L&W DRAFT OF 11/24/96
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AMERIKING, INC.
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__% SENIOR NOTES DUE 2006
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INDENTURE
DATED AS OF ________, 1996
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FLEET NATIONAL BANK
Trustee
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TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01. DEFINITIONS.................................................................... 1
SECTION 1.02. OTHER DEFINITIONS.............................................................. 14
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE
ACT............................................................................ 14
SECTION 1.04. RULES OF CONSTRUCTION.......................................................... 15
SECTION 1.05. INCORPORATION OF BURGER KING AGREEMENT......................................... 15
ARTICLE 2
THE SENIOR NOTES
SECTION 2.01. FORM AND DATING................................................................ 15
SECTION 2.02. EXECUTION AND AUTHENTICATION................................................... 16
SECTION 2.03. REGISTRAR AND PAYING AGENT..................................................... 16
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST............................................ 17
SECTION 2.05. HOLDER LISTS................................................................... 17
SECTION 2.06. TRANSFER AND EXCHANGE.......................................................... 17
SECTION 2.07. REPLACEMENT SENIOR NOTES....................................................... 20
SECTION 2.08. OUTSTANDING SENIOR NOTES....................................................... 20
SECTION 2.09. TREASURY SENIOR NOTES.......................................................... 20
SECTION 2.10. TEMPORARY SENIOR NOTES......................................................... 21
SECTION 2.11. CANCELLATION................................................................... 21
SECTION 2.12. DEFAULTED INTEREST............................................................. 21
SECTION 2.13. RECORD DATE.................................................................... 21
SECTION 2.14. CUSIP NUMBER................................................................... 22
ARTICLE 3
OPTIONAL REDEMPTION AND MANDATORY OFFERS TO PURCHASE
SECTION 3.01. NOTICES TO TRUSTEE............................................................. 22
SECTION 3.02. SELECTION OF SENIOR NOTES TO BE REDEEMED OR
PURCHASED...................................................................... 22
SECTION 3.03. NOTICE OF REDEMPTION........................................................... 23
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION................................................. 24
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.................................................... 24
SECTION 3.06. SENIOR NOTES REDEEMED IN PART.................................................. 24
SECTION 3.07. OPTIONAL REDEMPTION PROVISIONS................................................. 24
SECTION 3.08. MANDATORY PURCHASE PROVISIONS.................................................. 25
ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF SENIOR NOTES........................................................ 26
SECTION 4.02. COMMISSION REPORTS............................................................. 27
SECTION 4.03. COMPLIANCE CERTIFICATE......................................................... 27
SECTION 4.04. STAY, EXTENSION AND USURY LAWS................................................. 28
SECTION 4.05. LIMITATION ON RESTRICTED PAYMENTS.............................................. 28
SECTION 4.06. CORPORATE EXISTENCE............................................................ 31
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SECTION 4.07. LIMITATION ON INCURRENCE OF INDEBTEDNESS....................................... 31
SECTION 4.08. LIMITATION ON TRANSACTIONS WITH AFFILIATES..................................... 32
SECTION 4.09. LIMITATION ON LIENS............................................................ 33
SECTION 4.10. COMPLIANCE WITH LAWS, TAXES.................................................... 33
SECTION 4.11. LIMITATION ON DIVIDENDS AND OTHER PAYMENT
RESTRICTIONS AFFECTING RESTRICTED
SUBSIDIARIES................................................................... 33
SECTION 4.12. MAINTENANCE OF OFFICE OR AGENCIES.............................................. 34
SECTION 4.13. CHANGE OF CONTROL.............................................................. 34
SECTION 4.14. LIMITATION ON ASSET SALES...................................................... 35
SECTION 4.15. LIMITATION ON GUARANTEES OF COMPANY
INDEBTEDNESS BY RESTRICTED SUBSIDIARIES........................................ 36
SECTION 4.16. DESIGNATION OF RESTRICTED AND NON-RESTRICTED
SUBSIDIARIES................................................................... 37
ARTICLE 5
SUCCESSORS
SECTION 5.01. MERGER OR CONSOLIDATION........................................................ 37
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.............................................. 38
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.............................................................. 38
SECTION 6.02. ACCELERATION................................................................... 40
SECTION 6.03. OTHER REMEDIES................................................................. 40
SECTION 6.04. WAIVER OF PAST DEFAULTS........................................................ 40
SECTION 6.05. CONTROL BY MAJORITY............................................................ 41
SECTION 6.06. LIMITATION ON SUITS............................................................ 41
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT........................................... 41
SECTION 6.08. COLLECTION SUIT BY TRUSTEE..................................................... 41
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM............................................... 42
SECTION 6.10. PRIORITIES..................................................................... 42
SECTION 6.11. UNDERTAKING FOR COSTS.......................................................... 42
ARTICLE 7
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.............................................................. 43
SECTION 7.02. RIGHTS OF TRUSTEE.............................................................. 44
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE................................................... 44
SECTION 7.04. TRUSTEE'S DISCLAIMER............................................................44
SECTION 7.05. NOTICE TO HOLDERS OF DEFAULTS AND
EVENTS OF DEFAULT ..............................................................44
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS ..................................................45
SECTION 7.07. COMPENSATION AND INDEMNITY .....................................................45
SECTION 7.08. REPLACEMENT OF TRUSTEE .........................................................46
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC................................................46
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION ..................................................47
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
THE COMPANY ....................................................................47
ARTICLE 8
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DISCHARGE OF INDENTURE
SECTION 8.01. DISCHARGE OF LIABILITY ON SENIOR NOTES;
DEFEASANCE..................................................................... 47
SECTION 8.02. CONDITIONS TO DEFEASANCE....................................................... 48
SECTION 8.03. APPLICATION OF TRUST MONEY..................................................... 49
SECTION 8.04. REPAYMENT TO THE COMPANY....................................................... 49
SECTION 8.05. INDEMNITY FOR GOVERNMENT OBLIGATIONS........................................... 49
SECTION 8.06. REINSTATEMENT.................................................................. 49
ARTICLE 9
AMENDMENTS
SECTION 9.01. AMENDMENTS AND SUPPLEMENTS PERMITTED WITHOUT
CONSENT OF HOLDERS............................................................. 50
SECTION 9.02. AMENDMENTS AND SUPPLEMENTS REQUIRING CONSENT
OF HOLDERS..................................................................... 50
SECTION 9.03. COMPLIANCE WITH TIA............................................................ 51
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.............................................. 51
SECTION 9.05. NOTATION ON OR EXCHANGE OF SENIOR NOTES........................................ 52
SECTION 9.06. TRUSTEE PROTECTED.............................................................. 52
SECTION 9.07. PAYMENT FOR CONSENTS........................................................... 52
ARTICLE 10
MISCELLANEOUS
SECTION 10.01. TRUST INDENTURE ACT CONTROLS................................................... 52
SECTION 10.02. NOTICES........................................................................ 52
SECTION 10.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.................................... 53
SECTION 10.04. CERTIFICATE AND OPINION AS TO CONDITIONS
PRECEDENT...................................................................... 54
SECTION 10.05. STATEMENTS REQUIRED IN CERTIFICATE OR
OPINION........................................................................ 54
SECTION 10.06. RULES BY TRUSTEE AND AGENTS.................................................... 54
SECTION 10.07. LEGAL HOLIDAYS................................................................. 54
SECTION 10.08. NO RECOURSE AGAINST OTHERS..................................................... 54
SECTION 10.09. COUNTERPARTS................................................................... 55
SECTION 10.10. VARIABLE PROVISIONS............................................................ 55
SECTION 10.11. GOVERNING LAW.................................................................. 55
SECTION 10.12. NO ADVERSE INTERPRETATION OF OTHER
AGREEMENTS..................................................................... 55
SECTION 10.13. SUCCESSORS..................................................................... 55
SECTION 10.14. SEVERABILITY................................................................... 55
SECTION 10.15. TABLE OF CONTENTS, HEADINGS, ETC............................................... 55
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This Indenture, dated as of ______________, 1996, is between
AmeriKing, Inc., a Delaware corporation (the "Company"), and Fleet National
Bank, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the holders of the Company's __% Senior
Notes due 2006 (the "Senior Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01. DEFINITIONS.
"Affiliate" means any of the following: (i) any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company, (ii) any spouse, immediate family member or other
relative who has the same principal residence as any Person described in clause
(i) above, (iii) any trust in which any such Persons described in clause (i) or
(ii) above has a beneficial interest, and (iv) any corporation or other
organization of which any such Persons described above collectively own 50% or
more of the equity of such entity.
"Agent" means any Registrar, Paying Agent or co-registrar or
any successor thereto.
"Asset Sale" means the sale, lease, conveyance or other disposition by
the Company or a Restricted Subsidiary of assets or property whether owned on
the date of original issuance of the Senior Notes or thereafter acquired, in a
single transaction or in a series of related transactions; provided that Asset
Sales will not include such sales, leases, conveyances or dispositions in
connection with (i) the sale or disposition of any Restricted Investment, (ii)
any Equity Offering by (a) the Company or (b) any Restricted Subsidiary if the
proceeds therefrom are used to make mandatory prepayments of Indebtedness under
the Credit Agreement or Indebtedness of the Restricted Subsidiaries or redeem
Senior Notes as described in Section 3.07 hereof, (iii) the surrender or waiver
of contract rights or the settlement, release or surrender of contract, tort or
other claims of any kind, (iv) the sale of inventory in the ordinary course of
business, (v) a sale-leaseback of assets within one year following the
acquisition of such assets, (vi) the grant of any license of patents,
trademarks, registration therefor and other similar intellectual property,
(vii) a transfer of assets by the Company or a Restricted Subsidiary to the
Company or a Restricted Subsidiary, (viii) the designation of a Restricted
Subsidiary as a Non-Restricted Subsidiary pursuant to Section 4.16 hereof, (ix)
the sale, lease, conveyance or other disposition of all or substantially all of
the assets of the Company as permitted under Section 5.01 hereof, (x) the sale
or disposition of obsolete equipment or other obsolete assets, or (xi)
Restricted Payments
permitted by Section 4.05 hereof, (xii) the BKC Designated Transfer, or (xiii)
the exchange of assets for other non-cash assets that (a) are useful in the
business of the Company and its Restricted Subsidiaries and (b) have a fair
market value at least equal to the fair market value of the assets being
exchanged (as determined by the Board of Directors in good faith).
"BBI Note" means the promissory note in the aggregate principal amount
of $600,000 issued by the Company to BancBoston Investments, Inc. and all
related Obligations as in effect on the date of the original issuance of the
Senior Notes.
"BKC" means Burger King Corporation and its successors and
assigns.
"BKC Agreements" means the franchise, trademark, royalty, lease,
sublease and other agreements, obligations and liabilities of the Company and
its Subsidiaries with or to BKC.
"BKC Designated Transfer" means the sale by the Company of up to 10
Burger King restaurants to a franchisee to be designated by BKC.
"Bankruptcy Law" means Title 11, U.S. Code or any similar
federal or state law for the relief of debtors.
"Board of Directors" means the Company's board of directors or any
authorized committee of such board of directors.
"Intercreditor Agreement" means the Agreement, dated the date of this
Indenture, among the Trustee, the Company and its Subsidiaries, and Burger King
Corporation in the form of Exhibit B.
"Business Day" means any day other than a Legal Holiday.
"Capital Stock" means any and all shares, interests, participations or
other equivalents (however designated) of corporate stock, including any
preferred stock.
"Cash Flow" means, for any given period and Person, the sum of,
without duplication, Consolidated Net Income, plus (a) the portion of Net
Income attributable to the minority interests in its Restricted Subsidiaries,
to the extent not included in calculating Consolidated Net Income, plus (b) any
provision for taxes based on income or profits to the extent such income or
profits were included in computing Consolidated Net Income, plus (c)
Consolidated Interest Expense, to the extent deducted in computing Consolidated
Net Income, plus (d) the amortization of all intangible assets, to the extent
such amortization was deducted in computing Consolidated Net Income (including,
but not limited to, inventory write-ups, goodwill, debt and financing costs,
and Incentive Arrangements), plus (e) any non-capitalized transaction costs
incurred in connection with financings, acquisitions or divestitures
(including, but not limited to, financing and
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refinancing fees, to the extent deducted in computing Consolidated Net Income,
including those in connection with the Offerings, to the extent deducted in
computing Consolidated Net Income), plus (f) all depreciation and all other
non-cash charges (including, without limitation, those charges relating to
purchase accounting adjustments and LIFO adjustments), to the extent deducted
in computing Consolidated Net Income, plus (g) any interest income, to the
extent such income was not included in computing Consolidated Net Income, plus
(h) all dividend payments on preferred stock (whether or not paid in cash) to
the extent deducted in computing Consolidated Net Income, plus (i) any
extraordinary or non-recurring charge or expense arising out of the
implementation of SFAS 106 or SFAS 109 to the extent deducted in computing
Consolidated Net Income, plus (j) to the extent not covered in clause (e)
above, fees paid or payable in respect of the TJC Agreement to the extent
deducted in computing Consolidated Net Income, plus (k) the net loss of any
Person, other than those of a Restricted Subsidiary, to the extent deducted in
computing Consolidated Net Income, plus (l) net losses in respect of any
discontinued operations, as determined in accordance with GAAP, to the extent
deducted in computing Consolidated Net Income; provided, however, that if any
such calculation includes any period during which an acquisition or sale of a
Person or the incurrence or repayment of Indebtedness occurred, then such
calculation for such period shall be made on a Pro Forma Basis.
"Cash Flow Coverage Ratio" means, for any given period and Person, the
ratio of: (i) Cash Flow, divided by (ii) the sum of Consolidated Interest
Expense and all dividend payments on any series of preferred stock of such
Person (except dividends paid or payable in additional shares of Capital Stock
(other than Disqualified Stock) and except for accrued and unpaid dividends
with respect to preferred stock outstanding on the date of original issuance of
the Senior Notes), in each case, without duplication, provided, however, that
if any such calculation includes any period during which an acquisition or sale
of a Person or the incurrence or repayment of Indebtedness occurred, then such
calculation for such period shall be made on a Pro Forma Basis.
"Change of Control" means the occurrence of each of the following: (i)
any "person" or "group" (as such terms are used in Sections 13(d) and 14(d) of
the Exchange Act), excluding the Existing Stockholders, 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 (ii)
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
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converted into or exchanged for cash, securities or other property, other than
any such transaction where (A) 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
other property in an amount which could be paid by the Company as a Restricted
Payment under this Indenture and (B) immediately after such transaction no
"person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act), excluding the Existing Stockholders, 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), directly or indirectly, of more
than 50% of the total Voting Stock of the surviving or transferee corporation;
and (iii) 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 a majority of the directors then still in office who are entitled
to vote to elect such new director and were either directors at the beginning
of such period or Persons whose election as directors 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.
"Company" means AmeriKing, Inc. until a successor replaces it in
accordance with Article 5 hereof and thereafter means the successor, and shall
include any and all other obligors on the Senior Notes.
"Consolidated Interest Expense" means, for any given period and
Person, the aggregate of the interest expense in respect of all Indebtedness of
such Person and its Restricted Subsidiaries for such period, on a consolidated
basis, determined in accordance with GAAP (including amortization of original
issue discount on any such Indebtedness, all non-cash interest payments, the
interest portion of any deferred payment obligation and the interest component
of capital lease obligations, but excluding amortization of deferred financing
fees if such amortization would otherwise be included in interest expense);
provided, however, that for the purpose of the Cash Flow Coverage Ratio,
Consolidated Interest Expense shall be calculated on a Pro Forma Basis;
provided further that any premiums, fees and expenses (including the
amortization thereof) payable in connection with the Offerings and the
application of the net proceeds therefrom or any other refinancing of
Indebtedness will be excluded.
"Consolidated Net Income" means, for any given period and Person, the
aggregate of the Net Income of such Person and its Restricted Subsidiaries for
such period, on a consolidated basis,
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determined in accordance with GAAP; provided, however, that: (i) the Net Income
of any Person acquired in a pooling of interests transaction for any period
prior to the date of such acquisition shall be excluded, and (ii) Consolidated
Net Income of any Person will not include, without duplication, any deduction
for: (A) any increased amortization or depreciation resulting from the write-up
of assets pursuant to Accounting Principles Board Opinion Nos. 16 and 17, as
amended or supplemented from time to time, (B) the amortization of all
intangible assets (including amortization attributable to inventory write-ups,
goodwill, debt and financing costs, and Incentive Arrangements), (C) any
non-capitalized transaction costs incurred in connection with actual or
proposed financings, acquisitions or divestitures (including, but not limited
to, financing and refinancing fees), (D) any extraordinary or nonrecurring
charges relating to any premium or penalty paid, write-off or deferred
financing costs or other financial recapitalization charges in connection with
redeeming or retiring any Indebtedness prior to its stated maturity, and (E)
any Restructuring Charges; provided, however, that for purposes of determining
the Cash Flow Coverage Ratio, Consolidated Net Income shall be calculated on a
Pro Forma Basis.
"Consolidated Net Worth" with respect to any Person means, as of any
date, the consolidated equity of the common stockholders of such Person
(excluding the cumulated foreign currency translation adjustment), all
determined on a consolidated basis in accordance with GAAP, but without any
reduction in respect of the payment of dividends on any series of such Person's
preferred stock if such dividends are paid in additional shares of Capital
Stock (other than Disqualified Stock); provided, however, that Consolidated Net
Worth shall also include, without duplication: (a) the amortization of all
write-ups of inventory, (b) the amortization of all intangible assets
(including amortization of goodwill, debt and financing costs, and Incentive
Arrangements), (c) any non- capitalized transaction costs incurred in
connection with actual and proposed financings, acquisitions or divestitures
(including, but not limited to, financing and refinancing fees), (d) any
increased amortization or depreciation resulting from the write-up of assets
pursuant to Accounting Principles Board Opinion Nos. 16 and 17, as amended and
supplemented from time to time, (e) any extraordinary or nonrecurring charges
or expenses relating to any premium or penalty paid, write-off or deferred
financing costs or other financial recapitalization charges incurred in
connection with redeeming or retiring any Indebtedness prior to its stated
maturity, (f) any Restructuring Charges, and (g) any extraordinary or
non-recurring charge arising out of the implementation of SFAS 106 or SFAS 109;
provided, however, that Consolidated Net Worth shall be calculated on a Pro
Forma Basis.
"Corporate Trust Office" of the Trustee shall be at the address of the
Trustee specified in Section 10.02 of this Indenture or such other address as
to which the Trustee gives notice to the Company.
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"Credit Agreement" means the Second Amended and Restated Credit
Agreement, dated February 7, 1996, among the Company, certain of its
subsidiaries and the lenders party thereto in their capacities as lenders
thereunder and The First National Bank of Boston, as agent, together with all
loan documents and instruments thereunder (including, without limitation, any
guarantee agreements and security documents), in each case as such agreements
may be amended (including any amendment and restatement thereof), supplemented
or otherwise modified from time to time, including any agreement extending the
maturity of, refinancing, replacing or otherwise restructuring (including,
without limitation, increasing the amount of available borrowings thereunder,
and all Obligations with respect thereto, in each case, to the extent permitted
by Section 4.07 hereof, or adding Subsidiaries of the Company as additional
borrowers or guarantors thereunder) all or any portion of the Indebtedness
under such agreement or any successor or replacement agreement and whether by
the same or any other agent, lender or group of lenders.
"Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
"Default" means any event that is, or after notice or passage of time
or both would be, an Event of Default.
"Definitive Senior Notes" means Senior Notes that are in the form of
Exhibit A attached hereto (but without including the text referred to in
footnotes 1 and 2 thereto).
"Depositary" means, with respect to the Senior Notes issuable or
issued in whole or in part in global form, the Person specified in Section 2.03
hereof as the Depositary with respect to the Senior Notes, until a successor
shall have been appointed and become such pursuant to the applicable provision
of this Indenture and, thereafter, "Depositary" shall mean or include such
successor.
"Disqualified Stock" means any Capital Stock that by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is
redeemable at the option of the holder thereof, in whole or in part on, or
prior to, the maturity date of the Senior Notes.
"Equity Interests" means Capital Stock or partnership interests or
warrants, options or other rights to acquire Capital Stock or partnership
interests (but excluding (i) any debt security that is convertible into, or
exchangeable for, Capital Stock or partnership interests, and (ii) any other
Indebtedness or Obligation) provided, however, that Equity Interests will not
include any Incentive Arrangements or obligations or payments thereunder.
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"Equity Offering" means a public or private offering by the Company
and/or its Subsidiaries for cash of Capital Stock or other Equity Interests and
all warrants, options or other rights to acquire Capital Stock, other than (i)
an offering of Disqualified Stock or (ii) Incentive Arrangements or obligations
or payments thereunder.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Debentures" means the Company's __% Subordinated
Exchange Debentures Due 2008.
"Executive Employment Agreements" means the Employment
Agreements, effective as of September 1, 1994 or, in the case of
Xxxxxxx X. Xxxxxx, the date of issuance of the Senior Notes,
between the Company, on the one hand, and Xxxxxxxx X. Xxxx, Xxxxxxx
X. Xxxxxx, Xxxx X. Xxxxxx, Xxxx X. Xxxxxx and Xxxxx X. Xxxxxxx, on
the other hand, as in effect at the date of issuance of the Senior
Notes.
