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INDENTURE
Dated as of June 21, 2000
Among
TEKNI-PLEX, INC.,
the GUARANTORS (defined herein)
and
HSBC BANK USA, Trustee
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12 3/4% Senior Subordinated Notes due 2010
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CROSS-REFERENCE TABLE
Indenture
Trust Indenture Act Section Section
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ss.310 (a)(1)................................................ 7.10
(a)(2)................................................ 7.10
(a)(3)................................................ N.A.
(a)(4)................................................ N.A.
(a)(5)................................................ N.A.
(b)................................................... 7.08; 7.10;
13.02
(c)................................................... N.A.
ss.311 (a)................................................... 7.11
(b)................................................... 7.11
(c)................................................... N.A.
ss.312 (a)................................................... 2.05
(b)................................................... 13.03
(c)................................................... 13.03
ss.313 (a)................................................... 7.06
(b)(1)................................................ N.A.
(b)(2)................................................ 7.06
(c)................................................... 7.06; 13.02
(d)................................................... 7.06
ss.314 (a)................................................... 4.11; 4.12;
13.02
(b)................................................... N.A.
(c)(1)................................................ 13.04
(c)(2)................................................ 13.04
(c)(3)................................................ N.A.
(d)................................................... N.A.
(e)................................................... 13.05
(f)................................................... N.A.
ss.315 (a)................................................... 7.01(b)
(b)................................................... 7.05; 13.02
(c)................................................... 7.01(a)
(d)................................................... 7.01(c)
(e)................................................... 6.11
ss.316 (a)(last sentence).................................... 2.09
(a)(1)(A)............................................. 6.05
(a)(1)(B)............................................. 6.04
(a)(2)................................................ N.A.
(b)................................................... 6.07
(c)................................................... 10.04
ss.317 (a)(1)................................................ 6.08
(a)(2)................................................ 6.09
(b)................................................... 2.04
ss.318 (a)................................................... 13.01
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N.A. means Not Applicable.
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of this Indenture.
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TABLE OF CONTENTS
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Page
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions...................................................1
SECTION 1.02. Other Definitions............................................19
SECTION 1.03. Incorporation by Reference of Trust Indenture Act............20
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating..............................................21
SECTION 2.02. Execution, Authentication and Denominations..................23
SECTION 2.03. Registrar and Paying Agent...................................23
SECTION 2.04. Paying Agent To Hold Money in Trust..........................24
SECTION 2.05. Securityholder Lists.........................................24
SECTION 2.06. Transfer and Exchange........................................25
SECTION 2.07. Replacement Securities.......................................35
SECTION 2.08. Outstanding Securities.......................................35
SECTION 2.09. Treasury Securities..........................................35
SECTION 2.10. Temporary Securities.........................................36
SECTION 2.11. Cancellation.................................................36
SECTION 2.12. Defaulted Interest...........................................36
SECTION 2.13. CUSIP or CINS Number.........................................36
SECTION 2.14. Payments of Interest.........................................37
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee...........................................38
SECTION 3.02. Selection of Securities To Be Redeemed.......................38
SECTION 3.03. Notice of Redemption.........................................38
SECTION 3.04. Effect of Notice of Redemption...............................39
SECTION 3.05. Deposit of Redemption Price..................................40
SECTION 3.06. Securities Redeemed in Part..................................40
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Page
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities........................................40
SECTION 4.02. Maintenance of Office or Agency..............................40
SECTION 4.03. Limitation on Transactions with Affiliates and
Related Persons..............................................41
SECTION 4.04. Limitation on Indebtedness...................................42
SECTION 4.05. Limitation on Certain Asset Dispositions.....................44
SECTION 4.06. Limitation on Restricted Payments............................45
SECTION 4.07. Corporate Existence..........................................48
SECTION 4.08. Payment of Taxes and Other Claims............................49
SECTION 4.09. Notice of Defaults...........................................49
SECTION 4.10. Maintenance of Properties....................................49
SECTION 4.11. Compliance Certificate.......................................50
SECTION 4.12. Provision of Financial Information...........................50
SECTION 4.13. Waiver of Stay, Extension or Usury Laws......................51
SECTION 4.14. Change of Control............................................51
SECTION 4.15. Limitation on Senior Subordinated Indebtedness...............52
SECTION 4.16. Limitations Concerning Distributions and Transfers
by Restricted Subsidiaries...................................53
SECTION 4.17. Limitation on Issuance and Sale of Capital Stock of
Restricted Subsidiaries......................................54
SECTION 4.18. Limitation on Liens..........................................54
SECTION 4.19. Future Guarantors............................................56
ARTICLE FIVE
MERGERS; SUCCESSOR CORPORATION
SECTION 5.01. Restriction on Mergers, Consolidations and Certain
Sales of Assets..............................................56
SECTION 5.02. Successor Corporation Substituted............................57
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default............................................58
SECTION 6.02. Acceleration.................................................60
SECTION 6.03. Other Remedies...............................................60
SECTION 6.04. Waiver of Past Default.......................................61
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Page
SECTION 6.05. Control by Majority..........................................61
SECTION 6.06. Limitation on Suits..........................................62
SECTION 6.07. Rights of Holders To Receive Payment.........................62
SECTION 6.08. Collection Suit by Trustee...................................62
SECTION 6.09. Trustee May File Proofs of Claim.............................63
SECTION 6.10. Priorities...................................................63
SECTION 6.11. Undertaking for Costs........................................64
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee............................................64
SECTION 7.02. Rights of Trustee............................................65
SECTION 7.03. Individual Rights of Trustee.................................66
SECTION 7.04. Trustee's Disclaimer.........................................66
SECTION 7.05. Notice of Defaults...........................................67
SECTION 7.06. Reports by Trustee to Holders................................67
SECTION 7.07. Compensation and Indemnity...................................67
SECTION 7.08. Replacement of Trustee.......................................68
SECTION 7.09. Successor Trustee by Merger, etc.............................69
SECTION 7.10. Eligibility; Disqualification................................70
SECTION 7.11. Preferential Collection of Claims Against Company............70
ARTICLE EIGHT
SUBORDINATION OF SECURITIES
SECTION 8.01. Securities Subordinated to Senior Debt.......................70
SECTION 8.02. No Payment on Securities in Certain Circumstances............71
SECTION 8.03. Payment Over of Proceeds upon Dissolution, etc...............72
SECTION 8.04. Subrogation..................................................73
SECTION 8.05. Obligations of Company Unconditional.........................74
SECTION 8.06. Notice to Trustee............................................74
SECTION 8.07. Reliance on Judicial Order or Certificate of
Liquidating Agent............................................75
SECTION 8.08. Trustee's Relation to Senior Debt............................76
SECTION 8.09. Subordination Rights Not Impaired by Acts or
Omissions of the Company or Holders of Senior Debt...........76
SECTION 8.10. Securityholders Authorize Trustee To Effectuate
Subordination of Securities..................................76
SECTION 8.11. This Article Not To Prevent Events of Default................77
SECTION 8.12. Trustee's Compensation Not Prejudiced........................77
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Page
SECTION 8.13. No Waiver of Subordination Provisions........................77
SECTION 8.14. Subordination Provisions Not Applicable to Money
Held in Trust for Securityholders; Payments May Be
Paid Prior to Dissolution....................................78
SECTION 8.15. Acceleration of Securities...................................78
ARTICLE NINE
DISCHARGE OF INDENTURE
SECTION 9.01. Termination of Company's Obligations.........................78
SECTION 9.02. Conditions Precedent to Termination..........................79
SECTION 9.03. Survival of Certain Obligations of the Company...............80
SECTION 9.04. Trustee's Obligations upon Termination.......................81
ARTICLE TEN
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.01. Without Consent of Holders...................................81
SECTION 10.02. With Consent of Holders......................................82
SECTION 10.03. Compliance with Trust Indenture Act..........................84
SECTION 10.04. Revocation and Effect of Consents............................84
SECTION 10.05. Notation on or Exchange of Securities........................85
SECTION 10.06. Trustee To Sign Amendments, etc..............................85
ARTICLE ELEVEN
GUARANTEE
SECTION 11.01. Unconditional Guarantee......................................85
SECTION 11.02. Severability.................................................86
SECTION 11.03. Release of a Guarantor.......................................86
SECTION 11.04. Limitation of Guarantor's Liability..........................87
SECTION 11.05. Contribution.................................................87
SECTION 11.06. Execution of Guarantee.......................................87
SECTION 11.07. Subordination of Subrogation and Other Rights................88
ARTICLE TWELVE
SUBORDINATION OF GUARANTEE
SECTION 12.01. Guarantee Obligations Subordinated to Senior Debt
of Guarantor.................................................88
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Page
SECTION 12.02. No Payment on Guarantees in Certain Circumstances............89
SECTION 12.03. Payment Over of Proceeds upon Dissolution, etc...............90
SECTION 12.04. Subrogation..................................................91
SECTION 12.05. Obligations of Guarantors Unconditional......................92
SECTION 12.06. Notice to Trustee............................................93
SECTION 12.07. Reliance on Judicial Order or Certificate of
Liquidating Agent............................................94
SECTION 12.08. Trustee's Relation to Senior Debt of Guarantors..............94
SECTION 12.09. Subordination Rights Not Impaired by Acts or
Omissions of the Guarantors or Holders of Senior
Debt of Guarantors...........................................94
SECTION 12.10. Securityholders Authorize Trustee To Effectuate
Subordination of Guarantee...................................95
SECTION 12.11. This Article Not To Prevent Events of Default................95
SECTION 12.12. Trustee's Compensation Not Prejudiced........................95
SECTION 12.13. No Waiver of Guarantee Subordination Provisions..............95
SECTION 12.14. Payments May Be Paid Prior to Dissolution....................96
ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01. Trust Indenture Act Controls.................................96
SECTION 13.02. Notices......................................................97
SECTION 13.03. Communications by Holders with Other Holders.................98
SECTION 13.04. Certificate and Opinion as to Conditions Precedent...........98
SECTION 13.05. Statements Required in Certificate or Opinion................99
SECTION 13.06. Rules by Trustee, Paying Agent, Registrar....................99
SECTION 13.07. Governing Law................................................99
SECTION 13.08. No Recourse Against Others...................................99
SECTION 13.09. Successors..................................................100
SECTION 13.10. Counterpart Originals.......................................100
SECTION 13.11. Severability................................................100
SECTION 13.12. No Adverse Interpretation of Other Agreements...............100
SECTION 13.13. Legal Holidays..............................................100
SIGNATURES....................................................................99
EXHIBIT A - Form of Security................................................ A-1
EXHIBIT B - Form of Certificate of Transfer................................. B-1
EXHIBIT C - Form of Certificate of Exchange................................. X-0
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XXXXXXXXX dated as of June 21, 2000, among TEKNI-PLEX, INC., a Delaware
corporation (the "Company"), the Guarantors listed on the signature page
hereto, and HSBC BANK USA, a banking corporation and trust company organized
under the laws of the State of New York, as trustee (the "Trustee").
Each party hereto agrees as follows for the benefit of the other parties
and for the equal and ratable benefit of the Holders of the Company's 12 3/4%
Senior Subordinated Notes due 2010:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Acquired Indebtedness" means, with respect to any Person, Indebtedness of
such Person (i) existing at the time such Person becomes a Restricted
Subsidiary or (ii) assumed in connection with the acquisition of assets from
another Person or (iii) Incurred in connection with, or in contemplation of,
such Person becoming a Restricted Subsidiary or such acquisition, as the case
may be.
"Additional Interest" shall have the meaning set forth in the Registration
Rights Agreement.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with any specified Person. For purposes of this definition, "control"
when used with respect to any Person means the power to direct the management
and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent" means any Registrar, Paying Agent or co-Registrar. See Section
2.03.
"Applicable Procedures" means with respect to any transfer or exchange of
interests in a Global Security, the rules and procedures of DTC, Euroclear or
Clearstream that apply to such transfer or exchange.
"Asset Disposition" means any sale, transfer or other disposition
(including, without limitation, by merger, consolidation or sale-and-leaseback
transaction) of (i) shares of Capital Stock of a Restricted Subsidiary of the
Company (other than directors' qualifying shares) or (ii) property or assets of
the Company or any Restricted Subsidiary of the Company other than in the
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ordinary course of business; provided, however, that an Asset Disposition shall
not include (a) any sale, transfer or other disposition of shares of Capital
Stock, property or assets by a Restricted Subsidiary of the Company to the
Company or to any Wholly Owned Subsidiary of the Company, (b) any sale,
transfer or other disposition of defaulted receivables for collection or any
sale, transfer or other disposition of property or assets in the ordinary
course of business, (c) any isolated sale, transfer or other disposition that
does not involve aggregate consideration in excess of $5.0 million
individually, (d) the grant in the ordinary course of business of any
non-exclusive license of patents, trademarks, registrations therefor and other
similar intellectual property, (e) any Lien (or foreclosure thereon) securing
Indebtedness to the extent that such Lien is granted in compliance with Section
4.18, (f) any Restricted Payment permitted by Section 4.06, (g) any disposition
of assets or property in the ordinary course of business to the extent such
property or assets are obsolete, worn-out or no longer useful in the Company's
or any of its Restricted Subsidiaries' business, (h) the sale, lease,
conveyance or disposition or other transfer of all or substantially all of the
assets of the Company as permitted under Section 5.01; provided, that the
assets not so sold, leased, conveyed, disposed of or otherwise transferred
shall be deemed an Asset Disposition, or (i) any disposition that constitutes a
Change of Control.
"Average Life" means, as of the date of determination, with
respect to any Indebtedness for borrowed money or Preferred Stock, the quotient
obtained by dividing (i) the sum of the products of the number of years from
the date of determination to the dates of each successive scheduled principal
or liquidation value payments of such Indebtedness or Preferred Stock,
respectively, and the amount of such principal or liquidation value payments,
by (ii) the sum of all such principal or liquidation value payments.
"Board of Directors" means the Board of Directors of the Company or any
Guarantor, as the case may be, or any authorized committee of that Board.
"Board Resolution" means, with respect to any Person, a duly adopted
resolution of the Board of Directors of such Person and, if applicable,
certified and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
that is not a day on which banking institutions in the City of New York are
authorized or obligated by law, resolution or executive order to close.
"Capital Lease Obligations" of any Person means the obligations to pay
rent or other amounts under a lease of (or other Indebtedness arrangements
conveying the right to use) real or personal property of such Person which are
required to be classified and accounted for as a capital lease or liability on
the face of a balance sheet of such Person in accordance with GAAP. The amount
of such obligations shall be the capitalized amount thereof in accordance with
GAAP and the stated maturity thereof shall be the date of the last payment of
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rent or any other amount due under such lease prior to the first date upon
which such lease may be terminated by the lessee without payment of a penalty.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of corporate stock of
such Person.
"Clearstream" means Clearstream Banking, societe anonyme, as successor to
Cedel Bank, societe anonyme.
"Common Stock" of any Person means Capital Stock of such Person that does
not rank prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding up
of such Person, to shares of Capital Stock of any other class of such Person.
"Company" means the Person named as the "Company" in the first paragraph
of this Indenture until a successor shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Consolidated Cash Flow Available for Fixed Charges" of any Person means
for any period the Consolidated Net Income of such Person for such period
increased (to the extent Consolidated Net Income for such period has been
reduced thereby) by the sum of (without duplication) (i) Consolidated Interest
Expense of such Person for such period, plus (ii) Consolidated Income Tax
Expense of such Person for such period, plus (iii) the consolidated
depreciation and amortization expense included in the income statement of such
Person prepared in accordance with GAAP for such period, plus (iv) any other
non-cash charges to the extent deducted from or reflected in Consolidated Net
Income except for any non-cash charges that represent accruals of, or reserves
for, cash disbursements to be made in any future accounting period.
"Consolidated Cash Flow Ratio" of any Person means for any period the
ratio of (i) Consolidated Cash Flow Available for Fixed Charges of such Person
for such period to (ii) the sum of (A) Consolidated Interest Expense of such
Person for such period, plus (B) the annual interest expense with respect to
any Indebtedness proposed to be Incurred by such Person or its Restricted
Subsidiaries, minus (C) Consolidated Interest Expense of such Person to the
extent included in clause (ii)(A) with respect to any Indebtedness that will no
longer be outstanding as a result of the Incurrence of the Indebtedness
proposed to be Incurred, plus (D) the annual interest expense with respect to
any other Indebtedness Incurred by such Person or its Restricted Subsidiaries
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since the end of such period to the extent not included in clause (ii)(A),
minus (E) Consolidated Interest Expense of such Person to the extent included
in clause (ii)(A) with respect to any Indebtedness that no longer is
outstanding as a result of the Incurrence of the Indebtedness referred to in
clause (ii)(D); provided, however, that in making such computation, the
Consolidated Interest Expense of such Person attributable to interest on any
Indebtedness bearing a floating interest rate shall be computed on a pro forma
basis as if the rate in effect on the date of computation (after giving effect
to any hedge in respect of such Indebtedness that will, by its terms, remain in
effect until the earlier of the maturity of such Indebtedness or the date one
year after the date of such determination) had been the applicable rate for the
entire period.
In the event such Person or any of its Restricted Subsidiaries has made
any Asset Dispositions or acquisitions of assets not in the ordinary course of
business (including acquisitions of other Persons by merger, consolidation or
purchase of Capital Stock) during or after such period and on or prior to the
date of measurement, such computation shall be made on a pro forma basis as if
the Asset Dispositions or acquisitions had taken place on the first day of such
period.
Calculations of pro forma amounts in accordance with this definition shall
be done in accordance with Article 11 of Regulation S-X under the Securities
Act or any successor provision and may include reasonably ascertainable cost
savings.
"Consolidated Income Tax Expense" of any Person means for any period the
consolidated provision for income taxes of such Person and its Restricted
Subsidiaries for such period calculated on a consolidated basis in accordance
with GAAP.
"Consolidated Interest Expense" for any Person means for any period,
without duplication, (a) the consolidated interest expense included in a
consolidated income statement (without deduction of interest or finance charge
income) of such Person and its Restricted Subsidiaries for such period
calculated on a consolidated basis in accordance with GAAP and (b) dividend
requirements of such Person and its Restricted Subsidiaries with respect to
Disqualified Stock and with respect to all other Preferred Stock of Restricted
Subsidiaries of such Person (in each case whether in cash or otherwise (except
dividends payable solely in shares of Capital Stock of such Person or such
Restricted Subsidiary)) paid, accrued or accumulated during such period times a
fraction the numerator of which is one and the denominator of which is one
minus the then effective consolidated Federal, state and local tax rate of such
Person, expressed as a decimal.
"Consolidated Net Income" of any Person means for any period the
consolidated net income (or loss) of such Person and its Restricted
Subsidiaries for such period determined on a consolidated basis in accordance
with GAAP; provided, however, that there shall be excluded therefrom (a) the
net income (or loss) of any Person acquired by such Person or a Restricted
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Subsidiary of such Person in a pooling-of-interests transaction for any period
prior to the date of such transaction, (b) the net income (but not net loss) of
any Restricted Subsidiary of such Person which is subject to restrictions which
prevent or limit the payment of dividends or the making of distributions to
such Person to the extent of such restrictions (regardless of any waiver
thereof), (c) non-cash gains and losses due solely to fluctuations in currency
values, (d) the net income of any Person that is not a Restricted Subsidiary of
such Person, except to the extent of the amount of dividends or other
distributions representing such Person's proportionate share of such other
Person's net income for such period actually paid in cash to such Person by
such other Person during such period, (e) gains but not losses on Asset
Dispositions by such Person or its Restricted Subsidiaries, (f) all
extraordinary gains and losses determined in accordance with GAAP and (g) in
the case of a successor to the referent Person by consolidation or merger or as
a transferee of the referent Person's assets, any earnings (or losses) of the
successor corporation prior to such consolidation, merger or transfer of
assets.
"Consolidated Net Worth" of any Person means the consolidated
stockholders' equity of such Person, determined on a consolidated basis in
accordance with GAAP, less (without duplication) amounts attributable to
Disqualified Capital Stock of such Person.
"Continuing Director" means a director who either was a member of the
Board of Directors of the Company on the Issue Date or who became a director of
the Company subsequent to the Issue Date and whose election, or nomination for
election by the Company's stockholders, was duly approved by a majority of the
Continuing Directors then on the Board of Directors of the Company in
accordance with the Investors' Agreement or otherwise, either by a specific
vote or by approval of the proxy statement issued by the Company on behalf of
the entire Board of Directors of the Company in which such individual is named
as nominee for director.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 13.02 or such other address as the Trustee may
give notice to the Company.
"Credit Agreement" means the Amended and Restated Credit Agreement dated
as of June 21, 2000, among the Company as borrower thereunder and Xxxxxx
Guaranty Trust Company of New York, as agent on behalf of itself and the others
named therein, and any deferrals, renewals, extensions, replacements,
refinancings or refundings thereof, or amendments, modifications or supplements
thereto or replacements thereof (including, without limitation, any amendment
increasing the amount borrowed thereunder) and any agreement providing therefor
whether by or with the same or any other lender, creditors, or group of
creditors and including related notes, guarantee agreements, security
agreements and other instruments and agreements executed in connection
therewith.
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"Default" means any event that is, or after notice or lapse of time or
both would become, an Event of Default.
"Designated Senior Debt" means (i) so long as the Credit Agreement is in
effect, the Senior Debt incurred thereunder and (ii) thereafter, any other
Senior Debt which has at the time of initial issuance an aggregate outstanding
principal amount in excess of $25.0 million which has been so designated as
Designated Senior Debt by the Board of Directors of the Company at the time of
initial issuance in a resolution certified pursuant to an Officers' Certificate
and delivered to the Trustee.
"Disqualified Stock" of any Person means any Capital Stock of such Person
which, by its terms (or by the terms of any security into which it is
convertible or for which it is 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 final maturity of the Securities (other
than pursuant to change of control provisions similar to those applicable to
the Securities, provided that such provisions expressly provide that no payment
can be made on such Stock until any Offer to Purchase required pursuant to
Section 4.14 shall have been consummated and paid in full).
"Domestic Restricted Subsidiary" means any Restricted Subsidiary of the
Company organized and existing under the laws of the United States, any state
thereof or the District of Columbia.
"DTC" means The Depository Trust Company or its successors.
"11 1/4% Notes" means the Company's 11 1/4% Senior Subordinated Notes due
2007 issued pursuant to the 11 1/4% Notes Indenture.
"11 1/4% Notes Indenture" means the indenture dated as of April 1, 1997,
among the Company, the subsidiaries of the Company from time to time party
thereto as guarantors thereunder and Marine Midland Bank, as trustee, as
supplemented from time to time.
"Euroclear" means Xxxxxx Guaranty Trust Company of New York (Brussels
Office) as operator of the Euroclear system.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated by the Commission thereunder.
"Exchange Registration Statement" shall have the meaning set forth in the
Registration Rights Agreement.
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"Exchange Securities" means both the "Exchange Securities" and the
"Private Exchange Securities" as each is defined in the Registration Rights
Agreement; provided that in the case of any Registration Rights Agreement
relating to additional Securities, such Exchange Securities are issued solely
in exchange for and in aggregate principal amount equal to additional
Securities issued in compliance with Article Four hereof.
"Existing Credit Agreement" means the Credit Agreement, dated as of March
3, 1998, among the Company, as borrower thereunder, and Xxxxxx Guaranty Trust
Company of New York, as agent on behalf of itself and the others named therein,
which will be repaid and refinanced as part of the Recapitalization.
"Expiration Date" has the meaning set forth in the definition of "Offer to
Purchase".
"GAAP" means generally accepted accounting principles, consistently
applied, as in effect on the Issue Date in the United States of America, as set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as is approved by a significant segment of the
accounting profession in the United States.
"Global Security" means the global security, without coupons, representing
all or a portion of the Securities deposited with DTC substantially in the form
of Exhibit A attached hereto.
"guarantee" by any Person means any obligation, contingent or
otherwise, of such Person guaranteeing any Indebtedness of any other Person
(the "primary obligor") in any manner, whether directly or indirectly, and
including, without limitation, any obligation of such Person (i) to purchase or
pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or to purchase (or to advance or supply funds for the purchase of)
any security for the payment of such Indebtedness, (ii) to purchase property,
securities or services for the purpose of assuring the holder of such
Indebtedness of the payment of such Indebtedness, or (iii) to maintain working
capital, equity capital or other financial statement condition or liquidity of
the primary obligor so as to enable the primary obligor to pay such
Indebtedness (and "guaranteed," "guaranteeing" and "guarantor" shall have
meanings correlative to the foregoing); provided, however, that the guarantee
by any Person shall not include endorsements by such Person for collection or
deposit, in either case, in the ordinary course of business.
"Guarantee" means the guarantee of the Securities by each Guarantor under
this Indenture.
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"Guarantor" means (i) each Domestic Restricted Subsidiary on the Issue
Date with assets or stockholder's equity in excess of $25,000 and (ii) each
Domestic Restricted Subsidiary, if any, of the Company formed or acquired after
the Issue Date which pursuant to the terms of this Indenture executes a
supplement to this Indenture as a Guarantor.
"Holder" or "Securityholder" means the Person in whose name a Security is
registered on the books of the Registrar or any co-Registrar.
