cash, property or
securities to which the Holders of the Notes or the Trustee would be entitled
except for the provisions of this Article, and no payments over pursuant to
the provisions of this Article to the holders of Senior Indebtedness by
Holders of the Notes or the Trustee, shall, as among the Company, its
creditors other than holders of Senior Indebtedness, and the Holders of the
Notes, be deemed to be a payment or distribution by the Company to or on
account of the Senior Indebtedness.
SECTION 1506. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders of the Notes on the one
hand and the holders of Senior Indebtedness on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in the Notes is
intended to or shall (a) impair, as between the Company and the Holders of the
Notes, the obligation of the Company, which is absolute and unconditional, to
pay to the Holders of the Notes the principal of (and premium, if any) and
interest on the Notes as and when the same shall become due and payable in
accordance with their terms; or (b) affect the relative rights against the
Company of the Holders of the Notes and creditors of the Company other than
the holders of Senior Indebtedness; or (c) prevent the Trustee or the Holder
of any Note from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under this
Article of the holders of Senior Indebtedness in respect of cash, property or
securities of the Company received upon the exercise of any such remedy.
SECTION 1507. Trustee to Effectuate Subordination.
Each Holder of a Note by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes. If
upon any dissolution, winding up or reorganization of the Company, whether in
bankruptcy, insolvency, receivership proceedings or otherwise, the Trustee
does not file a claim in such proceedings prior to 30 days before the
expiration of the time to file such claim, the holders of Senior Indebtedness
or the Agents may file such a claim on behalf of the holders of the Notes.
SECTION 1508. No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act, in good faith, by any such
holder, or by any non-compliance by the Company with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof any such
holder may have or be otherwise charged with.
(b) Without in any way limiting the generality of Subsection (a)
of this Section, the holders of Senior Indebtedness may, at any time and from
time to time, without the consent of or notice to the Trustee or the Holders
of the Notes, without incurring responsibility to the Holders of the Notes and
without impairing or releasing the subordination provided in this Article or
the obligations hereunder of the Holders of the Notes to the holders of Senior
Indebtedness, do any one or more of the following: (1) change the manner,
place or terms of payment or extend the time of payment of, or renew or alter,
Senior Indebtedness or any instrument evidencing the same or any agreement
under which Senior Indebtedness is outstanding; (2) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing
Senior Indebtedness; (3) release any Person liable in any manner for the
collection or payment of Senior Indebtedness; and (4) exercise or refrain from
exercising any rights against the Company or any other Person.
SECTION 1509. Notice to Trustee.
(a) The Company shall give prompt written notice to the Trustee
of any fact known to the Company which would prohibit the making of any
payment to or by the Trustee in respect of the Notes. Notwithstanding the
provisions of this Article or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts
which would prohibit the making of any payment to or by the Trustee in respect
of the Notes, unless and until the Trustee shall have received written notice
thereof from the Company, the Agent or a holder of Senior Indebtedness or from
any trustee, fiduciary or agent therefor; and, prior to the receipt of any
such written notice, the Trustee, subject to the provisions of Section 601,
shall be entitled in all respects to assume that no such facts exist;
provided, however, that, if the Trustee shall not have received the notice
provided for in this Section at least three Business Days prior to the date
upon which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of (and premium,
if any) or interest on any Note), then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such money and to apply the same to the purpose for which such money
was received and shall not be affected by any notice to the contrary which may
be received by it within three Business Days prior to such date.
(b) Subject to the provisions of Section 601, the Trustee shall
be entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee,
fiduciary or agent therefor) to establish that such notice has been given by a
holder of Senior Indebtedness (or a trustee, fiduciary or agent therefor).
In the event that the Trustee determines in good faith that further evidence
is required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to
the rights of such Person under this Article and, if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
SECTION 1510. Reliance on Judicial Order or Certificate of
Liquidating Agent.
Upon any payment or distribution of assets of the Company referred
to in this Article, the Trustee, subject to the provisions of Section 601, and
the Holders of the Notes shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding up
or similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit
of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of Notes, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of 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.