"Existing Stockholders" means (a) The Jordan Company and
Jordan/Zalaznick Capital Corporation and their respective affiliates,
principals, partners and employees, family members of any of the foregoing and
trusts for the benefit of any of the foregoing, including, without limitation,
MCIT PLC, Leucadia National Corporation and Jordan Industries, Inc., and their
respective Subsidiaries and (b) the officers and directors of the Company on
the date of issuance of the Senior Notes and their respective Affiliates and
family members and trusts for the benefit of any of the foregoing.
"GAAP" means generally accepted accounting principles, consistently
applied, as of the date of original issuance of the Senior Notes. All financial
and accounting determinations and calculations under this Indenture will be
made in accordance with GAAP.
"Global Senior Note" means a Senior Note that contains the paragraph
referred to in footnote 1 and the additional schedule referred to in footnote 2
to the form of the Senior Note attached hereto as Exhibit A.
"Hedging Obligations" means, with respect to any Person, the
Obligations of such Persons under (i) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements, (ii) foreign exchange
contracts, currency swap agreements or similar agreements, and (iii) other
agreements or arrangements designed to protect such Person against
fluctuations, or otherwise to establish financial xxxxxx in respect of,
exchange rates, currency rates or interest rates.
"Holder" means a Person in whose name a Senior Note is
registered.
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"Incentive Arrangements" means any earn-out agreements, stock
appreciation rights, "phantom" stock plans, employment agreements,
non-competition agreements, subscription and stockholders agreements and other
incentive and bonus plans and similar arrangements made in connection with
acquisitions of Persons or businesses by the Company or the Restricted
Subsidiaries or the retention of executives, officers or employees by the
Company or the Restricted Subsidiaries.
"Indebtedness" means, with respect to any Person, any indebtedness,
whether or not contingent, in respect of borrowed money or evidenced by bonds,
notes, debentures or similar instruments or letters of credit (or reimbursement
agreements in respect thereof) or representing the deferred and unpaid balance
of the purchase price of any property (including pursuant to capital leases),
except any such balance that constitutes an accrued expense or a trade payable,
and any Hedging Obligations, if and to the extent such indebtedness (other than
a Hedging Obligation) would appear as a liability upon a balance sheet of such
Person prepared on a consolidated basis in accordance with GAAP, and also
includes, to the extent not otherwise included, the guarantee of items that
would be included within this definition; provided, however, that
"Indebtedness" will not include (i) any Incentive Arrangements or obligations
or payments thereunder, or (ii) any BKC Agreement, except for any indebtedness
in respect of borrowed money or evidenced by bonds, notes, debentures or
similar instruments or representing the deferred and unpaid balance of the
purchase price of any property (including pursuant to capital leases).
"Indenture" means this Indenture, as amended or supplemented
from time to time.
"Insolvency or Liquidation Proceeding" means (i) any insolvency or
bankruptcy or similar case or proceeding, or any reorganization, receivership,
liquidation, dissolution or winding up of the Company, whether voluntary or
involuntary, or (ii) any assignment for the benefit of creditors or any other
marshalling of assets and liabilities of the Company.
"Investment" means any capital contribution to, or other debt
or equity investment in, any Person.
"issue" means create, issue, assume, guarantee, incur or otherwise
become directly or indirectly liable for any Indebtedness or Capital Stock, as
applicable; provided, however, that any Indebtedness or Capital Stock of a
Person existing at the time such Person becomes a Restricted Subsidiary
(whether by merger, consolidation, acquisition or otherwise) shall be deemed to
be issued by such Restricted Subsidiary at the time it becomes a Restricted
Subsidiary. For this definition, the terms "issuing," "issuer," "issuance" and
"issued" have meanings correlative to the foregoing.
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"Jaro Leases" means the leases between the Company's Subsidiaries and
Xxxxxxxx X. Xxxx relating to two Burger King restaurants as in effect at the
date of original issuance of the Senior Notes.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York or at a place of payment are authorized by
law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue
for the intervening period.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease
in the nature thereof, any option or other agreement to sell and any filing of
or agreement to give any financing statement under the Uniform Commercial Code
(or equivalent statutes) of any jurisdiction).
"Net Income" means, with respect to any Person, the net income (loss)
of such Person, determined in accordance with GAAP, excluding, however, any
gain or loss, together with any related provision for taxes, realized in
connection with any Asset Sale (including, without limitation, dispositions
pursuant to sale and leaseback transactions).
"Net Proceeds" means, with respect to any Asset Sale, the aggregate
amount of cash proceeds (including any cash received by way of deferred payment
pursuant to a note receivable issued in connection with such Asset Sale, other
than the portion of such deferred payment constituting interest, and including
any amounts received as disbursements or withdrawals from any escrow or similar
account established in connection with any such Asset Sale, but, in either such
case, only as and when so received) received by the Company or any of its
Restricted Subsidiaries in respect of such Asset Sale, net of: (i) the cash
expenses of such Asset Sale (including, without limitation, the payment of
principal of, and premium, if any, and interest on, Indebtedness required to be
paid as a result of such Asset Sale (other than the Senior Notes) and legal,
accounting, management and advisory and investment banking fees and sales
commissions), (ii) taxes paid or payable as a result thereof, (iii) any portion
of cash proceeds that the Company determines in good faith should be reserved
for post-closing adjustments, it being understood and agreed that on the day
that all such post-closing adjustments have been determined, the amount (if
any) by which the reserved amount in respect of such Asset Sale exceeds the
actual post-closing adjustments payable by the Company or any of its Restricted
Subsidiaries shall constitute Net Proceeds on such date, (iv) any relocation
expenses and pension, severance and shutdown costs incurred as a result
thereof, and (v) any deduction or appropriate amounts to be provided by the
Company or
9
any of its Restricted Subsidiaries as a reserve in accordance with GAAP against
any liabilities associated with the asset disposed of in such transaction and
retained by the Company or such Restricted Subsidiary after such sale or other
disposition thereof, including, without limitation, pension and other
post-employment benefit liabilities and liabilities related to environmental
matters or against any indemnification obligations associated with such
transaction.
"Non-Restricted Subsidiary" means any Subsidiary of the
Company other than a Restricted Subsidiary.
"Obligations" means, with respect to any Indebtedness, all principal,
interest, premiums, penalties, fees, indemnities, expenses (including legal
fees and expenses), reimbursement obligations and other liabilities payable to
the holder of such Indebtedness under the documentation governing such
Indebtedness, and any other claims of such holder arising in respect of such
Indebtedness.
"Offerings" means the offer and sale of the Senior Notes and the Units
consisting of $30,000,000 aggregate liquidation preference of Senior Preferred
Stock and ___ shares of Common Stock as contemplated by the Prospectuses.
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating Officer,
the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the
Controller, the Secretary or any Vice President of such Person.
"Officers' Certificates, means a certificate signed by two
Officers.
"Opinion of Counsel" means an opinion from legal counsel that is
reasonably acceptable to the Trustee that meets the requirements of Section
10.05 hereof. Such counsel may be an employee of or counsel to the Company, any
Subsidiary of the Company or the Trustee.
"Other Permitted Indebtedness" means: (i) Indebtedness of the Company
and its Restricted Subsidiaries existing as of the date of original issuance of
the Senior Notes and all related Obligations as in effect on such date; (ii)
Indebtedness of the Company and its Restricted Subsidiaries in respect of
bankers acceptances and letters of credit (including, without limitation,
letters of credit in respect of workers' compensation claims) issued in the
ordinary course of business, or other Indebtedness in respect of
reimbursement-type obligations regarding workers' compensation claims; (iii)
Refinancing Indebtedness, provided that: (A) the principal amount of such
Refinancing Indebtedness shall not exceed the outstanding principal amount of
Indebtedness (including unused commitments) extended, refinanced, renewed,
replaced, substituted or refunded plus any amounts incurred to pay premiums,
fees and
10
expenses in connection therewith, (B) the Refinancing Indebtedness shall have a
Weighted Average Life to Maturity equal to or greater than the Weighted Average
Life to Maturity of the Indebtedness being extended, refinanced, renewed,
replaced, substituted or refunded; provided, however, that this limitation in
this clause (B) does not apply to Refinancing Indebtedness of Senior
Indebtedness, and (C) in the case of Refinancing Indebtedness of Subordinated
Indebtedness, such Refinancing Indebtedness shall be subordinated to the Senior
Notes at least to the same extent as the Subordinated Indebtedness being
extended, refinanced, renewed, replaced, substituted or refunded; (iv)
intercompany Indebtedness of and among the Company and its Restricted
Subsidiaries (excluding guarantees by Restricted Subsidiaries of Indebtedness
of the Company not issued in compliance with Section 4.15 hereof); (v)
Indebtedness of the Company and its Restricted Subsidiaries incurred in
connection with making permitted Restricted Payments under clauses (iii), (iv)
(but only to the extent that such Indebtedness is provided by the Company or a
Restricted Subsidiary) or (x) of Section 4.05(b) hereof; (vi) Indebtedness of
any NonRestricted Subsidiary created after the date of original issuance of the
Senior Notes, provided that such Indebtedness is nonrecourse to the Company and
its Restricted Subsidiaries and the Company and its Restricted Subsidiaries
have no Obligations with respect to such Indebtedness; (vii) Indebtedness of
the Company and its Restricted Subsidiaries under Hedging Obligations; (viii)
Indebtedness of the Company and its Restricted Subsidiaries arising from the
honoring by a bank or other financial institution of a check, draft or similar
instrument inadvertently (except in the case of daylight overdrafts, which will
not be, and will not be deemed to be, inadvertent) drawn against insufficient
funds in the ordinary course of business; (ix) Indebtedness of any Person at
the time it is acquired as a Restricted Subsidiary, provided that such
Indebtedness was not issued by such Person in connection with or in
anticipation of such acquisition; (x) guarantees by Restricted Subsidiaries of
Indebtedness of any Restricted Subsidiary if such Indebtedness so guaranteed is
permitted under this Indenture; (xi) guarantees by a Restricted Subsidiary of
Indebtedness of the Company if the Indebtedness so guaranteed is permitted
under this Indenture and the Senior Notes are guaranteed by such Restricted
Subsidiary to the extent required by Section 4.15 hereof; (xii) guarantees by
the Company of Indebtedness of any Restricted Subsidiary if the Indebtedness so
guaranteed is permitted under this Indenture; (xiii) Indebtedness of the
Company and its Restricted Subsidiaries in connection with performance, surety,
statutory, appeal or similar bonds in the ordinary course of business; (xiv)
Indebtedness of the Company and its Restricted Subsidiaries in connection with
agreements providing for indemnification, purchase price adjustments and
similar obligations in connection with the sale or disposition of any of their
business, properties or assets; and (xv) if the Company issues Exchange
Debentures in exchange for the Senior Preferred Stock, the issuance of
additional Exchange Debentures in lieu of cash interest with respect to all
interest payments payable on or prior to ______, 2001, in accordance with the
Exchange Debenture Indenture.
11
"Permitted Liens" means:
(a) with respect to the Company and its Restricted Subsidiaries, (i)
Liens for taxes, assessments, governmental charges or claims which are being
contested in good faith by appropriate proceedings promptly instituted and
diligently conducted and if a reserve or other appropriate provision, if any,
as shall be required in conformity with GAAP shall have been made therefor;
(ii) statutory Liens of landlords and carriers', warehousemen's, mechanics',
suppliers', materialmen's, repairmen's or other like Liens arising in the
ordinary course of business and with respect to amounts not yet delinquent or
being contested in good faith by appropriate proceedings, if a reserve or other
appropriate provision, if any, as shall be required in conformity with GAAP
shall have been made therefor; (iii) Liens incurred on deposits made in the
ordinary course of business in connection with workers' compensation,
unemployment insurance and other types of social security; (iv) Liens incurred
on deposits made to secure the performance of tenders, bids, leases, statutory
obligations, surety and appeal bonds, government contracts, performance and
return of money bonds and other obligations of a like nature incurred in the
ordinary course of business (exclusive of obligations for the payment of
borrowed money); (v) easements, rights-of-way, zoning or other restrictions,
minor defects or irregularities in title and other similar charges or
encumbrances not interfering in any material respect with the business of the
Company or any of its Restricted Subsidiaries incurred in the ordinary course
of business; (vi) Liens (including extensions, renewals and replacements
thereof) upon property acquired (the "Acquired Property") after the date of
original issuance of the Senior Notes, provided that: (A) any such Lien is
created solely for the purpose of securing Indebtedness representing, or issued
to finance, refinance or refund, the cost (including the cost of construction)
of the Acquired Property, (B) the principal amount of the Indebtedness secured
by such Lien does not exceed 100% of the cost of the Acquired Property, (C)
such Lien does not extend to or cover any property other than the Acquired
Property and any improvements on such Acquired Property, and (D) the issuance
of the Indebtedness to purchase the Acquired Property is permitted by Section
4.07 hereof; (vii) Liens in favor of customs and revenue authorities arising as
a matter of law to secure payment of customs duties in connection with the
importation of goods; (viii) judgment and attachment Liens not giving rise to
an Event of Default; (ix) leases or subleases granted to others not interfering
in any material respect with the business of the Company or any of its
Restricted Subsidiaries; (x) Liens securing Indebtedness under Hedging
Obligations; (xi) Liens encumbering deposits made to secure obligations arising
from statutory, regulatory, contractual or warranty requirements; (xii) Liens
arising out of consignment or similar arrangements for the sale of goods
entered into by the Company or its Restricted Subsidiaries in the ordinary
course of business; (xiii) any interest or title of a lessor in property
subject to any capital lease obligation or operating lease; (xiv) Liens arising
from filing Uniform Commercial Code financing
12
statements regarding leases; (xv) Liens existing on the date of original
issuance of the Senior Notes and any extensions, refinancings, renewals,
replacements, substitutions or refundings thereof; (xvi) any Lien granted to
the Trustee and any substantially equivalent Lien granted to any trustee or
similar institution under any indenture for Senior Indebtedness permitted by
the terms of this Indenture; (xvii) Liens in respect of (A) the BKC
Intercreditor Agreement or (B) other BKC Agreements that do not constitute
Indebtedness; and (xviii) additional Liens at any one time outstanding in
respect of properties or assets where aggregate fair market value does not
exceed $5,000,000 (the fair market value to be determined on the date such Lien
is granted on such properties or assets);
(b) with respect to the Restricted Subsidiaries, (i) Liens securing
Restricted Subsidiaries' reimbursement Obligations with respect to letters of
credit that encumber documents and other property relating to such letters of
credit and the products and proceeds thereof; (ii) Liens securing Indebtedness
issued by Restricted Subsidiaries if such Indebtedness is (A) under the Credit
Agreement, or (B) permitted by Section 4.07(a) hereof, clauses (i), (ii) or
(iii) of Section 4.07(b) hereof, or clauses (i), (iii) (to the extent the
Indebtedness subject to such Refinancing Indebtedness was subject to Liens),
(vi), (vii), (ix) or (x) of the definition of Other Permitted Indebtedness;
(iii) Liens securing intercompany Indebtedness issued by any Restricted
Subsidiary to the Company or another Restricted Subsidiary; and (iv) Liens
securing guarantees by Restricted Subsidiaries of Indebtedness issued by the
Company if such guarantees permitted by clause (xi) (but only in respect of the
property, rights and assets of the Restricted Subsidiaries issuing such
guarantees) of the definition of Other Permitted Indebtedness;
(c) with respect to the Company, (i) Liens securing Indebtedness
issued by the Company if such Indebtedness is (A) under the Credit Agreement,
or (B) if such Indebtedness is permitted by Section 4.07 hereof (including, but
not limited to, Indebtedness issued by the Company under the Credit Agreement
pursuant to clause (i) and/or clause (iii) of Section 4.07(b) hereof); (ii)
Liens securing Indebtedness of the Company if such Indebtedness is permitted by
clauses (i), (iii) (to the extent the Indebtedness subject to such Refinancing
Indebtedness was subject to Liens) or (vii) of the definition of Other
Permitted Indebtedness; (iii) Liens securing guarantees by the Company of
Indebtedness issued by Restricted Subsidiaries if such Indebtedness is
permitted by Section 4.07 hereof (including, but not limited to, Indebtedness
issued by Restricted Subsidiaries under the Credit Agreement pursuant to clause
(i) and/or clause (iii) of Section 4.07(b) hereof) and if such guarantees are
permitted by clause (xii) (but only in respect of Indebtedness issued by the
Restricted Subsidiaries under the Credit Agreement pursuant to Section 4.07
hereof) of the definition of Other Permitted Indebtedness; and (iv) Liens
securing the Company's reimbursement obligations with respect to letters of
credit that encumber documents and other property
13
relating to such letters of credit and the products and proceeds thereof;
provided, however, that, notwithstanding any of the foregoing, the Permitted
Liens referred to in clause (c) of this definition shall not include any Lien
on Capital Stock of Restricted Subsidiaries held directly by the Company (as
distinguished from Liens on Capital Stock of Restricted Subsidiaries held by
other Restricted Subsidiaries) other than Liens securing (A) Indebtedness of
the Company issued under the Credit Agreement pursuant to Section 4.07 hereof
and any permitted Refinancing Indebtedness of such Indebtedness, (B) Liens in
respect of (1) the BKC Intercreditor Agreement and (2) other BKC Agreements
that do not constitute Indebtedness and (C) guarantees by the Company of
Indebtedness issued by Restricted Subsidiaries under the Credit Agreement
pursuant to Section 4.07 hereof and any permitted Refinancing Indebtedness of
such Indebtedness.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Post-Petition Interest" means, with respect to any Senior
Indebtedness, all interest accrued or accruing on such Senior Indebtedness
after the commencement of any Insolvency or Liquidation proceeding in
accordance with and at the contract rate (including, without limitation, any
rate applicable upon default) specified in the agreement or instrument
creating, evidencing or governing such Senior Indebtedness, whether or not,
pursuant to applicable law or otherwise, the claim for such interest is allowed
as a claim in such Insolvency or Liquidation Proceeding.
"Pro Forma Basis" means, for purposes of determining Consolidated Net
Income in connection with the Cash Flow Coverage Ratio (including in connection
with Section 4.05, Section 4.16 and Section 5.01 hereof, the incurrence of
Indebtedness pursuant to Section 4.07(a) hereof and Consolidated Net Worth for
purposes of Section 5.01 hereof), giving pro forma effect to (x) any
acquisition or sale of a Person, business or asset, related incurrence,
repayment or refinancing of Indebtedness or other related transactions,
including any Restructuring Charges which would otherwise be accounted for as
an adjustment permitted by Regulation S-X under the Securities Act or on a pro
forma basis under GAAP, or (y) any incurrence, repayment or refinancing of any
Indebtedness and the application of the proceeds therefrom, in each case, as if
such acquisition or sale and related transactions, restructurings,
consolidations, cost savings, reductions, incurrence, repayment or refinancing
were realized on the first day of the relevant period permitted by Regulation
S-X under the Securities Act or on a pro forma basis under GAAP. Furthermore,
in calculating the Cash Flow Coverage Ratio, (1) interest on outstanding
Indebtedness determined on a fluctuating basis as of the determination date and
which will continue to be so determined thereafter shall be deemed to have
accrued at a fixed rate per annum equal to the rate of interest on such
Indebtedness in effect
14
on the determination date; (2) if interest on any Indebtedness actually
incurred on the determination date may optionally be determined at an interest
rate based upon a factor of a prime or similar rate, a eurocurrency interbank
offered rate, or other rates, then the interest rate in effect on the
determination date will be deemed to have been in effect during the relevant
period; and (3) notwithstanding clause (1) above, interest on Indebtedness
determined on a fluctuating basis, to the extent such interest is covered by
agreements relating to interest rate swaps or similar interest rate protection
Hedging Obligations, shall be deemed to accrue at the rate per annum resulting
after giving effect to the operation of such agreements.
"Prospectuses" means the Prospectuses, dated _____ 1996,
relating to the Company's Offerings.
"Redeemable Preferred Stock" means preferred stock that by its terms
or otherwise is required to be redeemed or is redeemable at the option of the
holder thereof on, or prior to, the maturity date of the Senior Notes.
"Refinancing Indebtedness" means (i) Indebtedness of the Company and
its Restricted Subsidiaries issued or given in exchange for, or the proceeds of
which are used to, extend, refinance, renew, replace, substitute or refund any
Indebtedness permitted under this Indenture or any Indebtedness issued to so
extend, refinance, renew, replace, substitute or refund such Indebtedness, (ii)
any refinancings of Indebtedness issued under the Credit Agreement, and (iii)
any additional Indebtedness issued to pay premiums and fees in connection with
clauses (i) and (ii).