"Incur" means, with respect to any Indebtedness or other obligation of any
Person, to create, issue, incur (including by conversion, exchange or
otherwise), assume, guarantee or otherwise become liable in respect of such
Indebtedness or other obligation or the recording, as required pursuant to GAAP
or otherwise, of any such Indebtedness or other obligation on the balance sheet
of such Person (and "Incurrence," "Incurred" and "Incurring" shall have
meanings correlative to the foregoing). Indebtedness of any Person or any of
its Restricted Subsidiaries existing at the time such Person becomes a
Restricted Subsidiary of the Company (or is merged into or consolidates with
the Company or any of its Restricted Subsidiaries), whether or not such
Indebtedness was incurred in connection with, or in contemplation of, such
Person becoming a Restricted Subsidiary of the Company (or being merged into or
consolidated with the Company or any of its Restricted Subsidiaries), shall be
deemed Incurred at the time any such Person becomes a Restricted Subsidiary of
the Company or merges into or consolidates with the Company or any of its
Restricted Subsidiaries.
"Indebtedness" means (without duplication), with respect to any Person,
whether recourse is to all or a portion of the assets of such Person and
whether or not contingent, (i) every obligation of such Person for money
borrowed, (ii) every obligation of such Person evidenced by bonds, debentures,
notes or other similar instruments, including obligations incurred in
connection with the acquisition of property, assets or businesses, (iii) every
reimbursement obligation of such Person with respect to letters of credit,
bankers' acceptances or similar facilities issued for the account of such
Person outstanding for more than 15 days, (iv) every obligation of such Person
issued or assumed as the deferred purchase price of property or services
outstanding for more than 15 days (but excluding trade accounts payable or
accrued liabilities arising in the ordinary course of business which are not
overdue or which are being contested in good faith), (v) every Capital Lease
Obligation of such Person, (vi) every net obligation under interest rate swap
or similar agreements or foreign currency hedge, exchange or similar agreements
of such Person and (vii) every obligation of the type referred to in clauses
(i) through (vi) of another Person and all dividends of another Person the
payment of which, in either case, such Person has guaranteed or is responsible
or liable for, directly or indirectly, as obligor, guarantor or otherwise.
Indebtedness shall include the liquidation preference and any mandatory
redemption payment obligations in respect of any Disqualified Stock of the
Company owned by any Person other than the Company or a Restricted Subsidiary
of the Company, and any Preferred Stock of a Restricted Subsidiary of the
-8-
Company. Indebtedness shall never be calculated taking into account any cash
and cash equivalents held by such Person. Indebtedness shall not include
obligations arising from agreements of the Company or a Restricted Subsidiary
of the Company to provide for indemnification, adjustment of purchase price,
earn-out, or other similar obligations, in each case, incurred or assumed in
connection with the disposition of any business or assets of a Restricted
Subsidiary of the Company. The amount outstanding at any time of any
Indebtedness issued with original issue discount is the face amount of such
indebtedness less the remaining unamortized portion of the original issue
discount of such Indebtedness at such time as determined in accordance with
GAAP.
"Indenture" means this Indenture as amended or supplemented
from time to time.
"Interest Payment Date" means the stated maturity of an installment of
interest on the Securities.
"Investment" by any Person means any direct or indirect loan, advance,
guarantee or other extension of credit (excluding credit balances in bank
accounts or similar accounts with other financial institutions) or capital
contribution to (by means of transfers of cash or other property to others or
payments for property or services for the account or use of others, or
otherwise), or purchase or acquisition of Capital Stock, bonds, notes,
debentures or other securities or evidence of Indebtedness issued by any other
Person.
"Investors' Agreement" means the Investors' Agreement dated as of June 21,
2000 among Tekni-Plex, Tekni-Plex Partners, MST/TP Partners, Xx. Xxxxx, Xxxxxxx
X. Xxxxxx and Tekni-Plex Management as in effect on the Issue Date.
"Issue Date" means June 21, 2000.
"Lien" means, with respect to any property or assets, any mortgage or deed
of trust, pledge, hypothecation, assignment, security interest, lien, charge,
easement (other than any easement not materially impairing usefulness or
marketability), encumbrance, preference, priority or other security agreement
with respect to such property or assets (including, without limitation, any
conditional sale or other title retention agreement having substantially the
same economic effect as any of the foregoing).
"Material Subsidiary" means, at any date of determination, any Subsidiary
that, together with its Subsidiaries, (i) for the most recent fiscal year of
the Company accounted for more than 5% of the consolidated revenues of the
Company or (ii) as of the end of such fiscal year, was the owner of more than
5% of the consolidated assets of the Company, all as set forth on the most
recently available consolidated financial statements of the Company for such
fiscal year prepared in conformity with GAAP.
-9-
"Maturity Date" means the date, which is set forth on the face of the
Securities, on which the Securities will mature.
"Moody's" means Xxxxx'x Investors Service, Inc. or any successor to its
debt rating business.
"Net Available Proceeds" from any Asset Disposition by any Person means
cash or readily marketable securities received (including by way of sale or
discounting of a note, installment receivable or other receivable, but
excluding any other consideration received in the form of assumption by the
acquiror of Indebtedness or other obligations relating to such properties or
assets or received in any other non-cash form) therefrom by such Person,
including any cash received by way of deferred payment or upon the monetization
or other disposition of any non-cash consideration (including notes or other
securities) received in connection with such Asset Disposition, net of (i) all
legal, title and recording tax expenses, commissions and other fees and
expenses incurred and all federal, state, foreign and local taxes required to
be accrued as a liability as a consequence of such Asset Disposition, (ii) all
payments made by such Person or its Restricted Subsidiaries on any Indebtedness
which is secured by such assets in accordance with the terms of any Lien upon
or with respect to such assets or which must by the terms of such Lien, or in
order to obtain a necessary consent to such Asset Disposition or by applicable
law, be repaid out of the proceeds from such Asset Disposition, (iii) all
payments made with respect to liabilities associated with the assets which are
the subject of the Asset Disposition, including, without limitation, trade
payables and other accrued liabilities, (iv) appropriate amounts to be provided
by such Person or any Restricted Subsidiary thereof, as the case may be, as a
reserve in accordance with GAAP against any liabilities associated with such
assets and retained by such Person or any Restricted Subsidiary thereof, as the
case may be, after such Asset Disposition, including, without limitation,
liabilities under any indemnification obligations and severance and other
employee termination costs associated with such Asset Disposition, until such
time as such amounts are no longer reserved or such reserve is no longer
necessary (at which time any remaining amounts will become Net Available
Proceeds to be allocated in accordance with the provisions of clause (iii) of
Section 4.05), and (v) all distributions and other payments made to minority
interest holders in Restricted Subsidiaries of such Person or joint ventures as
a result of such Asset Disposition.
"Net Investment" means the excess of (i) the aggregate amount
of all Investments in Unrestricted Subsidiaries or joint ventures made by the
Company or any Restricted Subsidiary on or after the Issue Date (in the case of
an Investment made other than in cash, the amount shall be the fair market
value of such Investment as determined in good faith by the Board of Directors
of the Company or such Restricted Subsidiary) over (ii) the aggregate amount
returned in cash on or with respect to such Investments whether through
interest payments, principal payments, dividends or other distributions or
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payments; provided, however, that such payments or distributions shall not be
(and have not been) included in subclause (b) of clause (3) of the first
paragraph of Section 4.06; provided, further, that with respect to all
Investments made in any Unrestricted Subsidiary or joint venture the amounts
referred to in clause (ii) above with respect to such Investments shall not
exceed the aggregate amount of all such Investments made in such Unrestricted
Subsidiary or joint venture.
"9 1/4% Notes" means the Company's 9 1/4% Senior Subordinated Notes due
2008 issued pursuant to the 9 1/4% Notes Indenture.
"9 1/4% Notes Indenture" means the indenture dated as of March 1, 1998,
among the Company, the subsidiaries of the Company from time to time party
thereto as guarantors thereunder and Marine Midland Bank, as Trustee, as
supplemented from time to time.
"Offer" has the meaning set forth in the definition of "Offer to
Purchase."
"Offer to Purchase" means a written offer (the "Offer") sent by the
Company by first class mail, postage prepaid, to each Holder at his address
appearing in the register for the Securities on the date of the Offer offering
to purchase up to the principal amount of Securities specified in such Offer at
the purchase price specified in such Offer (as determined pursuant to this
Indenture). Unless otherwise required by applicable law, the Offer shall
specify an expiration date (the "Expiration Date") of the Offer to Purchase
which shall be not less than 30 days nor more than 60 days after the date of
such Offer and a settlement date (the "Purchase Date") for purchase of
Securities within five Business Days after the Expiration Date. The Company
shall notify the Trustee at least 15 Business Days (or such shorter period as
is acceptable to the Trustee) prior to the mailing of the Offer of the
Company's obligation to make an Offer to Purchase, and the Offer shall be
mailed by the Company or, at the Company's request, by the Trustee in the name
and at the expense of the Company. The Offer shall contain all the information
required by applicable law to be included therein. The Offer shall contain all
instructions and materials necessary to enable such Holders to tender
Securities pursuant to the Offer to Purchase. The Offer shall also state:
(1) the Section of this Indenture pursuant to which the Offer to
Purchase is being made;
(2) the Expiration Date and the Purchase Date;
(3) the aggregate principal amount of the outstanding Securities
offered to be purchased by the Company pursuant to the Offer to Purchase
(including, if less than 100%, the manner by which such amount has been
determined pursuant to the Section of this Indenture requiring the Offer
to Purchase) (the "Purchase Amount");
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(4) the purchase price to be paid by the Company for each $1,000
aggregate principal amount of Securities accepted for payment (as
specified pursuant to this Indenture) (the "Purchase Price");
(5) that the Holder may tender all or any portion of the Securities
registered in the name of such Holder and that any portion of a Security
tendered must be tendered in an integral multiple of $1,000 principal
amount;
(6) the place or places where Securities are to be surrendered for
tender pursuant to the Offer to Purchase;
(7) that interest on any Security not tendered or tendered but not
purchased by the Company pursuant to the Offer to Purchase will continue
to accrue;
(8) that on the Purchase Date the Purchase Price will become due and
payable upon each Security being accepted for payment pursuant to the
Offer to Purchase and that interest thereon shall cease to accrue on and
after the Purchase Date;
(9) that each Holder electing to tender all or any portion of a
Security pursuant to the Offer to Purchase will be required to surrender
such Security at the place or places specified in the Offer prior to the
close of business on the Expiration Date (such Security being, if the
Company or the Trustee so requires, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing);
(10) that Holders will be entitled to withdraw all or any portion of
Securities tendered if the Company (or its Paying Agent) receives, not
later than the close of business on the fifth Business Day next preceding
the Expiration Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the Security
the Holder tendered, the certificate number of the Security the Holder
tendered and a statement that such Holder is withdrawing all or a portion
of his tender;
(11) that (a) if Securities in an aggregate principal amount less
than or equal to the Purchase Amount are duly tendered and not withdrawn
pursuant to the Offer to Purchase, the Company shall purchase all such
Securities and (b) if Securities in an aggregate principal amount in
excess of the Purchase Amount are tendered and not withdrawn pursuant to
the Offer to Purchase, the Company shall purchase Securities having an
aggregate principal amount equal to the Purchase Amount on a pro rata
basis (with such adjustments as may be deemed appropriate so that only
Securities in denominations of $1,000 or integral multiples thereof shall
be purchased); and
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(12) that in the case of any Holder whose Security is purchased only
in part, the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a new
Security or Securities, of any authorized denomination as requested by
such Holder, in an aggregate principal amount equal to and in exchange for
the unpurchased portion of the Security so tendered.
An Offer to Purchase shall be governed by and effected in accordance with
the provisions above pertaining to any Offer.
"Officer" means the Chairman, Chief Executive Officer, the
President, any Vice President, the Chief Financial Officer, the Treasurer, the
Secretary, or the Controller of the Company.
"Officers' Certificate" means a certificate signed by two Officers (one of
whom shall be the Chief Executive Officer, the Chief Operating Officer, or the
Chief Financial Officer of the Company) or by an Officer and the Treasurer, the
Secretary, an Assistant Treasurer or Assistant Secretary of the Company
complying with Sections 13.04 and 13.05.
"Opinion of Counsel" means a written opinion reasonably satisfactory in
form and substance to the Trustee from legal counsel who is reasonably
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Company or the Trustee.
"Participant" means, with respect to DTC, Euroclear or Clearstream, a
Person who has an account with DTC, Euroclear or Clearstream, respectively
(and, with respect to DTC, shall include Euroclear and Clearstream).
"Permitted Holder" means (i) Dr. F. Xxxxxxx Xxxxx, Xxxxxxx X.X. Xxxxx and
(a) entities controlled by such Persons, (b) trusts for the benefit of such
individual Persons or the spouses, issue, parents or other relatives of such
individual Persons and (c) in the event of the death of any such individual
Person, heirs or testamentary legatees of such Person; and (ii) Tekni-Plex
Partners LLC and entities controlled by such Person. For purposes of this
definition, "control," as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities or by contract or otherwise.
"Permitted Investments" means (i) Investments in marketable, direct
obligations issued or guaranteed by the United States of America, or any
governmental entity or agency or political subdivision thereof (provided that
the full faith and credit of the United States of America is pledged in support
thereof), maturing within one year of the date of purchase; (ii) Investments in
commercial paper issued by corporations or financial institutions maturing
within 180 days from the date of the original issue thereof, and rated "P-1" or
better by Moody's or "A-1" or better by S&P or an equivalent rating or better
-13-
by any other nationally recognized securities rating agency; (iii) Investments
in certificates of deposit issued or acceptances accepted by or guaranteed by
any bank or trust company organized under the laws of the United States of
America, any state thereof, the District of Columbia, Canada or any province
thereof, in each case having a combined capital, surplus and undivided profits
totaling more than $500 million, maturing within one year of the date of
purchase; (iv) Investments representing Capital Stock or obligations issued or
otherwise transferred to the Company or any of its Restricted Subsidiaries in
the course of the good faith settlement of claims against any other Person or
by reason of a composition or readjustment of debt or a reorganization of any
debtor of the Company or any of its Restricted Subsidiaries; (v) deposits,
including interest-bearing deposits, maintained in the ordinary course of
business in banks; (vi) any Investment in any Person; provided, however, that
(x) after giving effect to any such Investment such Person shall become a
Restricted Subsidiary of the Company or (y) such Person is merged with or into,
or substantially all of such Person's assets are transferred to, the Company or
a Restricted Subsidiary of the Company; (vii) receivables and prepaid expenses,
in each case arising in the ordinary course of business; provided, however,
that such receivables and prepaid expenses would be recorded as assets of such
Person in accordance with GAAP; (viii) endorsements for collection or deposit
in the ordinary course of business by such Person of bank drafts and similar
negotiable instruments of such other Person received as payment for ordinary
course of business trade receivables; (ix) any interest swap or hedging
obligation with an unaffiliated Person otherwise permitted by this Indenture;
(x) Investments received as consideration for an Asset Disposition in
compliance with Section 4.05; (xi) Investments in Restricted Subsidiaries or by
virtue of which a Person became a Restricted Subsidiary (including under
circumstances in which equity interests in a Restricted Subsidiary are acquired
from third parties subsequent to such Person becoming a Restricted Subsidiary
pursuant to the terms of any merger or acquisition or similar agreement in
existence at the time such Person becomes a Restricted Subsidiary); and (xii)
loans and advances to employees of the Company or any of its Restricted
Subsidiaries in the ordinary course of business.
"Person" means any individual, corporation, limited or
general partnership, limited liability company, joint venture, association,
joint stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Physical Securities" means Securities that are not Global Securities
issued substantially in the form of Exhibit A hereto, in certificated form and
issued in the names of the holders thereof (or their nominees), duly executed
by the Company and authenticated by the Trustee issued pursuant to the terms of
Section 2.06 hereof or otherwise.
"Preferred Stock," as applied to the Capital Stock of any Person, means
Capital Stock of such Person of any class or classes (however designated) that
ranks prior, as to the payment of dividends or as to the distribution of assets
-15-
upon any voluntary or involuntary liquidation, dissolution or winding up of
such Person, to shares of Capital Stock of any other class of such Person.
"principal" of a debt security means the principal of the
security plus, when appropriate, the premium, if any, on the security.
"Purchase Amount" has the meaning set forth in the definition
of "Offer to Purchase."
"Purchase Date" has the meaning set forth in the definition of "Offer to
Purchase."
"Purchase Price" has the meaning set forth in the definition of "Offer to
Purchase."
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Recapitalization" means the transactions contemplated to occur prior to,
on and immediately after the Issue Date by the Recapitalization Agreement dated
as of April 12, 2000 among the Company, Tekni-Plex Partners LLC, MST/TP
Partners, L.P. and the other parties thereto (including the exhibits thereto).
"redemption date," when used with respect to any Security to be redeemed,
means the date fixed for such redemption pursuant to this Indenture.
"redemption price," when used with respect to any Security to
be redeemed, means the price fixed for such redemption pursuant to this
Indenture as set forth in the form of Security annexed as Exhibit A.
"Registration Rights Agreement" means the Registration Rights Agreement
dated as of June 21, 2000 among the Company, the Guarantors party thereto and
X.X. Xxxxxx Securities Inc., and any similar registration rights agreement
covering additional Securities issued under this Indenture in compliance with
Section 2.15 and Article Four hereof.
"Regulation S" means Regulation S promulgated under the Securities Act
(including any successor regulation thereto) as it may be amended from time to
time.
"Regulation S Global Security" means a Regulation S Temporary Global
Security or Regulation S Permanent Global Security, as appropriate.
"Regulation S Permanent Global Security" means a permanent global security
in the form of Exhibit A hereto bearing the Securities Act Legend and the
Global Security Legend and deposited with or on behalf of and registered in the
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name of the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount of the Regulation S Temporary Global Security upon
expiration of the Restricted Period.
"Regulation S Temporary Global Security" means a temporary
global security in the form of Exhibit A hereto bearing the Regulation S
Temporary Global Security Legend, the Securities Act Legend and the Global
Securities Legend and deposited with or on behalf of and registered in the name
of the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount of the Notes initially sold in reliance on Rule
903 of Regulation S.
"Related Person" of any Person means any other Person directly or
indirectly owning (a) 5% or more of the outstanding Common Stock of such Person
(or, in the case of a Person that is not a corporation, 5% or more of the
equity interest in such Person) or (b) 5% or more of the combined voting power
of the Voting Stock of such Person.
"Restricted Global Securities" means the Regulation S Global Security and
the 144A Global Security, each of which contains a Securities Act Legend.
"Restricted Period" means the 40-day restricted period as defined in
Regulation S.
"Restricted Physical Security" means a Physical Security containing a
Securities Act Legend.
"Restricted Subsidiary" means any Subsidiary of the Company
other than an Unrestricted Subsidiary.
"Rule 144" shall have the meaning set forth in the Registration Rights
Agreement.
"Rule 144A" shall have the meaning set forth in the
Registration Rights Agreement.
"S&P" means Standard & Poor's Ratings Group or any successor
to its debt rating business.
"Securities" means the 12 3/4% Senior Subordinated Notes due 2010 issued
pursuant to the terms of this Indenture, as amended or supplemented from time
to time.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the Commission thereunder.
"Securityholder" has the meaning set forth in the definition of "Holder"
above.
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"Senior Debt" means, with respect to any Person at any date, (i) in the
case of the Company or the Guarantors, all Indebtedness and other obligations
under the Credit Agreement, including, without limitation, principal, premium,
if any, and interest on such Indebtedness and all other amounts due on or in
connection with such Indebtedness including all charges, fees and expenses,
(ii) all other Indebtedness of such Person for money borrowed, including
principal, premium, if any, and interest on such Indebtedness, unless the
instrument under which such Indebtedness for money borrowed is created,
incurred, assumed or guaranteed expressly provides that such Indebtedness for
money borrowed is not senior or superior in right of payment to the Securities,
and all renewals, extensions, modifications, amendments, refinancing or
replacements thereof and all other Indebtedness of such Person of the types
referred to in clauses (iii), (iv) (not including obligations issued or assumed
as the deferred purchase price of services) and (vi) of the definition of
Indebtedness and (iii) all interest on any Indebtedness referred to in clauses
(i) and (ii) accruing during, or which would accrue but for, the pendency of
any bankruptcy or insolvency proceeding, whether or not allowed thereunder.
Notwithstanding the foregoing, Senior Debt shall not include (a)
Indebtedness which is pursuant to its terms or any agreement relating thereto
or by operation of law subordinated or junior in right of payment or otherwise
to any other Indebtedness of such Person; provided, however, that no
Indebtedness shall be deemed to be subordinate or junior in right of payment or
otherwise to any other Indebtedness of a Person solely by reason of such other
Indebtedness being secured and such Indebtedness not being secured, (b) the
Securities, (c) any Indebtedness of such Person to any of its Subsidiaries, (d)
Indebtedness Incurred in violation of Section 4.04; provided, however, that
Indebtedness under the Credit Agreement shall be deemed not to have been
Incurred in violation of such provisions for purposes of this clause (d) if the
holder(s) of such Indebtedness or their agent or representative shall have
received a representation from the Company to the effect that the Incurrence of
such Indebtedness does not violate such provision, and (e) any Indebtedness
which, when incurred and without respect to any election under Section 1111(b)
of the Bankruptcy Code, is without recourse to the Company.
"Shelf Registration Statement" shall have the meaning set forth in the
Registration Rights Agreement.
"Stated Maturity," when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Subordinated Indebtedness" means any Indebtedness (whether outstanding on
the date hereof or hereafter incurred) which is by its terms expressly
subordinate or junior in right of payment to the Securities.
-18-
"Subsidiary" of any Person means (i) a corporation more than 50% of the
outstanding Voting Stock of which is owned, directly or indirectly, by such
Person or by one or more other Subsidiaries of such Person or by such Person
and one or more other Subsidiaries thereof or (ii) any other Person (other than
a corporation) in which such Person, or one or more other Subsidiaries of such
Person or such Person and one or more other Subsidiaries thereof, directly or
indirectly, have at least a majority ownership and voting power relating to the
policies, management and affairs thereof.
"Tender Offers" means the tender offers and consent solicitations
commenced on May 19, 2000 relating to the 11 1/4% Notes and the 9 1/4% Notes.
"Term Loan Facilities" means the term loans outstanding on the Issue Date
under the Credit Agreement less any scheduled or other payments made thereon.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code xx.xx.
77aaa-77bbbb) as in effect on the date of this Indenture, except as provided in
Section 10.03.
"Trustee" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"Trust Officer" means any officer within the corporate trust
department (or any successor group of the Trustee) including any vice
president, assistant vice president, assistant secretary or any other officer
or assistant officer of the Trustee customarily performing functions similar to
those performed by the persons who at that time shall be such officers, and
also means, with respect to a particular corporate trust matter, any other
officer to whom such trust matter is referred because of his knowledge of and
familiarity with the particular subject.
"Unrestricted Global Securities" means one or more Global Securities that
do not and are not required to bear the Securities Act Legend.
"Unrestricted Physical Securities" means one or more Physical Securities
that do not and are not required to bear the Securities Act Legend.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Company formed
or acquired after the Issue Date that at the time of determination is
designated an Unrestricted Subsidiary by the Board of Directors in the manner
provided below and (ii) any Subsidiary of an Unrestricted Subsidiary. Any such
designation by the Board of Directors will be evidenced to the Trustee by
promptly filing with the Trustee a copy of the Board Resolution giving effect
to such designation and an Officers' Certificate certifying that such
designation complied with the foregoing provisions. The Board of Directors of
the Company may not designate any Subsidiary of the Company to be an
Unrestricted Subsidiary if, after such designation, (a) the Company or any
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other Restricted Subsidiary (i) provides credit support for, or a guarantee of,
any Indebtedness of such Subsidiary (including any undertaking, agreement or
instrument evidencing such Indebtedness) or (ii) is directly or indirectly
liable for any Indebtedness of such Subsidiary, (b) a default with respect to
any Indebtedness of such Subsidiary (including any right which the holders
thereof may have to take enforcement action against such Subsidiary) would
permit (upon notice, lapse of time or both) any holder of any other
Indebtedness of the Company or any Restricted Subsidiary to declare a default
on such other Indebtedness or cause the payment thereof to be accelerated or
payable prior to its final scheduled maturity or (c) such Subsidiary owns any
Capital Stock of, or owns or holds any Lien on any property of, any Restricted
Subsidiary which is not a Subsidiary of the Subsidiary to be so designated.
"Voting Stock" of any Person means the Capital Stock of such Person which
ordinarily has voting power for the election of directors (or persons
performing similar functions) of such Person, whether at all times or only so
long as no senior class of securities has such voting power by reason of any
contingency.
"Wholly Owned Subsidiary" of any Person means a Restricted Subsidiary of
such Person all of the outstanding Capital Stock or other ownership interests
of which (other than directors' qualifying shares) shall at the time be owned
by such Person or by one or more Wholly Owned Subsidiaries of such Person or by
such Person and one or more Wholly Owned Subsidiaries of such Person.
SECTION 1.02. Other Definitions.
Term Defined in Section
"Bankruptcy Law" 6.01
"Change of Control" 4.14
"Custodian" 6.01
"Event of Default" 6.01
"Funding Guarantor" 11.05
"Global Security Legend" 2.06(h)
"Guarantor Blockage Period" 12.02(a)
"Guarantor Payment Blockage Notice" 12.02(a)
"Guarantor Securities Payment" 12.02
"144A Global Security" 2.01(a)
"Paying Agent" 2.03
"Payment Blockage Notice" 8.02(a)
"Payment Blockage Period" 8.02(a)
"Registrar" 2.03
"Regulation S Global Security" 2.01(a)
"Required Filing Date" 4.12
"Securities Act Legend" 2.06(f)
"Securities Payment" 8.02
"United States Government Obligation" 9.01
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SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Securities.
"indenture security holder" means a Holder or Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company or any other
obligor on the Securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rule and
not otherwise defined herein have the meanings assigned to them therein.