SECTION 1511. Rights of Trustee As a Holder of Senior
Indebtedness; Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all
the rights set forth in this Article with respect to any Senior Indebtedness
which may at any time be held by it, to the same extent as any other holder of
Senior Indebtedness, and nothing in this Indenture shall deprive the Trustee
of any of its rights as such holder. Nothing in this Article shall apply to
claims of, or payments to, the Trustee under or pursuant to Section 606.
SECTION 1512. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall
have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article in addition to or in place of the
Trustee; provided, however, that Section 1511 shall not apply to the Company
or any Affiliate of the Company if it or such Affiliate acts as Paying Agent.
SECTION 1513. No Suspension of Remedies.
Nothing contained in this Article shall limit the right of the
Trustee or the Holders of Notes to take any action to accelerate the maturity
of the Notes pursuant to Article Five or to pursue any rights or remedies
hereunder or under applicable law.
This Indenture may be executed in any number of counterparts, each
of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Indenture.
SECTION 1514. 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 and shall not be liable to any such holders
if the Trustee shall mistakenly, in the absence of gross negligence or willful
misconduct, pay over or distribute to Holders of Notes or to the Company or to
any other person cash, property or securities to which any holders of Senior
Indebtedness shall be entitled by virtue of this Article or otherwise. With
respect to the holders of Senior Indebtedness, the Trustee undertakes to
perform or to observe only such of its covenants or obligations as are
specifically set forth in this Article and no implied covenants or obligations
with respect to holders of Senior Indebtedness shall be read into this
Indenture against the Trustee.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed as of the day and year first above written.
XXXX-XXXXXX SECURITY CORPORATION
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Treasurer
THE BANK OF NEW YORK
By: /s/ Xxxx Xx Xxxxxx
---------------------------------
Name: Xxxx Xx Xxxxxx
Title: Assistant Vice President
EXHIBIT A
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER
SECURITIES LAWS. 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 THE
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES
ACT) (AN "ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS
ACQUIRING THIS SECURITY IN AN "OFFSHORE TRANSACTION" PURSUANT TO RULE 903 OR
904 OF REGULATION S, (2) AGREES THAT IT WILL NOT PRIOR TO (X) THE DATE WHICH
IS TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(K) UNDER
THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER) AFTER THE LATER OF
THE ORIGINAL ISSUE DATE HEREOF (OR OF ANY PREDECESSOR OF THIS SECURITY) OR THE
LAST DAY ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF
THIS SECURITY OR ANY PREDECESSOR OF THIS SECURITY AND (Y) SUCH LATER DATE,
IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAWS (THE "RESALE RESTRICTION
TERMINATION DATE"), OFFER, SELL, OR OTHERWISE TRANSFER THIS SECURITY EXCEPT
(A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT 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 TO NON-
U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT, PURSUANT TO RULE 904 OF REGULATION
S, (E) TO AN ACCREDITED INVESTOR THAT IS ACQUIRING THE SECURITIES FOR ITS
OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH ACCREDITED INVESTOR, 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
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM
THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND, THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER
THE RESALE RESTRICTION TERMINATION DATE. IF ANY PROPOSED TRANSFER IS BEING
MADE IN ACCORDANCE WITH (2)(D), (E) OR (F) ABOVE, THE HOLDER ACKNOWLEDGES
THAT THE COMPANY RESERVES THE RIGHT TO REQUIRE THE DELIVERY OF SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION SATISFACTORY TO THE
COMPANY TO CONFIRM THAT THE PROPOSED TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION", "UNITED STATES" AND "U.S. PERSON" HAVE THE RESPECTIVE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC") TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN 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 CEDE & CO. 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
SECTIONS 311 AND 312 OF THE INDENTURE.](*)
XXXX-XXXXXX SECURITY CORPORATION
9 5/8% Senior Subordinated Note due 2007
U.S. $__________
No. CUSIP No.