"Restricted Investment" means any Investment in any person; provided
that Restricted Investments will not include: (i) Investments in marketable
securities and other negotiable instruments permitted by this Indenture; (ii)
any Incentive Arrangement; (iii) Investments in the Company; or (iv)
Investments in any Restricted Subsidiary (provided that any Investment in a
Restricted Subsidiary was made for fair market value (as determined by the
Board of Directors in good faith)). The amount of any Restricted Investment
shall be the amount of cash and the fair market value at the time of transfer
of all other property (as determined by the Board of Directors in good faith)
initially invested or paid for such Restricted Investment, plus all additions
thereto, without any adjustments for increases or decreases in value of or
write-ups, write-downs or write-offs with respect to, such Restricted
Investment.
"Restricted Subsidiary" means: (i) any Subsidiary of the Company
existing on the date of original issuance of the Senior Notes, and (ii) any
other Subsidiary of the Company formed, acquired or existing after the date of
original issuance of the Senior Notes that is designated as a "Restricted
Subsidiary" by the Company pursuant to a resolution approved by a majority of
the Board of Directors, provided, however, that the term Restricted
15
Subsidiary shall not include any Subsidiary of the Company that has been
redesignated by the Company pursuant to a resolution approved by a majority of
the Board of Directors as a Non-Restricted Subsidiary in accordance with
Section 4.16 hereof unless such Subsidiary shall have subsequently been
redesignated a Restricted Subsidiary in accordance with clause (ii) of this
definition.
"Restructuring Charges" means any charges or expenses in respect of
restructuring or consolidating any business, operations or facilities, any
compensation or headcount reduction, or any other cost savings, of any Persons
or businesses either alone or together with the Company or any Restricted
Subsidiary, as permitted by GAAP or Regulation S-X under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Indebtedness" means: (i) all Obligations (including any
interest accruing subsequent to the filing of a petition of bankruptcy at the
rate provided for in the documentation with respect thereto, whether or not
such interest is an allowed claim under applicable law) on any Indebtedness of
the Company, whether outstanding on the date of issuance of the Senior Notes or
thereafter created, incurred or assumed, of the following types: (A) all
Indebtedness of the Company (including without limitation the Senior Notes) for
money borrowed, and (B) all Indebtedness evidenced by notes, debentures, bonds
or other similar instruments for the payment of which the Company is
responsible or liable; (ii) all capitalized lease obligations of the Company;
(iii) all Obligations of the Company: (A) for the reimbursement of any obligor
on any letter of credit, banker's acceptance or similar credit transaction, (B)
all constituting Hedging Obligations, or (C) issued as the deferred purchase
price of property and all conditional sale Obligations of the Company and all
Obligations of the Company under any title retention agreement; (iv) all
guarantees of the Company with respect to Obligations of other Persons of the
type referred to in clauses (ii) and (iii) and with respect to the payment of
dividends of other Persons; and (v) all Obligations of the Company consisting
of modifications, renewals, extensions, replacements and refundings of any
Obligations described in clauses (i), (ii), (iii) or (iv) unless, in the
instrument creating or evidencing the same or pursuant to which the same is
outstanding, it is expressly provided that such Obligations are subordinated or
junior in right of payment to the Senior Notes; provided, however, that Senior
Indebtedness shall not be deemed to include: (1) any Obligation of the Company
to any Subsidiary, (2) any liability for federal, state, local or other taxes
owed or owing by the Company, (3) any accounts payable or other liability to
trade creditors arising in the ordinary course of business (including
guarantees thereof or instruments evidencing such liabilities), (4) any
Indebtedness, guarantee or Obligation of the Company that is contractually
subordinated or junior in any respect to any other Indebtedness, guarantee or
Obligation of the Company, or (5) any Indebtedness to the extent the same is
incurred in
16
violation of this Indenture. Senior Indebtedness shall include all
Obligations in respect of the Senior Notes and this Indenture.
To the extent any payment on the Senior Notes, whether by or on behalf
of the Company, as proceeds of security or enforcement of any right of setoff
or otherwise, is declared to be fraudulent or preferential, set aside or
required to be paid to a trustee, receiver or other similar party under any
bankruptcy, insolvency, receivership or similar law, then if such payment is
recovered by, or paid over to, such trustee, receiver or other similar party,
the Senior Notes or part thereof originally intended to be satisfied by such
payment shall be deemed to be reinstated and outstanding as if such payment had
not occurred.
"Senior Note Custodian" means the Trustee, as custodian with respect
to the Senior Notes in global form, or any successor entity thereto.
"Senior Preferred Stock" means the Company's ___ % Senior
Exchangeable Preferred Stock due ______ 2008.
"SFAS 106" means Statement of Financial Accounting Standards
No. 106.
"SFAS 109" means Statement of Financial Accounting Standards
No. 109.
"Significant Subsidiary" means any Restricted Subsidiary of the
Company that would be a "significant subsidiary" as defined in clause (2) of
the definition of such term in Rule 1-02 of Regulation S-X under the Securities
Act and the Exchange Act.
"Subordinated Indebtedness" means all Obligations of the type referred
to in clauses (i) through (v) of the definition of Senior Indebtedness, if the
instrument creating or evidencing the same, or pursuant to which the same is
outstanding, designates such Obligations as subordinated or junior in right of
payment to Senior Indebtedness.
"Subsidiary" of any Person means any entity of which the Equity
Interests entitled to cast at least a majority of the votes that may be cast by
all Equity Interests having ordinary voting power for the election of directors
or other governing body of such entity are owned by such Person (regardless of
whether such Equity Interests are owned directly by such Person or through one
or more Subsidiaries).
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. xx.xx.
77aaa-77bbbb), as amended, as in effect on the date of original
issuance of the Senior Notes.
"TJC Agreement" means the Management Consulting Agreement, effective
September 1, 1994, between the Company and TJC Management
17
Corporation, as in effect on the date of original issuance of the Senior Notes.
"Trustee" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor serving hereunder.
"Trust Officer" means, when used with respect to the Trustee, any
officer within the corporate trust administration department of the Trustee (or
any successor group of the Trustee) or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers, and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referenced because of
his knowledge of, and familiarity with, the particular subject.
"U.S. Government Obligations" means direct obligations of the
United States of America for the payment of which the full faith
and credit of the United States of America is pledged, provided
that no U.S. Government Obligation shall be callable at the
issuer's option.
"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 the board of directors.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the then
outstanding principal amount of such Indebtedness into (ii) the sum of the
product(s) obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other requirement payment of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) which will elapse
between such date and the making of such payment.
SECTION 1.02. OTHER DEFINITIONS.
Defined in
Term Section
"Acceleration Notice" 6.02
"Affiliate Transaction" 4.08
"Asset Sale Disposition Date" 4.14
"Asset Sale Trigger Date" 4.14
"Change of Control Trigger Date" 4.13
"Covenant defeasance option" 8.01
"Disposition" 5.01
"DTC" 2.03
"Event of Default" 6.01
"Excess Proceeds" 4.14
"Legal defeasance option" 8.01
"Notice of Default" 6.01
"Offer" 3.08
18
"Other Company Indebtedness" 4.15
"Other Indebtedness Guarantee" 4.15
"Paying Agent" 2.03
"Purchase Date" 3.08
"Registrar" 2.03
"Restricted Payments" 4.05
"Senior Notes" Preamble
"Successor Corporation" 5.01
"Trustee Expenses" 6.08
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in, and made a part of, this Indenture.
Any terms incorporated by reference in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission rule
under the TIA have the meanings so assigned to them therein.
SECTION 1.04. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it herein;
(b) an accounting term not otherwise defined herein has the
meaning assigned to it under GAAP;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and in the
plural include the singular; and
(e) provisions apply to successive events and transactions.
SECTION 1.05. INCORPORATION OF BURGER KING AGREEMENT.
Concurrently with the execution of this Indenture, the Trustee shall
execute and deliver to Burger King Corporation the Intercreditor Agreement. The
Senior Notes shall be subject to the terms of the Intercreditor Agreement,
which are incorporated by reference herein.
ARTICLE 2
THE SENIOR NOTES
SECTION 2.01. FORM AND DATING.
The Senior Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A, which is part of
this Indenture. The Senior Notes may have notations, legends or
endorsements required by law, stock exchange rule or usage. Each
19
Senior Note shall be dated the date of its authentication. The Senior Notes
shall be in denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Senior Notes shall
constitute, and are hereby expressly made, a part of this Indenture and, to the
extent applicable, the Company and the Trustee, by their execution and delivery
of this Indenture, expressly agree to such terms and provisions and to be bound
thereby.
Each Global Senior Note shall represent such of the outstanding Senior
Notes as shall be specified therein and each shall provide that it shall
represent the aggregate amount of outstanding Senior Notes from time to time
endorsed thereon and that the aggregate amount of outstanding Senior Notes
represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any endorsement of a Global
Senior Note to reflect the amount of any increase or decrease in the amount of
outstanding Senior Notes represented thereby shall be made by the Trustee or
the Senior Note Custodian, at the direction of the Trustee, in accordance with
instructions given by the Holder thereof as required by Section 2.06 hereof.
SECTION 2.02. EXECUTION AND AUTHENTICATION.
One Officer shall sign the Senior Notes for the Company by manual or
facsimile signature.
If an Officer whose signature is on a Senior Note no longer holds that
office at the time a Senior Note is authenticated, the Senior Note shall
nevertheless be valid.
A Senior Note shall not be valid until authenticated by the manual
signature of an authorized signatory of the Trustee, and the Trustee's
signature shall be conclusive evidence that the Senior Note has been
authenticated under this Indenture. The form of Trustee's certificate of
authentication to be borne by the Senior Notes shall be substantially as set
forth in Exhibit A.
The Trustee shall, upon a written order of the Company signed by two
Officers directing the Trustee to authenticate the Senior Notes and certifying
that all conditions precedent to the issuance of the Senior Notes contained
herein have been complied with, authenticate Senior Notes for original issuance
up to an aggregate principal amount stated in paragraph 4 of the Senior Notes
(the aggregate principal amount of outstanding Senior Notes may not exceed that
amount at any time, except as provided in Section 2.07 hereof).
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Senior Notes. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Senior Notes whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes
20
authentication by such agent. An authenticating agent has the same rights as an
Agent to deal with the Company or an Affiliate of the Company.
SECTION 2.03. REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency (the "Registrar") where
Senior Notes may be presented for registration of transfer or for exchange and
an office or agency (the "Paying Agent") where Senior Notes may be presented
for payment. The Registrar shall keep a register of the Senior Notes and of
their transfer and exchange. The Company may appoint one or more co- registrars
and one or more additional paying agents. The term "Registrar" includes any
co-registrar, and the term "Paying Agent" includes any additional paying agent.
The Company may change any Paying Agent or Registrar without prior notice to
any Holder. The Company shall notify in writing the Trustee and the Trustee
shall notify the Holders in writing of the name and address of any Agent not a
party to this Indenture. If the Company fails to appoint or maintain another
entity as Registrar or Paying Agent, the Trustee shall act as such. The Company
shall enter into an appropriate agency agreement with any Agent not a party to
this Indenture, and such agreement shall incorporate the TIA's provisions and
implement the provisions of this Indenture that relate to such Agent.
The Company initially appoints The Depository Trust Company ("DTC") to
act as Depositary with respect to the Global Senior Notes.
The Company initially appoints the Trustee as Registrar, Paying Agent
and agent for service of notices and demands in connection with the Senior
Notes and as Senior Note Custodian with respect to the Global Senior Notes. The
Company or any of its Subsidiaries may act as Paying Agent, Registrar or
co-registrar. If the Company fails to appoint or maintain a Registrar and
Paying Agent, the Trustee shall act as such, and shall be entitled to
appropriate compensation in accordance with Section 7.07 hereof.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the Holders'
benefit or the Trustee all money the Paying Agent holds for redemption or
purchase of the Senior Notes or for the payment of principal of, or premium, if
any, or interest on, the Senior Notes, and will promptly notify the Trustee of
any Default by the Company in providing the Paying Agent with sufficient funds
to (i) purchase Senior Notes tendered pursuant to an Offer arising under
Section 4.13 hereof, (ii) redeem Senior Notes called for redemption, or (iii)
make any payment of principal, premium or interest due on the Senior Notes.
While any such Default continues, the Trustee may require the Paying Agent to
pay all money it holds to the Trustee and to account for any funds disbursed.
The Company at any time may require the Paying Agent to
21
pay all money it holds to the Trustee and to account for any funds disbursed.
Upon payment over to the Trustee, the Paying Agent (if other than the Company
or any of its Subsidiaries) shall have no further liability for the money it
delivered to the Trustee. If the Company or any of its Subsidiaries acts as
Paying Agent, it shall segregate and hold in a separate trust fund for the
Holders' benefit or the Trustee all money it holds as Paying Agent.
SECTION 2.05. HOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with Section 312(a) of the TIA. If the
Trustee is not the Registrar, the Company shall furnish to the Trustee at least
seven Business Days before each interest payment date and at such other times
as the Trustee may request in writing, a list in such form and as of such date
as the Trustee may reasonably require that sets forth the names and addresses
of, and the aggregate principal amount of Senior Notes held by, each Holder,
and the Company shall otherwise comply with Section 312(a) of the TIA.
SECTION 2.06. TRANSFER AND EXCHANGE.
(a) Transfer and Exchange of Definitive Senior Notes. When
Definitive Senior Notes are presented by a Holder to the Registrar
with a request:
(i) to register the transfer of the Definitive Senior Notes;
or
(ii) to exchange such Definitive Senior Notes for an equal
principal amount of Definitive Senior Notes of other
authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if
its requirements for such transactions are met; provided, however, that the
Definitive Senior Notes presented or surrendered for register of transfer or
exchange shall be duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by his attorney, duly authorized in writing.
(b) Transfer of a Definitive Senior Note for a Beneficial Interest in
a Global Senior Note. A Definitive Senior Note may not be exchanged for a
beneficial interest in a Global Senior Note except upon satisfaction of the
requirements set forth herein. Upon receipt by the Trustee of a Definitive
Senior Note, duly endorsed or accompanied by appropriate instruments of
transfer, in form satisfactory to the Trustee, together with written
instructions from the Holder thereof directing the Trustee to make, or to
direct the Senior Note Custodian to make, an endorsement on the Global Senior
Note to reflect an increase in the aggregate principal amount of the Senior
Notes represented by the Global
22
Senior Note, the Trustee shall cancel such Definitive Senior Note in accordance
with Section 2.11 hereof and cause, or direct the Senior Note Custodian to
cause, in accordance with the standing instructions and procedures existing
between the Depositary and the Senior Note Custodian, the aggregate principal
amount of Senior Notes represented by the Global Senior Note to be increased
accordingly. If no Global Senior Notes are then outstanding, the Company shall
issue and. upon receipt of an authentication order in accordance with Section
2.02 hereof, the Trustee shall authenticate a new Global Senior Note in the
appropriate principal amount.
(c) Transfer and Exchange of Global Senior Notes. The transfer and
exchange of Global Senior Notes or beneficial interests therein shall be
effected through the Depositary, in accordance with this Indenture and the
procedures of the Depositary therefor, which shall include restrictions on
transfer comparable to those set forth herein to the extent required by the
Securities Act.
(d) Transfer of a Beneficial Interest in a Global Senior Note
for a Definitive Senior Note.
(i) Any Person having a beneficial interest in a Global
Senior Note may upon request exchange such
beneficial interest for a Definitive Senior Note.
Upon receipt by the Trustee of written instructions
or such other form of instructions as is customary
for the Depositary, from the Depositary or its
nominee on behalf of any Person having a beneficial
interest in a Global Senior Note, the Trustee or
the Senior Note Custodian, at the direction of the
Trustee, shall, in accordance with the standing
instructions and procedures existing between the
Depositary and the Senior Note Custodian, cause the
aggregate principal amount of Global Senior Notes
to be reduced accordingly and, following such
reduction, the Company shall execute and, upon
receipt of an authentication order in accordance
with Section 2.02 hereof, the Trustee shall
authenticate and deliver to the transferee a
Definitive Senior Note in the appropriate principal
amount.
(ii) Definitive Senior Notes issued in exchange for a
beneficial interest in a Global Senior Note
pursuant to this Section 2.06(d) shall be
registered in such names and in such authorized
denominations as the Depositary, pursuant to
instructions from its direct or indirect
participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver in accordance
with the standard procedures of the Depositary such
Definitive Senior Notes to the Persons in whose
names such Senior Notes are so registered.
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(e) Restrictions on Transfer and Exchange of Global Senior Notes.
Notwithstanding any other provision of this Indenture (other than the
provisions set forth in subsection (f) of this Section 2.06), a Global Senior
Note may not be transferred as a whole except by the Depositary to a nominee of
the Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
(f) Authentication of Definitive Senior Notes in Absence of
Depositary. If at any time:
(i) the Depositary for the Senior Notes notifies the
Company that the Depositary is unwilling or unable
to continue as Depositary for the Global Senior
Notes and a successor Depositary for the Global
Senior Notes is not appointed by the Company within
90 days after delivery of such notice, or
(ii) The Company, at its sole discretion, notifies the
Trustee in writing that it elects to cause the
issuance of Definitive Senior Notes under this
Indenture,
then the Company shall execute, and the Trustee shall, upon receipt of an
authentication order in accordance with Section 2.02 hereof, authenticate and
deliver, Definitive Senior Notes in an aggregate principal amount equal to the
principal amount of the Global Senior Notes in exchange for such Global Senior
Notes and registered in such names as the Depositary shall instruct the Trustee
or the Company in writing.
(g) Cancellation and/or Adjustment of Global Senior Notes. At such
time as all beneficial interests in Global Senior Notes have been exchanged for
Definitive Senior Notes, redeemed, repurchased or cancelled, all Global Senior
Notes shall be returned to or retained and cancelled by the Trustee in
accordance with Section 2.11 hereof. At any time prior to such cancellation, if
any beneficial interest in a Global Senior Note is exchanged for Definitive
Senior Notes, redeemed, repurchased or cancelled, the principal amount of
Senior Notes represented by such Global Senior Note shall be reduced
accordingly and an endorsement shall be made on such Global Senior Note, by the
Trustee or the Senior Notes Custodian, at the direction of the Trustee, to
reflect such reduction.
(h) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges,
the Company shall execute and the Trustee shall
authenticate Definitive Senior Notes and Global
Senior Notes at the Registrar's request.
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(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the
Company may require payment of a sum sufficient to
cover any transfer tax or similar governmental
charge payable in connection therewith (other than
any such transfer taxes or similar governmental
charge payable upon exchange or transfer pursuant
to Sections 3.07, 4.13, 4.14 and 9.05 hereof).
(iii) Neither the Company nor the Registrar shall be
required to register the transfer of or exchange any
Senior Note selected for redemption in whole or in
part, except the unredeemed portion of any Senior
Note being redeemed in part.
(iv) All Definitive Senior Notes and Global Senior Notes
issued upon any registration of transfer or
exchange of Definitive Senior Notes or Global
Senior Notes in accordance with this Indenture
(including any increase in the aggregate principal
amount of the Senior Notes represented by the
Global Senior Note pursuant to subsection (b)
above) shall be the valid obligations of the
Company, evidencing the same debt, and entitled to
the same benefits under this Indenture, as the
Definitive Senior Notes or Global Senior Notes
surrendered upon such registration of transfer or
exchange.
(v) The Company shall not be required to issue Senior
Notes and the Registrar shall not be required to
register the transfer of or to exchange Senior
Notes during a period beginning at the opening of
business 15 days before the day of any selection of
Senior Notes for redemption under Section 3.02
hereof and ending at the close of business on the
day of selection, or to register the transfer of or
to exchange a Senior Note between a record date and
the next succeeding interest payment date.
(vi) Prior to due presentment for the registration of a
transfer of any Senior Note, the Trustee, any Agent
and the Company may deem and treat the Person in
whose name any Senior Note is registered as the
absolute owner of such Senior Note for the purpose
of receiving payment of principal of, premium, if
any, and accrued and unpaid interest on such Senior
Notes, and neither the Trustee, any Agent nor the
Company shall be affected by notice to the
contrary.
(vii) The Trustee shall authenticate Definitive Senior
Notes and Global Senior Notes in accordance with the
provisions of Section 2.02 hereof.
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SECTION 2.07. REPLACEMENT SENIOR NOTES.
If any mutilated Senior Note is surrendered to the Trustee, or the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Senior Note, the Company shall issue and the
Trustee, upon the Company's written order signed by two Officers, shall
authenticate a replacement Senior Note if the Trustee's requirements are met.
If the Trustee or the Company requires it, the Holder must supply an indemnity
bond that is sufficient in the judgment of the Trustee and the Company to
protect the Company, the Trustee, any Agent or any authenticating agent from
any loss that any of them may suffer if a Senior Note is replaced. The Company
and the Trustee may charge for their expenses in replacing a Senior Note. Every
replacement Senior Note is an additional Obligation of the Company.
SECTION 2.08. OUTSTANDING SENIOR NOTES.
The Senior Notes outstanding at any time are all the Senior Notes the
Trustee has authenticated except for those it has cancelled, those delivered to
it for cancellation, those representing reductions in the interest in a Global
Senior Note effected by the Trustee in accordance with the provisions hereof,
and those described in this Section as not outstanding.