SECTION 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to
it in accordance with generally accepted accounting principles in effect from
time to time, and any other reference in this Indenture to "generally accepted
accounting principles" refers to GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the plural
include the singular;
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(5) provisions apply to successive events and transactions;
(6) "herein," "hereof" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision; and
(7) whenever in this Indenture there is mentioned, in any context,
principal, interest or any other amount payable under or with respect to any
Security, such mention shall be deemed to include mention of the payment of
Additional Interest to the extent that, in such context, Additional Interest
is, was or would be payable in respect hereof.
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating.
(a) Global Securities. Securities offered and sold to QIBs in reliance on
Rule 144A shall be issued initially substantially in the form of Exhibit A
hereto in the name of Cede & Co. as nominee of DTC, duly executed by the
Company and authenticated by the Trustee as hereinafter provided. Such Security
shall be referred to herein as the "144A Global Security." Securities offered
and sold in reliance on Regulation S shall be issued initially substantially in
the form of Exhibit A hereto as a Regulation S Temporary Global Security in the
name of Cede & Co. as nominee of DTC, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. Such Security shall be
referred to herein as the "Regulation S Global Security." The Restricted Period
shall be terminated upon the receipt by the Trustee of (i) a written
certificate from the Depositary, together with copies of certificates from
Euroclear and Clearstream certifying that they have received certification of
non-United States beneficial ownership of 100% of the aggregate principal
amount of the Regulation S Temporary Global Security (except to the extent of
any beneficial owners thereof who acquired an interest therein during the
Restricted Period pursuant to another exemption from registration under the
Securities Act and who will take delivery of a beneficial ownership interest in
a 144A Global Note, and (ii) an Officers' Certificate from the Company.
Following the termination of the Restricted Period, beneficial interests in the
Regulation S Temporary Global Security shall be exchanged for beneficial
interests in Regulation S Permanent Global Security pursuant to the Applicable
Procedures. Simultaneously with the authentication of Regulation S Permanent
Global Security, the Trustee shall cancel the Regulation S Temporary Global
Security. Unrestricted Global Securities shall be issued initially in
accordance with Sections 2.06(b)(iv), 2.06(c)(ii) and 2.06(e) in the name of
Cede & Co. as nominee of DTC, duly executed by the Company and authenticated by
the Trustee as hereinafter provided. The aggregate principal amount of each of
the Global Security may from time to time be increased or decreased by
adjustments made on the records of the Trustee as hereinafter provided.
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Each Global Security shall represent such of the outstanding
Securities as shall be specified therein and each shall provide that it shall
represent the aggregate principal amount of outstanding Securities from time to
time endorsed thereon and that the aggregate principal amount of outstanding
Securities represented thereby may from time to time be reduced or increased,
as appropriate, to reflect exchanges, redemptions and transfers of interests
therein in accordance with the terms of this Indenture. Any endorsement of a
Global Security to reflect the amount of any increase or decrease in the
principal amount of outstanding Securities represented thereby shall be made by
the Trustee in accordance with instructions given by the Holder thereof as
required by Section 2.06 hereof.
Upon the issuance of the Global Security to DTC, DTC shall credit, on its
internal book-entry registration and transfer system, its Participants'
accounts with the respective interests owned by such Participants. Interests in
the Global Securities shall be limited to Participants, including Euroclear and
Clearstream, and indirect Participants.
The Participants shall not have any rights either under this Indenture or
under any Global Security with respect to such Global Security held on their
behalf by DTC, and DTC may be treated by the Company, the Trustee and any agent
of the Company or the Trustee as the absolute owner of such Global Security for
the purpose of receiving payment of or on account of the principal of and,
subject to the provisions of this Indenture, interest and Additional Interest,
if any, on the Global Securities and for all other purposes. Notwithstanding
the foregoing, nothing herein shall prevent the Company, the Trustee or any
agent of the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by DTC or impair, as
between DTC and its Participants, the operation of customary practices of DTC
governing the exercise of the rights of an owner of a beneficial interest in
any Global Security.
The provisions of the (i) "Operating Procedures of the
Euroclear System" and "Terms and Conditions Governing Use of Euroclear" and
(ii) the "General Terms and Conditions of Cedel Bank" and "Customer Handbook"
of Cedel Bank (as adopted by Clearstream) shall be applicable to interests in
the Regulation S Global Security that are held by the Participants through
Euroclear or Clearstream.
(b) Securities. The provisions of the form of Securities contained in
Exhibit A hereto are incorporated herein by reference. The Securities and the
Trustee's Certificates of Authentication shall be substantially in the form of
Exhibit A hereto. The Securities may have notations, legends or endorsements
required by law, stock exchange rule, usage or agreement to which the Company
is subject. The Company shall approve the form of the Securities and any
notation, legend or endorsement (including notations relating to the Guarantee)
on them. If required, the Securities may bear the appropriate legend regarding
original issue discount for federal income tax purposes. Each Security shall be
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dated the date of its authentication. The terms and provisions contained in the
Securities shall constitute, and are hereby expressly made, a part of this
Indenture.
SECTION 2.02. Execution, Authentication and Denominations.
Subject to Article Four and applicable law, the aggregate principal amount
of Securities which may be authenticated and delivered under this Indenture is
unlimited.
Two Officers of the Company shall sign the Securities for the Company by
manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds that office
at the time the Trustee authenticates the Security, the Security shall be valid
nevertheless.
A Security shall not be valid until an authorized officer of the Trustee
manually signs the certificate of authentication on the Security. The signature
shall be conclusive evidence that the Security has been authenticated under
this Indenture.
At any time and from time to time after the execution of this Indenture,
the Trustee shall, upon receipt of a Company Order, authenticate for original
issue Securities in the aggregate principal amount specified in such Company
Order; provided that the Trustee shall be entitled to receive an Officers'
Certificate and an Opinion of Counsel of the Company in connection with such
authentication of Securities. Such Company Order shall specify the amount of
Securities to be authenticated and the date on which the original issue of
Securities is to be authenticated and, in case of an issuance of Securities
pursuant to Section 2.15, shall certify that such issuance is in compliance
with Article Four.
The Securities shall be issuable only in registered form without coupons
and only in denominations of $1,000 in principal amount and any integral
multiple thereof.
SECTION 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Securities may be presented for payment ("Paying
Agent"). The Company may have one or more co-Registrars and one or more
additional paying agents. The term "Paying Agent" includes any additional
paying agent.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent and shall, if required,
incorporate the provisions of the TIA. The Company shall notify the Trustee of
the name and address of any such Agent. If the Company fails to maintain a
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Registrar or Paying Agent, the Trustee shall act as such and shall be entitled
to appropriate compensation in accordance with the provisions of Section 7.07.
The Company initially appoints the Trustee as Registrar and Paying Agent.
The Company shall give written notice to the Trustee in the event that the
Company decides to act as Registrar. None of the Company, its Subsidiaries or
any of their Affiliates may act as Paying Agent.
SECTION 2.04. Paying Agent To Hold Money in Trust.
The Company shall require each Paying Agent to agree in writing (if other
than the Trustee, who hereby agrees) to hold in trust for the benefit of
Securityholders or the Trustee all money held by the Paying Agent for the
payment of principal of or interest on the Securities (whether such money has
been paid to it by the Company or any other obligor on the Securities), and the
Company and the Paying Agent shall each notify the Trustee of any default by
the Company (or any other obligor on the Securities) in making any such
payment. The Company at any time may require a Paying Agent to pay all money
held by it to the Trustee and account for any funds disbursed and the Trustee
may at any time during the continuance of any payment default, upon written
request to a Paying Agent, require such Paying Agent to pay all money held by
it to the Trustee and to account for any funds disbursed. Upon making such
payment the Paying Agent shall have no further liability for the money
delivered to the Trustee.
SECTION 2.05. Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders. If the Trustee is not the Registrar, the Company shall furnish
to the Trustee at least five Business Days before each Interest Payment Date
and at such other times as the Trustee may request in writing a list in such
form and as of such date as the Trustee may reasonably require of the names and
addresses of Securityholders.
SECTION 2.06. Transfer and Exchange.
(a) Transfer and Exchange of Global Securities. Transfer of the Global
Securities shall be by delivery. Global Securities will be exchanged by the
Company for Physical Securities only (i) if DTC notifies the Company that it is
unwilling or unable to continue to act as depositary with respect to the Global
Securities or ceases to be a clearing agency registered under the Exchange Act
and, in either case, a successor depositary registered as a clearing agency
under the Exchange Act is not appointed by the Company within 90 days, (ii) at
any time if the Company in its sole discretion determines that the Global
Securities (in whole but not in part) should be exchanged for Physical
Securities or (iii) if the beneficial owner of an interest in the Global
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Securities requests such Physical Securities, following an Event of Default
under this Indenture, in a writing in the form of Exhibit C hereto, delivered
through DTC to the Trustee.
Upon the occurrence of any of the events specified in the
previous paragraph, Physical Securities shall be issued in such names as DTC
shall instruct the Trustee and the Trustee shall cause the aggregate principal
amount of the applicable Global Security to be reduced accordingly and direct
DTC to make a corresponding reduction in its book-entry system. The Company
shall execute and the Trustee shall authenticate and deliver to the Person
designated in such instructions a Physical Security in the appropriate
principal amount. The Trustee shall deliver such Physical Securities to the
Persons in whose names such Securities are so registered. Physical Securities
issued in exchange for a Restricted Global Security pursuant to this Section
2.06(a) shall bear the Securities Act Legend and shall be subject to all
restrictions on transfer contained therein. Global Securities may also be
exchanged or replaced, in whole or in part, as provided in Sections 2.07 and
2.10. Every Security authenticated and delivered in exchange for, or in lieu
of, a Global Security or any portion thereof, pursuant to Section 2.07 or 2.10,
shall be authenticated and delivered in the form of, and shall be, a Global
Security. A Global Security may not be exchanged for another Security other
than as provided in this Section 2.06(a).
(b) Transfer and Exchange of Interests in Global Securities. The transfer
and exchange of interests in Global Securities shall be effected through DTC,
in accordance with this Indenture and the procedures of DTC therefor. Interests
in Restricted Global Securities shall be subject to restrictions on transfer
comparable to those set forth herein to the extent required by the Securities
Act. The Trustee shall have no obligation to ascertain DTC's compliance with
any such restrictions on transfer. Transfers of interests in Global Securities
shall also require compliance with subparagraph (i) below, as well as one or
more of the other following subparagraphs as applicable:
(i) All Transfers and Exchanges of Interests in Global
Securities. In connection with all transfers and exchanges of
interests in Global Securities (other than transfers of interests in a
Global Security to Persons who take delivery thereof in the form of an
interest in the same Global Security), the transferor of such interest
must deliver to the Registrar (1) instructions given in accordance
with the Applicable Procedures from a Participant or an indirect
Participant directing DTC to credit or cause to be credited an
interest in the specified Global Security in an amount equal to the
interest to be transferred or exchanged, (2) a written order given in
accordance with the Applicable Procedures containing information
regarding the Participant account to be credited with such increase
and (3) instructions given by the Holder of the Global Security to
effect the transfer referred to in (1) and (2) above.
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(ii) Transfer of Interests in the Same Restricted Global
Security. Interests in any Restricted Global Security may be
transferred to Persons who take delivery thereof in the form of an
interest in the same Restricted Global Security in accordance with the
transfer restrictions set forth in Section 2.06(f) hereof.
(iii) Transfer of Interests to Another Restricted Global
Security. Interests in any Restricted Global Security may be
transferred to Persons who take delivery thereof in the form of an
interest in another Restricted Global Security if the Registrar
receives the following:
(A) if the transferee will take delivery in the form
of an interest in the 144A Global Security, then the
transferor must deliver a certificate in the form of Exhibit
B hereto, including the certifications in item 1 thereof; or
(B) if the transferee will take delivery in the form
of an interest in the Regulation S Global Security, then the
transferor must deliver a certificate in the form of Exhibit
B hereto, including the certifications in item 2 thereof.
(iv) Transfer and Exchange of Interests in Restricted Global
Security for Interests in an Unrestricted Global Security. Interests
in any Restricted Global Security may be exchanged by the holder
thereof for an interest in the Unrestricted Global Security or
transferred to a Person who takes delivery thereof in the form of an
interest in the Unrestricted Global Security if:
(A) such exchange or transfer is effected pursuant to
the Exchange Registration Statement in accordance with the
Registration Rights Agreement;
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement; or
(C) the Registrar receives the following:
(1) if the beneficial holder of such an
interest in a Restricted Global Security proposes to
exchange it for an interest in the Unrestricted
Global Security, a certificate from such beneficial
holder in the form of Exhibit C hereto, including
the certifications in item 1(a) thereof;
(2) if the beneficial holder of such an
interest in a Restricted Global Security proposes to
transfer it to a Person who shall take delivery
thereof in the form of an interest in an
Unrestricted Global Security, a certificate in the
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form of Exhibit B hereto, including the
certification in item 4 thereof; and
(3) in each such case set forth in this
paragraph (C), an Opinion of Counsel in form
reasonably acceptable to the Company, to the effect
that such exchange or transfer is in compliance with
the Securities Act and, that the restrictions on
transfer contained herein and in Section 2.06(f)
hereof are not required in order to maintain
compliance with the Securities Act.
If any such transfer is effected pursuant to paragraph (B) above at a
time when an Unrestricted Global Security has not yet been issued, the
Company shall issue and, upon receipt of a Company Order in accordance
with Section 2.02, the Trustee shall authenticate one or more
Unrestricted Global Securities in an aggregate principal amount equal
to the principal amount of interests in the Restricted Global Security
transferred pursuant to paragraph (B) above.
(v) Notation by the Trustee of Transfer of Interests Among
Global Securities. Upon satisfaction of the requirements for transfer
of interests in Global Securities pursuant to clauses (iii) or (iv)
above, the Trustee shall reduce or cause to be reduced the aggregate
principal amount of the relevant Global Security from which the
interests are being transferred, and increase or cause to be increased
the aggregate principal amount of the Global Security to which the
interests are being transferred, in each case, by the principal amount
so transferred and shall direct DTC to make corresponding adjustments
in its book-entry system. No transfer of interests of a Global
Security shall be effected until, and any transferee pursuant thereto
shall succeed to the rights of a holder of such interests only when,
the Registrar has made appropriate adjustments to the applicable
Global Security in accordance with this paragraph.
(c) Transfer or Exchange of Physical Securities for Interests in a Global
Security.
(i) If any Holder of Physical Securities required to
contain the Securities Act Legend proposes to exchange such Securities
for an interest in a Global Security or to transfer such Physical
Securities to a Person who takes delivery thereof in the form of an
interest in a Global Security, then, upon receipt by the Registrar of
the following documentation (all of which may be submitted by
facsimile):
(A) if the Holder of such Physical Registered
Securities proposes to exchange such Securities for an
interest in a Restricted Global Security, a certificate from
such Holder in the form of Exhibit C hereto, including the
certifications in item 2 thereof;
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(B) if such Physical Securities are being
transferred to a QIB in accordance with Rule 144A under the
Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item 1
thereof; or
(C) if such Physical Securities are being
transferred to a Non-U.S. Person (as defined in Regulation S)
in an offshore transaction in accordance with Rule 904 under
the Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item 2
thereof,
the Trustee shall cancel the Physical Securities, increase or cause to
be increased the aggregate principal amount of, in the case of clause
(B) above, the 144A Global Security or, in the case of clause (C)
above, the Regulation S Global Security, and direct DTC to make a
corresponding increase in its book-entry system.
(ii) A Holder of Physical Securities required to contain the
Securities Act Legend may exchange such Securities for an interest in
the Unrestricted Global Security or transfer such Restricted Physical
Securities to a Person who takes delivery thereof in the form of an
interest in the Unrestricted Global Security only:
(A) if such exchange or transfer is effected pursuant
to the Exchange Registration Statement in accordance with the
Registration Rights Agreement;
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) upon receipt by the Registrar of the following
documentation (all of which may be submitted by facsimile):
(1) if the Holder of such Physical
Securities proposes to exchange such Securities for
an interest in the Unrestricted Global Security, a
certificate from such Holder in the form of Exhibit
C hereto, including the certifications in item 1(b)
thereof;
(2) the Holder of such Registered
Securities proposes to transfer such Securities to a
Person who shall take delivery thereof in the form
of an interest in the Unrestricted Global Security,
a certificate in the form of Exhibit B hereto,
including the certifications in item 4 thereof; and
(3) in each such case set forth in this
paragraph (C), an Opinion of Counsel in form
reasonably acceptable to the Company, to the effect
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that such exchange or transfer is in compliance with
the Securities Act and that the restrictions on
transfer contained herein and in Section 2.06(f)
hereof are not required in order to maintain
compliance with the Securities Act.
If any such transfer is effected pursuant to paragraph (B)
above at a time when an Unrestricted Global Security has not
yet been issued, the Company shall issue and, upon receipt of
a Company Order in accordance with Section 2.02, the Trustee
shall authenticate one or more Unrestricted Global Securities
in an aggregate principal amount equal to the principal
amount of Physical Securities transferred pursuant to
paragraph (B) above.
(d) Notwithstanding Sections 2.05(b) or (c) hereof, a beneficial interest
in the Regulation S Temporary Global Security may not be exchanged for a
Physical Security or transferred to a Person who takes delivery thereof in the
form of a Physical Security prior to (x) the expiration of the Restricted
Period and (y) the receipt by the Registrar of any certificates required
pursuant to Rule 903 (c)(3)(ii)(B) under the Securities Act, except in the case
of a transfer pursuant to an exemption from the registration requirements of
the Securities Act other than Rule 903 or Rule 904.
(e) Transfer and Exchange of Physical Securities.
(i) Transfer of a Physical Security to Another Physical
Security. Following the occurrence of one or more of the events
specified in Section 2.06(a), a Physical Security may be transferred to
Persons who take delivery thereof in the form of another Physical
Security if the Registrar receives the following:
(A) if the transfer is being effected pursuant to
and in accordance with Rule 144A, then the transferor must
deliver a certificate in the form of Exhibit B hereto,
including the certifications in item 3(a) thereof; or
(B) if the transfer is being effected pursuant to
and in accordance with Regulation S, then the transferor must
deliver a certificate in the form of Exhibit B hereto,
including the certifications in item 3(b) thereof.
(ii) Transfer and Exchange of Restricted Physical Security
for Physical Security Which Does Not Bear the Securities Act Legend.
Following the occurrence of one or more of the events specified in
Section 2.06(a), a Restricted Physical Security may be exchanged by
the Holder thereof for a Physical Security or transferred to a Person
who takes delivery thereof in the form of a Physical Security which
does not bear the Securities Act Legend if:
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(A) such exchange or transfer is effected pursuant to
the Exchange Registration Statement in accordance with the
Registration Rights Agreement;
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement; or
(C) the Registrar receives a certificate from such
Holder in the form of Exhibit C hereto, including the
certifications in item 1(c) thereof and an Opinion of Counsel
in form reasonably acceptable to the Company, to the effect
that such exchange or transfer is in compliance with the
Securities Act and, that the restrictions on transfer
contained herein and in Section 2.06(f) hereof are not
required in order to maintain compliance with the Securities
Act.
(iii) Exchange of Physical Securities. When Physical
Securities are presented by a Holder to the Registrar with a request
to register the exchange of such Physical Securities for an equal
principal amount of Physical Securities of other authorized
denominations, the Registrar shall make the exchange as requested only
if the Physical Securities are endorsed or accompanied by a written
instrument of transfer in form satisfactory to the Registrar duly
executed by such Holder or by his attorney duly authorized in writing
and shall be issued only in the name of such Holder or its nominee.
The Physical Securities issued in exchange for Physical Securities
shall bear the Securities Act Legend and shall be subject to all
restrictions on transfer contained herein in each case to the same
extent as the Physical Securities so exchanged.
(iv) Return of Physical Securities. In the event of a
transfer pursuant to clauses (i) or (ii) above and the Holder thereof
has delivered certificates representing an aggregate principal amount
of Securities in excess of that to be transferred, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder
of such Security without service charge, a new Physical Security or
Securities of any authorized denomination requested by the Holder, in
an aggregate principal amount equal to the portion of the Security not
so transferred.
(f) Exchange Offer. Upon the occurrence of the Exchange Offer (as defined
in the Registration Rights Agreement) in accordance with the Registration
Rights Agreement, the Company shall issue and, upon receipt of a Company Order
in accordance with Section 2.02, the Trustee shall authenticate one or more
Unrestricted Global Securities in an aggregate principal amount equal to the
principal amount of the interests in the Restricted Global Securities and
Restricted Physical Securities tendered for acceptance by persons participating
therein. Concurrently with the issuance of such Securities, the Trustee shall
cause the aggregate principal amount of the applicable Restricted Global
Securities to be reduced accordingly and direct DTC to make a corresponding
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reduction in its book-entry system. The Trustee shall cancel any Restricted
Physical Certificates in accordance with Section 2.11 hereof.
In the case that one or more of the events specified in Section 2.06(a)
have occurred, upon the occurrence of such Exchange Offer, the Company shall
issue and, upon receipt of a Company Order in accordance with Section 2.02, the
Trustee shall authenticate Unrestricted Physical Securities in an aggregate
principal amount equal to the principal amount of the Restricted Physical
Securities tendered for acceptance by persons participating therein.
(g) General. By its acceptance of any Security bearing the Securities Act
Legend, each Holder of such a Security acknowledges the restrictions on
transfer of such Security set forth in this Indenture and in the Securities Act
Legend and agrees that it will transfer such Security only as provided in this
Indenture.
The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Security (including any transfers between or among agent members or
beneficial owners of interest in any Global Security) other than to require
delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by the terms
of, this Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof.
(h) Legends. Each Restricted Global Security and each Restricted Physical
Security shall bear the legend (the "Securities Act Legend") in substantially
the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION
HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT),
(B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT OR (C) IT
IS AN ACCREDTIRED INVESTOR (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7)
UNDER THE SECURITIES ACT) (AN "ACCREDITED INVESTOR"), (2) AGREES THAT IT
WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY
RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE ISSUER OR ANY
SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED
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INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT,
(C) INSIDE THE UNITED STATES TO AN ACCREDITED INVESTOR THAT, PRIOR TO SUCH
TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF
THIS SECURITY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE
FOR THIS SECURITY), (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (E)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE), (F) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR (G) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (3)
AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THIS SECURITY WITHIN TWO YEARS AFTER THE
ORIGINAL ISSUANCE OF THIS SECURITY, IF THE PROPOSED TRANSFEREE IS AN
ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO
THE TRUSTEE AND THE ISSUER SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS
USED HEREIN, THE TERMS "OFFSHORE TRANSACTION", "UNITED STATES" AND "U.S.
PERSON" HAVE THE MEANING GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE
TO REFUSE TO REGISTER ANY TRANSFER OF THIS SECURITY IN VIOLATION OF THE
FOREGOING RESTRICTIONS.
(i) Global Security Legend. Each Global Security shall bear a legend in
substantially the following form (the "Global Security Legend"):
"UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO A NOMINEE
OF DTC, OR BY ANY NOMINEE OF DTC, OR BY DTC TO A SUCCESSOR DEPOSITORY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED
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BY AN AUTHORIZED REPRESENTATIVE OF DTC TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN SECTION 2.06 OF THE INDENTURE."
(j) Regulation S Temporary Global Security Legend. The Regulation S
Temporary Global Security shall bear a legend in substantially the following
form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL SECURITY, AND
THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR A PHYSICAL
SECURITY, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER
THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL
SECURITY SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON.
(k) Cancellation and/or Adjustment of Global Securities. At
such time as all interests in the Global Securities have been exchanged for
Physical Securities, all Global Securities 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 interest in a Global Security is exchanged
for an interest in another Global Security or for Physical Securities, the
principal amount of Securities represented by such Global Security shall be
reduced accordingly and an endorsement shall be made on such Global Security,
by the Trustee to reflect such reduction.
(l) General Provisions Relating to All Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Global
Securities and Physical Securities upon a written order signed by an
Officer of the Company or 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 stamp or transfer tax or
similar governmental charge payable in connection therewith (other
than any such stamp or transfer taxes or similar governmental charge
payable upon exchange or transfer pursuant to Sections 2.10, 3.06,
4.05, 4.14 and 10.05 hereof).
(iii) All Global Securities and Physical Securities issued
upon any registration of transfer or exchange of Global Securities or
Physical Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Global Securities or Physical Securities surrendered
upon such registration of transfer or exchange.
(iv) The Company shall not be required (A) to issue, to
register the transfer of or to exchange Securities during a period
beginning at the opening of business 15 days before the day of any
selection of Securities for redemption under Section 3.02 hereof and
ending at the close of business on the day of selection, (B) to
register the transfer of or to exchange any Security so selected for
redemption in whole or in part, except the unredeemed portion of any
Security being redeemed in part or (C) to register the transfer of or
to exchange a Security between a record date and the next succeeding
Interest Payment Date.
(v) Prior to due presentment for the registration of a
transfer of any Security, the Trustee, any Agent and the Company may
deem and treat the Person in whose name any Security is registered as
the absolute owner of such Security for the purpose of receiving
payment of principal of and interest on such Securities and for all
other purposes, and none of the Trustee, any Agent or the Company
shall be affected by notice to the contrary.
SECTION 2.07. Replacement Securities.
If a mutilated Security is surrendered to the Trustee or if the Holder of
a Security claims that the Security has been lost, destroyed or wrongfully
taken, the Company shall issue and the Trustee shall authenticate a replacement
Security if the Trustee's requirements are met. An indemnity bond in an amount
sufficient in the judgment of the Company and the Trustee to protect the
Company, the Trustee or any Agent from any loss which any of them may suffer if
a Security is replaced may be required by the Trustee or the Company. The
Company and the Trustee each may charge such Holder for its expenses in
replacing such Security.