XXXX-XXXXXX SECURITY CORPORATION, a Delaware corporation
(herein called the "Company", which term includes any successor Person under
the Indenture hereinafter referred to), for value received, hereby promises to
pay to ______________. or registered assigns, the principal sum of
____________________ Dollars on March 15, 2007, at the office or agency of the
Company referred to below, and to pay interest thereon on September 15, 1997
and semi-annually thereafter, on March 15 and September 15 in each year, from
March 24, 1997, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, at the rate of 9 5/8% per annum,
until the principal hereof is paid or duly provided for, and (to the extent
lawful) to pay on demand interest on any overdue interest at the rate borne by
(*) To be inserted in the case of a Global Note.
the Notes from the date on which such overdue interest becomes payable to the
date payment of such interest has been made or duly provided for. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in said Indenture, be paid to the Person in
whose name this Note (or one or more Predecessor Notes) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the March 1 or September 1 (whether or not a Business Day), as the case may
be, next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to
the Holder on such Regular Record Date, and such defaulted interest, and (to
the extent lawful) interest on such defaulted interest at the rate borne by
the Notes, may be paid to the Person in whose name this Note (or one or more
Predecessor Notes) is registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest to be fixed by the Trustee,
notice whereof shall be given to Holders of Notes not less than 10 days prior
to such Special Record Date, or may be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Notes may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture.
The Holder of this Note is entitled to the benefits of
the Registration Rights Agreement, dated as of March 24, 1997 (the
"Registration Rights Agreement"), among the Company and the Initial
Purchasers named therein. In the event that either (a) an Exchange Offer
Registration Statement (as such term is defined in the Registration Rights
Agreement) is not filed with the Commission on or prior to the 45th day
following the date of the Indenture, (b) such Exchange Offer Registration
Statement has not been declared effective on or prior to the 105th day
following the date of the Indenture, (c) the Exchange Offer (as such term
is defined in the Registration Rights Agreement) is not consummated or, if
required, a Shelf Registration Statement (as such term is defined in the
Registration Rights Agreement) with respect to the Notes is not declared
effective on or prior to the 135th day following the date of the Indenture
or (d) the Exchange Offer Registration Statement is declared effective but
thereafter ceases to be effective or usable (each such event referred to in
clauses (a) through (d) above, a "Registration Default") then the per annum
interest rate borne by this Note shall be increased by one-quarter of one
percent per annum for the first 90 day period following the Registration
Default. The per annum interest rate borne by this Note will increase by
an additional one quarter of one percent per annum for each subsequent 90-
day period following such Registration Default to a maximum of one percent
per annum until such Registration Default has been cured. Upon (w) the
filing of the Exchange Offer Registration Statement after the 45-day period
described in clause (a) above, (x) the effectiveness of the Exchange Offer
Registration Statement after the 105-day period described in clause (b)
above or (y) the consummation of the Exchange Offer or the effectiveness of
a Shelf Registration Statement, as the case may be, after the 135-day
period described in clause (c) above, or (z) the cure of any Registration
Default described in clause (d) above, the interest rate borne by the Note
from the date of such filing, effectiveness or consummation, as the case
may be, will be reduced to the original interest rate set forth above if
the Company is otherwise in compliance with this paragraph; provided,
however, that, if after such reduction in interest rate, a different event
specified in clause (a), (b), (c) or (d) above occurs, the interest rate
may again be increased and thereafter reduced pursuant to the foregoing
provisions.
Payment of the principal of (and premium, if any, on) and
interest on this Note will be made at the office or agency of the Company
maintained for that purpose in The City of New York, or at such other office
or agency of the Company as may be maintained for such purpose, in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that
payment of interest may be made at the option of the Company (i) by check
mailed to the address of the Person entitled thereto as such address shall
appear on the Note Register or (ii) by wire transfer to an account maintained
by the payee located in the United States provided that appropriate written
wire instructions have been provided prior to the relevant record date.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
duly executed by the Trustee or the Authenticating Agent referred to on the
reverse hereof by manual signature, this Note shall not be entitled to any
benefit under the Indenture, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument
to be duly executed under its corporate seal.
XXXX-XXXXXX SECURITY CORPORATION
By
-------------------------------
Name:
Title:
[Seal]
Attest:
_________________
Authorized Officer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned
Indenture.
THE BANK OF NEW YORK,
as Trustee
By: _________________________
Authorized Signatory
Dated: __________
[Reverse of Note]
This Note is one of a duly authorized issue of securities
of the Company designated as its 9 5/8% Senior Subordinated Notes due 2007
(the "Notes"), limited (except as otherwise provided in the Indenture
referred to below) in aggregate principal amount to $125,000,000, which may
be issued under an indenture (the "Indenture") dated as of March 24, 1997
between the Company and The Bank of New York, as trustee (the "Trustee",
which term includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties,
obligations and immunities thereunder of the Company, the Trustee and the
Holders of the Notes, and of the terms upon which the Notes are, and are to
be, authenticated and delivered.