If a Senior Note is replaced pursuant to Section 2.07 hereof, it
ceases to be outstanding unless the Trustee receives proof satisfactory to it
that a bona fide purchaser holds the replaced Senior Note.
If the entire principal of, and premium, if any, and accrued interest
on, any Senior Note is considered paid under Section 4.01 hereof, it ceases to
be outstanding and interest on it ceases to accrue.
Subject to Section 2.09 hereof, a Senior Note does not cease to be
outstanding because the Company or an Affiliate holds the Senior Note.
SECTION 2.09. TREASURY SENIOR NOTES.
In determining whether the Holders of the required principal amount of
Senior Notes have concurred in any direction, waiver or consent, Senior Notes
owned by the Company or an Affiliate shall be considered as though not
outstanding, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Senior Notes that a Trust Officer of the Trustee knows are so owned shall be so
disregarded. Notwithstanding the foregoing, Senior Notes that the Company or an
Affiliate offers to purchase or acquires pursuant to an Offer, exchange offer,
tender offer or otherwise shall not be deemed to be owned by the Company or an
Affiliate until legal title to such Senior Notes passes to the Company or such
Affiliate, as the case may be.
26
SECTION 2.10. TEMPORARY SENIOR NOTES.
Until Definitive Senior Notes are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Senior Notes. Temporary
Senior Notes shall be substantially in the form of Definitive Senior Notes but
may have variations that the Company considers appropriate for temporary Senior
Notes. Without unreasonable delay, the Company shall prepare and the Trustee,
upon receipt of the Company's written order signed by two Officers which shall
specify the amount of temporary Senior Notes to be authenticated and the date
on which the temporary Senior Notes are to be authenticated, shall authenticate
Definitive Senior Notes and deliver them in exchange for temporary Senior
Notes. Until such exchange, Holders of temporary Senior Notes shall be entitled
to the same rights, benefits and privileges as Definitive Senior Notes.
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Senior Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Senior Notes surrendered to them for registration of transfer, exchange,
replacement, payment (including all Senior Notes called for redemption and all
Senior Notes accepted for payment pursuant to an Offer) or cancellation, and
the Trustee shall cancel all such Senior Notes and shall destroy all cancelled
Senior Notes (subject to the Exchange Act's record retention requirements) and
deliver a certificate of their destruction to the Company unless by written
order, signed by two Officers of the Company, the Company shall direct that
cancelled Senior Notes be returned to it. The Company may not issue new Senior
Notes to replace any Senior Notes that have been cancelled by the Trustee or
that have been delivered to the Trustee for cancellation. If the Company or an
Affiliate acquires any Senior Notes (other than by redemption or pursuant to an
Offer), such acquisition shall not operate as a redemption or satisfaction of
the Indebtedness represented by such Senior Notes unless and until such Senior
Notes are delivered to the Trustee for cancellation.
SECTION 2.12. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Senior Notes,
it shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to Holders on a subsequent
special record date, in each case at the rate provided in the Senior Notes and
in Section 4.01 of this Indenture. The Company shall fix or cause to be fixed
each such special record date and payment date. As early as practicable prior
to the special record date, the Company (or the Trustee, in the name of and at
the expense of the Company) shall mail a notice that states the special record
date, the related payment date and the amount of interest to be paid.
SECTION 2.13. RECORD DATE.
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The record date for purposes of determining the identity of Holders of
Senior Notes entitled to vote or consent to any action by vote or consent
authorized or permitted under this Indenture shall be determined as provided
for in section 316(c) of the TIA.
SECTION 2.14. CUSIP NUMBER.
A "CUSIP" number shall be printed on the Senior Notes, and the Trustee
shall use the CUSIP number in notices of redemption, purchase or exchange as a
convenience to Holders, provided that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Senior Notes and that reliance may be placed
only on the other identification numbers printed on the Senior Notes. The
Company shall promptly notify the Trustee of any change in the CUSIP number.
ARTICLE 3
OPTIONAL REDEMPTION AND MANDATORY OFFERS TO PURCHASE
SECTION 3.01. NOTICES TO TRUSTEE.
If the Company elects to redeem Senior Notes pursuant to Section 3.07 hereof,
it shall furnish to the Trustee, at least 10 but not more than 15 days before
notice of redemption is to be mailed by the Company to Holders, an Officers'
Certificate stating that the Company has elected to redeem Senior Notes
pursuant to Section 3.07(a) or 3.07(b) hereof, as the case may be, the date
notice of redemption is to be mailed to Holders, the redemption date, the
aggregate principal amount of Senior Notes to be redeemed, the redemption price
for such Senior Notes and the amount of accrued and unpaid interest on such
Senior Notes as of the redemption date. If the Trustee is not the Registrar,
the Company shall, concurrently with delivery of its notice to the Trustee of a
redemption, cause the Registrar to deliver to the Trustee a certificate (upon
which the Trustee may rely) setting forth the name of, and the aggregate
principal amount of Senior Notes held by, each Holder.
If the Company is required to offer to purchase Senior Notes pursuant
to Section 4.13 or 4.14 hereof, it shall furnish to the Trustee, at least two
Business Days before notice of the Offer is to be mailed to Holders, an
Officers' Certificate setting forth that the Offer is being made pursuant to
Section 4.13 or 4.14 hereof, as the case may be, the Purchase Date, the maximum
principal amount of Senior Notes the Company is offering to purchase pursuant
to the Offer, the purchase price for such Senior Notes, and the amount of
accrued and unpaid interest on such Senior Notes as of the Purchase Date.
The Company will also provide the Trustee with any additional
information that the Trustee reasonably requests in connection with any
redemption or Offer.
28
SECTION 3.02. SELECTION OF SENIOR NOTES TO BE REDEEMED OR
PURCHASED.
If less than all outstanding Senior Notes are to be redeemed or if
less than all Senior Notes tendered pursuant to an Offer are to be accepted for
payment, the Trustee shall select the outstanding Senior Notes to be redeemed
or accepted for payment pro rata, by lot or by a method that complies with the
requirements of any stock exchange on which the Senior Notes are listed and
that the Trustee considers fair and appropriate. If the Company elects to mail
notice of a redemption to Holders, the Trustee shall at least 5 business days
prior to the date notice of redemption is to be mailed, (i) select the Senior
Notes to be redeemed from Senior Notes outstanding not previously called for
redemption and (ii) notify the Company of the names of each Holder of Senior
Notes selected for redemption, the principal amount of Senior Notes held by
each such Holder and the principal amount of such Xxxxxx's Senior Notes that
are to be redeemed. If less than all Senior Notes tendered pursuant to an Offer
on the Purchase Date are to be accepted for payment, the Trustee shall select
on or promptly after the Purchase Date the Senior Notes to be accepted for
payment. The Trustee shall select for redemption or purchase Senior Notes or
portions of Senior Notes in principal amounts of $1,000 or integral multiples
of $1,000; except that if all of the Senior Notes of a Holder are selected for
redemption or purchase, the aggregate principal amount of the Senior Notes held
by such Holder, even if not a multiple of $1,000, shall be redeemed or
purchased. Except as provided in the preceding sentence, provisions of this
Indenture that apply to Senior Notes called for redemption or tendered pursuant
to an Offer also apply to portions of Senior Notes called for redemption or
tendered pursuant to an Offer. The Trustee shall notify the Company promptly of
the Senior Notes or portions of Senior Notes to be called for redemption or
selected for purchase.
SECTION 3.03. NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a redemption date,
the Company shall mail a notice of redemption to each Holder of Senior Notes or
portions thereof that are to be redeemed at such Holder's registered address.
The notice shall identify the Senior Notes or portions thereof to be
redeemed and shall state:
(a) the redemption date;
(b) the redemption price for the Senior Notes and
separately stating the amount of unpaid and accrued
interest on such Senior Notes as of the date of
redemption;
(c) if any Senior Note is being redeemed in part, the
portion of the principal amount of such Senior
Notes to be redeemed and that, after the redemption
29
date, upon surrender of such Senior Note, a new
Senior Note or Senior Notes in principal amount
equal to the unredeemed portion will be issued;
(d) the name and address of the Paying Agent;
(e) that Senior Notes called for redemption must be
surrendered to the Paying Agent to collect the
redemption price for, and any accrued and unpaid
interest on, such Senior Notes;
(f) that, unless the Company defaults in making such
redemption payment, interest on Senior Notes called
for redemption ceases to accrue on and after the
redemption date;
(g) the paragraph of the Senior Notes pursuant to which
the Senior Notes called for redemption are being
redeemed; and
(h) the CUSIP number; provided that no representation is
made as to the correctness or accuracy of the CUSIP
number listed in such notice and printed on the
Senior Notes.
At the Company's request, the Trustee shall (at the Company's expense)
give the notice of redemption in the Company's name at least 30 but not more
than 60 days before a redemption; provided, however, that the Company shall
deliver to the Trustee, at least 45 days prior to the redemption date and at
least 10 days prior to the date that notice of the redemption is to be mailed
to Holders, an Officers' Certificate that (i) requests the Trustee to give
notice of the redemption to Holders, (ii) sets forth the information to be
provided to Holders in the notice of redemption, as set forth in the preceding
paragraph, (iii) states that the Company has elected to redeem Senior Notes
pursuant to Section 3.07(a) or 3.07(b) hereof, as the case may be, and (iv)
sets forth the aggregate principal amount of Senior Notes to be redeemed and
the amount of accrued and unpaid interest thereon as of the redemption date. If
the Trustee is not the Registrar, the Company shall, concurrently with any such
request, cause the Registrar to deliver to the Trustee a certificate (upon
which the Trustee may rely) setting forth the name of, the address of, and the
aggregate principal amount of Senior Notes held by, each Holder.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed, Senior Notes called for
redemption become due and payable on the redemption date at the price set forth
in the Senior Note. Upon surrender to the Trustee or Paying Agent, such Senior
Notes called for redemption shall be paid at the redemption price (which shall
include accrued interest thereon to the redemption date) but installments of
interest, the maturity of which is on or prior to the redemption date, shall be
30
payable to Holders of record at the close of business on the relevant record
dates. On and after any redemption or purchase date, interest shall cease to
accrue on the Senior Notes or portions thereof called for redemption or
accepted for payment.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
On or prior to any redemption date, the Company shall deposit with the
Trustee or with the Paying Agent money sufficient to pay the redemption price
of, and accrued interest on, all Senior Notes to be redeemed on that date. The
Trustee or the Paying Agent shall return to the Company any money that the
Company deposited with the Trustee or the Paying Agent in excess of the amounts
necessary to pay the redemption price of, and accrued interest on, all Senior
Notes to be redeemed.
If the Company complies with the preceding paragraph, interest on the
Senior Notes to be redeemed will cease to accrue on such Senior Notes on the
applicable redemption date, whether or not such Senior Notes are presented for
payment. If a Senior Note is redeemed on or after an interest record date but
on or prior to the related interest payment date, then any accrued and unpaid
interest shall be paid to the Person in whose name such Senior Note was
registered at the close of business on such record date. If any Senior Note
called for redemption shall not be so paid upon surrender for redemption
because of the failure of the Company to comply with the preceding paragraph,
interest will be paid on the unpaid principal, premium, if any, and interest
from the redemption date until such principal, premium and interest is paid, at
the rate of interest provided in the Senior Notes and Section 4.01 hereof.
SECTION 3.06. SENIOR NOTES REDEEMED IN PART.
Upon surrender of a Senior Note that is redeemed in part, the Company
shall issue and the Trustee shall authenticate for the Holder at the Company's
expense a new Senior Note equal in principal amount to the unredeemed portion
of the Senior Note surrendered.
SECTION 3.07. OPTIONAL REDEMPTION PROVISIONS.
(a) Except as provided in Section 3.07(b) hereof, the Senior Notes may
not be redeemed at the option of the Company prior to ___________, 2001. During
the twelve-month period beginning on ________________ of the years indicated
below, the Senior Notes will be redeemable at the option of the Company, in
whole or in part, on at least 30 but not more than 60 days' notice to each
Holder of Senior Notes to be redeemed, at the redemption prices (expressed as
percentages of the principal amount) set forth below, plus any accrued and
unpaid interest to the redemption date:
Year Percentage
31
2001 ......................................______%
2002 ......................................______%
2003 ......................................______%
2004 and thereafter.........................100.00%
(b) Notwithstanding the foregoing, prior to _____________, 1999, the
Company may (but shall not have the obligation to) redeem up to 35% of the
original aggregate principal amount of the Senior Notes at a redemption price
of __% of the principal amount thereof, plus accrued and unpaid interest to the
redemption date, with the net proceeds of one or more Equity Offerings;
provided that at least 65% of the aggregate principal amount of Senior Notes
originally issued remain outstanding immediately after the occurrence of any
such redemption; and provided, further, that any such redemption shall occur
within 60 days of the date of the closing of any such Equity Offering.
(c) Notwithstanding the foregoing, the restrictions on optional
redemptions described herein do not limit the Company's right to separately
make open market, privately negotiated or other purchases of Senior Notes from
time to time.
SECTION 3.08. MANDATORY PURCHASE PROVISIONS.
(a) Within 30 days after any Change of Control Trigger Date or Asset
Sale Trigger Date, the Company shall mail a notice to each Holder at such
Holder's registered address stating: (i) that an offer ("Offer") is being made
pursuant to Section 4.13 or Section 4.14 hereof, as the case may be, the length
of time the Offer shall remain open and the maximum aggregate principal amount
of Senior Notes that will be accepted for payment pursuant to such Offer; (ii)
the purchase price for the Senior Notes (as set forth in Section 4.13 or
Section 4.14 hereof, as the case may be), the amount of accrued and unpaid
interest on such Senior Notes as of the purchase date, and the purchase date
(which shall be no earlier than 30 days and no later than 40 days from the date
such notice is mailed (the "Purchase Date")); (iii) that any Senior Note not
accepted for payment will continue to accrue interest; (iv) that, unless the
Company fails to deposit with the Paying Agent on the Purchase Date an amount
sufficient to purchase all Senior Notes accepted for payment, interest shall
cease to accrue on such Senior Notes after the Purchase Date; (v) that Holders
electing to tender any Senior Note or portion thereof will be required to
surrender their Senior Note, with a form entitled "Option of Holder to Elect
Purchase" completed, to the Paying Agent at the address specified in the notice
prior to the close of business on the Business Day preceding the Purchase Date,
provided that Holders electing to tender only a portion of any Senior Note must
tender a principal amount of $1,000 or integral multiples thereof; (vi) that
Holders will be entitled to withdraw their election to tender Senior Notes, if
the Paying Agent receives, not later than the close of business on the third
Business Day preceding the Purchase Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of Senior Notes delivered for
32
purchase, and a statement that such Xxxxxx is withdrawing his election to have
such Senior Note purchased; and (vii) that Holders whose Senior Notes are
accepted for payment in part will be issued new Senior Notes equal in principal
amount to the unpurchased portion of Senior Notes surrendered; provided that
only Senior Notes in a principal amount of $1,000 or integral multiples thereof
will be accepted for payment in part.
(b) On the Purchase Date for any Offer, the Company shall, to the
extent required by this Indenture and such Offer, (i) in the case of an Offer
resulting from a Change of Control, accept for payment all Senior Notes or
portions thereof tendered pursuant to such Offer and, in the case of an Offer
resulting from an Asset Sale Trigger Date, accept for payment the maximum
principal amount of Senior Notes or portions thereof tendered pursuant to such
Offer that can be purchased out of Excess Proceeds from such Asset Sale, (ii)
deposit with the Paying Agent the aggregate purchase price of all Senior Notes
or portions thereof accepted for payment and any accrued and unpaid interest on
such Senior Notes as of the Purchase Date, and (iii) deliver or cause to be
delivered to the Trustee all Senior Notes tendered pursuant to the Offer.
(c) With respect to any Offer, if less than all of the Senior Notes
tendered pursuant to an Offer are to be purchased by the Company, the Trustee
shall select on the Purchase Date the Senior Notes or portions thereof to be
accepted for payment pursuant to Section 3.02 hereof.
(d) Promptly after consummation of an Offer, (i) the Paying Agent
shall mail (or cause to be transferred by book entry) to each Holder of Senior
Notes or portions thereof accepted for payment an amount equal to the purchase
price for, plus any accrued and unpaid interest on, such Senior Notes, (ii)
with respect to any tendered Senior Note not accepted for payment in whole or
in part, the Trustee shall return such Senior Note to the Holder thereof, and
(iii) with respect to any Senior Note accepted for payment in part, the Trustee
shall authenticate and mail to each such Holder a new Senior Note equal in
principal amount to the unpurchased portion of the tendered Senior Note.
(e) The Company will publicly announce the results of the
Offer on or as soon as practicable after the Purchase Date.
(f) The Company shall comply with any tender offer rules under the
Exchange Act which may then be applicable, including Rule 14e-1, in connection
with an Offer required to be made by the Company to repurchase the Senior Notes
as a result of a Change of Control or an Asset Sale Trigger Date. To the extent
that the provisions of any securities laws or regulations conflict with
provisions of this Indenture, the Company shall comply with the applicable
securities laws and regulations and shall not be deemed to have breached its
obligations under this Indenture by virtue thereof.
33
(g) With respect to any Offer, if the Company deposits prior to 10
a.m. Eastern Standard Time with the Paying Agent on the Purchase Date an amount
in available funds sufficient to purchase all Senior Notes accepted for
payment, interest shall cease to accrue on such Senior Notes after the Purchase
Date; provided, however, that if the Company fails to deposit such amount on
the Purchase Date, interest shall continue to accrue on such Senior Notes until
such deposit is made.
ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF SENIOR NOTES.
The Company shall pay the principal of, and premium, if any, and
accrued and unpaid interest on, the Senior Notes on the dates and in the manner
provided in the Senior Notes. Holders of Senior Notes must surrender their
Senior Notes to the Paying Agent to collect principal payments. Principal of,
premium, if any, and accrued and unpaid interest on the Senior Notes shall be
considered paid on the date due if the Paying Agent (other than the Company or
any of its Subsidiaries), the Global Senior Note Holder or each Holder that has
specified an account, holds, as of 10:00 a.m. Eastern Standard Time, money the
Company deposited in immediately available funds designated for and sufficient
to pay in cash all principal, premium, if any, and accrued and unpaid interest
then due; provided that, to the extent that the Holders have not specified
accounts, such amounts shall be considered paid on the date due if the Company
mails a check for such amounts on such date. The Paying Agent shall return to
the Company, no later than five days following the date of payment, any money
(including accrued interest) that exceeds the amount of principal, premium, if
any, and accrued and unpaid interest, paid on the Senior Notes.
To the extent lawful, the Company shall pay interest (including
Post-Petition Interest) on (i) overdue principal and premium at the rate equal
to 2% per annum in excess of the then applicable interest rate on the Senior
Notes, compounded semiannually and (ii) overdue installments of interest
(without regard to any applicable grace period) at the same rate as set forth
in clause (i), compounded semiannually.
SECTION 4.02. COMMISSION REPORTS.
(a) The Company shall file with the Trustee, within 15 days after it
files them 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 by rules and regulations prescribe) that
the Company is required to file with the Commission pursuant to Section 13 or
15(d) of the Exchange Act. Notwithstanding the foregoing, if the Company is not
subject to the requirements of Section 13 or 15(d) of the Exchange Act, the
Company shall file with the Commission and
34
with the Trustee, within 15 days after it would have been required to file with
the Commission under the Exchange Act, financial statements, including any
notes thereto (and with respect to annual reports, an auditor's report by a
firm of established national reputation), and a "Management's Discussion and
Analysis of Financial Condition and Results of Operations," both comparable to
that which the Company would have been required to include in such annual
reports, information, documents or other reports if the Company were subject to
the requirements of Section 13 or 15(d) of the Exchange Act. Subsequent to the
qualification of this Indenture under the TIA, the Company also shall comply
with the provisions of Section 314(a) of the TIA.
(b) If the Company is required to furnish annual or quarterly reports
to its stockholders pursuant to the Exchange Act, the Company shall cause any
annual report furnished to its stockholders generally and any quarterly or
other financial reports it furnishes to its stockholders generally to be filed
with the Trustee and the Company shall mail to the Holders at their addresses
appearing in the register of Senior Notes maintained by the Registrar. If the
Company is not required to furnish annual or quarterly reports to its
stockholders pursuant to the Exchange Act, the Company shall cause its
financial statements referred to in Section 4.02(a) hereof, including any notes
thereto (and with respect to annual reports, an auditors' report by a firm of
established national reputation), and a "Management's Discussion and Analysis
of Financial Condition and Results of Operations," to be so mailed to the
Holders within 120 days after the end of each of the Company's fiscal years and
within 60 days after the end of each of the first three fiscal quarters of each
year. The Company shall cause to be disclosed in a statement accompanying any
annual report or comparable information as of the date of the most recent
financial statements in each such report or comparable information the amount
available for payments pursuant to Section 4.05 hereof.
SECTION 4.03. COMPLIANCE CERTIFICATE.