Every replacement Security is an additional obligation of the Company.
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SECTION 2.08. Outstanding Securities.
Securities outstanding at any time are all Securities that
have been authenticated by the Trustee except for those cancelled by it, those
delivered to it for cancellation and those described in this Section as not
outstanding. A Security does not cease to be outstanding because the Company or
one of its Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent holds on a redemption date or Maturity Date money
sufficient to pay the principal of, and interest on Securities payable on that
date, then on and after that date such Securities cease to be outstanding and
interest on them ceases to accrue.
SECTION 2.09. Treasury Securities.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Company, any Subsidiary or any of their respective Affiliates shall be
disregarded, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities that the Trustee actually knows are so owned shall be so
disregarded.
The Trustee may require an Officers' Certificate listing securities owned
by the Company, any Subsidiary or any of their respective Affiliates.
SECTION 2.10. Temporary Securities.
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of definitive Securities but may
have variations that the Company considers appropriate for temporary
Securities. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate definitive Securities in exchange for temporary
Securities. Until such exchange, temporary Securities shall be entitled to the
same rights, benefits and privileges as definitive Securities.
SECTION 2.11. Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for transfer, exchange or payment. The
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Trustee and no one else shall cancel all Securities surrendered for transfer,
exchange, payment or cancellation. The Company may not issue new Securities to
replace, or reissue or resell, Securities which the Company has redeemed or
paid or have been delivered to the Trustee for cancellation. The Trustee
(subject to the record-retention requirements of the Exchange Act) shall
destroy cancelled Securities and deliver a certificate of destruction thereof
to the Company.
SECTION 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the Securities, it
shall pay the defaulted interest, plus any interest payable on the defaulted
interest pursuant to Section 4.01 hereof, to the persons who are
Securityholders on a subsequent special record date, and such term, as used in
this Section 2.12 with respect to the payment of any defaulted interest, shall
mean the fifteenth day next preceding the date fixed by the Company for the
payment of defaulted interest, whether or not such day is a Business Day. At
least 15 days before such special record date, the Company shall mail to each
Securityholder and to the Trustee a notice that states such special record
date, the payment date and the amount of defaulted interest to be paid.
SECTION 2.13. CUSIP or CINS Number.
The Company in issuing the Securities may use a "CUSIP" or "CINS" number,
and if so, such CUSIP or CINS number shall be included in notices of redemption
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 or CINS number printed in the notice or on the Securities, and that
reliance may be placed only on the other identification numbers printed on the
Securities. The Company will promptly notify the Trustee of any change in the
CUSIP or CINS number.
In the event that the Company shall issue and the Trustee shall
authenticate any Securities issued under this Indenture subsequent to the Issue
Date pursuant to Section 2.15, the Company shall use its best efforts to obtain
the same "CUSIP" number for such Securities as is printed on the Securities
outstanding at such time; provided, however, that if any series of Securities
issued under this Indenture subsequent to the Issue Date is determined,
pursuant to an Opinion of Counsel of the Company in a form reasonably
satisfactory to the Trustee to be a different class of security than the
Securities outstanding at such time for federal income tax purposes, the
Company may obtain a "CUSIP" number for such Securities that is different than
the "CUSIP" number printed on the Securities then outstanding.
SECTION 2.14. Payments of Interest.
(a) The Holder of a Physical Security at the close of business on the
regular record date with respect to any Interest Payment Date shall be entitled
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to receive the interest and Additional Interest, if any, payable on such
Interest Payment Date notwithstanding any transfer or exchange of such Physical
Security subsequent to the regular record date and prior to such Interest
Payment Date, except if and to the extent the Company shall default in the
payment of the interest or Additional Interest due on such Interest Payment
Date, in which case such defaulted interest and Additional Interest, if any,
shall be paid in accordance with Section 2.12; provided that, in the event of
an exchange of a Physical Security for a beneficial interest in any Global
Security subsequent to a regular record date or any special record date and
prior to or on the related Interest Payment Date or other payment date under
Section 2.12, any payment of the interest and Additional Interest payable on
such payment date with respect to any such Physical Security shall be made to
the Person in whose name such Physical Security was registered on such record
date. Payments of interest on the Global Securities will be made to the Holder
of the Global Security on each Interest Payment Date; provided that, in the
event of an exchange of all or a portion of a Global Security for Physical
Security subsequent to the regular record date or any special record date and
prior to or on the related Interest Payment Date or other payment date under
Section 2.12 any payment of interest or Additional Interest payable on such
Interest Payment Date or other payment date with respect to the Physical
Security shall be made to the Holder of the Global Security.
(b) The Trustee shall pay interest and Additional Interest,
if any, to DTC, with respect to any Global Security held by DTC, on the
applicable Interest Payment Date in accordance with instructions received from
DTC at least five Business Days before the applicable Interest Payment Date.
SECTION 2.15. Issuance of Additional Securities.
The Company may, subject to Article Four of this Indenture and applicable
law, issue additional Securities under this Indenture. The Securities issued on
the Closing Date and any additional Securities subsequently issued shall vote
together and be treated as a single class with all other Securities issued
hereunder for all purposes under this Indenture.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.
If the Company wants to redeem Securities pursuant to paragraph 5 of the
Securities at the applicable redemption price set forth thereon, it shall
notify the Trustee in writing of the redemption date and the principal amount
of Securities to be redeemed.
The Company shall give the notice provided for in this Section 3.01 at
least 45 days before the redemption date (unless a shorter notice shall be
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agreed to by the Trustee in writing) but not more than 60 days before the
redemption date, together with an Officers' Certificate stating that such
redemption will comply with the conditions contained herein.
SECTION 3.02. Selection of Securities To Be Redeemed.
If less than all of the Securities are to be redeemed pursuant to
paragraph 5 thereof, the Trustee shall select the Securities to be redeemed pro
rata or by lot or in such other manner as the Trustee shall deem appropriate
and fair. The Trustee shall make the selection from the Securities then
outstanding, subject to redemption and not previously called for redemption.
The Trustee may select for redemption portions (equal to $1,000 or any integral
multiple thereof) of the principal of Securities that have denominations larger
than $1,000. Provisions of this Indenture that apply to Securities called for
redemption also apply to portions of Securities called for redemption.
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 by first class mail to each Holder
whose Securities are to be redeemed.
The notice shall identify the Securities to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price;
(3) the CUSIP number;
(4) the name and address of the Paying Agent to which the Securities are
to be surrendered for redemption;
(5) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(6) that, unless the Company defaults in making the redemption payment,
interest on Securities called for redemption ceases to accrue on and after the
redemption date and the only remaining right of the Holders is to receive
payment of the redemption price upon surrender to the Paying Agent; and
(7) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the redemption
date, upon surrender of such Security, a new Security or Securities in
principal amount equal to the unredeemed portion thereof will be issued.
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At the Company's request, the Trustee shall give the notice of redemption
on behalf of the Company, in the Company's name and at the Company's expense.
SECTION 3.04. Effect of Notice of Redemption.
Once a notice of redemption is mailed, Securities called for redemption
become due and payable on the redemption date and at the redemption price. Upon
surrender to the Paying Agent, such Securities shall be paid at the redemption
price, plus accrued interest thereon to the redemption date, but interest
installments whose maturity is on or prior to such redemption date shall be
payable to the Holders at the close of business on the relevant record dates
referred to in the Securities. The Trustee shall not be required to (i) issue,
authenticate, register the transfer of or exchange any Security during a period
beginning 15 days before the date a notice of redemption is mailed and ending
at the close of business on the date the redemption notice is mailed, or (ii)
register the transfer or exchange of any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed
in part.
SECTION 3.05. Deposit of Redemption Price.
At least one Business Day before the redemption date, the
Company shall deposit with the Paying Agent money sufficient to pay the
redemption price of and accrued interest on all Securities to be redeemed on
that date other than Securities or portions thereof called for redemption on
that date which have been delivered by the Company to the Trustee for
cancellation.
SECTION 3.06. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Trustee shall
authenticate for the Holder a new Security equal in principal amount to the
unredeemed portion of the Security surrendered.
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ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities.
The Company shall pay the principal of and interest on the Securities in
the manner provided in the Securities. An installment of principal or interest
shall be considered paid on the date due if the Trustee or Paying Agent holds
on that date money designated for and sufficient to pay the installment in full
and is not prohibited from paying such money to the Holders of the Securities
pursuant to the terms of this Indenture.
The Company shall pay interest on overdue principal (including, to the
extent permitted by applicable law, post-petition interest in a proceeding
under any Bankruptcy Law) at the same rate per annum borne by the Securities.
The Company shall pay interest on overdue installments of interest at the same
rate per annum borne by the Securities, to the extent lawful.
SECTION 4.02. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, The City of New
York, an office or agency where Securities may be surrendered for registration
of transfer or exchange or for presentation for payment and where notices and
demands to or upon the Company in respect of the Securities and this Indenture
may be served. The Company shall give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 13.02.
The Company may also from time to time designate one or more other offices
or agencies where the Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations; provided
that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in the Borough of Manhattan,
The City of New York, for such purposes. The Company shall give prompt written
notice to the Trustee of any such designation or rescission and of any change
in the location of any such other office or agency.
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SECTION 4.03. Limitation on Transactions with
Affiliates and Related Persons.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, enter into directly or indirectly any transaction with any of
their respective Affiliates or Related Persons (other than the Company or a
Restricted Subsidiary of the Company), including, without limitation, the
purchase, sale, lease or exchange of property, the rendering of any service, or
the making of any guarantee, loan, advance or Investment, either directly or
indirectly, involving aggregate consideration in excess of $2.0 million unless
a majority of the disinterested directors of the Board of Directors of the
Company determines, in its good faith judgment evidenced by a resolution of
such Board of Directors filed with the Trustee, that the terms of such
transaction are at least as favorable as the terms that could be obtained by
the Company or such Restricted Subsidiary, as the case may be, in a comparable
transaction made on an arm's-length basis between unaffiliated parties;
provided, however, that if the aggregate consideration is in excess of $20.0
million the Company shall also obtain, prior to the consummation of the
transaction, the favorable opinion as to the fairness of the transaction to the
Company or such Restricted Subsidiary, from a financial point of view from an
independent financial advisor. The provisions of this covenant shall not apply
to (i) transactions permitted by Section 4.06 and (ii) reasonable fees and
compensation paid to, and indemnity provided on behalf of, officers, directors
and employees of the Company and its Restricted Subsidiaries as determined in
good faith by the Board of Directors or authorized executive officers, as the
case may be, of the Company.
SECTION 4.04. Limitation on Indebtedness.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, Incur any Indebtedness (including
Acquired Indebtedness), except: (i) Indebtedness of the Company or
any of its Restricted Subsidiaries, if immediately after giving effect to the
Incurrence of such Indebtedness and the receipt and application of the net
proceeds thereof, the Consolidated Cash Flow Ratio of the Company for a year
consisting of the four full fiscal quarters for which quarterly or annual
financial statements are available next preceding the Incurrence of such
Indebtedness (calculated on a pro forma basis in accordance with Article 11 of
Regulation S-X under the Securities Act or any successor provision as if such
Indebtedness had been Incurred on the first day of such year) would be greater
than 2.0 to 1.0; (ii) Indebtedness of the Company and its Restricted
Subsidiaries Incurred under the Credit Agreement in an amount not to exceed
$125.0 million in aggregate principal amount at any time outstanding less the
amount of any such Indebtedness that is permanently repaid or, without
duplication, the amount by which commitments thereunder are permanently
reduced, in either case, from the proceeds of Asset Dispositions; (iii)
Indebtedness owed by the Company to any direct or indirect Wholly Owned
Subsidiary of the Company or Indebtedness owed by a direct or indirect
Restricted Subsidiary of the Company to the Company or a direct or indirect
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Wholly Owned Subsidiary of the Company; provided, however, upon either (I) the
transfer or other disposition by such direct or indirect Wholly Owned
Subsidiary of the Company of any Indebtedness so permitted under this clause
(iii) to a Person other than the Company or another direct or indirect Wholly
Owned Subsidiary of the Company or (II) the issuance (other than directors'
qualifying shares), sale, transfer or other disposition of shares of Capital
Stock or other ownership interests (including by consolidation or merger) of
such direct or indirect Wholly Owned Subsidiary to a Person other than the
Company or another such Wholly Owned Subsidiary of the Company, the provisions
of this clause (iii) shall no longer be applicable to such Indebtedness and
such Indebtedness shall be deemed to have been Incurred at the time of any such
issuance, sale, transfer or other disposition, as the case may be; (iv)
Indebtedness of the Company or any Restricted Subsidiary under any interest
rate or foreign currency hedge or exchange or other similar agreement to the
extent entered into to hedge any other Indebtedness permitted under this
Indenture (including the Securities); (v) Indebtedness Incurred to defer,
renew, extend, replace, refinance or refund, whether under any amendment,
supplement or otherwise (collectively for purposes of this clause (v), to
"refund") any Indebtedness described in clause (viii) below, any Indebtedness
Incurred under clause (i) above, the Securities issued on the Issue Date and
the Guarantee of such Securities; provided, however, that (I) such Indebtedness
does not exceed the principal amount (or accrued amount, if less) of
Indebtedness so refunded plus the amount of any premium required to be paid in
connection with such refunding pursuant to the terms of the Indebtedness
refunded or the amount of any premium reasonably determined by the issuer of
such Indebtedness as necessary to accomplish such refunding by means of a
tender offer, exchange offer, or privately negotiated repurchase, plus the
expenses of such issuer reasonably incurred in connection therewith and (II)(A)
in the case of any refunding of Indebtedness that is pari passu with the
Securities, such refunding Indebtedness is made pari passu with or subordinate
in right of payment to the Securities, and, in the case of any refunding of
Indebtedness that is subordinate in right of payment to the Securities, such
refunding Indebtedness is subordinate in right of payment to the Securities on
terms no less favorable to the Holders of the Securities than those contained
in the Indebtedness being refunded, (B) in either case, the refunding
Indebtedness by its terms, or by the terms of any agreement or instrument
pursuant to which such Indebtedness is issued, does not have an Average Life
that is less than the remaining Average Life of the Indebtedness being refunded
and does not permit redemption or other retirement (including pursuant to any
required offer to purchase to be made by the Company or a Restricted Subsidiary
of the Company) of such Indebtedness at the option of the holder thereof prior
to the final stated maturity of the Indebtedness being refunded, other than a
redemption or other retirement at the option of the holder of such Indebtedness
(including pursuant to a required offer to purchase made by the Company or a
Restricted Subsidiary of the Company) which is conditioned upon a change of
control of the Company pursuant to provisions substantially similar to those
contained in Section 4.14 and (C) any Indebtedness Incurred to refund any
Indebtedness is Incurred by the obligor on the Indebtedness being refunded or
by the Company; provided, further, that clause (II) of the immediately
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preceding proviso shall not apply to any Indebtedness incurred to refinance
term loans under the Credit Agreement outstanding on the Issue Date or to
subsequent refinancings of any such refinancing Indebtedness; (vi) commodity
agreements of the Company or any of its Restricted Subsidiaries to the extent
entered into to protect the Company and its Restricted Subsidiaries from
fluctuations in the prices of raw materials used in their businesses; (vii)
Indebtedness of the Company under the Exchange Securities and Indebtedness of
the Guarantors under the Guarantees incurred in accordance with this Indenture;
(viii) Indebtedness issued or outstanding on the Issue Date (including (a)
Indebtedness under clause (xiii) below and (b) the Term Loan Facilities and
excluding (i) Indebtedness consisting of revolving loans under the Credit
Agreement outstanding on the Issue Date, (ii) Indebtedness under the Existing
Credit Agreement repaid on the Issue Date as part of the Recapitalization and
(iii) Indebtedness represented by any 11 1/4% Notes and 9 1/4% Notes which are
tendered and accepted for payment pursuant to the Tender Offers); (ix)
guarantees by the Company or its Restricted Subsidiaries of Indebtedness
otherwise permitted to be incurred hereunder; (x) Indebtedness the net proceeds
of which are applied to defease the Securities in their entirety; (xi)
Indebtedness of the Company or any of its Subsidiaries that is an endorsement
of bank drafts and similar negotiable instruments for collection or deposit in
the ordinary course of business; (xii) Indebtedness incurred by the Company or
any of its Restricted Subsidiaries constituting reimbursement obligations with
respect to letters of credit issued in the ordinary course of business,
including, without limitation, letters of credit in respect of workers'
compensation claims or self-insurance, or other Indebtedness with respect to
reimbursement type obligations regarding workers' compensation claims or
self-insurance and obligations in respect of performance and surety bonds and
completion guarantees provided by the Company or any Restricted Subsidiary of
the Company in the ordinary course of business not in excess of $10.0 million
at any time outstanding; (xiii) Indebtedness under any 11 1/4% Notes and 9 1/4%
Notes which are not tendered pursuant to and remain outstanding following the
Tender Offers; and (xiv) Indebtedness of the Company or its Restricted
Subsidiaries not otherwise permitted to be Incurred pursuant to clauses (i)
through (xiii) above which, together with any other outstanding Indebtedness
Incurred pursuant to this clause (xiv), has an aggregate principal amount not
in excess of $40.0 million at any time outstanding, which Indebtedness may be
Incurred under the Credit Agreement or otherwise.
For purposes of determining compliance with this covenant, in the event
than an item of Indebtedness meets the criteria of more than one of
the categories of Indebtedness described in clauses (i) through (xiv) above,
the Company shall, in its sole discretion, classify such item of Indebtedness
in any manner that complies with this covenant and such item of indebtedness
will be treated as having been Incurred pursuant to only one of such clauses.
In addition, the Company may, at any time, change the classification of an item
of Indebtedness (or any portion thereof) to any other clause; provided that the
Company would be permitted to Incur such item of Indebtedness (or such portion
thereof) pursuant to such other clause at such time of reclassification.
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Accrual of interest, accretion or amortization of original issue discount will
not be deemed to be an Incurrence of Indebtedness for purposes of this
covenant.
SECTION 4.05. Limitation on Certain Asset Dispositions.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, make one or more Asset Dispositions
unless: (i) the Company or such Restricted Subsidiary, as the case may be,
receives consideration for such Asset Disposition at least equal to the fair
market value of the assets sold or disposed of as determined by the Board of
Directors of the Company in good faith and evidenced by a resolution of such
Board of Directors filed with the Trustee; (ii) not less than 75% of the
consideration for the disposition consists of (a) cash or readily marketable
securities or the assumption of Indebtedness (other than non-recourse
Indebtedness or any Subordinated Indebtedness) of the Company or such
Restricted Subsidiary or other obligations relating to such assets (and release
of the Company or such Restricted Subsidiary from all liability on the
Indebtedness or other obligations assumed) or (b) assets which constitute or
are part of businesses which are related to the business of the Company or its
Restricted Subsidiaries as of the Issue Date or which assets consist of the
issued and outstanding Capital Stock of a person (which becomes a Restricted
Subsidiary as a result of the transaction) the assets of which are principally
comprised of such assets; and (iii) all Net Available Proceeds, less any
amounts invested within 360 days of such Asset Disposition in assets related to
the business of the Company or its Restricted Subsidiaries (including in
Capital Stock of another Person (other than any Person that is a Restricted
Subsidiary of the Company immediately prior to such investment); provided,
however, that immediately after giving effect to any such investment in Capital
Stock (and not prior thereto) such Person shall be a Restricted Subsidiary of
the Company), (a) are applied, on or prior to the 360th day after such Asset
Disposition, unless and to the extent that the Company shall determine to make
an Offer to Purchase, to the permanent reduction and prepayment of any Senior
Debt of the Company or any of its Subsidiaries then outstanding (including a
permanent reduction of commitments in respect thereof) or (b) are committed to
the repayment, on a date no later than substantially concurrently with the
consummation of an Offer to Purchase, of any Indebtedness which is pari passu
in right of payment with the Securities on a pro rata basis with the
Securities. Any Net Available Proceeds from any Asset Disposition which is
subject to the immediately preceding sentence that are not applied or committed
as provided in the immediately preceding sentence shall be used promptly after
the expiration of the 360th day after such Asset Disposition, or promptly after
the Company shall have earlier determined to not apply any Net Available
Proceeds therefrom as provided in clause (iii) of the immediately preceding
sentence, to make an Offer to Purchase outstanding Securities at a purchase
price in cash equal to 100% of their principal amount plus accrued interest to
the Purchase Date. Notwithstanding the foregoing, the Company may defer making
any Offer to Purchase outstanding Securities until there are aggregate
unutilized Net Available Proceeds from Asset Dispositions otherwise subject to
the two immediately preceding sentences equal to or in excess of $15.0 million
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(at which time, the entire unutilized Net Available Proceeds from Asset
Dispositions otherwise subject to the two immediately preceding sentences, and
not just the amount in excess of $15.0 million, shall be applied as required
pursuant to this paragraph). Any remaining Net Available Proceeds following the
completion of the required Offer to Purchase (and any concurrent offer to
repurchase pari passu Indebtedness) may be used by the Company for any other
purpose (subject to the other provisions of this Indenture) and the amount of
Net Available Proceeds then required to be otherwise applied in accordance with
this Section 4.05 shall be reset to zero, subject to any subsequent Asset
Disposition. These provisions will not apply to a transaction consummated in
compliance with the provisions of Section 5.01.
In the event that the Company makes an Offer to Purchase the Securities,
the Company shall comply with any applicable securities laws and regulations,
including any applicable requirements of Section 14(e) of, and Rule 14e-1
under, the Exchange Act.
SECTION 4.06. Limitation on Restricted Payments.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, (i) declare or pay any dividend, or
make any distribution of any kind or character (whether in cash,
property or securities), on or in respect of any class of the Capital Stock of
the Company or any of its Restricted Subsidiaries excluding any (x) dividends
or distributions payable solely in shares of Capital Stock of the Company
(other than Disqualified Stock) or in options, warrants or other rights to
acquire Capital Stock of the Company (other than Disqualified Stock), or (y) in
the case of any Restricted Subsidiary of the Company, dividends or
distributions payable to the Company or a Restricted Subsidiary of the Company
or to the extent payable on a pro rata basis to all holders of Capital Stock of
such Restricted Subsidiary, (ii) purchase, redeem, or otherwise acquire or
retire for value shares of Capital Stock of the Company or any of its
Restricted Subsidiaries, any options, warrants or rights to purchase or acquire
shares of Capital Stock of the Company or any of its Restricted Subsidiaries or
any securities convertible or exchangeable into shares of Capital Stock of the
Company or any of its Restricted Subsidiaries, excluding any such shares of
Capital Stock, options, warrants, rights or securities which are owned by the
Company or a Restricted Subsidiary of the Company, (iii) make any Investment in
(other than a Permitted Investment), or make any payment on a guarantee of any
obligation of, any Person, other than the Company or a direct or indirect
Wholly Owned Subsidiary of the Company, or (iv) redeem, defease, repurchase,
retire or otherwise acquire or retire for value, prior to any scheduled
maturity, repayment or sinking fund payment, Subordinated Indebtedness (each of
the transactions described in clauses (i) through (iv) (other than any
exception to any such clause) being a "Restricted Payment"), if at the time
thereof: (1) a Default or an Event of Default shall have occurred and be
continuing, or (2) upon giving effect to such Restricted Payment, the Company
could not Incur at least $1.00 of additional Indebtedness pursuant to clause
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(i) of Section 4.04, or (3) upon giving effect to such Restricted Payment, the
aggregate of all Restricted Payments made on or after the Issue Date exceeds
the sum of: (a) 50% of cumulative Consolidated Net Income of the Company (or,
in the case cumulative Consolidated Net Income of the Company shall be
negative, less 100% of such deficit) since the Issue Date, plus (b) 100% of the
aggregate net proceeds received after the Issue Date, including the fair market
value of property other than cash (determined in good faith by the Board of
Directors of the Company as evidenced by a resolution of such Board of
Directors filed with the Trustee) from the issuance of, or equity contribution
with respect to, Capital Stock (other than Disqualified Stock) of the Company
and warrants, rights or options on Capital Stock (other than Disqualified
Stock) of the Company (other than in respect of any such issuance to a
Restricted Subsidiary of the Company) and the principal amount of Indebtedness
of the Company or any of its Restricted Subsidiaries that has been converted
into or exchanged for Capital Stock of the Company which Indebtedness was
Incurred after the Issue Date; plus (c) 100% of the aggregate after-tax net
cash proceeds of the sale or other disposition of any Investment constituting a
Restricted Payment made after the Issue Date; provided that any gain on the
sale or disposition to the extent included in this clause (c) shall not be
included in determining Consolidated Net Income for purposes of clause (a)
above; provided, further, that amounts included in this clause (c) shall not
exceed the Net Investment by the Company in the asset so sold or disposed.