The indebtedness evidenced by the Notes is, to the extent
and in the manner provided in the Indenture, subordinate and subject in right
of payment to the prior payment in full of all Senior Indebtedness as defined
in the Indenture, and this Note is issued subject to such provisions. Each
Holder of this Note, by accepting the same, (a) agrees to and shall be bound
by such provisions, (b) authorizes and directs the Trustee on his behalf to
take such action as may be necessary or appropriate to effectuate the
subordination as provided in the Indenture and (c) appoints the Trustee his
attorney-in-fact for such purpose.
On or before each payment date, the Company shall deliver or
cause to be delivered to the Trustee or the Paying Agent an amount in dollars
sufficient to pay the amount due on such payment date.
At any time on or after March 15, 2002, the Company may
redeem, in whole or in part, upon not less than 30 nor more than 60 days'
prior notice at the Redemption Prices (expressed as percentages of the
principal amount) set forth below, together with accrued and unpaid
interest, if any, to the Redemption Date, if redeemed during the 12-month
period beginning March 15 of the years indicated (subject to the right of
Holders of record on relevant record dates to receive interest due on an
Interest Payment Date):
Redemption
Year Price
---- ----------
2002 . . . . . . . . . . . . . . . . . . . . . . . . . . 104.812%
2003 . . . . . . . . . . . . . . . . . . . . . . . . . . 102.406%
2004 and thereafter. . . . . . . . . . . . . . . . . . . 100.000%
In addition, at any time prior to March 15, 2000, the
Company may redeem up to 30% of the original aggregate principal amount of
the Notes within 60 days after the closing of one or more Public Equity
Offerings with the net proceeds of such offering at a redemption price
equal to 109.625% of the principal amount thereof, together with accrued
and unpaid interest, if any, to the Redemption Date (subject to the right
of Holders of record on relevant record dates to receive interest due on
relevant interest payment dates), provided that not less than $87,500,000
aggregate principal amount of the Notes remains outstanding immediately
after the occurrence of any such redemption.
If less than all the Notes are to be redeemed pursuant to
the preceding two paragraphs, the Trustee shall select the Notes or
portions thereof to be redeemed in compliance with the requirements of the
principal national securities exchange, if any, on which the Notes being
redeemed are listed, or if the Notes are not so listed, on a pro rata
basis, by lot or by such other method the Trustee shall deem fair and
appropriate; provided that no such partial redemption shall reduce the
portion of the principal amount of a Note not redeemed to less than $1,000.
In the case of any redemption of Notes, interest
installments whose Stated Maturity is on or prior to the Redemption Date
will be payable to the Holders of such Notes, or one or more Predecessor
Notes, of record at the close of business on the relevant Regular Record
Date or Special Record Date, as the case may be, referred to on the face
hereof. Notes (or portions thereof) for whose redemption and payment
provision is made in accordance with the Indenture shall cease to bear
interest from and after the Redemption Date.
In the event of redemption or repurchase of this Note in
part only, a new Note or Notes for the unredeemed portion hereof shall be
issued in the name of the Holder hereof upon the cancellation hereof.
Upon the occurrence of a Change of Control, the Company will
be required to make an offer to purchase on the Purchase Date all outstanding
Notes at a purchase price in cash equal to 101% of the aggregate principal
amount thereof, plus accrued and unpaid interest thereon, if any, to the date
of purchase, in accordance with the Indenture. Holders of Notes that are
subject to an offer to purchase will receive an offer from the Company
pursuant to the Indenture prior to any related Purchase Date.