The Company shall deliver to the Trustee, within 120 days after the
end of each fiscal year of the Company, an Officers' Certificate stating that a
review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that, to the best of
his or her knowledge, the Company has kept, observed, performed and fulfilled
each and every covenant contained in this Indenture and is not in default in
the performance or observance of any of the terms, provisions and conditions
hereof (or, if a Default or Event of Default shall have occurred, describing
all such Defaults or Events of Default of which he or she may have knowledge
and what action the Company has taken or proposes to take with respect thereto)
and that, to the best of his or her knowledge no event has occurred and remains
in existence by reason of which
35
payments on account of the principal of, premium, if any, and accrued and
unpaid interest on, the Senior Notes are prohibited or if such event has
occurred, a description of the event and what action the Company is taking or
proposes to take with respect thereto.
So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, the financial statements
delivered pursuant to Section 4.02 hereof shall be accompanied by a written
statement of the Company's independent public accountants (who shall be a firm
of established national reputation reasonably satisfactory to the Trustee) that
in making the examination necessary for certification of such financial
statements nothing has come to their attention that would lead them to believe
that the Company has violated any provisions of Section 4.01, 4.05, 4.06, 4.07,
4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15 or 4.16 or of Article 5 hereof
or, if any such violation has occurred, specifying the nature and period of
existence thereof, it being understood that such accountants shall not be
liable directly or indirectly to any Person for any failure to obtain knowledge
of any such violation.
The Company shall, so long as any of the Senior Notes are outstanding,
deliver to the Trustee, forthwith upon any Officer becoming aware of any
Default or Event of Default, an Officers' Certificate specifying such Default
or Event of Default and what action the Company is taking or proposes to take
with respect thereto.
SECTION 4.04. STAY, EXTENSION AND USURY LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, that might affect the covenants
or the performance of this Indenture; and the Company (to the extent it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not, by resort to any such law, 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 has
been enacted.
SECTION 4.05. LIMITATION ON RESTRICTED PAYMENTS.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, (i) declare or pay any dividend or make
any distribution on account of the Company's or such Restricted Subsidiary's
Capital Stock or other Equity Interests (other than dividends or distributions
payable in Capital Stock or other Equity Interests (other than Disqualified
Stock) of the Company and dividends or distributions payable by a Restricted
Subsidiary to a Restricted Subsidiary or to the
36
Company); (ii) purchase, redeem or otherwise acquire or retire for value any
Capital Stock or other Equity Interests of the Company or any of its Restricted
Subsidiaries (other than any such Equity Interest purchased from the Company or
any Restricted Subsidiary for fair market value (as determined by the Board of
Directors in good faith)); (iii) voluntarily prepay any Subordinated
Indebtedness of the Company, whether any such Subordinated Indebtedness is
outstanding on, or issued after, the date of original issuance of the Senior
Notes except as specifically permitted by the covenants of this Indenture; (iv)
make any Restricted Investment (all such dividends, distributions, purchases,
redemptions, acquisitions, retirements, prepayments and Restricted Investments
being collectively referred to as "Restricted Payments"), if, at the time of
such Restricted Payment:
(A) a Default or Event of Default shall have occurred and be
continuing or shall occur as a consequence thereof; or
(B) immediately after such Restricted Payment and after giving
effect thereto on a Pro Forma Basis, the Company shall not be
able to issue $1.00 of additional Indebtedness pursuant to
Section 4.07(a) of this Indenture; or
(C) such Restricted Payment, together with the aggregate of
all other Restricted Payments made after the date of
original issuance of the Senior Notes, without
duplication, exceeds the sum of (1) 50% of the aggregate
Consolidated Net Income (including, for this purpose,
gains from Asset Sales and, to the extent not included in
Consolidated Net Income, any gain from a sale or
disposition of a Restricted Investment) of the Company
(or, in case such aggregate is a loss, 100% of such loss)
for the period (taken as one accounting period) from the
beginning of the first quarter commencing immediately
after the date of original issuance of the Senior Notes
and ended as of the Company's most recently ended fiscal
quarter at the time of such Restricted Payment, plus (2)
100% of the aggregate net cash proceeds and the fair
market value of any property or securities (as determined
by the Board of Directors in good faith) received by the
Company from the issue or sale of Capital Stock or other
Equity Interests subsequent to the date of original
issuance of the Senior Notes (other than (x) Capital
Stock or other Equity Interests issued or sold to a
Restricted Subsidiary and (y) the issuance or sale of
Disqualified Stock), plus (3) $5,000,000, plus (4) the
amount by which the principal amount of and any accrued
interest on either (x) Senior Indebtedness of the Company
or (y) any Indebtedness of any Restricted Subsidiary is
reduced on the Company's consolidated balance sheet upon
the conversion or exchange other than by a Restricted
Subsidiary subsequent to the date of original issuance of
the Senior Notes of any Indebtedness of the Company or
37
any Restricted Subsidiary (not held by the Company or any
Restricted Subsidiary) for Capital Stock or other Equity
Interests (other than Disqualified Stock) of the Company
(less the amount of any cash, or the fair market value of any
other property or securities (as determined by the Board of
Directors in good faith), distributed by the Company or any
Restricted Subsidiary (to Persons other than the Company or
any other Restricted Subsidiary) upon such conversion or
exchange), plus (5) if any NonRestricted Subsidiary is
redesignated as a Restricted Subsidiary, the value of the
Restricted Payment that would result if such Subsidiary were
redesignated as a Non-Restricted Subsidiary at such time as
determined in accordance with the second sentence of Section
4.16(a) hereof; provided, however, that for purposes of this
clause (5), the value of any redesignated Non-Restricted
Subsidiary shall be reduced by the amount that any such
redesignation replenishes or increases the amount of
Restricted Investments permitted to be made pursuant to
Section 4.05(b)(ii) hereof.
(b) Notwithstanding Section 4.05(a) hereof, the following shall not be
prohibited as Restricted Payments: (i) the payment of any dividend within 60
days after the date of declaration thereof, if at said date of declaration such
payment would comply with all the provisions hereof (including, but not limited
to, this Section 4.05); (ii) making Restricted Investments at any time, and
from time to time, in an aggregate outstanding amount of $10,000,000 after the
date of original issuance of the Senior Notes (it being understood that if any
Restricted Investment after the date of original issuance of the Senior Notes
pursuant to this clause (ii) is sold, transferred or otherwise conveyed to any
Person other than the Company or a Restricted Subsidiary, the portion of the
net cash proceeds or fair market value of securities or properties paid or
transferred to the Company and its Restricted Subsidiaries in connection with
such sale, transfer or conveyance that relates or corresponds to the repayment
or return of the original cost of such a Restricted Investment will replenish
or increase the amount of Restricted Investments permitted to be made pursuant
to this Section 4.05(b)(ii), so that up to $10,000,000 of Restricted
Investments may be outstanding under this Section 4.05(b)(ii) at any given
time) provided that, without otherwise limiting this clause (ii), any
Restricted Investment in a Subsidiary made pursuant to this clause (ii) is made
for fair market value (as determined by the Board of Directors in good faith);
(iii) the repurchase, redemption, retirement or acquisition of the Company's
stock from the executives, management, employees or consultants of the Company
or its Subsidiaries pursuant to the terms of any subscription, stockholder or
other agreement or plan, up to an aggregate amount not to exceed $5,000,000;
(iv) any loans, advances, distributions or payments from the Company to its
Restricted Subsidiaries, or any loans, advances, distributions or payments by a
Restricted Subsidiary to the Company or to another Restricted Subsidiary, in
each case pursuant to intercompany
38
Indebtedness, intercompany management agreements and other intercompany
agreements and obligations; (v) the purchase, redemption, retirement or other
acquisition of (A) any Senior Indebtedness of the Company or any Indebtedness
of Restricted Subsidiaries required by its terms to be purchased, redeemed,
retired or acquired with the net proceeds from asset sales (as defined in the
instrument evidencing such Senior Indebtedness or Indebtedness) or upon a
change of control (as defined in the instrument evidencing such Senior
Indebtedness or Indebtedness) and (B) the Senior Notes pursuant to Sections
4.13 and 4.14 hereof; (vi) the payment of (A) consulting, financial and
investment banking fees under the TJC Agreement, provided, that no Default or
Event of Default shall have occurred and be continuing or shall occur as a
consequence thereof, and the Company's Obligations to pay such fees under the
TJC Agreement shall be subordinated expressly to the Company's Obligations in
respect of the Senior Notes, and (B) indemnities, expenses and other amounts
under the TJC Agreement; (vii) the redemption, repurchase, retirement or other
acquisition of any Capital Stock or other Equity Interests of the Company or
any Restricted Subsidiary in exchange for, or out of the proceeds of, the
substantially concurrent sale (other than to a Subsidiary of the Company) of
other Capital Stock or other Equity Interests of the Company (other than any
Disqualified Stock) or the redemption, repurchase, retirement or other
acquisition of any Capital Stock or other Equity Interests of any Restricted
Subsidiary in exchange for, or out of the proceeds of, the substantially
concurrent sale (other than to the Company or a Subsidiary of the Company) of
other Capital Stock or other Equity Interests of such Restricted Subsidiary;
provided that, in each case, any net cash proceeds that are utilized for any
such redemption, repurchase, retirement or other acquisition, and any Net
Income resulting therefrom, shall be excluded from Section 4.05(a)(C)(1) and
(C)(2) hereof; (viii) the defeasance, redemption or repurchase of pari passu or
Subordinated Indebtedness with the net cash proceeds from an issuance of
permitted Refinancing Indebtedness or the substantially concurrent sale (other
than to a Subsidiary of the Company) of Capital Stock or other Equity Interests
of the Company or of a Restricted Subsidiary (other than Disqualified Stock);
provided that any net cash proceeds that are utilized for any such defeasance,
redemption or repurchase, and any Net Income resulting therefrom, shall be
excluded from Section 4.05(a)(C)(1) and (C)(2) hereof; (ix) Restricted
Investments made or received in connection with the sale, transfer or
disposition of any business, properties or assets of the Company or any
Restricted Subsidiary, provided, that if such sale, transfer or disposition
constitutes an Asset Sale, the Company complies with Section 4.14 hereof; and
(x) any Restricted Investment constituting securities or instruments of a
Person issued in exchange for trade or other claims against such Person in
connection with a financial reorganization or restructuring of such Person;
(xi) payments in connection with the application of the net proceeds of the
Offerings as described under "Use of Proceeds" in the Prospectuses; (xii) in
the event that the Company elects to issue the Exchange Debentures in exchange
for the Senior Preferred Stock, any cash
39
payments made in lieu of the issuance of Exchange Debentures having a face
amount of less than $1,000 and any cash payments representing accrued and
unpaid dividends on the Senior Preferred Stock at the time of the exchange;
(xiii) redemption or repurchase of the Senior Preferred Stock or the Exchange
Debentures in connection with an Offer following a Change of Control; (xiv)
payments of fees, expenses and indemnities to the directors of the Company and
its Restricted Subsidiaries; and (xv) the issuance of the Exchange Debentures
in exchange for the Company's Senior Preferred Stock in accordance with its
terms, provided that the Company is then permitted to incur the Indebtedness
represented by the Exchange Debentures.
SECTION 4.06. CORPORATE EXISTENCE.
Subject to Section 4.14 and Article 5 hereof, the Company shall do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence and the corporate, partnership or other
existence of each of its Restricted Subsidiaries in accordance with the
respective organizational documents of each of its Restricted Subsidiaries and
the rights (charter and statutory), licenses and franchises of the Company and
each of its Restricted Subsidiaries; provided, however, that the Company shall
not be required to preserve any such right, license or franchise, or the
corporate, partnership or other existence of any Restricted Subsidiary, if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and its Restricted
Subsidiaries taken as a whole, and that the loss thereof is not adverse in any
material respect to the Holders.
SECTION 4.07. LIMITATION ON INCURRENCE OF INDEBTEDNESS.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, issue any Indebtedness (other than the Indebtedness represented
by the Senior Notes) unless the Company's Cash Flow Coverage Ratio for its four
full fiscal quarters next preceding the date such additional Indebtedness is
issued would have been at least 2.0 to 1 determined on a Pro Forma Basis
(including, for this purpose, any other Indebtedness incurred since the end of
the applicable four-quarter period) as if such additional Indebtedness and any
other Indebtedness issued since the end of such four-quarter period had been
issued at the beginning of such four-quarter period.
(b) Section 4.07(a) hereof shall not apply to the issuance of (i)
Indebtedness of the Company and/or its Restricted Subsidiaries as measured on
such date of issuance in an aggregate principal amount outstanding on any such
date of issuance not exceeding $75,000,000 aggregate principal amount under to
the Credit Agreement, provided that the aggregate principal amount of
Indebtedness outstanding under this clause (i) together with the aggregate
principal amount of Indebtedness outstanding under clause (iii) below shall not
exceed $80,000,000 in aggregate principal
40
amount at any one time outstanding; (ii) Indebtedness of the Company and its
Restricted Subsidiaries in connection with capital leases, sale and leaseback
transactions, purchase money obligations, capital expenditures or similar
financing transactions relating to: (A) their properties, assets and rights as
of the date of original issuance of the Senior Notes up to $5,000,000 in
aggregate principal amount or (B) their properties, assets and rights acquired
after the date of original issuance of the Senior Notes, provided that the
aggregate principal amount of such Indebtedness under this Section
4.07(b)(ii)(B) does not exceed 100% of the cost of such properties, assets and
rights; (iii) additional Indebtedness of the Company and its Restricted
Subsidiaries in an aggregate principal amount up to $25,000,000 (all or any
portion of which may be issued as additional Indebtedness under the Credit
Agreement), provided that the aggregate principal amount of Indebtedness
outstanding under this clause (iii) together with the aggregate principal
amount of Indebtedness outstanding under clause (i) above shall not exceed
$80,000,000 in aggregate principal amount at any one time outstanding; and (iv)
Other Permitted Indebtedness.
(c) Notwithstanding Sections 4.07(a) and (b) hereof, no Restricted
Subsidiary shall under any circumstances issue a guarantee of any Indebtedness
of the Company except for guarantees issued by Restricted Subsidiaries pursuant
to Section 4.15 hereof, provided, however, that the foregoing will not limit or
restrict guarantees issued by Restricted Subsidiaries in respect of
Indebtedness of other Restricted Subsidiaries.
SECTION 4.08. LIMITATION ON TRANSACTIONS WITH AFFILIATES.
(a) Except as otherwise set forth herein, neither the Company nor any
of its Restricted Subsidiaries shall make any loan, advance, guarantee or
capital contribution to, or for the benefit of, or sell, lease, transfer or
dispose of any properties or assets to, or for the benefit of, or purchase or
lease any property or assets from, or enter into or amend any contract,
agreement or understanding with, or for the benefit of, an Affiliate (each such
transaction or series of related transactions that are part of a common plan
are referred to as an "Affiliate Transaction"), except in good faith and on
terms that are no less favorable to the Company or the relevant Restricted
Subsidiary than those that would have been obtained in a comparable transaction
on an arm's length basis from an unrelated Person.
(b) The Company shall not, and shall not permit any Restricted
Subsidiary to, engage in any Affiliate Transaction involving aggregate payments
or other transfers by the Company and its Restricted Subsidiaries in excess of
$2,500,000 (including cash and non-cash payments and benefits valued at their
fair market value by the Board of Directors of the Company in good faith)
unless the Company delivers to the Trustee: (i) a resolution of the Board of
Directors stating that the Board of Directors (including a majority of the
disinterested directors, if any) has, in good
41
faith, determined that such Affiliate Transaction complies with the provisions
of this Indenture; and (ii)(A) with respect to any Affiliate Transaction
involving the incurrence of Indebtedness, a written opinion of a nationally
recognized investment banking or accounting firm experienced in the review of
similar types of transactions, (B) with respect to any Affiliate Transaction
involving the transfer of real property, fixed assets or equipment, either
directly or by a transfer of 50% or more of the Capital Stock of a Restricted
Subsidiary which holds any such real property, fixed assets or equipment, a
written appraisal from a nationally recognized appraiser experienced in the
review of similar types of transactions or (C) with respect to any Affiliate
Transaction not otherwise described in (A) or (B) above, a written
certification from a nationally recognized professional or firm experienced in
evaluating similar types of transactions, in each case, stating that the terms
of such transaction are fair to the Company or such Restricted Subsidiary, as
the case may be, from a financial point of view.
(c) Notwithstanding Sections 4.08(a) and (b) hereof, this Section 4.08
shall not apply to: (i) transactions between the Company and any Restricted
Subsidiary or between Restricted Subsidiaries; (ii) payments under the TJC
Agreement; (iii) any other payments or transactions permitted pursuant to
Section 4.05 hereof; (iv) (A) payments and transactions under the Executive
Employment Agreements and (B) reasonable compensation paid to officers,
employees or consultants of the Company or any Subsidiary as determined in good
faith by the Company's Board of Directors or executives; (v) payments and
transactions under the Jaro Leases; (vi) payments and transactions involving
First National Bank of Boston and its subsidiaries and affiliates in connection
with the BBI Note, the Credit Agreement and any other Indebtedness permitted by
the Section 4.07 hereof; or (vii) payments and transactions in connection with
the Offerings and the application of the net proceeds therefrom as described
under "Use of Proceeds" in the Prospectuses.
SECTION 4.09. LIMITATION ON LIENS.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Lien (other than Permitted Liens) upon any property or asset now
owned or hereafter acquired by them, or any income or profits therefrom, or
assign or convey any right to receive income therefrom; provided, however, that
in addition to creating Permitted Liens on its properties or assets, the
Company and any of its Restricted Subsidiaries may create any Lien upon any of
their properties or assets (including, but not limited to, any Capital Stock of
its Subsidiaries) if the Senior Notes are equally and ratably secured.
SECTION 4.10. COMPLIANCE WITH LAWS, TAXES.
42
The Company shall, and shall cause each of its Restricted Subsidiaries
to, comply with all statutes, laws, ordinances, or government rules and
regulations to which it is subject, the noncompliance with which would
materially adversely affect the business, prospects, earnings, properties,
assets or condition, financial or otherwise, of the Company and its Restricted
Subsidiaries taken as a whole.
The Company shall, and shall cause each of its Restricted Subsidiaries
to, pay prior to delinquency all taxes, assessments and governmental levies,
except those contested in good faith by appropriate proceedings.
SECTION 4.11. LIMITATION ON DIVIDENDS AND OTHER PAYMENT
RESTRICTIONS AFFECTING RESTRICTED SUBSIDIARIES.
(a) The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective, any encumbrance or restriction on the ability of any
Restricted Subsidiary to: (i) pay dividends or make any other distributions on
its Capital Stock or any other interest or participation in, or measured by,
its profits, owned by the Company or any Restricted Subsidiary, or pay any
Indebtedness owed to, the Company or any Restricted Subsidiary; (ii) make loans
or advances to the Company; or (iii) transfer any of its properties or assets
to the Company, except for such encumbrances or restrictions existing under or
by reason of: (A) applicable law; (B) Indebtedness permitted (1) under Section
4.07(a) hereof, (2) under Sections 4.07(b)(i) or (iii) hereof and clauses (i),
(v), (vi), (vii), (ix), (x) or (xi) of the definition of Other Permitted
Indebtedness, or (3) by agreements and transactions permitted under Section
4.05 hereof; (C) customary provisions restricting subletting or assignment of
any lease or license of the Company or any Restricted Subsidiary; (D) (1) the
terms of the BKC Intercreditor Agreement and any other BKC Agreement, and (2)
customary provisions of any franchise, distribution or similar agreement; (E)
any instrument governing Indebtedness or any other encumbrance or restriction
of a Person acquired by the Company or any Restricted Subsidiary at the time of
such acquisition, which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other than the Person, or
the property or assets of the Person, so acquired; (F) Indebtedness or other
agreements existing on the date of original issuance of the Senior Notes; (G)
any Refinancing Indebtedness permitted under Section 4.07(b) hereof and clauses
(i), (v), (vi), (vii), (ix), (x) or (xi) of the definition of Other Permitted
Indebtedness; provided that the encumbrances and restrictions created in
connection with such Refinancing Indebtedness are no more restrictive in any
material respect with regard to the interests of the Holders of Senior Notes
than the encumbrances and restrictions in the refinanced Indebtedness; (H) any
restrictions, with respect to a Restricted Subsidiary, imposed pursuant to an
agreement that has been entered into for the sale or disposition of the stock,
business, assets or properties of such
43
Restricted Subsidiary; (I) the terms of any Indebtedness of the Company
incurred in connection with Section 4.07 hereof, provided that the terms of
such Indebtedness constitute no greater encumbrance or restriction on the
ability of any Restricted Subsidiary to pay dividends or make distributions,
make loans or advances or transfer properties or assets than is otherwise
permitted by this Section 4.11; or (J) the terms of purchase money obligations,
but only to the extent such purchase money obligations restrict or prohibit the
transfer of the property so acquired.
(b) Nothing contained in this Section 4.11 shall prevent the Company
from entering into any agreement or instrument providing for the incurrence of
Permitted Liens or restricting the sale or other disposition of property or
assets of the Company or any of its Restricted Subsidiaries that are subject to
Permitted Liens.
SECTION 4.12. MAINTENANCE OF OFFICE OR AGENCIES.