The foregoing provision shall not be violated by (i) any dividend on any
class of Capital Stock of the Company or any of its Restricted
Subsidiaries paid within 60 days after the declaration thereof if, on the date
when the dividend was declared, the Company or such Restricted Subsidiary, as
the case may be, could have paid such dividend in accordance with the
provisions of this Indenture, (ii) the renewal, extension, refunding or
refinancing of any Indebtedness otherwise permitted pursuant to clause (v) of
Section 4.04, (iii) the exchange or conversion of any Indebtedness of the
Company or any of its Restricted Subsidiaries for or into Capital Stock of the
Company (other than Disqualified Stock), (iv) so long as no Default or Event of
Default has occurred and is continuing, any Investment made with the proceeds
of a substantially concurrent sale (other than in respect of any issuance to a
Restricted Subsidiary of the Company) for cash of Capital Stock of the Company
(other than Disqualified Stock); provided, however, that the proceeds of such
sale of Capital Stock, to the extent used in any such Investment, shall not be
(and have not been) included in subclause (b) of clause (3) of the preceding
paragraph, (v) the redemption, repurchase, retirement or other acquisition of
any Capital Stock of the Company in exchange for or out of the net cash
proceeds of a substantially concurrent sale (other than to a Restricted
Subsidiary of the Company) of Capital Stock of the Company (other than
Disqualified Stock); provided, however, that the proceeds of such sale of
Capital Stock, to the extent used for such redemption, repurchase, retirement
or other acquisition or retirement, shall not be (and have not been) included
in subclause (b) of clause (3) of the preceding paragraph, (vi) payments made
by the Company in an aggregate amount not to exceed $237.0 million to acquire
shares of Capital Stock of the Company as part of the Recapitalization, (vii)
payments made to purchase, redeem or otherwise acquire or retire for value
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shares of Capital Stock of the Company or any of its Restricted Subsidiaries at
no more than fair market value (determined in good faith by the Board of
Directors of the Company as evidenced by a resolution of such Board of
Directors filed with the Trustee) from present and former employees and
directors of the Company or any such Restricted Subsidiary in an amount not in
excess of up to $5.0 million for each fiscal year and $15.0 million in the
aggregate, in each case net of the aggregate net cash proceeds received from
such Persons after the Issue Date from the issuance of, or equity contributions
with respect to, Capital Stock (other than Disqualified Stock) of the Company
and warrants, rights or options on Capital Stock (other than Disqualified
Stock) of the Company; (viii) so long as no Default or Event of Default has
occurred and is continuing, the redemption, repurchase or retirement of
Subordinated Indebtedness of the Company in exchange for, by conversion into,
or out of the net proceeds of, a substantially concurrent sale or incurrence of
Subordinated Indebtedness (other than any Indebtedness owed to a Subsidiary) of
the Company that is contractually subordinated in right of payment to the
Securities to at least the same extent, and which has an Average Life at least
as long, in each case, as the subordinated Indebtedness being redeemed,
repurchased or retired, (ix) so long as no Default or Event of Default has
occurred and is continuing, Investments not otherwise permitted pursuant to
this covenant up to $15.0 million in the aggregate, (x) so long as no Default
or Event of Default has occurred and is continuing, Restricted Payments not
otherwise permitted pursuant to this covenant up to $10.0 million in the
aggregate, (xi) any Permitted Investment and (xii) so long as no Default or
Event of Default has occurred and is continuing, Investments in any Person the
primary business of which is located outside the United States and is related,
ancillary or complementary to the business of the Company or its Restricted
Subsidiaries, provided that the aggregate amount of Investments pursuant to
this clause does not exceed $25.0 million. Each Restricted Payment described in
clauses (i) (to the extent not already taken into account for purposes of
computing the aggregate amount of all Restricted Payments pursuant to clause
(3) above), (iv), (vii), (ix), (x) and (xii) of the previous sentence shall be
taken into account for purposes of computing the aggregate amount of all
Restricted Payments pursuant to clause (3) of the preceding paragraph.
For purposes of this Section 4.06, (i) an "Investment" shall be deemed to
have been made at the time any Restricted Subsidiary is designated as an
Unrestricted Subsidiary in an amount (proportionate to the Company's equity
interest in such Subsidiary) equal to the net worth of such Restricted
Subsidiary at the time that such Restricted Subsidiary is designated as an
Unrestricted Subsidiary ("net worth" to be calculated based upon the fair
market value of the assets of such Subsidiary as of any such date of
designation); (ii) at any date the aggregate of all Restricted Payments made as
Investments since the Issue Date shall exclude and be reduced by an amount
(proportionate to the Company's equity interest in such Subsidiary) equal to
the net worth of an Unrestricted Subsidiary at the time that such Unrestricted
Subsidiary is designated a Restricted Subsidiary, not to exceed, in the case of
any such redesignation of an Unrestricted Subsidiary as a Restricted
Subsidiary, the amount of Investments previously made by the Company and the
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Restricted Subsidiaries in such Unrestricted Subsidiary ("net worth" to be
calculated based upon the fair market value of the assets of such Subsidiary as
of any such date of designation); and (iii) any property transferred to or from
an Unrestricted Subsidiary shall be valued at its fair market value at the time
of such transfer.
SECTION 4.07. Corporate Existence.
Subject to Article Five, the Company shall do or shall 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 such Restricted Subsidiary and the rights (charter and
statutory) and material franchises of the Company and its Restricted
Subsidiaries; provided, however, that the Company shall not be required to
preserve any such right or franchise, or the corporate existence of any
Restricted Subsidiary, if the Board of Directors of the Company 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, and will not be, adverse in any material respect
to the Holders; provided, further, however, that a determination of the Board
of Directors of the Company shall not be required in the event of a merger of
one or more wholly-owned Subsidiaries of the Company with or into another
wholly-owned Subsidiary of the Company or another Person, if the surviving
Person is a wholly-owned Subsidiary of the Company organized under the laws of
the United States or a State thereof or of the District of Columbia.
SECTION 4.08. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all material taxes, assessments
and governmental charges levied or imposed upon the Company or any Subsidiary
of the Company or upon the income, profits or property of the Company or any
Subsidiary of the Company and (2) all lawful claims for labor, materials and
supplies which, in each case, if unpaid, might by law become a material
liability, or Lien upon the property, of the Company or any Subsidiary of the
Company; provided, however, that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith
by appropriate proceedings and for which appropriate provision has been made.
SECTION 4.09. Notice of Defaults.
(1) In the event that any Indebtedness of the Company or any
of its Restricted Subsidiaries is declared due and payable before its maturity
because of the occurrence of any default (or any event which, with notice or
lapse of time, or both, would constitute such a default) under such
Indebtedness, the Company shall promptly give written notice to the Trustee of
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such declaration, the status of such default or event and what action the
Company is taking or proposes to take with respect thereto.
(2) Upon becoming aware of any Default or Event of Default, the Company
shall promptly deliver an Officers' Certificate to the Trustee specifying the
Default or Event of Default.
SECTION 4.10. Maintenance of Properties.
The Company shall cause all material properties owned by or leased to it
or any of its Restricted Subsidiaries and used or useful in the conduct of its
business or the business of any of its Restricted Subsidiaries to be maintained
and kept in normal condition, repair and working order and supplied with all
necessary equipment and shall cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary, so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section 4.10 shall prevent the Company or any of
its Restricted Subsidiaries from discontinuing the use, operation or
maintenance of any of such properties, or disposing of any of them, if such
discontinuance or disposal is, in the judgment of the Board of Directors or of
the board of directors of the Restricted Subsidiary concerned, or of an officer
(or other agent employed by the Company or of any of its Restricted
Subsidiaries) of the Company or such Restricted Subsidiary having managerial
responsibility for any such property, desirable in the conduct of the business
of the Company or any of its Restricted Subsidiaries, and if such
discontinuance or disposal is not adverse in any material respect to the
Holders.
SECTION 4.11. Compliance Certificate.
The Company shall deliver to the Trustee within 100 days after the close
of each fiscal year a certificate signed by the principal executive officer,
principal financial officer or principal accounting officer stating that a
review of the activities of the Company has been made under the supervision of
the signing officers with a view to determining whether a Default or Event of
Default has occurred and whether or not the signers know of any Default or
Event of Default by the Company that occurred during such fiscal year. If they
do know of such a Default or Event of Default, the certificate shall describe
all such Defaults or Events of Default, their status and the action the Company
is taking or proposes to take with respect thereto. The first certificate to be
delivered by the Company pursuant to this Section 4.11 shall be for the fiscal
year ending on or about June 30, 2000.
SECTION 4.12. Provision of Financial Information.
Whether or not the Company is subject to Section 13(a) or 15(d) of the
Exchange Act, or any successor provision thereto, the Company shall file with
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the Commission the annual reports, quarterly reports and other documents which
the Company would have been required to file with the Commission pursuant to
such Section 13(a) or 15(d), or any successor provision thereto if the Company
were so required, such documents to be filed with the Commission on or prior to
the respective dates (the "Required Filing Dates") by which the Company would
have been required so to file such documents if the Company were so required.
The Company shall also in any event (a) within 15 days of each Required Filing
Date (i) transmit by mail to all Holders of Securities, as their names and
addresses appear in the Security Register, without cost to such Holders, and
(ii) file with the Trustee, copies of the annual reports, quarterly reports and
other documents which the Company is required to file with the Commission
pursuant to the preceding sentence, and (b) if, notwithstanding the preceding
sentence, filing such documents by the Company with the Commission is not
permitted under the Exchange Act, promptly upon written request supply copies
of such documents to any prospective holder of Securities.
SECTION 4.13. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that it
shall not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law or any usury law or
other law, which would prohibit or forgive the Company from paying all or any
portion of the principal of and/or interest on the Securities as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture; and (to the extent
that it may lawfully do so) the Company hereby expressly waives all benefit or
advantage of any such law, and covenants that it shall not hinder, delay or
impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law had
been enacted.
SECTION 4.14. Change of Control.
Within 30 days following the date of the consummation of a transaction
resulting in a Change of Control, the Company shall commence an Offer to
Purchase all outstanding Securities at a purchase price in cash equal to 101%
of their principal amount plus accrued interest to the Purchase Date. Such
Offer to Purchase will be consummated not earlier than 30 days and not later
than 60 days after the commencement thereof. Each Holder shall be entitled to
tender all or any portion of the Securities owned by such Holder pursuant to
the Offer to Purchase, subject to the requirement that any portion of a
Security tendered must be an integral multiple of $1,000 principal amount. A
"Change of Control" will be deemed to have occurred in the event that (whether
or not otherwise permitted by this Indenture) after the Issue Date (a) any
Person or any Persons acting together that would constitute a group (for
purposes of Section 13(d) of the Exchange Act, or any successor provision
thereto) (a "Group"), together with any Affiliates or Related Persons thereof,
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other than any such Person, Persons, Affiliates or Related Parties who are
Permitted Holders, shall "beneficially own" (as defined in Rule 13d-3 under the
Exchange Act, or any successor provision thereto), directly or indirectly, at
least (i) 50% of the voting power of the outstanding Voting Stock of the
Company or (ii) 40% of the voting power of the outstanding Voting Stock of the
Company and in the case of clause (ii) the Permitted Holders own less than such
Person or Group (in doing the "own less than" comparison in this clause (ii),
the holdings of the Permitted Holders who are members of the new Group shall
not be counted in the shares held in the aggregate by Permitted Holders)
provided that in no event shall a "Governance Change", within the meaning of
the amended and restated limited liability company agreement of Tekni-Plex
Partners LLC and the limited liability company agreement of MST/TP Partners
LLC, in each case as in effect on the Issue Date, be deemed to be a Change of
Control under this Indenture; (b) any sale, lease or other transfer (in one
transaction or a series of related transactions) is made by the Company or any
of its Restricted Subsidiaries of all or substantially all of the consolidated
assets of the Company and its Restricted Subsidiaries to any Person; (c) the
Company consolidates with or merges with or into another Person or any Person
consolidates with, or merges with or into, the Company, in any such event
pursuant to a transaction in which immediately after the consummation thereof
Persons owning a majority of the Voting Stock of the Company immediately prior
to such consummation shall cease to own a majority of the Voting Stock of the
Company or the surviving entity if other than the Company; (d) Continuing
Directors cease to constitute at least a majority of the Board of Directors of
the Company; or (e) the stockholders of the Company approve any plan or
proposal for the liquidation or dissolution of the Company. In no event would
the sale of common stock of the Company to an underwriter or a group of
underwriters in privity of contract with the Company (or anybody in privity of
contract with such underwriters) be deemed to be a Change of Control or be
deemed the acquisition of more than 40% of the voting power of the outstanding
Voting Stock of the Company by a Person or any Group unless such common stock
is not held in an investment account in which case the investment account would
be treated without giving effect to the foregoing part of this sentence.
Prior to the mailing of a notice to each Holder regarding the Offer to
Purchase, but in any event within 30 days following the date on which a Change
of Control occurs, the Company will be obligated under the Credit Agreement as
in effect on the Issue Date to (i) repay in full all Indebtedness under the
Credit Agreement (and terminate all such commitments) or offer to repay in full
all such Indebtedness (and terminate all such commitments) and to repay the
Indebtedness owed to (and terminate the commitments of) each lender which has
accepted such offer or (ii) obtain the requisite consents under the Credit
Agreement to permit the repurchase of the Securities. The Company will first
comply with its obligations described in the preceding sentence before it
offers to repurchase Securities pursuant to this Section 4.14, provided that
nothing in this paragraph shall eliminate the obligation of the Company to
consummate an Offer to Purchase the Securities within 90 days of the
consummation of a transaction resulting in a Change of Control.
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In the event that the Company makes an Offer to Purchase the Securities,
the Company shall comply with any applicable securities laws and regulations,
including any applicable requirements of Section 14(e) of, and Rule 14e-1
under, the Exchange Act.
SECTION 4.15. Limitation on Senior Subordinated Indebtedness.
The Company shall not (i) directly or indirectly Incur any Indebtedness
that by its terms would expressly rank senior in right of payment to the
Securities and expressly rank subordinate in right of payment to any Senior
Debt and (ii) permit a Guarantor to, and no Guarantor shall, directly or
indirectly Incur any Indebtedness that by its terms would expressly rank senior
in right of payment to the Guarantee of such Guarantor and expressly rank
subordinate in right of payment to any Senior Debt of such Guarantor.
SECTION 4.16. Limitations Concerning Distributions and Transfers by
Restricted Subsidiaries.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary of the Company to (i) pay, directly or indirectly,
dividends or make any other distributions in respect of its Capital Stock or
pay any Indebtedness or other obligation owed to the Company or any Restricted
Subsidiary of the Company, (ii) make loans or advances to the Company or any
Restricted Subsidiary of the Company or (iii) transfer any of its property or
assets to the Company or any Restricted Subsidiary of the Company, except for
such encumbrances or restrictions existing under or by reason of (a) any
agreement in effect on the Issue Date as any such agreement is in effect on
such date, (b) the Credit Agreement, (c) any agreement relating to any
Indebtedness Incurred by such Restricted Subsidiary prior to the date on which
such Restricted Subsidiary was acquired by the Company and outstanding on such
date and not Incurred in anticipation or contemplation of becoming a Restricted
Subsidiary and provided such encumbrance or restriction shall not apply to any
assets of the Company or its Restricted Subsidiaries other than such Restricted
Subsidiary, (d) customary provisions contained in an agreement which has been
entered into for the sale or disposition of all or substantially all of the
Capital Stock or assets of a Restricted Subsidiary; provided, however, that
such encumbrance or restriction is applicable only to such Restricted
Subsidiary or assets, (e) an agreement effecting a renewal, exchange,
refunding, amendment or extension of Indebtedness Incurred pursuant to an
agreement referred to in clause (a) or (c) above; provided, however, that the
provisions contained in such renewal, exchange, refunding, amendment or
extension agreement relating to such encumbrance or restriction are no more
restrictive in any material respect than the provisions contained in the
agreement that is the subject thereof in the reasonable judgment of the Board
of Directors of the Company as evidenced by a resolution of such Board of
Directors filed with the Trustee, (f) this Indenture, (g) applicable law, (h)
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customary provisions restricting subletting or assignment of any lease
governing any leasehold interest of any Restricted Subsidiary of the Company,
(i) restrictions contained in Indebtedness permitted to be incurred subsequent
to the Issue Date pursuant to Section 4.04; provided that any such restrictions
are ordinary and customary with respect to the type of Indebtedness incurred,
(j) purchase money obligations for property acquired in the ordinary course of
business that impose restrictions of the type referred to in clause (iii) of
this Section 4.16 or (k) restrictions of the type referred to in clause (iii)
of this Section 4.16 contained in security agreements securing Indebtedness of
a Restricted Subsidiary of the Company to the extent that such Liens were
otherwise incurred in accordance with Section 4.18 and restrict the transfer of
property subject to such agreements.
SECTION 4.17. Limitation on Issuance and Sale of Capital Stock of
Restricted Subsidiaries.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to transfer, convey, sell or otherwise dispose of any shares of
Capital Stock of any Restricted Subsidiary of the Company, except: (a) to the
Company or a Wholly Owned Subsidiary; (b) issuances of director's qualifying
shares or sales to foreign nationals of shares of Capital Stock of foreign
Restricted Subsidiaries, to the extent required by applicable law; (c) if,
immediately after giving effect to such issuance or sale, such Restricted
Subsidiary would no longer constitute a Restricted Subsidiary and any
Investment in such Person remaining after giving effect to such issuance or
sale would have been permitted to be made under Section 4.06 hereof if made on
the date of such issuance or sale; or (d) issuances or sales of Common Stock of
a Restricted Subsidiary, provided that the Company or such Restricted
Subsidiary applies the Net Available Proceeds, if any, of any such sale in
accordance with the provisions of Section 4.05 hereof.
SECTION 4.18. Limitation on Liens.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, incur any Lien on or with respect to any property
or assets of the Company or such Restricted Subsidiary owned on the Issue Date
or thereafter acquired or on the income or profits thereof to secure
Indebtedness, without making, or causing any such Restricted Subsidiary to
make, effective provision for securing the Securities and all other amounts due
under this Indenture (and, if the Company shall so determine, any other
Indebtedness of the Company or such Restricted Subsidiary, including
Subordinated Indebtedness; provided, however, that Liens securing the
Securities and any Indebtedness pari passu with the Securities are senior to
such Liens securing such Subordinated Indebtedness) equally and ratably with
such Indebtedness or, in the event such Indebtedness is subordinate in right of
payment to the Securities or the Guarantee, prior to such Indebtedness, as to
such property or assets for so long as such Indebtedness shall be so secured.
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The foregoing restrictions shall not apply to (i) Liens existing on the
Issue Date securing Indebtedness existing on the Issue Date; (ii) Liens
securing Senior Debt (including Liens securing Indebtedness outstanding under
the Credit Agreement) and any guarantees thereof or Indebtedness under any
interest rate hedge or exchange or other similar agreement to the extent
entered into to hedge any floating rate Indebtedness permitted under this
Indenture, in each case to the extent that the Indebtedness secured thereby is
permitted to be incurred under Section 4.04; provided, however, that
Indebtedness under the Credit Agreement shall be deemed not to have been
Incurred in violation of such provisions for purposes of this clause (ii) if
the holder(s) of such Indebtedness or their agent or representative shall have
received a representation from the Company to the effect that the Incurrence of
such Indebtedness does not violate such provision; (iii) Liens securing only
the Securities and the Guarantees; (iv) Liens in favor of the Company or a
Guarantor; (v) Liens to secure Indebtedness Incurred for the purpose of
financing all or any part of the purchase price or the cost of construction or
improvement of the property (or any other capital expenditure financing)
subject to such Liens; provided, however, that (a) the aggregate principal
amount of any Indebtedness secured by such a Lien does not exceed 100% of such
purchase price or cost, (b) such Lien does not extend to or cover any other
property other than such item of property and any improvements on such item,
(c) the Indebtedness secured by such Lien is Incurred by the Company within 180
days of the acquisition, construction or improvement of such property and (d)
the Incurrence of such Indebtedness is permitted by Section 4.04; (vi) Liens on
property existing immediately prior to the time of acquisition thereof (and not
created in anticipation or contemplation of the financing of such acquisition);
(vii) Liens on property of a Person existing at the time such Person is
acquired or merged with or into or consolidated with the Company or any such
Restricted Subsidiary (and not created in anticipation or contemplation
thereof); (viii) Liens to secure Indebtedness Incurred to extend, renew,
refinance or refund (or successive extensions, renewals, refinancings or
refundings), in whole or in part, any Indebtedness secured by Liens referred to
in clauses (i) through (vii), (ix) through (xii) and (xiv) of this paragraph so
long as such Liens do not extend to any other property and the principal amount
of Indebtedness so secured is not increased except for the amount of any
premium required to be paid in connection with such renewal, refinancing or
refunding pursuant to the terms of the Indebtedness renewed, refinanced or
refunded or the amount of any premium reasonably determined by the Company as
necessary to accomplish such renewal, refinancing or refunding by means of a
tender offer, exchange offer or privately negotiated repurchase, plus the
expenses of the issuer of such Indebtedness reasonably incurred in connection
with such renewal, refinancing or refunding; (ix) Liens in favor of the Trustee
as provided for in this Indenture on money or property held or collected by the
Trustee in its capacity as Trustee; (x) Liens securing a tax, assessment or
other governmental charge or levy or the claim of a materialman, mechanic,
carrier, warehouseman or landlord for labor, materials, supplies or rentals
incurred in the ordinary course or business; (xi) Liens consisting of a deposit
or pledge made in the ordinary course of business in connection with, or to
secure payment of, obligations under worker's compensation, unemployment
insurance or similar legislation; (xii) Liens arising pursuant to an order of
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attachment, distraint or similar legal process arising in connection with legal
proceedings; (xiii) Liens incurred in the ordinary course of business securing
assets not having a fair market value in excess of $5.0 million; and (xiv)
Liens in favor of the trustee under the 11 1/4% Notes Indenture as provided for
in the 11 1/4% Notes Indenture on money or property held or collected by such
trustee in its capacity as trustee under the 11 1/4% Notes Indenture in
connection with the defeasance or discharge of the 11 1/4% Notes and Liens in
favor of the trustee under the 9 1/4% Notes Indenture as provided for in the 9
1/4% Notes Indenture on money or property held or collected by such trustee in
its capacity as trustee under the 9 1/4% Notes Indenture in connection with the
defeasance or discharge of the 9 1/4% Notes.
SECTION 4.19. Future Guarantors.
The Company shall not create or acquire, nor permit any of its Domestic
Restricted Subsidiaries to create or acquire, any Domestic Restricted
Subsidiary after the Issue Date unless, at the time such Domestic Restricted
Subsidiary has either assets or stockholder's equity in excess of $25,000, such
Domestic Restricted Subsidiary (a) executes and delivers to the Trustee a
supplemental indenture in form reasonably satisfactory to the Trustee pursuant
to which such Domestic Restricted Subsidiary shall unconditionally guarantee
all of the Company's obligations under the Securities and this Indenture on the
terms set forth in Articles Eleven and Twelve and (b) delivers to the Trustee
an Opinion of Counsel that such supplemental indenture has been duly
authorized, executed and delivered by such Domestic Restricted Subsidiary and
constitutes a legal, valid, binding and enforceable obligation of such Domestic
Restricted Subsidiary (subject to customary exceptions).
ARTICLE FIVE
MERGERS; SUCCESSOR CORPORATION
SECTION 5.01. Restriction on Mergers, Consolidations and Certain
Sales of Assets
The Company shall not consolidate or merge with or into any
Person, or sell, assign, lease, convey or otherwise dispose of (or cause or
permit any Restricted Subsidiary of the Company to consolidate or merge with or
into any Person or sell, assign, lease, convey or otherwise dispose of) all or
substantially all of the Company's assets (determined on a consolidated basis
for the Company and its Restricted Subsidiaries), whether as an entirety or
substantially an entirety in one transaction or a series of related
transactions, including by way of liquidation or dissolution, to any Person
unless, in each such case: (i) the entity formed by or surviving any such
consolidation or merger (if other than the Company or such Restricted
Subsidiary, as the case may be), or to which such sale, assignment, lease,
conveyance or other disposition shall have been made (the "Surviving Entity"),
is a corporation organized and existing under the laws of the United States,
any state thereof or the District of Columbia; (ii) if there is a Surviving
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Entity, the Surviving Entity assumes by supplemental indenture all of the
obligations of the Company (or in the case a Restricted Subsidiary is the
Surviving Entity, the obligations of such Restricted Subsidiary) on the
Securities and under this Indenture; (iii) immediately after giving effect to
such transaction and the use of any net proceeds therefrom on a pro forma
basis, the Company or the Surviving Entity, as the case may be, (A) shall have
a Consolidated Net Worth equal to or greater than the Consolidated Net Worth of
the Company immediately prior to such transaction and (B) could Incur at least
$1.00 of Indebtedness pursuant to clause (i) of Section 4.04; (iv) immediately
before and after giving effect to such transaction and treating any
Indebtedness which becomes an obligation of the Company or any of its such
Restricted Subsidiaries as a result of such transaction as having been incurred
by the Company or such Restricted Subsidiary, as the case may be, at the time
of the transaction, no Default or Event of Default shall have occurred and be
continuing; and (v) if, as a result of any such transaction, property or assets
of the Company or a Restricted Subsidiary would become subject to a Lien not
excepted from Section 4.18, the Company, Restricted Subsidiary or the Surviving
Entity, as the case may be, shall have secured the Securities as required by
Section 4.18. The provisions of this paragraph shall not apply to any merger of
a Restricted Subsidiary of the Company with or into the Company or a Wholly
Owned Subsidiary of the Company or any transaction pursuant to which a
Guarantor, is to be released in accordance with the terms of the Guarantee and
this Indenture in connection with any transaction complying with Section 4.05.
SECTION 5.02. Successor Corporation Substituted.