If an Event of Default shall occur and be continuing, the
principal of all the Notes may be declared due and payable in the manner and
with the effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time
of (a) the entire indebtedness of the Company on this Note and (b) certain
restrictive covenants and the related Defaults and Events of Default, upon
compliance by the Company with certain conditions set forth therein, which
provisions apply to this Note.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders under the Indenture
and the Note at any time by the Company and the Trustee with the consent of
the Holders of a specified percentage in aggregate principal amount of the
Notes at the time Outstanding. Additionally, the Indenture permits, without
notice to or consent of any Holder, the amendment thereof (a) to evidence the
succession of another person to the Company as obligor under the Indenture and
the Notes, (b) to add to the covenants of the Company for the benefit of the
Holders of Notes or to surrender any right or power conferred upon the Company
by the Indenture, (c) to add Events of Default for the benefit of the Holders
of Notes, (d) to secure the Notes pursuant to the provisions described in
Sections 1012 or 801 of the Indenture or otherwise, (e) to provide for the
acceptance of appointment by a successor Trustee, (f) to cure any ambiguity,
defect or inconsistency in the Indenture, provided such action does not
adversely affect the interests of Holders of Notes in any material respect, or
(g) to supplement any of the provisions of the Indenture to the extent
necessary to permit or facilitate defeasance and discharge of the Notes,
provided that such action shall not adversely affect the interests of the
Holders of Notes in any material respect.
No reference herein to the Indenture and no provision of
this Note or of the Indenture shall alter or impair the obligation of the
Company, any Guarantor or any other obligor on the Notes (in the event such
Guarantor or other obligor is obligated to make payments in respect of the
Notes), which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest on this Note at the times, place, and rate,
and in the coin or currency, herein prescribed, subject to the
subordination provisions of the Indenture.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note is registerable on
the Note Register of the Company, upon surrender of this Note for registration
of transfer at the office or agency of the Company maintained for such purpose
in The City of New York, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Note
Registrar duly executed by, the Holder hereof or his attorney duly authorized
in writing, and thereupon one or more new Notes, of authorized denominations
and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Notes are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set
forth, the Notes are exchangeable for a like aggregate principal amount of
Notes of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any registration of
transfer or exchange or redemption of Notes, but the Company may require
payment of a sum sufficient to pay all documentary, stamp or similar issue or
transfer taxes or other governmental charges payable in connection therewith.
Prior to the time of due presentment of this Note for
registration of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name this Note is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and neither the Company, the Trustee nor any agent shall be affected
by notice to the contrary.
THIS NOTE AND THE INDENTURE SHALL BE GOVERNED BY THE LAW OF
THE STATE OF NEW YORK EXCLUDING (TO THE GREATEST EXTENT PERMISSIBLE BY LAW)
ANY RULE OF LAW THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY
JURISDICTION OTHER THAN THE STATE OF NEW YORK.
Interest on this Note shall be computed on the basis of a
360-day year of twelve 30-day months.
All terms used in this Note which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
FORM OF TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned registered holder hereby
sell(s), assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
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please print or typewrite name and address including zip code of assignee
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the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
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attorney to transfer said Note on the books of the Company with full power of
substitution in the premises.
In connection with any transfer of this Note occurring prior
to the Resale Restriction Termination Date, the undersigned confirms that
without utilizing any general solicitation or general advertising that:
[Check One]
[ ] (a) this Note is being transferred in compliance with the
exemption from registration under the Securities Act of
1933, as amended, provided by Rule 144A thereunder.
or
[ ] (b) this Note is being transferred other than in accordance with
(a) above and documents are being furnished that comply with
the conditions of transfer set forth in this Note and the
Indenture.
If none of the foregoing boxes is checked, the Trustee or other Registrar
shall not be obligated to register this Note in the name of any Person
other than the Holder hereof unless and until the conditions to any such
transfer of registration set forth herein and in Section 312 of the
Indenture shall have been satisfied.
Date: ____________________NOTICE:_________________________________
The signature must correspond with the
name as written upon the face of the
within-mentioned instrument in every
particular, without alteration or any
change whatsoever.
Signature Guarantee:
-------------------------------------------------
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is
purchasing this Note 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, as amended, 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.
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company
pursuant to Section 1016 of the Indenture, check the Box: [ ].
If you wish to have a portion of this Note purchased by the
Company pursuant to Section 1016 of the Indenture, state the amount (in
original principal amount) below:
$_____________________.
Date:
-----------------------------
Your Signature:
--------------------
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee:(*)
-----------------------------------------
-----------------
(*) Guarantor must be a member of the Securities Transfer Agents
Medallion Program ("STAMP"), the New York Stock Exchange Medallion
Signature Program ("MSP") or the Stock Exchange Medallion Program
("SEMP")