The Company shall maintain in the Borough of Manhattan, the City of
New York an office or an agency (which may be an office of any Agent) where
Senior Notes may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in respect of the Senior Notes
and this Indenture may be served. The Company shall give prompt written notice
to the Trustee of any change in the location of such office or agency. If at
any time the Company 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.
The Company may also from time to time designate one or more other
offices or agencies where the Senior Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any matter
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, the City of New York for such purposes. The Company shall
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the
Trustee located at 00 Xxxx Xxxxxx, 0xx Xxxxx, Xxxxxx #0, Xxx Xxxx, Xxx Xxxx
00000, as one such office or agency of the Company in accordance with Section
2.03 hereof.
SECTION 4.13. CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control (such date
being the "Change of Control Trigger Date"), each Holder of Senior
Notes shall have the right to require the Company to purchase all
or any part (equal to $1,000 or an integral multiple thereof) of
such Xxxxxx's Senior Notes pursuant to an Offer at a purchase price
in cash equal to 101% of the aggregate principal amount thereof,
plus any accrued and unpaid interest to the date of purchase. The
44
Company shall furnish such notice to the Trustee, within five Business Days
after notice of an Offer is mailed to all Holders of Senior Notes, pursuant to
the procedures described in Section 3.08. Although the failure of the Company
to purchase all Senior Notes tendered in such an Offer shall be a Default, if
the Company is unable to purchase all Senior Notes tendered in such an Offer,
the Company shall nevertheless purchase the maximum principal amount of Senior
Notes that it is able to purchase at that time.
Prior to the mailing of the notice referred to in Section 3.08(a)
hereof, but in any event within 30 days following any Change of Control Trigger
Date, the Company covenants to (i) repay in full and terminate all commitments
under Indebtedness under the Credit Agreement and all other Senior Indebtedness
the terms of which require repayment upon a Change of Control or offer to repay
in full and terminate all commitments under all Indebtedness under the Credit
Agreement and all other such Senior Indebtedness and to repay the Indebtedness
owed to each lender which has accepted such offer or (ii) obtain the requisite
consents under the Credit Agreement and all such other Senior Indebtedness to
permit the repurchase of the Senior Notes as provided herein. The Company shall
first comply with the covenant in the immediately preceding sentence before it
shall be required to repurchase Senior Notes as provided herein. The Company's
failure to comply with this covenant shall constitute an Event of Default
described in clause (iii) and not in clause (ii) under Section 6.01(a) hereof.
(b) In the event of a Change of Control, the Company shall not offer
to purchase or redeem any Subordinated Indebtedness required or entitled by its
terms to be redeemed or purchased until the Offer for the Senior Notes has been
consummated and all Senior Notes tendered pursuant to such Offer have been
accepted for payment.
SECTION 4.14. LIMITATION ON ASSET SALES.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, consummate an Asset Sale (including the
sale of any of the Capital Stock of any Restricted Subsidiary) providing for
Net Proceeds in excess of $2,500,000 unless at least 75% of the Net Proceeds
from such Asset Sale are applied (in any manner otherwise permitted hereunder)
to one or more of the following purposes in such combination as the Company
shall elect: (i) an investment in another asset or business in the same line of
business as, or a line of business similar to that of, the line of business of
the Company and its Restricted Subsidiaries at the time of the Asset Sale;
provided that such investment occurs on or prior to the 365th day following the
date of such Asset Sale (the "Asset Sale Disposition Date"), (ii) to reimburse
the Company or its Subsidiaries for expenditures made, and costs incurred, to
repair, rebuild, replace or restore property subject to loss, damage or taking
to the extent that the Net Proceeds consist of insurance proceeds received on
account of such loss, damage or taking, (iii) the purchase, redemption or other
45
prepayment or repayment of outstanding Senior Indebtedness of the Company or
Indebtedness of the Company's Restricted Subsidiaries on or prior to the 365th
day following the Asset Sale Disposition Date or (iv) an Offer expiring on or
prior to the Purchase Date as defined herein.
(b) The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, consummate an Asset Sale unless at least
75% of the consideration thereof received by the Company or such Restricted
Subsidiary is in the form of cash, cash equivalents or marketable securities;
provided that, solely for purposes of calculating such 75% of the
consideration, the amount of (i) any liabilities (as shown on the Company's or
such Restricted Subsidiary's most recent balance sheet or in the notes thereto,
excluding contingent liabilities and trade payables), of the Company or any
Restricted Subsidiary (other than liabilities that are by their terms
subordinated to the Senior Notes) that are assumed by the transferee of any
such assets and (ii) any notes or other obligations received by the Company or
any such Restricted Subsidiary from such transferee that are promptly, but in
no event more than 30 days after receipt, converted by the Company or such
Restricted Subsidiary into cash (to the extent of the cash received), shall be
deemed to be cash and cash equivalents for purposes of this provision. Any Net
Proceeds from any Asset Sale that are not applied or invested as provided in
Section 4.14(a) hereof shall constitute "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $5,000,000
(such date being an "Asset Sale Trigger Date"), the Company shall make an Offer
to all Holders of Senior Notes to purchase the maximum principal amount of the
Senior Notes then outstanding that may be purchased out of Excess Proceeds, at
an offer price in cash in an amount equal to 100% of principal amount thereof
plus any accrued and unpaid interest to the Purchase Date in accordance with
the procedures set forth in this Indenture.
(d) To the extent that any Excess Proceeds remain after completion of
an Offer, the Company may use such remaining amount for general corporate
purposes.
(e) If the aggregate principal amount of Senior Notes surrendered by
Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select
the Senior Notes to be purchased on a pro rata basis, by lot or by a method
that complies with the requiremetns of any stock exchange on which the Senior
Notes are listed and that the Trustee considers fair and appropriate.
(f) Upon completion of an Asset Sale Offer, the amount of Excess
Proceeds shall be reset at zero.
(g) Notwithstanding the foregoing, to the extent that any or all of
the Net Proceeds of an Asset Sale is prohibited or delayed by applicable local
law from being repatriated to the United States, the portion of such Net
Proceeds so affected will not be
46
required to be applied pursuant to this Section 4.14 but may be retained for so
long, but only for so long, as the applicable local law prohibits repatriation
to the United States. The Company will promptly take all reasonable actions
required by the applicable local law to permit such repatriation, and once such
repatriation of any affected Net Proceeds is not prohibited under applicable
local law, such repatriation will be immediately effected and such repatriated
Net Proceeds will be applied in the manner set forth above as if such Asset
Sale have occurred on the date of repatriation.
SECTION 4.15. LIMITATION ON GUARANTEES OF COMPANY INDEBTEDNESS BY
RESTRICTED SUBSIDIARIES.
(a) The Company shall not permit any Restricted Subsidiary, directly
or indirectly, to guarantee any Indebtedness of the Company other than the
Senior Notes (the "Other Company Indebtedness") unless (i) such Restricted
Subsidiary contemporaneously executes and delivers a supplemental indenture to
this Indenture providing for a guarantee of payment of the Senior Notes then
outstanding by such Restricted Subsidiary to the same extent as the guarantee
of payment (the "Other Company Indebtedness Guarantee") of the Other Company
Indebtedness (including waiver of subrogation, if any) and (ii) if the Other
Company Indebtedness guaranteed by such Restricted Subsidiary is (A) Senior
Indebtedness, the guarantee for the Senior Notes shall be pari passu in right
of payment with the Other Company Indebtedness Guarantee and (B) Subordinated
Indebtedness, the guarantee for the Senior Notes shall be senior in right of
payment to the Other Company Indebtedness Guarantee; provided that the
foregoing will not limit or restrict guarantees issued by Restricted
Subsidiaries in respect of Indebtedness of other Restricted Subsidiaries.
(b) Each guarantee of the Senior Notes created by a Restricted
Subsidiary pursuant to Section 4.15(a) hereof shall be in form and substance
satisfactory to the Trustee and shall provide, among other things, that it will
be automatically and unconditionally released and discharged upon (i) any sale,
exchange or transfer permitted by this Indenture of (A) all of the Company's
Capital Stock in such Restricted Subsidiary or (B) the sale of all or
substantially all of the assets of the Restricted Subsidiary and upon the
application of the Net Proceeds from such sale in accordance with the
requirements of Section 4.14 hereof or (ii) the release or discharge of the
Other Company Indebtedness Guarantee that resulted in the creation of such
guarantee of the Senior Notes, except a discharge or release by or as a result
of direct payment under such Other Company Indebtedness Guarantee.
47
SECTION 4.16. DESIGNATION OF RESTRICTED AND NON-RESTRICTED
SUBSIDIARIES.
(a) From and after the date of original issuance of the Senior Notes,
the Company may designate any existing or newly formed or acquired Subsidiary
as a Non-Restricted Subsidiary, provided that (i) either (A) the Subsidiary to
be so designated has total assets of $1,000,000 or less or (B) immediately
before and after giving effect to such designation on a Pro Forma Basis; (1)
the Company could incur $1.00 of additional Indebtedness pursuant to Section
4.07(a) hereof determined on a Pro Forma Basis; and (2) no Default or Event of
Default shall have occurred and be continuing, and (ii) all transactions
between the Subsidiary to be so designated and its Affiliates remaining in
effect are permitted pursuant to Section 4.08 hereof. Any Investment made by
the Company or any Restricted Subsidiary which is redesignated from a
Restricted Subsidiary to a Non-Restricted Subsidiary shall thereafter be
considered as having been a Restricted Payment (to the extent not previously
included as a Restricted Payment) made on the day such Subsidiary is designated
a Non-Restricted Subsidiary in the amount of the greater of (i) the fair market
value (as determined by the Board of Directors of the Company in good faith) of
the Equity Interests of such Subsidiary held by the Company and its Restricted
Subsidiaries on such date, and (ii) the amount of the Investments determined in
accordance with GAAP made by the Company and any of its Restricted Subsidiaries
in such Subsidiary.
(b) A Non-Restricted Subsidiary may be redesignated as a Restricted
Subsidiary. The Company shall not, and shall not permit any Restricted
Subsidiary to, take any action or enter into any transaction or series of
transactions that would result in a Person becoming a Restricted Subsidiary
(whether through an acquisition, the redesignation of a Non-Restricted
Subsidiary or otherwise, but not including through the creation of a new
Restricted Subsidiary) unless, immediately before and after giving effect to
such action, transaction or series of transactions on a Pro Forma Basis, (i)
the Company could incur at least $1.00 of additional Indebtedness pursuant to
Section 4.07(a) hereof and (ii) no Default or Event of Default shall have
occurred and be continuing.
(c) The designation of a Subsidiary as a Restricted Subsidiary or the
removal of such designation is required to be made by a resolution adopted by a
majority of the Board of Directors of the Company stating that the Board of
Directors has made such designation in accordance with this Indenture, and the
Company is required to deliver to the Trustee such resolution together with an
Officers' Certificate certifying that the designation complies with this
Indenture. Such designation shall be effective as of the date specified in the
applicable resolution, which may not be before the date the applicable
Officers' Certificate is delivered to the Trustee.
48
ARTICLE 5
SUCCESSORS
SECTION 5.01. MERGER OR CONSOLIDATION.
(a) The Company shall not consolidate or merge with or into, or sell,
lease, convey or otherwise dispose of all or substantially all of its assets
to, any Person (any such consolidation, merger or sale being a "Disposition")
unless: (i) the successor corporation of such Disposition or the corporation to
which such Disposition shall have been made (each, a "Successor Corporation")
is a corporation organized or existing under the laws of the United States, any
state thereof or the District of Columbia; (ii) the Successor Corporation of
such Disposition or the corporation to which such Disposition shall have been
made expressly assumes the Obligations of the Company, pursuant to a
supplemental indenture in a form reasonably satisfactory to the Trustee, under
this Indenture and the Senior Notes; (iii) immediately after such Disposition,
no Default or Event of Default shall exist; and (iv) the corporation formed by
or surviving any such Disposition, or the corporation to which such Disposition
shall have been made, shall (A) have Consolidated Net Worth (immediately after
the Disposition but prior to giving any pro forma effect to purchase accounting
adjustments or Restructuring Charges resulting from the Disposition) equal to
or greater than the Consolidated Net Worth of the Company immediately preceding
the Disposition, (B) be permitted immediately after the Disposition by the
terms of this Indenture to issue at least $1.00 of additional Indebtedness
determined on a Pro Forma Basis, and (C) have a Cash Flow Coverage Ratio, for
the four fiscal quarters immediately preceding the applicable Disposition, and
determined on a Pro Forma Basis, equal to or greater than the actual Cash Flow
Coverage Ratio of the Company for such four quarter period. The limitations in
this Section 5.01(a) on the Company's ability to make a Disposition do not
restrict the Company's ability to sell less than all or substantially all of
its assets, such sales being governed by Section 4.14 hereof.
(b) Prior to the consummation of any proposed Disposition, the Company
shall deliver to the Trustee an Officers' Certificate to the foregoing effect
and an Opinion of Counsel stating that the proposed Disposition and such
supplemental indenture comply with this Indenture.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any Disposition, the Successor Corporation resulting from such
Disposition 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 Corporation has been named as the Company herein; provided,
however, that neither the Company nor any Successor Corporation shall be
released from its Obligation to pay the principal of, premium, if any, and
accrued and unpaid interest on, the Senior Notes.
49
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
(a) An Event of Default is:
(i) a default for 30 days in payment of interest on the
Senior Notes;
(ii) a default in payment when due of principal of, or
premium, if any, on the Senior Notes;
(iii) the failure of the Company to comply with any of its
other agreements or covenants in, or provisions of,
this Indenture or the Senior Notes outstanding under
this Indenture and the Default continues for the
period, if applicable, and after the notice
specified in Section 6.01(b) hereof;
(iv) a default by the Company or any Restricted
Subsidiary under any mortgage, indenture or
instrument under which there may be issued or by
which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or
any Restricted Subsidiary (or the payment of which
is guaranteed by the Company or any Restricted
Subsidiary), whether such Indebtedness or guarantee
now exists or shall be created hereafter, if (A)
either (1) such default results from the failure to
pay principal of or interest on any such
Indebtedness (after giving effect to any extensions
thereof) or (2) as a result of such default the
maturity of such Indebtedness has been accelerated
prior to its expressed maturity, and (B) the
principal amount of such Indebtedness, together
with the principal amount of any other such
Indebtedness in default for failure to pay
principal or interest thereon, or because of the
acceleration of the maturity thereof, aggregates in
excess of $5,000,000;
(v) a failure by the Company or any Restricted
Subsidiary to pay final judgments (not covered by
insurance) aggregating in excess of $5,000,000
which judgments a court of competent jurisdiction
does not rescind, annul or stay within 45 days
after their entry;
(vi) in existence when the Company or any Significant
Subsidiary pursuant to or within the meaning of any
Bankruptcy Law (A) commences a voluntary case, (B)
consents to the entry of an order for relief against
it in an involuntary case, (C) consents to
50
the appointment of a Custodian of it or for all or
substantially all of its property, or (D) makes a
general assignment for the benefit of its
creditors; and
(vii) in existence when a court of competent jurisdiction
enters an order or decree under any Bankruptcy Law
that (A) is for relief against the Company or any
Significant Subsidiary in an involuntary case, (B)
appoints a Custodian of the Company or any
Significant Subsidiary or for all or substantially
all of the property of the Company or any
Significant Subsidiary, or (C) orders the
liquidation of the Company or any Significant
Subsidiary, and any such order or decree remains
unstayed and in effect for 60 days.
(b) A Default or Event of Default under Section 6.01(a)(iii) hereof
(other than an Event of Default arising under Section 5.01, which shall be an
Event of Default with the notice but without the passage of time specified in
this Section 6.01(b)), is not an Event of Default under this Indenture until
the Trustee or the Holders of at least 25% in principal amount of the Senior
Notes then outstanding notify the Company of the Default and the Company does
not cure the Default within 30 days after receipt of the notice. The notice
must specify the Default, demand that it be remedied, and state that the notice
is a "Notice of Default."
(c) A Default or Event of Default under Section 6.01(a)(vi) or (vii)
will result in the Senior Notes becoming due and payable without further action
or notice.
(d) In the case of any Event of Default pursuant to Section 6.01(a)(i)
or (ii) hereof occurring by reason of any willful action (or inaction) taken
(or not taken) by or on behalf of the Company with the intention of avoiding
payment of the premium that the Company would have to pay if the Company then
had elected to redeem the Senior Notes pursuant to Section 3.07 hereof, an
equivalent premium shall also become and be immediately due and payable to the
extent permitted by law, anything in this Indenture or in the Senior Notes
contained to the contrary notwithstanding.
(e) The Trustee shall not be charged with knowledge of any Default or
Event of Default unless written notice thereof shall have been given to a Trust
Officer at the Corporate Trust Office of the Trustee by the Company or any
other Person.
SECTION 6.02. ACCELERATION.
(a) Upon the occurrence of an Event of Default (other than an Event of
Default under Section 6.01(a)(vi) or (vii) hereof), the Trustee or the Holders
of at least 25% in aggregate principal amount of the then outstanding Senior
Notes may declare all Senior
51
Notes to be due and payable by notice in writing to the Company and the Trustee
specifying the respective Event of Default and that it is a "notice of
acceleration" (the "Acceleration Notice"). Upon such declaration, the principal
of, premium, if any, and any accrued and unpaid interest on, all Senior Notes
shall be due and payable immediately; provided, however, that if an Event of
Default arises under Section 6.01(a)(vi) or (vii) hereof, the principal of,
premium, if any, and any accrued and unpaid interest on, all Senior 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 Holders of Senior
Notes.
(b) The Holders of a majority in aggregate principal amount of the
Senior Notes then outstanding under this Indenture, by notice to the Trustee,
may rescind any declaration of acceleration of such Senior Notes and its
consequences (if the rescission would not conflict with any judgment or decree)
if all existing Events of Default (other than the nonpayment of principal of or
interest on such Senior Notes that shall have become due by such declaration)
shall have been cured or waived.
(c) If there has been a declaration of acceleration of the Senior
Notes because an Event of Default under Section 6.01(a)(iv) hereof has occurred
and is continuing, such declaration of acceleration shall be automatically
annulled if the Holders of the Indebtedness described in Section 6.01(a)(iv)
hereof have rescinded the declaration of acceleration in respect of such
Indebtedness within 30 Business Days thereof and if (i) the annulment of such
acceleration would not conflict with any judgment or decree of a court of
competent jurisdiction, (ii) all existing Events of Default, except non-payment
of principal, premium or interest that shall have become due solely because of
the acceleration, have been cured or waived, and (iii) the Company has
delivered an Officers' Certificate to the Trustee to the effect of clauses (i)
and (ii) above.
SECTION 6.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal of, premium, if
any, or any accrued and unpaid interest on, the Senior Notes or to enforce the
performance of any provision of the Senior Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Senior Notes or does not produce any of them in the proceeding. A delay
or omission by the Trustee or any Holder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
52
SECTION 6.04. WAIVER OF PAST DEFAULTS.
The Holders of a majority in aggregate principal amount of the Senior
Notes then outstanding by notice to the Trustee may on behalf of all Holders of
Senior Notes waive any existing Default or Event of Default under this
Indenture and its consequences, except a continuing Default in the payment of
the principal of, premium, if any, and interest on, such Senior Notes, which
may only be waived with the consent of each Holder of Senior Notes affected.
Upon any such waiver, such Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured for every purpose
of this Indenture; provided that no such waiver shall extend to any subsequent
or other Default or impair any right consequent thereon.
SECTION 6.05. CONTROL BY MAJORITY.
Subject to Section 7.01(e) hereof, the Holders of a majority in
aggregate principal amount of the then outstanding Senior Notes may direct the
time, method and place of conducting any proceeding for exercising any remedy
available to the Trustee or exercising any trust or power conferred on it by
this Indenture. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture, that the Trustee determines may be unduly
prejudicial to the rights of other Holders or would involve the Trustee in
personal liability.
SECTION 6.06. LIMITATION ON SUITS.
A Holder may pursue a remedy with respect to this Indenture or the
Senior Notes only if (i) the Holder gives to the Trustee notice of a continuing
Event of Default; (ii) the Holders of at least 25% in principal amount of the
then outstanding Senior Notes make a request to the Trustee to pursue the
remedy; (iii) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense; (iv) the
Trustee does not comply with the request within 60 days after receipt of the
request and the offer of indemnity; and (v) during such 60-day period the
Holders of a majority in principal amount of the then outstanding Senior Notes
do not give the Trustee a direction inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over another Holder.
Holders of the Senior Notes may not enforce this Indenture, except as
provided herein.
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of
any Holder to receive payment of principal of, premium, if any, and any accrued
and unpaid interest on, a Senior Note, on or
53
after a respective due date expressed in the Senior Note, or to bring suit for
the enforcement of any such payment on or after such respective date, shall not
be impaired or affected without the consent of the Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(a)(i) or (ii) hereof
occurs and is continuing, the Trustee is authorized to recover judgment in its
own name and as trustee of an express trust against the Company for (i) the
principal, premium and interest remaining unpaid on the Senior Notes, (ii)
interest on overdue principal and premium, if any, and, to the extent lawful,
interest, and (iii) 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
("Trustee Expenses").