Upon any consolidation of the Company or any Restricted Subsidiary of the
Company with, or merger of the Company or any such Restricted Subsidiary into,
any other Person or any sale, assignment, lease, conveyance or other
disposition of all or substantially all of the Company's consolidated assets
(as an entirety or substantially as an entirety in one transaction or a series
of related transactions, including by way of liquidation or dissolution) in
accordance with Section 5.01, upon the execution of a supplemental indenture by
the Surviving Person in form and substance satisfactory to the Trustee (as
evidenced by the Trustee's execution thereof), the Surviving Person shall
succeed to, and be substituted for, and may exercise every right and power of
and shall assume all obligations of, the Company or such Restricted Subsidiary,
as the case may be, under this Indenture and the Securities or the Guarantees,
as the case may be, with the same effect as if such Surviving Person had been
named as the Company or such Restricted Subsidiary, as the case may be, herein,
and thereafter, except in the case of a lease of all or substantially all of
the Company's consolidated assets, the predecessor Person shall be relieved of
all obligations and covenants under this Indenture and the Securities or the
Guarantees, as the case may be.
In connection with any consolidation, merger or transfer of
assets contemplated by Section 5.01, the Company shall deliver, or cause to be
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delivered, to the Trustee, in form and substance reasonably satisfactory to the
Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger or transfer and the supplemental indenture in
respect thereof, if any, comply with Section 5.01 and that all conditions
precedent herein provided for relating to such transactions have been complied
with.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.
An "Event of Default" occurs if:
(1) the Company fails to pay principal of (or premium, if any, on)
any Security when due (whether or not prohibited by Article Eight or
Eleven);
(2) the Company fails to pay any interest on any Security when due,
and the default continues for 30 days (whether or not prohibited by
Article Eight or Eleven);
(3) the Company defaults in the payment of principal of and interest
on Securities required to be purchased pursuant to an Offer to Purchase as
described under Section 4.05 or 4.14 hereof when due and payable (whether
or not prohibited by Article Eight or Eleven);
(4) the Company fails to perform or comply with any of the provisions
of Section 5.01;
(5) the Company fails to perform any other covenant or agreement of
the Company under this Indenture or the Securities and the default
continues for 60 days after written notice to the Company by the Trustee
or holders of at least 25% in aggregate principal amount of outstanding
Securities;
(6) the Company defaults under the terms of one or more instruments
evidencing or securing Indebtedness of the Company or any of its
Restricted Subsidiaries having an outstanding principal amount of $20.0
million or more individually or in the aggregate that has resulted in the
acceleration of the payment of such Indebtedness or the Company or any of
its Restricted Subsidiaries fails to pay principal when due at the stated
maturity of any such Indebtedness;
(7) there shall have been rendered any final judgment or judgments
(not subject to appeal) against the Company or any of its Restricted
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Subsidiaries in an amount of $10.0 million or more which remain
undischarged or unstayed for a period of 60 days after the date on which
the right to appeal has expired;
(8) the Company or any of its Material Subsidiaries pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case or proceeding,
(B) consents to the entry of an order for relief against it in an
involuntary case or proceeding,
(C) consents to the appointment of a Custodian of it or for all
or substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors;
(9) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company or any Material Subsidiary
in an involuntary case or
proceeding,
(B) appoints a Custodian of the Company or any Material
Subsidiary or for all or substantially all of its property, or
C) orders the liquidation of the Company or any Material
Subsidiary,
and in each case the order or decree remains unstayed and in effect
for 60 days; provided, however, that if the entry of such order or
decree is appealed and dismissed on appeal then the Event of Default
hereunder by reason of the entry of such order or decree shall be
deemed to have been cured; or
(10) any Guarantee ceases to be in full force and effect or is
declared null and void and unenforceable or found to be invalid or any
Guarantor denies its liability under its Guarantee (other than by reason
of a release of such Guarantor from its Guarantee in accordance with the
terms of this Indenture and the Guarantee).
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal, state or foreign law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator, sequestrator or similar
official under any Bankruptcy Law.
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SECTION 6.02. Acceleration.
If an Event of Default with respect to the Securities (other than an Event
of Default with respect to the Company described in clause (8) or (9) of
Section 6.01) shall occur and be continuing, either the Trustee or the Holders
of at least 25% in aggregate principal amount of the outstanding Securities may
accelerate the maturity of all Securities; provided, however, that after such
acceleration, but before a judgment or decree based on acceleration, the
Holders of a majority in aggregate principal amount of outstanding Securities
may, under certain circumstances, rescind and annul such acceleration if all
Events of Default, other than the non-payment of accelerated principal, have
been cured or waived as provided in this Indenture; and provided, further, that
so long as the Credit Agreement shall be in full force and effect, if an Event
of Default shall have occurred and be continuing (other than as specified in
clauses (8) or (9) above), the Securities shall not become due and payable
until the earlier to occur of (x) five business days following delivery of a
written notice of such acceleration of the Securities to the agent under the
Credit Agreement, if such an Event of Default has not been cured prior to such
fifth business day and (y) the acceleration of any Indebtedness under the
Credit Agreement. If an Event of Default specified in clause (8) or (9) of
Section 6.01 with respect to the Company occurs, the outstanding Securities
will ipso facto become immediately due and payable without any declaration or
other act on the part of the Trustee or any Holder.
After a declaration of acceleration, but before a judgment or decree of
the money due in respect of the Securities has been obtained, the Holders of
not less than a majority in aggregate principal amount of the Securities then
outstanding by written notice to the Trustee may rescind an acceleration and
its consequences if all existing Events of Default (other than the nonpayment
of principal of and interest on the Securities which has become due solely by
virtue of such acceleration) have been cured or waived and if the rescission
would not conflict with any judgment or decree. No such rescission shall affect
any subsequent Default or impair any right consequent thereto.
SECTION 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy by proceeding at law or in equity to collect the payment
of principal of or interest on the Securities or to enforce the performance of
any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
maturing upon an Event of Default shall not impair the right or remedy or
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constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
SECTION 6.04. Waiver of Past Default.
Subject to Sections 2.09, 6.07 and 10.02, prior to the declaration of
acceleration of the Securities, the Holders of not less than a majority in
aggregate principal amount of the outstanding Securities by written notice to
the Trustee may waive an existing Default or Event of Default and its
consequences, except a Default in the payment of principal of or interest on
any Security as specified in clauses (1) and (2) of Section 6.01 or a Default
in respect of any term or provision of this Indenture that may not be amended
or modified without the consent of each Holder affected as provided in Section
10.02. The Company shall deliver to the Trustee an Officers' Certificate
stating that the requisite percentage of Holders have consented to such waiver
and attaching copies of such consents. In case of any such waiver, the Company,
the Trustee and the Holders shall be restored to their former positions and
rights hereunder and under the Securities, respectively. This paragraph of this
Section 6.04 shall be in lieu of ss. 316(a)(1)(B) of the TIA and such ss.
316(a)(1)(B) of the TIA is hereby expressly excluded from this Indenture and
the Securities, as permitted by the TIA.
Upon any such waiver, such Default shall cease to exist and be deemed to
have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred for every
purpose of this Indenture and the Securities, but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any right
consequent thereon.
SECTION 6.05. Control by Majority.
Subject to Section 2.09, the Holders of a majority in principal amount of
the outstanding Securities may direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or exercising any trust
or power conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture, that the Trustee
determines may be unduly prejudicial to the rights of another Securityholder,
or that may involve the Trustee in personal liability; provided, however, that
the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction. In the event the Trustee takes any action or
follows any direction pursuant to this Indenture, the Trustee shall be entitled
to indemnification satisfactory to it in its sole discretion against any loss
or expense caused by taking such action or following such direction. This
Section 6.05 shall be in lieu of ss. 316(a)(1)(A) of the TIA, and such ss.
316(a)(1)(A) of the TIA is hereby expressly excluded from this Indenture and
the Securities, as permitted by the TIA.
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SECTION 6.06. Limitation on Suits.
A Securityholder may not pursue any remedy with respect to this Indenture
or the Securities unless:
(1) the Holder gives to the Trustee written notice of a continuing Event
of Default;
(2) the Holders of at least 25% in aggregate principal amount of the
outstanding Securities make a written request to the Trustee to pursue a
remedy;
(3) such Holder or Holders offer and, if requested, provide to the Trustee
indemnity satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and
(5) during such 60-day period the Holders of a majority in principal
amount of the outstanding Securities (excluding Affiliates of the Company) do
not give the Trustee a direction which, in the opinion of the Trustee, is
inconsistent with the request.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over such other
Securityholder.
SECTION 6.07. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of principal of and interest on the Security, on or
after the respective due dates expressed in the Security, or to bring suit for
the enforcement of any such payment on or after such respective dates, shall
not be impaired or affected without the consent of the Holder.
SECTION 6.08. Collection Suit by Trustee.
If an Event of Default in payment of interest or principal specified in
Section 6.01(1) or (2) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
or any other obligor on the Securities for the whole amount of principal and
accrued interest remaining unpaid, together with interest overdue on principal
and to the extent that payment of such interest is lawful, interest on overdue
installments of interest, in each case at the rate per annum borne by the
Securities and such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
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SECTION 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel) and the Securityholders
allowed in any judicial proceedings relative to the Company (or any other
obligor upon the Securities), its creditors or its property and shall be
entitled and empowered to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same, and any
Custodian in any such judicial proceedings is hereby authorized by each
Securityholder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the
Securityholders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agent
and counsel, and any other amounts due the Trustee under Section 7.07. Nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Securityholder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Securityholder in any such proceeding.
SECTION 6.10. Priorities.
If the Trustee collects any money or property pursuant to this Article
Six, it shall pay out the money or property in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Holders for amounts due and unpaid on the
Securities for principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Securities for principal and interest, respectively; and
Third: to the Company.
The Trustee, upon prior written notice to the Company, may fix a record
date and payment date for any payment to Securityholders pursuant to this
Section 6.10.
SECTION 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as 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
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the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 shall not apply to a suit by the Trustee, a suit by a Holder
or group of Holders of more than 10% in aggregate principal amount of the
outstanding Securities, or to any suit instituted by any Holder for the
enforcement or the payment of the principal or interest on any Securities on or
after the respective due dates expressed in the Security.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture and
use the same degree of care and skill in their exercise as a prudent person
would exercise or use under the circumstances in the conduct of such person's
own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee shall not be liable except for the performance
of such duties as are specifically set forth herein; and
(2) In the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions conforming to the requirements of this Indenture; however,
the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture (but
need not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein).
(c) The Trustee shall not be relieved from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(1) This paragraph does not limit the effect of paragraph (b) of
this Section 7.01;
(2) The Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it is proved
that the Trustee was negligent in ascertaining the pertinent facts;
and
(3) The Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05.
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(d) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or to take or omit to take any
action under this Indenture or take any action at the request or direction of
Holders if it shall have reasonable grounds for believing that repayment of
such funds is not assured to it or it does not receive an indemnity
satisfactory to it in its sole discretion against such risk, liability, loss,
fee or expense which might be incurred by it in compliance with such request or
direction.
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section 7.01.
(f) The Trustee shall not be liable for interest on any money or assets
received by it except as the Trustee may agree with the Company. Money or
assets held in trust by the Trustee need not be segregated from other funds or
assets except to the extent required by law.
SECTION 7.02. Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may request and conclusively rely on any
document believed by it to be genuine and to have been signed or
presented by the proper person. The Trustee need not investigate any
fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
consult with counsel and may require an Officers' Certificate and an
Opinion of Counsel, which shall conform to the provisions of Section
13.05. The Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on such certificate or
opinion.
(c) The Trustee may act through attorneys and agents of its
selection and shall not be responsible for the misconduct or
negligence of any agent or attorney (other than an agent who is an
employee of the Trustee) appointed with due care.
(d) The Trustee shall not be liable for any action it takes
or omits to take in good faith which it reasonably believes to be
authorized or within its rights or powers.
(e) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Securityholders pursuant to this Indenture,
unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction.
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(f) The Trustee may consult with counsel of its selection,
and the advice or opinion of such counsel as to matters of law shall
be full and complete authorization and protection from liability in
respect of any action taken, omitted or suffered by it hereunder in
good faith and in accordance with the advice or opinion of such
counsel.
(g) The Trustee shall not be deemed to have knowledge of any
Default or Event of Default except (i) any Event of Default occurring
pursuant to clause (1) or (2) of Section 6.01 hereof or (ii) any
Default or Event of Default of which the Trustee shall have received
notification or obtained actual knowledge.
SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Securities and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. However, the Trustee is subject to Sections
7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation as to
the validity or adequacy of this Indenture or the Securities, it shall not be
accountable for the Company's use of the proceeds from the Securities, and it
shall not be responsible for any statement of the Company in this Indenture or
any document issued in connection with the sale of Securities or any statement
in the Securities other than the Trustee's certificate of authentication.
SECTION 7.05. Notice of Defaults.
If a Default or an Event of Default occurs and is continuing and the
Trustee knows of such Defaults or Events of Default, the Trustee shall mail to
each Securityholder notice of the Default or Event of Default within 30 days
after the occurrence thereof; provided however, that, except in the case of an
Event of Default or a Default in payment with respect to the Securities or a
Default or Event of Default complying with Section 5.01, the Trustee shall be
protected in withholding such notice if and so long as the Board of Directors
or responsible officers of the Trustee in good faith determine that the
withholding of such notice is in the interest of the Holders.
SECTION 7.06. Reports by Trustee to Holders.
If required by TIA ss. 313(a), within 60 days after each June 30 beginning
with the June 30 following the date of this Indenture, the Trustee shall mail
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to each Securityholder a report dated as of such June 30 that complies with TIA
ss. 313(a). The Trustee also shall comply with TIA ss. 313(b), (c) and (d).
A copy of each such report at the time of its mailing to Securityholders
shall be filed with the Commission and each stock exchange, if any, on which
the Securities are listed.
The Company shall promptly notify the Trustee in writing if the Securities
become listed on any securities exchange or of any delisting thereof.
SECTION 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time such compensation
as the Company and the Trustee shall from time to time agree in writing for its
services. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee upon request for all reasonable disbursements, expenses and advances
(including fees, disbursements and expenses of its agents and counsel) incurred
or made by it in addition to the compensation for its services except any such
disbursements, expenses and advances as may be attributable to the Trustee's
negligence or bad faith. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents, accountants,
experts and counsel and any taxes or other expenses incurred by a trust created
pursuant to Section 9.01 hereof.
The Company shall indemnify the Trustee and its agents for, and hold them
harmless against any and all loss, damage, claims, liability or expense,
including taxes (other than franchise taxes imposed on the Trustee and taxes
based upon, measured by or determined by the income of the Trustee), arising
out of or in connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses of enforcing this Indenture
against the Company (including Section 7.07) and of defending itself against
any claim (whether asserted by any Securityholder or the Company) or liability
in connection with the exercise or performance of any of their powers or duties
hereunder, except to the extent that such loss, damage, claim, liability or
expense is due to their own negligence or bad faith. The Trustee shall notify
the Company promptly of any claim asserted against the Trustee for which it may
seek indemnity. However, the 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 cooperate in the defense (and may employ
its own counsel) at the Company's expense; provided, however, that the
Company's reimbursement obligation with respect to counsel employed by the
Trustee will be limited to the reasonable fees and expenses of a single
counsel. The Company need not pay for any settlement made without its written
consent, which consent shall not be unreasonably withheld. The Company need not
reimburse any expense or indemnify against any loss or liability incurred by
the Trustee as a result of the violation of this Indenture by the Trustee.
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To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a Lien prior to the Securities against all money or property
held or collected by the Trustee, in its capacity as Trustee, except money or
property held in trust to pay principal of or interest on particular
Securities.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(8) or (9) occurs, the expenses (including the
reasonable fees and expenses of its agents and counsel) and the compensation
for the services shall be preferred over the status of the Holders in a
proceeding under any Bankruptcy Law and are intended to constitute expenses of
administration under any Bankruptcy Law. The Company's obligations under this
Section 7.07 and any claim arising hereunder shall survive the resignation or
removal of any Trustee, the discharge of the Company's obligations pursuant to
Article Nine and any rejection or termination under any Bankruptcy Law.
SECTION 7.08. Replacement of Trustee.
The Trustee may resign at any time by so notifying the
Company in writing. The Holders of a majority in principal amount of the
outstanding Securities may remove the Trustee by so notifying the Trustee and
the Company in writing and may appoint a successor Trustee with the Company's
consent. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent under any
Bankruptcy Law;
(3) a custodian or other public officer takes charge of the Trustee or its
property; or
(4) 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 Trustee in such event being referred to herein
as the retiring Trustee), the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the Securities may appoint a successor
Trustee to replace the successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. As promptly as practicable after
that, the retiring Trustee shall transfer, after payment of all sums then owing
to the Trustee pursuant to Section 7.07, all property held by it as Trustee to
the successor Trustee, subject to the Lien provided in Section 7.07, the
resignation or removal of the retiring Trustee shall become effective, and the
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successor Trustee shall have the rights, powers and duties of the Trustee under
this Indenture. A successor Trustee shall mail notice of its succession to each
Securityholder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of at least 10% in principal amount of the outstanding Securities
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section 7.08,
the Company's obligations under Section 7.07, to the extent incurred, shall
continue for the benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger, etc.
If the Trustee consolidates with, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another
corporation or banking corporation, the resulting, surviving or transferee
corporation or banking corporation without any further act shall be the
successor Trustee.
SECTION 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee which shall be eligible to act
as Trustee under TIA xx.xx. 310(a)(1) and 310(a)(5). The Trustee (or in the
case of a corporation included in a bank holding company, the related bank
holding company) shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of
condition. If the Trustee has or shall acquire any "conflicting interest"
within the meaning of TIA ss. 310(b), the Trustee and the Company shall comply
with the provisions of TIA ss. 310(b); provided, however, that there shall be
excluded from the operation of TIA ss. 310(b)(1) any indenture or indentures
under which other securities, or certificates of interest or participation in
other securities, of the Company are outstanding, if the requirements for such
exclusion set forth in TIA ss. 310(b)(1) are met. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section,
the Trustee shall resign immediately in the manner and with the effect
hereinbefore specified in this Article Seven.
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SECTION 7.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
ARTICLE EIGHT
SUBORDINATION OF SECURITIES
SECTION 8.01. Securities Subordinated to Senior Debt.
The Company covenants and agrees, and the Trustee and each Holder by
acceptance of the Securities likewise covenants and agrees, that all Securities
shall be issued subject to the provisions of this Article; and each person
holding any Security, whether upon original issue or upon transfer, assignment
or exchange thereof, accepts and agrees that all payments of the principal of
(and premium, if any) and interest on the Securities by the Company and any
claims arising out of or with respect to this Indenture shall, to the extent
and in the manner set forth in this Article, be subordinated and junior in
right of payment to the prior payment in full of all Senior Debt of the
Company.
SECTION 8.02. No Payment on Securities in Certain Circumstances.
(a) No payment by or on behalf of the Company of the principal of,
premium, if any, or interest on the Securities, or any payment to acquire any
of the Securities for cash, property or securities, or any distribution with
respect to the Securities of any kind or character, whether in cash, property
or securities, by set-off or otherwise (all such payments and distributions
referred to individually and collectively as a "Securities Payment"), whether
pursuant to the terms of the Securities or upon acceleration or otherwise, will
be made if, at the time of such payment, there exists a default in the payment
of all or any portion of the obligations on any Designated Senior Debt, whether
at maturity, on account of mandatory redemption or prepayment, acceleration or
otherwise, and such default shall not have been cured or waived or the benefits
of this sentence waived by or on behalf of the holders of such Designated
Senior Debt. In addition, during the continuance of any non-payment default or
non-payment event of default with respect to any Designated Senior Debt
pursuant to which the maturity thereof may be accelerated, and upon receipt by
the Trustee of notice (a "Payment Blockage Notice") from a holder or holders of
such Designated Senior Debt or the trustee or agent acting on behalf of such
Designated Senior Debt, then, unless and until such default or event of default
has been cured or waived or has ceased to exist or such Designated Senior Debt
has been discharged or repaid in full in cash or cash equivalents or otherwise
in a form satisfactory to the holders of such Designated Senior Debt, no
Securities Payment will be made by or on behalf of the Company, except from
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those funds held in trust for purposes of defeasance for the benefit of the
Holders of any Securities to such Holders, during a period (a "Payment Blockage
Period") commencing on the date of receipt of such Payment Blockage Notice by
the Trustee and ending 179 days thereafter. Notwithstanding anything herein to
the contrary, (x) in no event will a Payment Blockage Period extend beyond 179
days from the date of the Payment Blockage Notice in respect thereof was given
and (y) there must be 180 days in any 365 day period during which no Payment
Blockage Period is in effect. Not more than one Payment Blockage Period may be
commenced with respect to the Securities during any period of 365 consecutive
days. No default or event of default that existed or was continuing on the date
of commencement of any Payment Blockage Period with respect to the Designated
Senior Debt initiating such Payment Blockage Period may be, or be made, the
basis for the commencement of any other Payment Blockage Period by the holder
or holders of such Designated Senior Debt or the trustee or agent acting on
behalf of such Designated Senior Debt, whether or not within a period of 365
consecutive days, unless such default or event of default has been cured or
waived for a period of not less than 90 consecutive days (it being acknowledged
that any subsequent action or any breach of any financial covenants for a
period commencing after the date of commencement of such Payment Blockage
Period that, in either case, would give rise to an event of default pursuant to
any provision under which an event of default previously existed or was
continuing, shall constitute a new event of default for this purpose).
(b) In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee or any Holder when such payment is prohibited by
Section 8.02(a), such payment shall be held for the benefit of, and shall be
paid over or delivered to, the holders of Designated Senior Debt or their
respective representatives, or to the trustee or trustees under any indenture
pursuant to which any of such Designated Senior Debt may have been issued, as
their respective interests may appear, but only to the extent that, upon notice
from the Trustee to the holders of Designated Senior Debt that such prohibited
payment has been made, the holders of the Designated Senior Debt (or their
representative or representatives or a trustee) notify the Trustee in writing
of the amounts then due and owing on the Designated Senior Debt, if any, and
only the amounts specified in such notice to the Trustee shall be paid to the
holders of Designated Senior Debt.
SECTION 8.03. Payment Over of Proceeds upon Dissolution, etc.
(a) Upon any payment or distribution of assets or securities of the
Company of any kind or character, whether in cash, property or securities, upon
any dissolution or winding up or total or partial liquidation or reorganization
of the Company, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all amounts due or to become due with
respect to Senior Debt of the Company (including any interest accruing on or
after, or which would accrue but for, an event of bankruptcy, regardless of
whether such interest is an allowed claim enforceable against the debtor under
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the Bankruptcy Code) shall first be paid in full, or payment provided for, in
either case in cash or cash equivalents or otherwise in a form satisfactory to
the holders of Senior Debt, before the Holders of the Securities or the Trustee
on behalf of such Holders shall be entitled to receive any Securities Payment.
Before any payment may be made by, or on behalf of, the Company of the
principal of, premium, if any, or interest on the Securities upon any such
dissolution or winding up or liquidation or reorganization, any payment or
distribution of assets or securities of the Company of any kind or character,
whether in cash, property or securities, to which the Holders of the Securities
or the Trustee on their behalf would be entitled, but for the subordination
provisions of this Indenture, shall be made by the Company or by any receiver,
trustee in bankruptcy, liquidating trustee, agent or other person making such
payment or distribution, directly to the holders of Senior Debt of the Company
(pro rata to such holders on the basis of the respective amounts of Senior Debt
held by such holders) or their representatives or to the trustee or trustees
under any indenture pursuant to which any such Senior Debt may have been issued
as their respective interests may appear, to the extent necessary to pay all
such Senior Debt in full in cash or cash equivalents or otherwise in a form
satisfactory to the holders of such Senior Debt after giving effect to any
concurrent payment, distribution or provision therefor to or for the holders of
such Senior Debt.
(b) In the event that, notwithstanding the foregoing provision prohibiting
such payment or distribution, any payment or distribution of assets or
securities of the Company of any kind or character, whether in cash, property
or securities, shall be received by the Trustee or any Holder of Securities at
a time when such payment or distribution is prohibited by Section 8.03(a) and
before all obligations in respect of Senior Debt are paid in full, or payment
provided for, such payment or distribution shall be received and held for the
benefit of, and shall be paid over or delivered to, the holders of Senior Debt
or their respective representatives, or to the trustee or trustees under any
indenture pursuant to which any of such Senior Debt may have been issued, as
their respective interests may appear, for application to the payment of Senior
Debt remaining unpaid until all such Senior Debt has been paid in full after
giving effect to any concurrent payment, distribution or provision therefor to
or for the holders of such Senior Debt.
The consolidation of the Company with, or the merger of the Company with
or into, another corporation or the liquidation or dissolution of the Company
following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon the terms and
conditions provided in Article Five shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of this Section if
such other corporation shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions stated in Article Five.
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SECTION 8.04. Subrogation.
Upon the payment in full of all Senior Debt of the Company, or provision
for payment, the Holders of the Securities shall be subrogated to the extent of
the payments or distributions made to the holders of such Senior Debt pursuant
to the provisions of this Article to the rights of the holders of such Senior
Debt to receive payments or distributions of cash, property or securities of
the Company made on such Senior Debt until the principal of and interest on the
Securities shall be paid in full; and, for the purposes of such subrogation, no
payments or distributions to the holders of the Senior Debt of any cash,
property or securities to which the Holders of the Securities or the Trustee on
their behalf would be entitled except for the provisions of this Article, and
no payment over pursuant to the provisions of this Article to the holders of
Senior Debt by Holders of the Securities or the Trustee on their behalf shall,
as between the Company, its creditors other than holders of Senior Debt, and
the Holders of the Securities, be deemed to be a payment by the Company to or
on account of the Senior Debt. It is understood that the provisions of this
Article are and are intended solely for the purpose of defining the relative
rights of the Holders of the Securities, on the one hand, and the holders of
the Senior Debt, on the other hand.