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable to have the claims of the Trustee
(including any claim for Trustee Expenses) and the Holders allowed in any
Insolvency or Liquidation Proceeding or other judicial proceeding relative to
the Company (or any other obligor upon the Senior Notes), its creditors or its
property and shall be entitled and empowered to collect, receive and distribute
to Holders any money or other property payable or deliverable on any such
claims and each Holder authorizes any Custodian in any such Insolvency or
Liquidation Proceeding or other judicial proceeding to make such payments to
the Trustee, and if the Trustee shall consent to the making of such payments
directly to the Holders any such Custodian is hereby authorized to make such
payments directly to the Holders, and to pay to the Trustee any amount due to
it hereunder for Trustee Expenses, and any other amounts due the Trustee under
Section 7.07 hereof. To the extent that the payment of any such Trustee
Expenses, and any other amounts due the Trustee under Section 7.07 hereof out
of the estate in any such proceeding, shall be denied for any reason, payment
of the same shall be secured by a Lien on, and shall be paid out of, any and
all distributions, dividends, money, securities and other properties which the
Holders may be entitled to receive in such proceeding, whether in liquidation
or under any plan of reorganization or arrangement or otherwise. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Senior Notes or the rights
of any Holder, or to authorize the Trustee to vote in respect of the claim of
any Holder in any Insolvency or Liquidation Proceeding.
SECTION 6.10. PRIORITIES.
54
If the Trustee collects any money pursuant to this Article, it shall
pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.07
hereof;
Second: to Holders for amounts due and unpaid on the Senior
Notes for principal, premium and interest, ratably,
without preference or priority of any kind,
according to the amounts due and payable on the
Senior Notes for principal, premium and interest,
respectively; and
Third: to the Company or to such party as a court of
competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders.
SECTION 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in
principal amount of the then outstanding Senior Notes.
ARTICLE 7
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default occurs (and has not been cured) the Trustee
shall (i) exercise the rights and powers vested in it by this Indenture, and
(ii) use the same degree of care and skill in exercising such rights and powers
as a prudent person would exercise or use under the circumstances in the
conduct of its own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee's duties shall be determined solely by the
express provisions of this Indenture and the Trustee need
perform only those duties that are specifically set forth
in this Indenture and no others, and no implied covenants
or obligations
55
shall be read into this Indenture against the
Trustee; and
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions
expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the
requirements of this Indenture. However, the
Trustee shall examine the certificates and opinions
to determine whether they conform to this
Indenture's requirements.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own wilful
misconduct, except that:
(i) this paragraph does not limit the effect of Section
7.01(b) hereof;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer,
unless it is proved that the Trustee was negligent
in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in
accordance with a direction it receives pursuant to
Section 6.05 hereof.
(d) Whether or not expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to paragraphs (a),
(b), (c) and (e) of this Section.
(e) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or incur any liability. The Trustee shall be under no
obligation to exercise any of its rights and powers under this Indenture at the
request of any Holders unless such Holders shall have offered to the Trustee
security and indemnity satisfactory to it against any loss, liability or
expense.
(f) The Trustee shall not be liable for interest on any money it
receives except as the Trustee may agree in writing with the Company. Money the
Trustee holds in trust need not be segregated from other funds except to the
extent required by law.
SECTION 7.02. RIGHTS OF TRUSTEE.
(a) The Trustee may rely on any document it believes to be genuine and
to have been signed or presented by the proper Person. The Trustee shall not be
obligated to investigate any fact or matter stated in the document.
56
(b) Before the Trustee acts or refrains from acting, it may reasonably
require an Officers' Certificate or an Opinion of Counsel, or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel. The Trustee may
consult with counsel and 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.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any Agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take, except to the extent that such action or omission to act constitutes
negligence or wilful misconduct on the part of the Trustee.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Senior Notes and may otherwise deal with the Company or an
Affiliate with the same rights it would have if it were not Trustee. However,
if the Trustee acquires any conflicting interest it must eliminate such
conflict within 90 days, apply to the Commission for permission to continue as
Trustee or resign. Any Agent may do the same with like rights. The Trustee is
also subject to Sections 7.10 and 7.11 hereof.
SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Senior Notes, it shall
not be accountable for the Company's use of the proceeds from the Senior Notes
or for any money paid to the Company or upon the Company's direction under any
provisions hereof, it shall not be responsible for the use or application of
any money any Paying Agent other than the Trustee receives, and it shall not be
responsible for any statement or recital herein or any statement in the Senior
Notes or any other document furnished or issued in connection with the sale of
the Senior Notes or pursuant to this Indenture, other than its certificate of
authentication.
SECTION 7.05. NOTICE TO HOLDERS OF DEFAULTS AND EVENTS OF
DEFAULT.
If a Default or Event of Default occurs and is continuing and if it is
actually known to the Trustee, the Trustee shall mail to Holders a notice of
the Default or Event of Default within 90 days
57
after it occurs. Except in the case of a Default or Event of Default in payment
on any Senior Note (including any failure to redeem Senior Notes called for
redemption or any failure to purchase Senior Notes tendered pursuant to an
Offer that are required to be purchased by the terms of this Indenture), the
Trustee may withhold the notice if and so long as a committee of its Trust
Officers in good faith determines that withholding the notice is in the
Holders' interests.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each May 15 beginning with May 15, 1997, the
Trustee shall mail to Holders a brief report dated as of such reporting date
that complies with section 313(a) of the TIA (but if no event described in
section 313(a) of the TIA has occurred within the twelve months preceding the
reporting date, no report need be transmitted). The Trustee also shall comply
with section 313(b)(2) of the TIA. The Trustee shall also transmit by mail all
reports as required by section 313(c) of the TIA.
Commencing at the time this Indenture is qualified under the TIA, a
copy of each report at the time of its mailing to Holders shall be filed with
the Commission and each national securities exchange on which the Senior Notes
are listed. The Company shall notify the Trustee when the Senior Notes are
listed on any national securities exchange.
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee (in its capacities as Trustee,
Paying Agent and/or Registrar) from time to time reasonable compensation for
its services hereunder. The Trustee's compensation shall not be limited by any
law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable disbursements, advances,
fees and expenses it incurs or makes in addition to the compensation for its
services. Such expenses shall include the reasonable compensation,
disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify and hold harmless the Trustee (in its
capacities as Trustee, Paying Agent and/or Registrar) against any and all
losses, liabilities or expenses the Trustee incurs arising out of or in
connection with the acceptance or administration of its duties under this
Indenture, except as set forth below. The Trustee shall notify the Company
promptly of any claim for which it may seek indemnity. Failure by the Trustee
to so notify the Company shall not relieve the Company of its Obligations
hereunder. The Company shall defend the claim and the Trustee shall reasonably
cooperate in the defense. The Trustee may have separate counsel and the Company
shall pay the reasonable fees and expenses of such counsel. The Company need
not pay for any settlement made without its consent, which consent shall not be
unreasonably withheld.
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The Company's Obligations under this Section 7.07 shall survive the
satisfaction and discharge of this Indenture.
The Company need not reimburse any expense or indemnify against any
loss or liability the Trustee incurs through negligence or bad faith.
To secure the Company's payment of its Obligations in this Section,
the Trustee shall have a Lien prior to the Senior Notes on all money or
property the Trustee holds or collects, except that held in trust to pay
principal of premium, if any, and any accrued and unpaid interest on,
particular Senior Notes, Such Lien shall survive the satisfaction and discharge
of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(a)(vi) or (vii) hereof occurs, the expenses
and the compensation for the services (including the fees and expenses of its
agents and counsel) are intended to constitute administrative expenses under
any Bankruptcy Law.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
The Trustee may resign and be discharged from the trust hereby created
by so notifying the Company. The Holders of a majority in principal amount of
the then outstanding Senior Notes may remove the Trustee by so notifying the
Trustee and the Company. The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10
hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent
or an order for relief is entered with respect to
the Trustee under any Bankruptcy Law;
(c) a Custodian or public officer takes charge of the
Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee, provided that the Holders of a majority in principal amount
of the then outstanding Senior Notes may appoint a successor Trustee to replace
any successor Trustee appointed by the Company.
If a successor Xxxxxxx does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring
59
Trustee, the Company or the Holders of at least 10% in principal amount of the
then outstanding Senior Notes may petition any court of competent jurisdiction
for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10 hereof, any Holder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
appointment to Holders. The retiring Trustee shall promptly transfer all
property it holds as Trustee to the successor Trustee, provided all sums owing
to the retiring Trustee hereunder have been paid and subject to the Lien
provided for in Section 7.07 hereof. Notwithstanding replacement of the Trustee
pursuant to this Section 7.08, the Company's obligations under Section 7.07
hereof shall continue for the retiring Trustee's benefit with respect to
expenses and liabilities it incurred prior to being replaced.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation,
the successor corporation without any further act shall be the successor
Trustee.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
The Trustee shall at all times (i) be a corporation organized and
doing business under the laws of the United States of America, of any state
thereof, or the District of Columbia authorized under such laws to exercise
corporate trustee power, (ii) be subject to supervision or examination by
federal or state authority, (iii) have a combined capital and surplus of at
least $100,000,000 as set forth in its most recent published annual report of
condition, and (iv) satisfy the requirements of sections 310(a)(1), (2) and (5)
of the TIA. The Trustee is subject to section 310(b) of the TIA.
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE
COMPANY.
The Trustee is subject to section 311(a) of the TIA, excluding any
creditor relationship listed in section 311(b) of the TIA. A Trustee who has
resigned or been removed shall be subject to section 311(a) of the TIA to the
extent indicated therein.
ARTICLE 8
DISCHARGE OF INDENTURE
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SECTION 8.01. DISCHARGE OF LIABILITY ON SENIOR NOTES; DEFEASANCE.
(a) When (i) the Company delivers to the Trustee all outstanding
Senior Notes (other than Senior Notes replaced pursuant to Section 2.07 hereof)
for cancellation, or (ii) all outstanding Senior Notes have become due and
payable and the Company irrevocably deposits with the Trustee funds sufficient
to pay at maturity all outstanding Senior Notes, including interest and premium
thereon (other than Senior Notes replaced pursuant to Section 2.07 hereof), and
if in either case the Company pays all other sums payable under this Indenture
by the Company, then this Indenture shall, subject to Sections 8.01(c) and 8.06
hereof, cease to be of further effect.
(b) Subject to Sections 8.01(c), 8.02, and 8.06 hereof, the Company at
any time may terminate (i) all its obligations under the Senior Notes and this
Indenture ("legal defeasance option") or (ii) its obligations under Sections
4.02, 4.03, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.13, 4.14, 4.15, and
4.16 hereof, and the operation of Sections 5.01(a)(iii), 5.01(a)(iv) or
6.01(a)(iii) through (a)(v) hereof ("covenant defeasance option"). The Company
may exercise its legal defeasance option notwithstanding its prior exercise of
its covenant defeasance option.
If the Company exercises its legal defeasance option, payment of the
Senior Notes may not be accelerated because of an Event of Default. If the
Company exercises its covenant defeasance option, payment of the Senior Notes
shall not be accelerated because of an Event of Default specified in Section
6.01(a)(iii) through (a)(v) hereof or because of the Company's failure to
comply with Section 5.01(a)(iii) and (iv) hereof.
Upon satisfaction of the conditions set forth herein and upon the
Company's request (and at the Company's expense), the Trustee shall acknowledge
in writing the discharge of those obligations that the Company has terminated.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07, 4.01, 4.04, 7.07, 7.08,
8.04, 8.05 and 8.06 hereof, and the Trustee's and the Paying Agent's
obligations in Section 8.04 hereof shall survive until the Senior Notes have
been paid in full. Thereafter, the Company's obligations in Sections 7.07 and
8.05 hereof and the Company's, the Trustee's and the Paying Agent's obligations
in Section 8.04 hereof shall survive.
SECTION 8.02. CONDITIONS TO DEFEASANCE.
The Company may exercise its legal defeasance option or its covenant
defeasance option only if:
(a) the Company irrevocably deposits in trust (the
defeasance trust") with the Trustee money or U.S.
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Government Obligations sufficient for the payment in full
of the principal of, premium, if any, and any accrued and
unpaid interest on, the Senior Notes then outstanding, as
of the maturity date, the redemption date or the Purchase
Date, as the case may be;
(b) the Company delivers to the Trustee a certificate from
a nationally recognized firm of independent accountants
expressing their opinion that the payments of principal
and interest when due and without reinvestment of the
deposited U.S. Government Obligations plus any deposited
money without investment will provide cash at such times
and in such amounts as will be sufficient to pay when
due principal of, premium, if any, and any accrued and
unpaid interest on, all the Senior Notes to maturity or
redemption, as the case may be;
(c) since the Company's irrevocable deposit provided for in
Section 8.02(1) hereof, 91 days have passed;
(d) no Default has occurred and is continuing on the date of
such deposit and after giving effect to it;
(e) the deposit does not constitute a default under any
other agreement binding on the Company;
(f) the Company delivers to the Trustee an Opinion of Counsel
to the effect that the trust resulting from the deposit
does not constitute, or is qualified as, a regulated
investment company under the Investment Company Act of
1940, as amended;
(g) in the case of the legal defeasance option, the Company
shall have delivered to the Trustee an Opinion of
Counsel stating that (i) the Company has received from,
or there has been published by, the Internal Revenue
Service a ruling or (ii) under applicable federal income
tax law, in either case, to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the
Holders will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit
and defeasance and will be subject to federal income tax
on the same amount, in the same manner and at the same
times as would have been the case if such defeasance had
not occurred;
(h) in the case of the covenant defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel
to the effect that the Holders will not recognize income,
gain or loss for federal income tax purposes as a result of
such deposit and covenant defeasance and will be subject to
federal income tax on the same amount, in the same manner
and at the same
62
times as would have been the case if such covenant
defeasance had not occurred; and
(i) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that
all conditions precedent to the defeasance and discharge of
the Senior Notes contemplated by this Article 8 have been
satisfied.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption or purchase of Senior Notes at a
future date in accordance with Article 3.
SECTION 8.03. APPLICATION OF TRUST MONEY.
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to this Article 8. It shall apply the deposited
money and the money from U.S. Government Obligations through the Paying Agent
and in accordance with this Indenture to the payment of principal of, premium,
if any, and any accrued and unpaid interest on, the Senior Notes.
SECTION 8.04. REPAYMENT TO THE COMPANY.
After the Senior Notes have been paid in full, the Trustee and the
Paying Agent shall promptly turn over to the Company any excess money or
securities they hold.
The Trustee and the Paying Agent shall pay to the Company upon written
request by the Company any money they hold for the payment of principal,
premium or interest that remains unclaimed for 1 year after the date upon which
such payment shall have become due; provided, however, that the Company shall
have either caused notice of such payment to be mailed to each Holder entitled
thereto no less than 30 days prior to such repayment or within such period
shall have published such notice in a financial newspaper of widespread
circulation published in The City of New York (including, without limitation,
The Wall Street Journal). After payment to the Company, Holders entitled to the
money must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another Person, and all liability
of the Trustee and such Paying Agent with respect to such money shall cease.
SECTION 8.05. INDEMNITY FOR GOVERNMENT OBLIGATIONS.
The Company shall pay and shall indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against deposited U.S. Government
Obligations or the principal and interest received on such U.S. Government
Obligations.
SECTION 8.06. REINSTATEMENT.
63
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with this Article 8 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's obligations under this Indenture and the Senior Notes shall be
revived and reinstated as though no deposit had occurred pursuant to this
Article 8 until such time as the Trustee or Paying Agent is permitted to apply
all such money or U.S. Government Obligations in accordance with this Article
8; provided, however, that, if the Company has made any payment of principal
of, premium, if any, and any accrued and unpaid interest on, any Senior Notes
because of the reinstatement of its Obligations, the Company shall be
subrogated to the Holders' rights to receive such payment from the money or
U.S. Government Obligations the Trustee or Paying Agent holds.
ARTICLE 9
AMENDMENTS
SECTION 9.01. AMENDMENTS AND SUPPLEMENTS PERMITTED WITHOUT
CONSENT OF HOLDERS.
Notwithstanding Section 9.02 hereof, the Company and the Trustee may
amend or supplement this Indenture or the Senior Notes without the consent of
any Holder (a) to cure any ambiguity, defect or inconsistency; (b) to provide
for uncertificated Senior Notes in addition to or in place of certificated
Senior Notes; (c) to provide for the assumption by a Successor Corporation of
the Company's Obligations to the Holders in the event of a Disposition pursuant
to Article 5; (d) to comply with the Commission's requirements to effect or
maintain the qualification of this Indenture under the TIA; (e) to provide for
guarantees with respect to the Senior Notes; or (f) to make any change that
does not materially adversely affect any Holder's legal rights under this
Indenture.
Upon the Company's request, after receipt by the Trustee of a
resolution of the Board of Directors authorizing the execution of any amended
or supplemental indenture, the documents described in Section 9.06 hereof, the
Trustee shall join with the Company in the execution of any amended or
supplemental indenture authorized or permitted by the terms of this Indenture
and to make any further appropriate agreements and stipulations that may be
contained in any such amended or supplemental indenture, but the Trustee shall
not be obligated to enter into an amended or supplemental indenture that
affects its own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.02. AMENDMENTS AND SUPPLEMENTS REQUIRING CONSENT OF
HOLDERS.
64
Subject to Section 6.07 hereof, the Company and the Trustee may amend
or supplement this Indenture or the Senior Notes with the written consent of
the Holders of at least a majority in aggregate principal amount of the then
outstanding Senior Notes (including consents obtained in connection with a
tender offer or exchange offer for the Senior Notes). Subject to Sections 6.04
and 6.07 hereof, the Holders of a majority in aggregate principal amount of the
Senior Notes then outstanding (including consents obtained in connection with a
tender offer or exchange offer for the Senior Notes) may also waive any
existing Default or Event of Default (other than a payment Default) and its
consequences or compliance in a particular instance by the Company with any
provision of this Indenture or the Senior Notes.
Upon the Company's request and after receipt by the Trustee of a
resolution of the Board of Directors authorizing the execution of any
supplemental indenture, evidence of the Holders' consent, and the documents
described in Section 9.06 hereof, the Trustee shall join with the Company in
the execution of such amended or supplemental indenture unless such amended or
supplemental indenture affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its
discretion, but not be obligated to, enter into such amended or supplemental
indenture.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment or waiver, but
it shall be sufficient if such consent approves the substance thereof.
After an amendment or waiver under this Section becomes effective, the
Company shall mail to each Holder affected thereby a notice briefly describing
the amendment, supplement or waiver. Any failure of the Company to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such amended or supplemental indenture or waiver. Without
the consent of each Holder affected, an amendment, supplement or waiver under
this Section may not (1) reduce the principal amount of Senior Notes whose
Holders must consent to an amendment, supplement or waiver; (2) reduce the rate
of or change the time for payment of interest, including default interest as
set forth in Section 4.01 hereof or alter the redemption or purchase provisions
with respect thereto (other than the provisions of Sections 4.13 and 4.14
hereof) or the price at which the Company is required to offer to purchase any
Senior Note; (3) reduce the principal of or change the fixed maturity of any
Senior Note; (4) make any Senior Note payable in money other than that stated
in the Senior Note; (5) make any change in Section 6.04 or 6.07 hereof or in
this sentence of this Section 9.02 hereof; or (6) waive a default in the
payment of the principal of, or premium, if any, or any accrued and unpaid
interest on, or redemption or purchase payment with respect to, any Senior Note
(except a rescission of acceleration of the Senior Notes by the Holders of at
least a majority in aggregate principal amount of the then outstanding
65
Senior Notes and a waiver of the payment default that resulted from such
acceleration).
SECTION 9.03. COMPLIANCE WITH XXX.
Every amendment or supplement to this Indenture or the Senior Notes
shall be set forth in an amended supplemental indenture that complies with the
TIA as then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder of a Senior Note is a continuing consent by the Holder and
every subsequent Holder of a Senior Note or portion of a Senior Note that
evidences the same Indebtedness as the consenting Xxxxxx's Senior Note, even if
notation of the consent is not made on any Senior Note. However, any such
Holder or subsequent Holder may revoke the consent as to his or her Senior Note
or portion of a Senior Note if the Trustee receives the notice of revocation
before the date on which the Trustee receives an Officer's Certificate
certifying that the Holders of the requisite principal amount of Senior Notes
have consented to the amendment or waiver.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders of Senior Notes entitled to consent to
any amendment or waiver. If a record date is fixed, then, notwithstanding the
provisions of the immediately preceding paragraph, those Persons who were
Holders of Senior Notes at such record date (or their duly designated proxies),
and only those Persons, shall be entitled to consent to such amendment or
waiver or to revoke any consent previously given, whether or not such Persons
continue to be Holders of Senior Notes after such record date. No consent shall
be valid or effective for more than 90 days after such record date unless
consents from Holders of the principal amount of Senior Notes required
hereunder for such amendment or waiver to be effective shall have also been
given and not revoked within such 90-day period.
After an amendment or waiver becomes effective it shall bind every
Holder, unless it is of the type described in any of clauses (1) through (6) of
Section 9.02 hereof. In such case, the amendment or waiver shall bind each
Holder who has consented to it and every subsequent Holder of a Senior Note
that evidences the same debt as the consenting Xxxxxx's Senior Note.
SECTION 9.05. NOTATION ON OR EXCHANGE OF SENIOR NOTES.
The Trustee may (at the Company's expense) place an appropriate
notation about an amendment, supplement or waiver on any Senior Note thereafter
authenticated. The Company in exchange for all Senior Notes may issue and the
Trustee shall authenticate new Senior Notes that reflect the amendment,
supplement or waiver.
66
Failure to make the appropriate notation or issue a new Senior Note
shall not affect the validity and effect of such amendment, supplement or
waiver.
SECTION 9.06. TRUSTEE PROTECTED.
The Trustee shall sign any amendment or supplemental indenture
authorized pursuant to this Article 9 if the amendment does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. If it
does, the Trustee may, but need not, sign it. In signing such amendment or
supplemental indenture, the Trustee shall be entitled to receive and, subject
to Section 7.01 hereof, shall be fully protected in relying upon, an Officers'
Certificate and Opinion of Counsel as conclusive evidence that such amendment
or supplemental indenture is authorized or permitted by this Indenture, that it
is not inconsistent herewith, and that it will be valid and binding upon the
Company in accordance with its terms. The Company may not sign an amendment or
supplemental indenture until the Board of Directors approves it.
SECTION 9.07. PAYMENT FOR CONSENTS.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to any Holder of
Senior Notes for or as an inducement to any consent, waiver or amendment of any
of the terms or provisions of this Indenture or the Senior Notes unless such
consideration is offered to be paid or agreed to be paid to all Holders of the
Senior Notes that consent, waive or agree to amend in the time frame set forth
in the solicitation documents relating to such consent, waiver or agreement.
ARTICLE 10
MISCELLANEOUS
SECTION 10.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies, or conflicts
with the duties imposed by operation of section 318(c) of the TIA, the imposed
duties shall control.
SECTION 10.02. NOTICES.
Any notice or communication by the Company or the Trustee to the other
is duly given if in writing and delivered in person, mailed by registered or
certified mail, postage prepaid, return receipt requested or delivered by
telecopier or overnight air courier guaranteeing next day delivery to the
other's address:
67
If to the Company:
AmeriKing, Inc.
0000 Xxxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Telecopier No.: (000) 000-0000
with a copy to:
Xxxxx, Brown & Xxxxx
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telecopier No.: (000) 000-0000
If to the Trustee:
Fleet National Bank
000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 000000
Attention: Corporate Trust Administration
Telecopier No.: (000) 000-0000
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; the date receipt is acknowledged, if mailed by registered
or certified mail; when answered back, if telecopied; and the next Business Day
after timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first-class
mail to his or her address shown on the register kept by the Registrar. Failure
to mail a notice or communication to a Holder or any defect in it shall not
affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
SECTION 10.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
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Holders may communicate pursuant to section 312(b) of the TIA with
other Holders with respect to their rights under this Indenture or the Senior
Notes. The Company, the Trustee, the Registrar and any other Person shall have
the protection of section 312(c) of the TIA.
SECTION 10.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate (which shall include the
statements set forth in Section 10.05 hereof) stating that,
in the opinion of the signers, all conditions precedent and
covenants, if any, provided for in this Indenture relating
to the proposed action have been complied with; and
(b) an Opinion of Counsel (which shall include the statements
set forth in Section 10.05 hereof) stating that, in the
opinion of such counsel, all such conditions precedent
provided for in this Indenture relating to the proposed
action have been complied with.
SECTION 10.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to section 314(a)(4) of the TIA) shall include:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements
or opinions contained in such certificate or opinion are
based;
(c) a statement that, in the opinion of such Person, he or she
has made such examination or investigation as is necessary
to enable him or her to express an informed opinion as to
whether or not such covenant or condition has been complied
with; and
(d) a statement as to whether, in such Person's opinion,
such condition or covenant has been complied with.
SECTION 10.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
69
SECTION 10.07. LEGAL HOLIDAYS.
If a payment date is a Legal Holiday at a place of payment, payment
may be made at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
SECTION 10.08. NO RECOURSE AGAINST OTHERS.
No officer, employee, director, stockholder or Subsidiary of the
Company shall have any liability for any Obligations of the Company under the
Senior Notes or this Indenture, or for any claim based on, in respect of, or by
reason of, such Obligations or the creation of any such Obligation, except, in
the case of a Subsidiary, for an express guarantee or an express creation of
any Lien by such Subsidiary of the Company's Obligations under the Senior Notes
issued in accordance with this Indenture. Each Holder by accepting a Senior
Note waives and releases all such liability, and such waiver and release is
part of the consideration for the issuance of the Senior Notes.
SECTION 10.09. COUNTERPARTS.
This Indenture may be executed in any number of counterparts and by
the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
SECTION 10.10. VARIABLE PROVISIONS.
The Company initially appoints the Trustee as Paying Agent, Registrar
and authenticating agent.
The first compliance certificate to be delivered by the Company to the
Trustee pursuant to Section 4.03 hereof shall be for the fiscal year ending on
January 1, 1997.
SECTION 10.11. GOVERNING LAW.
The internal laws of the State of New York shall govern this Indenture
and the Senior Notes, without regard to the conflict of laws provisions
thereof.
SECTION 10.12. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or any of its Subsidiaries, and no other
indenture, loan or debt agreement may be used to interpret this Indenture.
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SECTION 10.13. SUCCESSORS.
All agreements of the Company in this Indenture and the Senior Notes
shall bind its successor. All agreements of the Trustee in this Indenture shall
bind its successor.
SECTION 10.14. SEVERABILITY.
If any provision in this Indenture or in the Senior Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 10.15. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table, and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
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Dated as of _______, 1996 AMERIKING, INC.
By:______________
Name:
Title:
Dated as of __________, 1996 FLEET NATIONAL BANK
as Trustee
By:________________________
Name:
Title:
72
EXHIBIT A
(Face of Senior Note)
__% Senior Note due 2006
No. $______
CUSIP No.
AMERIKING, INC.
promises to pay to
or registered assigns,
the principal sum of
Dollars on ___________________, 2006.
Interest Payment Dates: _______________ and _______________.
Record Dates: _______________ and _______________.
Dated: _______________________, 1996
AMERIKING, INC.
By: ________________________________
Name:
Title:
Trustee's Certificate of Authentication
Dated: ________________________________
This is one of the [Global] Senior Notes referred to in the within-
mentioned
Indenture:
------------------------------,
as Trustee
By: __________________________
(Authorized Signatory)
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[Unless and until it is exchanged in whole or in part for Senior Notes
in definitive form, this Senior Note may not be transferred except as a whole
by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary. The Depository Trust Company, 00 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx ("DTC"), shall act as the Depositary until a successor shall be
appointed by the Company and the Registrar. Unless this certificate is
presented by an authorized representative of 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 such other name as may be requested by
an authorized representative of DTC (and any payment is made to Cede & Co. or
such other entity as may be requested by an authorized representative of DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
Person IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.](1)
Additional provisions of this Senior Note are set forth on the other
side of this Senior Note.
--------
1 This paragraph should be included only if the Senior Note is
issued in global form.
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(Back of Senior Note)
__% SENIOR NOTE DUE 2006
1. INTEREST. AmeriKing, Inc. (the "Company") promises to pay interest on
the principal amount of the Senior Notes at the rate and in the manner
specified below. Interest on the Senior Notes will accrue at __ % per annum
from the date this Senior Note is issued until maturity. Interest will be
payable semiannually in cash in arrears on _________ and __________ of each
year, or if any such day is not a Business Day on the next succeeding Business
Day (each an "Interest Payment Date"). Interest on the Senior Notes will accrue
from the most recent date on which interest has been paid or, if no interest
has been paid, from the date of original issuance; provided that the first
Interest Payment Date shall be , 1997. The Company shall pay interest on
overdue principal and premium, if any, from time to time on demand at the rate
of 2% per annum in excess of the interest rate then in effect and shall pay
interest on overdue installments of interest (without regard to any applicable
grace periods) from time to time on demand at the same rate to the extent
lawful. Interest will be computed on the basis of a 360-day year of twelve 30-
day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Senior Notes
(except defaulted interest) to the Persons who are registered holders of Senior
Notes at the close of business on the record date for the next Interest Payment
Date even if such Senior Notes are canceled after such record date and on or
before such Interest Payment Date. Holders must surrender Senior Notes to a
Paying Agent to collect principal payments on such Senior Notes. The Company
will pay principal, premium, if any, and interest, in money of the United
States that at the time of payment is legal tender for payment of public and
private debts. The Company will pay principal, premium, if any, and interest,
by wire transfer of immediately available funds to the accounts specified by
the Holders or, if no such account is specified, by mailing a check to each
such Holder's registered address; provided that payment by wire transfer of
immediately available funds will be required with respect to principal,
premium, if any, and interest, on all Global Senior Notes.
3. PAYING AGENT AND REGISTRAR. Fleet National Bank (the "Trustee") will
initially act as the Paying Agent and Registrar. The Company may appoint
additional paying agents or co-registrars, and change the Paying Agent, any
additional paying agent, the Registrar or any co-registrar without prior notice
to any Holder. The Company or any of its Subsidiaries may act in any such
capacity.
4. INDENTURE. The Company issued the Senior Notes under an
Indenture, dated as of _____________, 1996 (the "Indenture"), among
the Company and the Trustee. The terms of the Senior Notes include
those stated in the Indenture and those made part of the Indenture
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by reference to the Trust Indenture Act of 1939 (15 U.S.C. xx.xx. 77aaa-77bbbb)
as in effect on the date of the original issuance of the Senior Notes (the
"Trust Indenture Act"). The Senior Notes are subject to, and qualified by, all
such terms, certain of which are summarized herein, and Holders are referred to
the Indenture and the Trust Indenture Act for a statement of such terms (all
capitalized terms not defined herein shall have the meanings assigned them in
the Indenture). The Senior Notes are unsecured senior obligations of the
Company limited to $100,000,000 in aggregate principal amount.
5. OPTIONAL REDEMPTION. (a) Except as described in paragraph 5(b) below,
the Senior Notes may not be redeemed at the option of the Company prior to
_____________, 2001. During the twelve (12) month period beginning _______ of
the years indicated below, the Senior Notes will be redeemable at the option of
the Company, in whole or in part, on at least 30 but not more than 60 days'
notice to each Holder of Senior Notes to be redeemed, at the redemption prices
(expressed as percentages of the principal amount) set forth below, plus any
accrued and unpaid interest to the date of redemption:
Year Percentage
--------------- -------------
2001...............................................................................................%
2002...............................................................................................%
2003...............................................................................................%
2004 and thereafter.........................................................................100.000%
(b) Notwithstanding the foregoing, prior to ______________________, 1999,
the Company may (but shall not have the obligation to) redeem up to 35% of the
original aggregate principal amount of the Senior Notes at a redemption price
of __ % of the principal amount thereof, plus accrued and unpaid interest to
the redemption date, with the net proceeds of one or more Equity Offerings;
provided that at least 65% of the aggregate principal amount of Senior Notes
originally issued remain outstanding immediately after the occurrence of any
such redemption; and provided, further, that any such redemption shall occur
within 60 days of the date of the closing of such Equity Offering.
6. MANDATORY REDEMPTION. Subject to the Company's obligation to make an
offer to purchase Senior Notes under certain circumstances pursuant to Sections
4.13 and 4.14 of the Indenture (as described in paragraph 7 below), the Company
is not required to make any mandatory redemption, purchase or sinking fund
payments with respect to the Senior Notes.
7. MANDATORY OFFERS TO PURCHASE SENIOR NOTES. (a) Upon the occurrence of a
Change of Control (such date being the "Change of Control Trigger Date"), each
Holder of Senior Notes shall have the right to require the Company to purchase
all or any part (equal to $1,000 or an integral multiple thereof) of such
Holder's Senior Notes pursuant to an offer (a "Change of Control Offer") at a
purchase price in cash equal to 101% of the aggregate principal
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amount thereof, plus any accrued and unpaid interest to the date of
purchase.
(b) If the Company or any Restricted Subsidiary consummates one or more
Asset Sales and does not use all of the Net Proceeds from such Asset Sales as
provided in the Indenture, the Company will be required, under certain
circumstances, to utilize the Excess Proceeds from such Asset Sales to offer
(an "Asset Sale Offer") to purchase Senior Notes at a purchase price equal to
100% of the principal amount of the Senior Notes, plus any accrued and unpaid
interest to the date of purchase. If the Excess Proceeds are insufficient to
purchase all Senior Notes tendered pursuant to any Asset Sale Offer, the
Trustee shall select the Senior Notes to be purchased in accordance with the
terms of the Indenture.
(c) Holders may tender all or, subject to paragraph 8 below, any portion
of their Senior Notes in a Change of Control Offer or Asset Sale Offer
(collectively, an "Offer") by completing the form below entitled "OPTION OF
HOLDER TO ELECT PURCHASE."
(d) The Indenture provides that the Company will comply with any tender
offer rules under the Exchange Act which may then be applicable, including Rule
14e-1, in connection with an Offer required to be made by the Company to
repurchase the Senior Notes as a result of a Change of Control or an Asset Sale
Trigger Date. To the extent that the provisions of any securities laws or
regulations conflict with provisions of the Indenture, the Company shall comply
with the applicable securities laws and regulations and shall not be deemed to
have breached its obligations under the Indenture by virtue thereof.
8. NOTICE OF REDEMPTION OR PURCHASE. Notice of an optional redemption or
an Offer will be mailed to each Holder at its registered address at least 30
days but not more than 60 days before the date of redemption or purchase.
Senior Notes may be redeemed or purchased in part, but only in whole multiples
of $1,000 unless all Senior Notes held by a Holder are to be redeemed or
purchased. On or after any date on which Senior Notes are redeemed or
purchased, interest ceases to accrue on the Senior Notes or portions thereof
called for redemption or accepted for purchase on such date.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Senior Notes are in registered
form without coupons in denominations of $1,000 and integral multiples thereof.
The transfer of Senior Notes may be registered and Senior Notes may be
exchanged as provided in the Indenture. Holders seeking to transfer or exchange
their Senior Notes may be required, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not exchange or register
the transfer of any Senior Note or portion of a Senior Note selected for
redemption or tendered pursuant to an Offer. Also, it need not exchange or
register the transfer of any Senior Notes for a period of 15 Business Days
before a selection of
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Senior Notes to be redeemed or between a record date and the next succeeding
Interest Payment Date.
10. PERSONS DEEMED OWNERS. The registered Holder of a Senior
Note may be treated as its owner for all purposes.
11. AMENDMENTS AND WAIVERS. Subject to certain exceptions, the Indenture
or the Senior Notes may be amended or supplemented with the written consent of
the Holders of at least a majority in principal amount of the then outstanding
Senior Notes, and any existing Default or Event of Default (except a payment
Default) may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Senior Notes. Without the consent of
any Holder, the Indenture or the Senior Notes may be amended to: cure any
ambiguity, defect or inconsistency; provide for uncertificated Senior Notes in
addition to or in place of certificated Senior Notes; provide for the
assumption by another corporation of the Company's obligations to Holders in
the event of a merger or consolidation of the Company in which the Company is
not the surviving corporation or a sale of substantially all of the Company's
assets to such other corporation; comply with the Securities and Exchange
Commission's requirements to effect or maintain the qualification of the
Indenture under the Trust Indenture Act; provide for guarantees with respect to
the Senior Notes; or, make any change that does not materially adversely affect
any Holder's rights under the Indenture.
12. DEFAULTS AND REMEDIES. Events of Default include: default for 30 days
in payment of interest on the Senior Notes; default in payment of principal of,
or premium, if any, on the Senior Notes; subject to certain exceptions, failure
by the Company for 30 days after notice to it to comply with any of its other
agreements or covenants in, or provisions of, the Indenture or the Senior
Notes; certain defaults under and acceleration prior to maturity of, or failure
to pay at maturity, certain other Indebtedness; certain final judgments that
remain undischarged; and certain events of bankruptcy or insolvency involving
the Company or any Restricted Subsidiary that is a Significant Subsidiary. If
an Event of Default occurs and is continuing, the Trustee or the Holders of at
least 25% in principal amount of the Senior Notes may declare all the Senior
Notes to be immediately due and payable in an amount equal to the principal of,
premium, if any, and any accrued and unpaid interest on, such Senior Notes;
provided, however, that in the case of an Event of Default arising from certain
events of bankruptcy or insolvency, the principal of, premium, if any, and any
accrued and unpaid interest on, the Senior Notes becomes due and payable
immediately without further action or notice. Subject to certain exceptions,
Holders of a majority in principal amount of the then outstanding Senior Notes
may direct the Trustee in its exercise of any trust or power, provided that the
Trustee will be under no obligation to exercise any of its rights or powers
under the Indenture at the request of Holders unless such Holders have offered
to the Trustee security and indemnity satisfactory to it. Holders may not
enforce the Indenture or the Senior Notes except as
A-6
APITAL PRINTING SYSTEMS]
provided in the Indenture. The Trustee may withhold from Holders notice of any
continuing default (except a payment Default) if it determines that withholding
notice is in their interests. The Company must furnish an annual compliance
certificate to the Trustee.
13. TRUSTEE DEALINGS WITH THE COMPANY. The Trustee, in its
individual or any other capacity, may make loans to, accept
deposits from, and perform services for the Company or any
Affiliate, and may otherwise deal with the Company or any
Affiliate, as if it were not Trustee.
14. NO RECOURSE AGAINST OTHERS. No officer, employee, director,
stockholder or Subsidiary of the Company shall have any liability for any
Obligations of the Company under the Senior Notes or the Indenture, or for any
claim based on, in respect of, or by reason of, such Obligations or the
creation of any such Obligation, except, in the case of a Subsidiary, for an
express guarantee or an express creation of any Lien by such Subsidiary of the
Company's Obligations under the Senior Notes. Each Holder by accepting a Senior
Note waives and releases all such liability, and such waiver and release is
part of the consideration for the issuance of the Senior Notes.
15. SUCCESSOR SUBSTITUTED. Upon the consolidation or merger by the Company
with or into another corporation, or upon the sale, lease, conveyance or other
disposition of all or substantially all of its assets to another corporation,
in accordance with the Indenture, the corporation surviving any such merger or
consolidation (if not the Company) or the corporation to which such assets were
sold or transferred to shall succeed to, and be substituted for, and may
exercise every right and power of the Company under the Indenture with the same
effect as if such surviving or other corporation had been named as the Company
in the Indenture.
16. GOVERNING LAW. This Senior Note shall be governed by and
construed in accordance with the internal laws of the State of New
York without regard to the conflict of laws provisions thereof.
17. AUTHENTICATION. This Senior Note shall not be valid until
authenticated by the manual signature of the Trustee or an
authenticating agent.
18. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (=Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
19. CUSIP NUMBERS. Pursuant to a recommendation promulgated
by the Committee on Uniform Senior Note Identification Procedures, the Company
has caused CUSIP numbers to be printed on the Senior Notes and have directed
the Trustee to use CUSIP numbers
A-7
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Senior Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers printed on the Senior Notes.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture, which has in it the text of this Senior Note in
larger type. Request may be made to:
AmeriKing, Inc.
0000 Xxxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
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ASSIGNMENT FORM
To assign this Senior Note, fill in the form below: (I) or (we) assign and
transfer this Senior Note to:
----------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ----------------------------------------
--------------------------------------as agent to transfer this Senior Note on
the books of the Company. The agent may substitute another to act for him.
Date: _____________________ Your Signature: ____________________
(Sign exactly as your name appears on the
face of this Senior Note)
Signature Guarantee:
---------------------------------------
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OPTION OF HOLDER TO ELECT PURCHASE
If you elect to have this Senior Note purchased by the Company
pursuant to Section 4.13 of the Indenture, check the box: [ ]
If you elect to have this Senior Note purchased by the Company
pursuant to Section 4.14 of the Indenture, check the box: [ ]
If you elect to have only part of this Senior Note purchased by the
Company pursuant to Section 4.13 or 4.14 of the Indenture, state the amount
(multiples of $1000 only):
$-------------------------------------------
Date: __________________ Your Signature:___________________
(Sign exactly as your name appears on
the face of this Senior Note)
Signature Guarantee:
---------------------------------------
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SCHEDULE OF EXCHANGES OF DEFINITIVE SENIOR NOTES2
The following exchanges of a part of this Global Senior Note for
Definitive Senior Notes have been made:
Principal Signature of
Amount of Amount of Amount of authorized
decrease in increase in this Global officer of
Principal Principal Senior Note Trustee or
Date of Amount of Amount of following Senior Note
Exchange this Global this Global such decrease Custodian
Senior Note Senior Note (or increase)
------------- ------------- ------------- ------------- -------------
----- ----- ----- ----- -----
--------
2 This should be included only if the Senior Note is issued in
global form.
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