If any payment or distribution to which the Holders of the Securities
would otherwise have been entitled but for the provisions of this Article shall
have been applied, pursuant to the provisions of this Article, to the payment
of all amounts payable under Senior Debt, then and in such case, the Holders of
the Securities shall be entitled to receive from the holders of such Senior
Debt any payments or distributions received by such holders of Senior Debt in
excess of the amount required to make payment in full, or provision for
payment, of such Senior Debt.
SECTION 8.05. Obligations of Company Unconditional.
Nothing contained in this Article or elsewhere in this Indenture or in the
Securities is intended to or shall impair, as among the Company and the Holders
of the Securities, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders of the Securities the principal of and
interest on the Securities as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative
rights of the Holders of the Securities and creditors of the Company other than
the holders of the Senior Debt, nor shall anything herein or therein prevent
the Holder of any Security or the Trustee on their behalf from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article of the holders of
the Senior Debt in respect of cash, property or securities of the Company
received upon the exercise of any such remedy.
Without limiting the generality of the foregoing, nothing
contained in this Article shall restrict the right of the Trustee or the
Holders of Securities to take any action to declare the Securities to be due
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and payable prior to their stated maturity pursuant to Section 6.01 or to
pursue any rights or remedies hereunder; provided, however, that all Senior
Debt then due and payable shall first be paid in full before the Holders of the
Securities or the Trustee are entitled to receive any direct or indirect
payment from the Company of principal of or interest on the Securities.
SECTION 8.06. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by
the Trustee in respect of the Securities pursuant to the provisions of this
Article. The Trustee shall not be charged with knowledge of the existence of
any default or event of default with respect to any Senior Debt or of any other
facts which would prohibit the making of any payment to or by the Trustee
unless and until the Trustee shall have received notice in writing at its
Corporate Trust Office to that effect signed by an Officer of the Company, or
by a holder of Senior Debt or trustee or agent therefor; and prior to the
receipt of any such written notice, the Trustee shall, subject to Article
Seven, be entitled to assume that no such facts exist; provided that if the
Trustee shall not have received the notice provided for in this Section 8.06 at
least two Business Days prior to the date upon which by the terms of this
Indenture any moneys shall become payable for any purpose (including, without
limitation, the payment of the principal of or interest on any Security), then,
regardless of anything herein to the contrary, the Trustee shall have full
power and authority to receive any moneys from the Company and to apply the
same to the purpose for which they were received, and shall not be affected by
any notice to the contrary which may be received by it on or after such prior
date. Nothing contained in this Section 8.06 shall limit the right of the
holders of Senior Debt to recover payments as contemplated by Section 8.02 or
8.03. The Trustee shall be entitled to rely on the delivery to it of a written
notice by a Person representing himself or itself to be a holder of any Senior
Debt (or a trustee on behalf of, or other representative of, such holder) to
establish that such notice has been given by a holder of such Senior Debt or a
trustee or representative on behalf of any such holder.
In the event that the Trustee determines in good faith that any evidence
is required with respect to the right of any Person as a holder of Senior Debt
to participate in any payment or distribution pursuant to this Article, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Debt held by such
Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article, and if such evidence is not furnished, the Trustee
may defer any payment to such Person pending judicial determination as to the
right of such Person to receive such payment.
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SECTION 8.07. Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets or securities referred to in
this Article, the Trustee and the Holders of the Securities shall be entitled
to rely upon any order or decree made by any court of competent jurisdiction in
which bankruptcy, dissolution, winding-up, liquidation or reorganization
proceedings are pending, or upon a certificate of the receiver, trustee in
bankruptcy, liquidating trustee, agent or other person making such payment or
distribution, delivered to the Trustee or to the Holders of the Securities for
the purpose of ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Debt and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article.
SECTION 8.08. Trustee's Relation to Senior Debt.
The Trustee and any Paying Agent shall be entitled to all the
rights set forth in this Article with respect to any Senior Debt which may at
any time be held by it in its individual or any other capacity to the same
extent as any other holder of Senior Debt, and nothing in this Indenture shall
deprive the Trustee or any Paying Agent of any of its rights as such holder.
With respect to the holders of Senior Debt, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article, and no implied covenants or
obligations with respect to the holders of Senior Debt shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt.
SECTION 8.09. Subordination Rights Not Impaired by Acts or Omissions of
the Company or Holders of Senior Debt.
No right of any present or future holders of any Senior Debt to enforce
subordination as provided herein shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any noncompliance
by the Company with the terms of this Indenture, regardless of any knowledge
thereof which any such holder may have or otherwise be charged with. The
provisions of this Article are intended to be for the benefit of, and shall be
enforceable directly by, the holders of Senior Debt.
SECTION 8.10. Securityholders Authorize Trustee To Effectuate
Subordination of Securities.
Each Holder of Securities by his acceptance of such Securities authorizes
and expressly directs the Trustee on his behalf to take such action as may be
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necessary or appropriate to effectuate the subordination provided in this
Article, and appoints the Trustee his attorney-in-fact for such purposes,
including, in the event of any dissolution, winding up, liquidation or
reorganization of the Company (whether in bankruptcy, insolvency, receivership,
reorganization or similar proceedings or upon a general assignment for the
benefit of creditors or otherwise) tending towards liquidation of the business
and assets of the Company, the filing of a claim for the unpaid balance of its
or his Securities in the form required in those proceedings.
SECTION 8.11. This Article Not To Prevent Events of Default.
The failure to make a payment on account of principal of or interest on
the Securities by reason of any provision of this Article shall not be
construed as preventing the occurrence of an Event of Default specified in
clause (1), (2) or (3) of Section 6.01.
SECTION 8.12. Trustee's Compensation Not Prejudiced.
Nothing in this Article shall apply to amounts due to the Trustee pursuant
to Section 6.10 and Section 7.07.
SECTION 8.13. No Waiver of Subordination Provisions.
Without in any way limiting the generality of Section 8.09, the holders of
Senior Debt may, at any time and from time to time, without the consent of or
notice to the Trustee or the Holders of the Securities, without incurring
responsibility to the Holders of the Securities and without impairing or
releasing the subordination provided in this Article or the obligations
hereunder of the Holders of the Securities to the holders of Senior Debt, do
any one or more of the following: (a) change the manner, place or terms of
payment or extend the time of payment of, or renew or alter, Senior Debt or any
instrument evidencing the same or any agreement under which Senior Debt is
outstanding or secured; (b) sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing Senior Debt; (c) release any
Person liable in any manner for the collection of Senior Debt; and (d) exercise
or refrain from exercising any rights against the Company and any other Person.
SECTION 8.14. Subordination Provisions Not Applicable to Money Held in
Trust for Securityholders; Payments May Be Paid Prior to
Dissolution.
All money and United States Government Obligations deposited in trust with
the Trustee pursuant to and in accordance with Article Nine shall be for the
sole benefit of the Holders and shall not be subject to this Article Eight.
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Nothing contained in this Article or elsewhere in this Indenture shall
prevent (i) the Company, except under the conditions described in Section 8.02,
from making payments of principal of and interest on the Securities, or from
depositing with the Trustee any moneys for such payments or from effecting a
termination of the Company's and the Guarantors' obligations under the
Securities and this Indenture as provided in Article Nine, or (ii) the
application by the Trustee of any moneys deposited with it for the purpose of
making such payments of principal of and interest on the Securities, to the
Holders entitled thereto unless at least two Business Days prior to the date
upon which such payment becomes due and payable, the Trustee shall have
received the written notice provided for in Section 8.02(b) or in Section 8.06.
The Company shall give prompt written notice to the Trustee of any dissolution,
winding-up, liquidation or reorganization of the Company.
SECTION 8.15. Acceleration of Securities.
If payment of the Securities is accelerated because of an Event of
Default, the Company shall promptly notify holders of the Senior Debt of the
acceleration.
ARTICLE NINE
DISCHARGE OF INDENTURE
SECTION 9.01. Termination of Company's Obligations.
(a) Discharge. Subject to the provisions of Article Eight, the Company may
terminate its substantive obligations and the substantive obligations of the
Guarantors, in respect of the Securities and the Guarantees by delivering all
outstanding Securities to the Trustee for cancellation and paying all sums
payable by the Company on account of principal of, premium, if any, and
interest on all the Securities or otherwise.
(b) Defeasance. Subject to the provisions of Sections 9.02 and 9.03 below,
the Company may:
(i) Covenant Defeasance. terminate its obligations under
Section 4.03 through 4.19 and Article Five (a "Covenant Defeasance")
by (A) satisfying the conditions specified in Section 9.02 and (B)
delivering to the Trustee an Opinion of Counsel confirming that the
Holders will not recognize income, gain or loss for federal income tax
purposes as a result of the Covenant Defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if no Covenant Defeasance had
been effected; or
(ii) Legal Defeasance. terminate all of its substantive
obligations under this Indenture (other than those set forth in
Section 9.03(a) (a "Legal Defeasance") by (A) satisfying the
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conditions specified in Section 9.02 and (B) delivering to the Trustee
an Opinion of Counsel confirming that (I) the Company has received
from, or there has been published by, the Internal Revenue Service a
ruling or (II) since the date of this Indenture there has been a
change in the applicable federal income tax law, in either case to the
effect that the Holders will not recognize income, gain or loss for
federal income tax purposes as a result of Legal Defeasance and will
be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if no Legal
Defeasance had been effected.
SECTION 9.02. Conditions Precedent to Termination.
In order to effect either a Covenant Defeasance or Legal Defeasance, the
following conditions must be satisfied:
(i) the Company shall have deposited with the Trustee,
under the terms of an irrevocable trust agreement, money or direct
non-callable obligations of the United States of America for the
payment of which its full faith and credit is pledged ("United States
Government Obligations") sufficient (without reinvestment) to pay all
remaining indebtedness on the Securities (a "Defeasance Deposit");
(ii) no Default shall have occurred and be continuing or
could arise as a result of the Defeasance Deposit (or with respect to
a Default or Event of Default specified in clause (8) or (9) of
Section 6.01, any time on or prior to the 91st calendar day after the
date of the Defeasance Deposit (it being understood that this
condition shall not be deemed satisfied until after such 91st day))
and no default under any Senior Debt would result therefrom;
(iii) the Defeasance Deposit shall not be prohibited at the
time it is made by the provisions of Article Eight of this Indenture
or any covenants in the instruments governing Senior Debt and the
Company shall have delivered to the Trustee and any Paying Agent an
Officers' Certificate to that effect; and
(iv) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that (A)
the Defeasance Deposit will not result in any of the Company, the
Trustee or the trust created by such deposit being deemed to be an
"investment company" under the Investment Company Act of 1940, as
amended, and (B) all conditions precedent relating to either the Legal
Defeasance or the Covenant Defeasance, as the case may be, have been
complied with.
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SECTION 9.03. Survival of Certain Obligations of the Company.
(a) Survival of Obligations. In effecting either a Covenant Defeasance or
a Legal Defeasance, the Company's obligations contained in Sections 2.03, 2.05,
2.06, 2.07, 4.02, 7.07, 7.08, this Section 9.03 and Section 9.04(c), and in
addition, in effecting a Covenant Defeasance, the Company's obligations
contained in Section 4.01, shall survive until the Securities are no longer
outstanding. Thereafter the Company's obligations in Section 7.07, this Section
9.03 and Section 9.04(c) shall survive.
(b) Taxes. The Company shall pay any taxes or other expenses incurred by
any trust created pursuant to this Article Nine.
(c) Reinstatement. If the Trustee is unable to apply the Defeasance
Deposit in accordance with Section 9.02 by reason of any legal proceeding or by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture and the Securities shall be revived and
reinstated as though no deposit had occurred pursuant to Section 9.02 until
such time as the Trustee is permitted to apply the Defeasance Deposit in
accordance with Section 9.02; provided that if the Company has made any payment
of interest on or principal of any Securities because of the reinstatement of
its obligations, the Company shall be subrogated to the rights of the Holders
of such Securities to receive such payment from the Defeasance Deposit held by
the Trustee.
SECTION 9.04. Trustee's Obligations upon Termination.
(a) Acknowledgment. The Trustee upon a Company Request shall acknowledge
in writing the discharge of the Company's and the Guarantor's (if any)
obligations under the Securities, the Guarantee and this Indenture other than
those obligations specified in Section 9.03.
(b) Application of Trust Money. The Trustee shall hold the Defeasance
Deposit pursuant to Section 9.02, and shall apply the Defeasance Deposit in
accordance with this Article Nine solely to the payment of the principal of,
premium, if any, and interest on the Securities.
(c) Repayment to the Company. Subject to Sections 7.07 and 9.03, the
Trustee shall promptly pay to the Company upon request any excess money held by
it at any time. The Trustee shall pay to the Company upon written request any
money held by it for the payment of principal or interest that remains
unclaimed for two years; provided, however, that the Trustee before being
required to make any payment may at the expense of the Company cause to be
published once in a newspaper of general circulation in the City of New York or
to be mailed to each Holder entitled to such money notice that such money
remains unclaimed and that, after a date specified therein, which shall be at
least 30 days from the date of such publication or mailing, any unclaimed
balance of such money then remaining will be repaid to the Company. After
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payment to the Company, Holders entitled to such money must look to the Company
for payment as general creditors unless an applicable law designates another
person and all liability of the Trustee with respect to such money shall
thereupon cease.
ARTICLE TEN
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.01. Without Consent of Holders.
The Company and the Guarantors and the Trustee may amend or supplement
this Indenture or the Securities without notice to or consent of any
Securityholder:
(i) to cure any ambiguity, defect or inconsistency;
provided, however, that such amendment or supplement does not
adversely affect the rights of any Holder in any material respect;
(ii) to effect the assumption by a successor Person of all
obligations of the Company under the Securities and this Indenture in
connection with any transaction complying with Article Five of this
Indenture;
(iii) to provide for uncertificated Securities in addition to
or in place of certificated Securities;
(iv) to comply with any requirements of the Commission in
order to effect or maintain the qualification of this Indenture under
the TIA;
(v) to make any change that would provide any additional
benefit or rights to the Holders;
(vi) to make any other change that does not adversely affect
the rights of any Holder under this Indenture;
(vii) to evidence the succession of another Person to any
Guarantor and the assumption by any such successor of the covenants of
such Guarantor herein and in the Guarantee;
(viii) to add to the covenants of the Company or the
Guarantors for the benefit of the Holders, or to surrender any right
or power herein conferred upon the Company or any Guarantor;
(ix) to secure the Securities pursuant to the requirements
of Section 4.18 or otherwise; or
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(x) to reflect the release of a Guarantor from its
obligations with respect to its Guarantee in accordance with the
provisions of Section 11.03 and to add a Guarantor pursuant to the
requirements of Section 11.07;
provided, however, that the Company has delivered to the Trustee an Opinion of
Counsel and an Officers' Certificate each stating that such amendment or
supplement complies with the provisions of this Section 10.01.
SECTION 10.02. With Consent of Holders.
The Company, the Guarantors, if any, and the Trustee may amend or
supplement this Indenture or the Securities with the written consent of the
Holders of at least a majority in aggregate principal amount of the outstanding
Securities. However, without the consent of each Holder affected, an amendment,
supplement or waiver may not:
(1) change the Stated Maturity of the principal of or any installment of
interest on any Security or alter the optional redemption or repurchase
provisions of any Security or this Indenture in a manner adverse to the Holders
of the Securities;
(2) reduce the principal amount of (or the premium) of any Security;
(3) reduce the rate of or extend the time for payment of interest on any
Security;
(4) change the place or currency of payment of principal of (or premium)
or interest on any Security;
(5) modify any provisions of this Indenture relating to the waiver of past
defaults (other than to add sections of this Indenture subject thereto) or the
right of the Holders to institute suit for the enforcement of any payment on or
with respect to any Security or the Guarantee, or the modification and
amendment of this Indenture and the Securities (other than to add sections of
this Indenture or the Securities which may not be amended, supplemented or
waived without the consent of each Holder affected);
(6) reduce the percentage of the principal amount of outstanding
Securities necessary for amendment to or waiver of compliance with any
provision of this Indenture or the Securities or for waiver of any Default;
(7) waive a default in the payment of principal of, interest on, or
redemption payment with respect to, any Security (except a recision of
acceleration of the Securities by the Holders as provided in this Indenture and
a waiver of the payment default that resulted from such acceleration);
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(8) modify the ranking or priority of the Securities or the Guarantee, or
modify the definition of Senior Debt or Designated Senior Debt or amend or
modify the subordination provisions of this Indenture in any manner adverse to
the Holders;
(9) release the Guarantors from any of their respective
obligations under the Guarantee or this Indenture otherwise than in accordance
with this Indenture; or
(10) modify the provisions relating to any Offer to Purchase required
under Section 4.05 or Section 4.14 in a manner materially adverse to the
Holders of Securities with respect to any Asset Disposition that has been
consummated or Change of Control that has occurred.
The Holders of a majority in aggregate principal amount of the outstanding
Securities, on behalf of all Holders of Securities, may waive compliance by the
Company with certain restrictive provisions of this Indenture. Subject to
certain rights of the Trustee, as provided in this Indenture, the Holders of a
majority in aggregate principal amount of the outstanding Securities, on behalf
of all Holders of Securities, may waive any past default under this Indenture,
except a default in the payment of principal, premium or interest or a default
arising from failure to purchase any Security tendered pursuant to an Offer to
Purchase, or a default in respect of a provision that under this Indenture
cannot be modified or amended without the consent of the Holder of each
outstanding Security affected.
SECTION 10.03. Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the Securities shall
comply with the TIA as then in effect.
SECTION 10.04. Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to it by a
Holder is a continuing consent by the Holder and every subsequent Holder of
that Security or portion of that Security that evidences the same debt as the
consenting Holder's Security, even if notation of the consent is not made on
any Security. Subject to the following paragraph, any such Holder or subsequent
Holder may revoke the consent as to such Holder's Security or portion of such
Security by notice to the Trustee or the Company received before the date on
which the Trustee receives an Officers' Certificate certifying that the Holders
of the requisite principal amount of Securities have consented (and not
theretofore revoked such consent) to the amendment, supplement or waiver.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then, notwithstanding the last
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sentence of the immediately preceding paragraph, those persons who were Holders
at such record date (or their duly designated proxies), and only those persons,
shall be entitled to consent to such amendment, supplement or waiver or to
revoke any consent previously given, whether or not such persons continue to be
Holders after such record date. No such consent shall be valid or effective for
more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it shall bind
every Securityholder, unless it makes a change described in any of clauses (1)
through (10) of Section 10.02. In that case the amendment, supplement or waiver
shall bind each Holder of a Security who has consented to it and every
subsequent Holder of a Security or portion of a Security that evidences the
same debt as the consenting Holder's Security.
SECTION 10.05. Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a Security, the
Trustee may require the Holder of the Security to deliver it to the Trustee.
The Trustee may place an appropriate notation on the Security about the changed
terms and return it to the Holder. Alternatively, if the Company or the Trustee
so determines, the Company in exchange for the Security shall issue and the
Trustee shall authenticate a new Security that reflects the changed terms.
Failure to make the appropriate notation or issue a new Security shall not
affect the validity and effect of such amendment, supplement or waiver.
SECTION 10.06. Trustee To Sign Amendments, etc.
The Trustee shall be entitled to receive, and shall be fully protected in
relying upon, an Opinion of Counsel and an Officers' Certificate each stating
that the execution of any amendment, supplement or waiver authorized pursuant
to this Article Ten is authorized or permitted by this Indenture and that such
amendment, supplement or waiver constitutes the legal, valid and binding
obligation of the Company and the Guarantors, enforceable in accordance with
its terms (subject to customary exceptions). The Trustee may, but shall not be
obligated to, execute any such amendment, supplement or waiver which affects
the Trustee's own rights, duties or immunities under this Indenture or
otherwise. In signing any amendment, supplement or waiver, the Trustee shall be
entitled to receive an indemnity reasonably satisfactory to it.
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ARTICLE ELEVEN
GUARANTEE
SECTION 11.01. Unconditional Guarantee.
Each Guarantor who becomes a party to this Indenture hereby
unconditionally, jointly and severally, guarantees to each Holder of a Security
authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns that: the principal of and interest on the Securities
will be promptly paid in full when due, subject to any applicable grace period,
whether at maturity, by acceleration or otherwise, and interest on the overdue
principal and interest on any overdue interest on the Securities and all other
obligations of the Company to the Holders or the Trustee hereunder or under the
Securities will be promptly paid in full or performed, all in accordance with
the terms hereof and thereof; subject, however, to the limitations set forth in
Section 11.04. Each such Guarantor hereby agrees that its obligations hereunder
shall be unconditional, irrespective of the validity, regularity or
enforceability of the Securities or this Indenture, the absence of any action
to enforce the same, any waiver or consent by any Holder of the Securities with
respect to any provisions hereof or thereof, the recovery of any judgment
against the Company, any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
guarantor. Each such Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of the Company, any right to require a proceeding first against the Company,
protest, notice and all demands whatsoever and covenants that the Guarantee
will not be discharged except by complete performance of the obligations
contained in the Securities, this Indenture, and this Guarantee. If any Holder
or the Trustee is required by any court or otherwise to return to the Company,
any Guarantor, or any custodian, trustee, liquidator or other similar official
acting in relation to the Company or any Guarantor, any amount paid by the
Company or any Guarantor to the Trustee or such Holder, this Guarantee, to the
extent theretofore discharged, shall be reinstated in full force and effect.
Each Guarantor further agrees that, as between each Guarantor, on the one hand,
and the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article Six for
the purpose of this Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any acceleration of such obligations
as provided in Article Six, such obligations (whether or not due and payable)
shall forth become due and payable by each Guarantor for the purpose of this
Guarantee.
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SECTION 11.02. Severability.
In case any provision of this Guarantee shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 11.03. Release of a Guarantor.
If the Securities are defeased in accordance with Section 9.01(b)(ii), or
if all or substantially all of the assets of any Guarantor or all of the
Capital Stock of any Guarantor is sold (including by issuance or otherwise) by
the Company or any of its Restricted Subsidiaries in a transaction constituting
an Asset Disposition and if (x) the Net Available Proceeds from such Asset
Disposition are used in accordance with Section 4.05 or (y) the Company
delivers to the Trustee an Officers' Certificate covenanting that the Net
Available Proceeds from such Asset Disposition shall be used in accordance with
Section 4.05 and within the time limits specified by such Section 4.05, then
such Guarantor (in the event of a sale or other disposition of all of the
Capital Stock of such Guarantor) or the corporation acquiring such assets (in
the event of a sale or other disposition of all or substantially all of the
assets of such Guarantor), shall be deemed released from all obligations under
this Article Eleven without any further action required on the part of the
Trustee or any Holder. The Trustee shall, at the sole cost and expense of the
Company and upon receipt at the reasonable request of the Trustee of an Opinion
of Counsel that the provisions of this Section 11.03 have been complied with,
deliver an appropriate instrument evidencing such release upon receipt of a
request by the Company accompanied by an Officers' Certificate certifying as to
the compliance with this Section. Any Guarantor not so released remains liable
for the full amount of principal of and interest on the Securities and the
other obligations of the Company hereunder as provided in this Article Eleven.
SECTION 11.04. Limitation of Guarantor's Liability.
Each Guarantor, and by its acceptance hereof each Holder and the Trustee,
hereby confirms that it is the intention of all such parties that the guarantee
by such Guarantor pursuant to its Guarantee not constitute a fraudulent
transfer or conveyance for purposes of title 11 of the United States Code, as
amended, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer
Act or any similar U.S. Federal or state or other applicable law. To effectuate
the foregoing intention, the Holders and such Guarantor hereby irrevocably
agree that the obligations of such Guarantor under the Guarantee shall be
limited to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of such Guarantor including, without
limitation, such Guarantor's guarantee of outstanding obligations under the
Credit Agreement and after giving effect to any collections from or payments
made by or on behalf of any other Guarantor in respect of the obligations of
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such other Guarantor under its Guarantee or pursuant to Section 11.05, result
in the obligations of such Guarantor under the Guarantee not constituting such
fraudulent transfer or conveyance.
SECTION 11.05. Contribution.
In order to provide for just and equitable contribution among the
Guarantors, the Guarantors agree, inter se, that in the event any payment or
distribution is made by any Guarantor (a "Funding Guarantor") under the
Guarantee, such Funding Guarantor shall be entitled to a contribution from all
other Guarantors in a pro rata amount, based on the net assets of each
Guarantor (including the Funding Guarantor), determined in accordance with
GAAP, subject to Section 11.04, for all payments, damages and expenses incurred
by that Funding Guarantor in discharging the Company's obligations with respect
to the Securities or any other Guarantor's obligations with respect to the
Guarantee.
SECTION 11.06. Execution of Guarantee.
To further evidence their Guarantee to the Holders, any Guarantor required
to Guarantee the Securities pursuant to the terms of Section 4.19 shall execute
the Guarantee in substantially the form set forth in Exhibit A hereto to be
endorsed on each Security ordered to be authenticated and delivered by the
Trustee. Each such Guarantor hereby agrees that its Guarantee set forth in
Section 11.01 shall remain in full force and effect notwithstanding any failure
to endorse on each Security a notation of such Guarantee. Each such Guarantee
shall be signed on behalf of each Guarantor by its Chairman of the Board, its
Chief Executive Officer, its President or one of its Vice Presidents prior to
the authentication of the Security on which it is endorsed, and the delivery of
such Security by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of such Guarantee on behalf of such Guarantor. Such
signature upon the Guarantee may be manual or facsimile signature of such
officer and may be imprinted or otherwise reproduced on the Guarantee, and in
case such officer who shall have signed the Guarantee shall cease to be such
officer before the Security on which such Guarantee is endorsed shall have been
authenticated and delivered by the Trustee or disposed of by the Company, such
Security nevertheless may be authenticated and delivered or disposed of as
though the Person who signed the Guarantee had not ceased to be such officer of
the Guarantor.
SECTION 11.07. Subordination of Subrogation and Other Rights.
Each Guarantor hereby agrees that any claim against the Company that
arises from the payment, performance or enforcement of such Guarantor's
obligations under its Guarantee or this Indenture, including, without
limitation, any right of subrogation, shall be subject and subordinate to, and
no payment with respect to any such claim of such Guarantor shall be made
before, the payment in full in cash of all outstanding Securities in accordance
with the provisions provided therefor in this Indenture.
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ARTICLE TWELVE
SUBORDINATION OF GUARANTEE
SECTION 12.01. Guarantee Obligations Subordinated to Senior Debt of
Guarantor.
Each Guarantor covenants and agrees, and the Trustee and each Holder of
the Securities by his acceptance thereof likewise covenant and agree, that the
Guarantees shall be issued subject to the provisions of this Article; and each
person holding any Security, whether upon original issue or upon transfer,
assignment or exchange thereof, accepts and agrees that all payments of the
principal of and interest on the Securities pursuant to the Guarantee made by
or on behalf of any Guarantor shall, to the extent and in the manner set forth
in this Article, be subordinated and junior in right of payment to the prior
payment in full of all amounts payable under Senior Debt of such Guarantor.
SECTION 12.02. No Payment on Guarantees in Certain Circumstances.
(a) No payment by or on behalf of any Guarantor of principal of, premium,
if any, or interest on the Securities, or any payment to acquire any of the
Securities for cash, property or securities, or any distribution with respect
to the Securities of any kind or character, whether in cash, property or
securities, by set-off or otherwise (all such payments and distributions
referred to individually and collectively as a "Guarantor Securities Payment"),
whether pursuant to the terms of such Guarantor's Guarantee, upon acceleration
or otherwise, will be made if, at the time of such payment, there exists a
default in the payment of all or any portion of the obligations on any
Designated Senior Debt of such Guarantor whether at maturity, on account of
mandatory redemption or prepayment, acceleration or otherwise, and such default
shall not have been cured or waived or the benefits of this sentence waived by
or on behalf of the holders of such Designated Senior Debt. In addition, during
the continuance of any non-payment default or event of default with respect to
any Designated Senior Debt pursuant to which the maturity thereof may be
accelerated, and upon receipt by the Trustee of written notice (the "Guarantor
Payment Blockage Notice") from a holder or holders of such Designated Senior
Debt or the trustee or agent acting on behalf of such Designated Senior Debt,
then, unless and until such default or event of default has been cured or
waived or has ceased to exist or such Designated Senior Debt has been
discharged or repaid in full, in cash or cash equivalents or otherwise in a
form satisfactory to the holders of such Senior Debt, no Guarantor Securities
Payment will be made by or on behalf of such Guarantor, except from those funds
held in trust for purposes of defeasance for the benefit of the Holders of any
Securities to such Holders, during a period (a "Guarantor Blockage Period")
commencing on the date of receipt of such notice by the Trustee and ending 179
days thereafter.
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Notwithstanding anything herein or in the Securities to the contrary, (x)
in no event shall a Guarantor Blockage Period extend beyond 179 days from the
date the Guarantor Payment Blockage Notice was given and (y) there must be 180
days in any 365 day period during which no Guarantor Payment Blockage Period is
in effect. Not more than one Guarantor Blockage Period may be commenced with
respect to any Guarantor during any period of 365 consecutive days. No default
or event of default that existed or was continuing on the date of commencement
of any other Guarantor Blockage Period with respect to the Designated Senior
Debt initiating such Guarantor Payment Blockage Period may be, or be made, the
basis for the commencement of any other Guarantor Blockage Period by the holder
or holders of such Designated Senior Debt or the trustee or agent acting on
behalf of such Designated Senior Debt, whether or not within a period of 365
consecutive days, unless such default or event of default has been cured or
waived for a period of not less than 90 consecutive days (it being acknowledged
that any subsequent action or any breach of any financial covenants for a
period commencing after the date of commencement of such Guarantor Payment
Blockage Period that, in either case, would give rise to an event of default
pursuant to any provision under which an event of default previously existed or
was continuing, shall constitute a new event of default for this purpose).
(b) In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee or any Holder when such payment is prohibited by
Section 12.02(a), such payment shall be held for the benefit of, and shall be
paid over or delivered to, the holders of such Designated Senior Debt or their
respective representatives, or to the trustee or trustees under any indenture
pursuant to which any of such Designated Senior Debt may have been issued, as
their respective interests may appear, but only to the extent that, upon notice
from the Trustee to the holders of such Designated Senior Debt that such
prohibited payment has been made, the holders of such Designated Senior Debt
(or their representative or representatives or a trustee) notify the Trustee in
writing of the amounts then due and owing on such Designated Senior Debt, if
any, and only the amounts specified in such notice to the Trustee shall be paid
to the holders of such Designated Senior Debt.
SECTION 12.03. Payment Over of Proceeds upon Dissolution, etc.
(a) Upon any payment or distribution of assets or securities of any
Guarantor of any kind or character, whether in cash, property or securities,
upon any dissolution or winding-up or total or partial liquidation or
reorganization of such Guarantor, whether voluntary or involuntary or in
bankruptcy, insolvency, receivership or other proceedings, all amounts due or
to become due with respect to all Senior Debt of such Guarantor (including any
interest accruing on or after, or which would accrue but for, an event of
bankruptcy, regardless of whether such interest is an allowed claim enforceable
against the debtor under the Bankruptcy Code) shall first be paid in full, or
payment provided for, in either case in cash or cash equivalents or otherwise
in a form satisfactory to the holders of Senior Debt, before the Holders of the
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Securities or the Trustee on behalf of such Holders shall be entitled to
receive any Guarantor Securities Payment. Before any payment may be made by, or
on behalf of, any Guarantor of the principal of or interest on the Securities
upon any such dissolution or winding-up or liquidation or reorganization, any
payment or distribution of assets or securities of such Guarantor of any kind
or character, whether in cash, property or securities, to which the Holders of
the Securities or the Trustee on their behalf would be entitled, but for the
subordination provisions of this Indenture, shall be made by such Guarantor or
by any receiver, trustee in bankruptcy, liquidating trustee, agent or other
Person making such payment or distribution, directly to the holders of the
Senior Debt of such Guarantor (pro rata to such holders on the basis of the
respective amounts of Senior Debt held by such holders) or their
representatives or to the trustee or trustees under any indenture pursuant to
which any of such Senior Debt may have been issued, as their respective
interests may appear, to the extent necessary to pay all such Senior Debt in
full in cash or cash equivalents or otherwise in a form satisfactory to the
holders of such Senior Debt after giving effect to any concurrent payment,
distribution or provision therefor to or for the holders of such Senior Debt.
(b) In the event that, notwithstanding the foregoing provision prohibiting
such payment or distribution, any payment or distribution of assets or
securities of any kind or character, whether in cash, property or securities,
shall be received by the Trustee or any Holder of Securities at a time when
such payment or distribution is prohibited by Section 12.03(a) and before all
obligations in respect of the Senior Debt of such Guarantor are paid in full,
or payment provided for, such payment or distribution shall be received and
held for the benefit of, and shall be paid over or delivered to, the holders of
such Senior Debt or their respective representatives, or to the trustee or
trustees under any indenture pursuant to which any of such Senior Debt may have
been issued, as their respective interests may appear, for application to the
payment of such Senior Debt remaining unpaid until all such Senior Debt has
been paid in full after giving effect to any concurrent payment, distribution
or provision therefor to or for the holders of such Senior Debt.
(c) The consolidation of any Guarantor with, or the merger of
any Guarantor with or into, another corporation or the liquidation or
dissolution of any Guarantor following the conveyance or transfer of its
property as an entirety, or substantially as an entirety, to another
corporation upon the terms and conditions provided in Article Five or Section
11.03 shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section if such other corporation
shall, as a part of such consolidation, merger, conveyance or transfer, comply
with the conditions stated in Article Five or such Guarantor or successor
entity shall be released from the Guarantee pursuant to the terms of Section
11.03.
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SECTION 12.04. Subrogation.
Upon the payment in full of all Senior Debt of a Guarantor,
or provision for payment, the Holders of the Securities shall be subrogated to
the rights of the holders of such Senior Debt to receive payments or
distributions of cash, property or securities of such Guarantor made on such
Senior Debt until the principal of and interest on the Securities shall be paid
in full; and, for the purposes of such subrogation, no payments or
distributions to the holders of such Senior Debt of any cash, property or
securities to which the Holders of the Securities or the Trustee on their
behalf would be entitled except for the provisions of this Article, and no
payment over pursuant to the provisions of this Article to the holders of such
Senior Debt by Holders of the Securities or the Trustee on their behalf shall,
as between such Guarantor, its creditors other than holders of such Senior
Debt, and the Holders of the Securities, be deemed to be a payment by such
Guarantor to or on account of such Senior Debt. It is understood that the
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders of the Securities, on the one hand,
and the holders of Senior Debt of the Guarantors, on the other hand.
If any payment or distribution to which the Holders of the Securities
would otherwise have been entitled but for the provisions of this Article shall
have been applied, pursuant to the provisions of this Article, to the payment
of all amounts payable under Senior Debt, then and in such case, the Holders of
the Securities shall be entitled to receive from the holders of such Senior
Debt any payments or distributions received by such holders of Senior Debt in
excess of the amount required to make payment in full, or provision for
payment, of such Senior Debt.
SECTION 12.05. Obligations of Guarantors Unconditional.
Nothing contained in this Article or elsewhere in this Indenture or in the
Securities or the Guarantee is intended to or shall impair, as among the
Guarantors and the Holders of the Securities, the obligation of each Guarantor,
which is absolute and unconditional, to pay to the Holders of the Securities
the principal of and interest on the Securities as and when the same shall
become due and payable in accordance with the terms of the Guarantee, or is
intended to or shall affect the relative rights of the Holders of the
Securities and creditors of any Guarantor other than the holders of Senior
Debt, nor shall anything herein or therein prevent the Holder of any Security
or the Trustee on their behalf from exercising all remedies otherwise permitted
by applicable law upon default under this Indenture, subject to the rights, if
any, under this Article of the holders of Senior Debt in respect of cash,
property or securities of any Guarantor received upon the exercise of any such
remedy.
Without limiting the generality of the foregoing, nothing contained in
this Article shall restrict the right of the Trustee or the Holders of
Securities to take any action to declare the Securities to be due and payable
prior to their stated maturity pursuant to Section 6.01 or to pursue any rights
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or remedies hereunder; provided, however, that all Senior Debt of any Guarantor
then due and payable shall first be paid in full before the Holders of the
Securities or the Trustee are entitled to receive any direct or indirect
payment from such Guarantor of principal of or interest on the Securities
pursuant to such Guarantor's Guarantee.
SECTION 12.06. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any fact
known to the Company or such Guarantor which would prohibit the making of any
payment to or by the Trustee in respect of the Securities pursuant to the
provisions of this Article. The Trustee shall not be charged with knowledge of
the existence of any default or event of default with respect to any Senior
Debt or of any other facts which would prohibit the making of any payment to or
by the Trustee unless and until the Trustee shall have received notice in
writing at its Corporate Trust Office to that effect signed by an Officer of
the Company, or by a holder of Senior Debt or trustee or agent therefor; and
prior to the receipt of any such written notice, the Trustee shall, subject to
Article Seven, be entitled to assume that no such facts exist; provided that if
the Trustee shall not have received the notice provided for in this Section at
least two Business Days prior to the date upon which by the terms of this
Indenture any moneys shall become payable for any purpose (including, without
limitation, the payment of the principal of or interest on any Security), then,
regardless of anything herein to the contrary, the Trustee shall have full
power and authority to receive any moneys from any Guarantor and to apply the
same to the purpose for which they were received, and shall not be affected by
any notice to the contrary which may be received by it on or after such prior
date. Nothing contained in this Section 12.06 shall limit the right of the
holders of Senior Debt of a Guarantor to recover payments as contemplated by
Section 12.02 or 12.03. The Trustee shall be entitled to rely on the delivery
to it of a written notice by a Person representing himself or itself to be a
holder of any Senior Debt of a Guarantor (or a trustee on behalf of, or other
representative of, such holder) to establish that such notice has been given by
a holder of such Senior Debt or a trustee or representative on behalf of any
such holder.
In the event that the Trustee determines in good faith that any evidence
is required with respect to the right of any Person as a holder of Senior Debt
of a Guarantor to participate in any payment or distribution pursuant to this
Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of such Senior Debt
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article, and if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
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SECTION 12.07. Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets or securities of a Guarantor
referred to in this Article, the Trustee and the Holders of the Securities
shall be entitled to rely upon any order or decree made by any court of
competent jurisdiction in which bankruptcy, dissolution, winding-up,
liquidation or reorganization proceedings are pending, or upon a certificate of
the receiver, trustee in bankruptcy, liquidating trustee, agent or other person
making such payment or distribution, delivered to the Trustee or to the Holders
of the Securities for the purpose of ascertaining the persons entitled to
participate in such distribution, the holders of Senior Debt of such Guarantor
and other indebtedness of such Guarantor, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article.
SECTION 12.08. Trustee's Relation to Senior Debt of Guarantors.
The Trustee and any Paying Agent shall be entitled to all the rights set
forth in this Article with respect to any Senior Debt of Guarantors which may
at any time be held by it in its individual or any other capacity to the same
extent as any other holder of such Senior Debt, and nothing in this Indenture
shall deprive the Trustee or any Paying Agent of any of its rights as such
holder.
With respect to the holders of a Guarantor's Senior Debt, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article, and no implied covenants or
obligations with respect to the holders of such Senior Debt shall be read into
this Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt of Guarantors.
SECTION 12.09. Subordination Rights Not Impaired by Acts or Omissions of
the Guarantors or Holders of Senior Debt of Guarantors.
No right of any present or future holders of any Senior Debt
of Guarantors to enforce subordination as provided herein shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
any Guarantor or by any act or failure to act, in good faith, by any such
holder, or by any noncompliance by any Guarantor with the terms of this
Indenture, regardless of any knowledge thereof which any such holder may have
or otherwise be charged with. The provisions of this Article are intended to be
for the benefit of, and shall be enforceable directly by, the holders of Senior
Debt of Guarantors.
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SECTION 12.10. Securityholders Authorize Trustee To Effectuate
Subordination of Guarantee.
Each Holder of Securities by his acceptance of such Securities authorizes
and expressly directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article, and appoints the Trustee his attorney-in-fact for such purposes,
including, in the event of any dissolution, winding up, liquidation or
reorganization of any Guarantor (whether in bankruptcy, insolvency,
receivership, reorganization or similar proceedings or upon a general
assignment for the benefit of creditors or otherwise) tending towards
liquidation of the business and assets of such Guarantor, the filing of a claim
for the unpaid balance of its or his Securities in the form required in those
proceedings.
SECTION 12.11. This Article Not To Prevent Events of Default.
The failure to make a payment on account of principal of or interest on
the Securities by reason of any provision of this Article shall not be
construed as preventing the occurrence of an Event of Default specified in
clauses (1) or (2) of Section 6.01.
SECTION 12.12. Trustee's Compensation Not Prejudiced.
Nothing in this Article shall apply to amounts due to the Trustee pursuant
to Section 7.07.
SECTION 12.13. No Waiver of Guarantee Subordination Provisions.
Without in any way limiting the generality of Section 12.09, the holders
of Senior Debt of Guarantors may, at any time and from time to time, without
the consent of or notice to the Trustee or the Holders of the Securities,
without incurring responsibility to the Holders of the Securities and without
impairing or releasing the subordination provided in this Article or the
obligations hereunder of the Holders of the Securities to the holders of Senior
Debt of Guarantors, do any one or more of the following: (a) change the manner,
place or terms of payment or extend the time of payment of, or renew or alter,
Senior Debt of Guarantors or any instrument evidencing the same or any
agreement under which such Senior Debt is outstanding or secured; (b) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing such Senior Debt; (c) release any Person liable in any
manner for the collection of such Senior Debt; and (d) exercise or refrain from
exercising any rights against any Guarantor and any other Person.
-93-
SECTION 12.14. Payments May Be Paid Prior to Dissolution.
Nothing contained in this Article or elsewhere in this Indenture shall
prevent (i) a Guarantor, except under the conditions described in Section
12.02, from making payments of principal of and interest on the Securities, or
from depositing with the Trustee any moneys for such payments, or (ii) the
application by the Trustee of any moneys deposited with it for the purpose of
making such payments of principal of and interest on the Securities, to the
Holders entitled thereto unless at least two Business Days prior to the date
upon which such payment becomes due and payable, the Trustee shall have
received the written notice provided for in Section 12.02(b) or in Section
12.06. A Guarantor shall give prompt written notice to the Trustee of any
dissolution, winding-up, liquidation or reorganization of such Guarantor.
ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01. Trust Indenture Act Controls.
This Indenture is subject to the provisions of the TIA that are required
to be a part of this Indenture, and shall, to the extent applicable, be
governed by such provisions. If any provision of this Indenture modifies any
TIA provision that may be so modified, such TIA provision shall be deemed to
apply to this Indenture as so modified. If any provision of this Indenture
excludes any TIA provision that may be so excluded, such TIA provision shall be
excluded from this Indenture.
The provisions of TIA xx.xx. 310 through 317 that impose duties on any
Person (including the provisions automatically deemed included unless expressly
excluded by this Indenture) are a part of and govern this Indenture, whether or
not physically contained herein.
SECTION 13.02. Notices.
Any notice or communication shall be sufficiently given if in writing and
delivered in person, by facsimile and confirmed by overnight courier, or mailed
by first-class mail addressed as follows:
-94-
if to the Company or a Guarantor:
Tekni-Plex, Inc.
000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Dr. F. Xxxxxxx Xxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
if to the Trustee:
HSBC Bank USA
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Services-Tekni-Plex
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed, first class, postage
prepaid, to a Securityholder, including any notice delivered in connection with
TIA ss. 310(b), TIA ss. 313(c), TIA ss. 314(a) and TIA ss. 315(b), shall be
mailed to him at his address as set forth on the registration books of the
Registrar and shall be sufficiently given to him if so mailed within the time
-95-
prescribed. To the extent required by the TIA, any notice or communication
shall also be mailed to any Person described in TIA ss. 313(c).
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. Except for a notice to the Trustee, which is deemed given only
when received, if a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 13.03. Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA ss. 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and any other person shall
have the protection of TIA ss. 312(c).
SECTION 13.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee
to take or refrain from taking any action under this Indenture, the Company
shall furnish to the Trustee at the request of the Trustee:
(1) an Officers' Certificate in form and substance satisfactory to the
Trustee stating that, in the opinion of the signers, all conditions precedent,
if any, provided for in this Indenture relating to the proposed action have
been complied with;
(2) an Opinion of Counsel in form and substance satisfactory to the
Trustee stating that, in the opinion of such counsel, all such conditions
precedent have been complied with; and
(3) where applicable, a certificate or opinion by an
independent certified public accountant satisfactory to the Trustee that
complies with TIA ss. 314(c).
SECTION 13.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate or opinion has
read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in
such certificate or opinion are based;
-96-
(3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion of such person, such
condition or covenant has been complied with; provided, however, that with
respect to matters of fact an Opinion of Counsel may rely on an Officers'
Certificate or certificates of public officials.
SECTION 13.06. Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules for action by or at a meeting of
Securityholders. The Paying Agent or Registrar may make reasonable rules for
its functions.
SECTION 13.07. Governing Law.
Pursuant to Section 5-1401 of the General Obligations Law of the State of
New York this Indenture, the Securities and the Guarantee shall be governed by
and construed in accordance with the laws of the State of New York, without
giving effect to any other conflicts of law provisions.
SECTION 13.08. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company or
any Guarantor shall not have any liability for any obligations of the Company
or any Guarantor under the Securities, the Guarantee or this Indenture or for
any claim based on, in respect of or by reason of such obligations or their
creation. Each Securityholder by accepting a Security waives and releases all
such liability.
SECTION 13.09. Successors.
All agreements of the Company in this Indenture and the Securities shall
bind its successor. Subject to Section 11.03, all agreements of each Guarantor
in this Indenture and Securities shall bind its successor. All agreements of
the Trustee in this Indenture shall bind its successor.
SECTION 13.10. Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together represent the same
agreement.
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SECTION 13.11. Severability.
In case any provision in this Indenture, in the Securities or in the
Guarantee shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby, and a Holder shall have no claim therefor against any
party hereto.
SECTION 13.12. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or a Subsidiary. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
SECTION 13.13. 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.
[Signature Page Follows]
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the date first written above.
TEKNI-PLEX, INC.
By:
----------------------------------
Name:
Title:
PURETEC CORPORATION
PLASTIC SPECIALTIES AND TECHNOLOGIES, INC.
PLASTIC SPECIALTIES AND TECHNOLOGIES
INVESTMENTS, INC.
BURLINGTON RESINS, INC.
DISTRIBUTORS RECYCLING, INC.
REI DISTRIBUTORS, INC.
ALUMET SMELTING CORP.
XXXXXX HOLDINGS, INC. AND
TRI-SEAL HOLDINGS, INC.
PURE TECH RECYCLING OF CALIFORNIA
MULTI CONTAINER RECYCLER, INC.
COAST RECYCLING NORTH, INC.
PURE TECH APR, INC.
collectively, the Guarantors
By:
----------------------------------------
Name:
Title:
HSBC BANK USA,
as Trustee
By:
----------------------------------------
Name:
Title:
-99-
EXHIBIT A
TEKNI-PLEX, INC.
No. $[ ]
12 3/4% SENIOR SUBORDINATED NOTE DUE 2010
Tekni-Plex, Inc. promises to pay to [ ] or registered assigns
the principal sum of [ ] Dollars on the Maturity Date of June 15,
2010.
Interest Payment Dates: June 15 and December 15, beginning December 15,
2000
Record Dates: June 1 and December 1
IN WITNESS WHEREOF, TEKNI-PLEX, INC. has caused this instrument to be
executed in its corporate name by manual or a facsimile signature of its
________________ and its _________________________.
TEKNI-PLEX, INC.
By:
----------------------------------------
Name:
Title:
Dated: By:
----------------------------------------
Name:
Title:
Certificate of Authentication:
This is one of the 12 3/4% Senior Subordinated Notes due 2010 referred to
in the within-mentioned Indenture.
HSBC BANK USA, as Trustee
By
-------------------------------- Date
Authorized Signatory
(REVERSE OF SECURITY)
TEKNI-PLEX, INC.
12 3/4% Senior Subordinated Note due 2010
1. Interest.
Tekni-Plex, Inc., a Delaware corporation (the "Company"), promises to pay
interest at the rate of 12 3/4% per annum on the principal amount of this
Security semiannually commencing on December 15, 2000 until the principal
hereof is paid or made available for payment. Interest on the Securities will
accrue from and including the most recent date to which interest has been paid
or, if no interest has been paid, from and including June 21, 2000 through but
excluding the date on which interest is paid. If an Interest Payment Date falls
on a day that is not a Business Day, the interest payment to be made on such
Interest Payment Date will be made on the next succeeding Business Day with the
same force and effect as if made on such Interest Payment Date, and no
additional interest will accrue as a result of such delayed payment. Interest
will be computed on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment.
The interest payable on the Securities, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture
(as defined below), be paid to the person in whose name this Security is
registered at the close of business on the regular record date, which shall be
the June 1 or December 1 (whether or not a Business Day) next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly
provided for, and any interest payable on such defaulted interest (to the
extent lawful), will forthwith cease to be payable to the Holder on such
regular record date and shall be paid to the person in whose name this Security
is registered at the close of business on a special record date for the payment
of such defaulted interest to be fixed by the Company, notice of which shall be
given to Holders not less than 15 days prior to such special record date.
Payment of the principal of and interest on this Security will be made at the
agency of the Company maintained for that purpose in New York, New York and at
any other office or agency maintained by the Company for such purpose, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts; provided, however, that
at the option of the Company payment of interest may be made by check mailed to
the address of the person entitled thereto as such address shall appear in the
Security register.
3. Paying Agent and Registrar.
Initially, HSBC Bank USA (the "Trustee") will act as Paying Agent and
Registrar. The Company may change any Paying Agent, Registrar or co-Registrar
A-2
without notice to the Holders of Securities. The Company or any of its
Subsidiaries may act as Registrar or co-Registrar but may not act as Paying
Agent.
4. Indenture.
This Security is one of a duly authorized issue of Securities of the
Company, designated as its 12 3/4% Senior Subordinated Notes due 2010 (the
"Securities"), issuable under an indenture dated as of June 21, 2000 (the
"Indenture"), among the Company, the Guarantors and the Trustee. The terms of
the Securities include those stated in the Indenture and those made part of the
Indenture by the Trust Indenture Act of 1939 (the "Act") (15 U.S. Code xx.xx.
77aaa-77bbbb) as in effect on the date of the Indenture. The Securities are
subject to all such terms, and Holders of Securities are referred to the
Indenture and the Act for a statement of them. Each Securityholder, by
accepting a Security, agrees to be bound to all of the terms and provisions of
the Indenture, as the same may be amended from time to time. Payment on each
Security is guaranteed, jointly and severally, by the Guarantors pursuant to
Article Eleven of the Indenture.
Pursuant to Section 2.15 of the Indenture additional Securities may be
issued in one or more series from time to time under the Indenture, subject to
Article 4 and applicable law. All Securities issued under the Indenture will
vote together and be treated as a single class for all purposes under the
Indenture.
Capitalized terms contained in this Security to the extent not defined
herein shall have the meanings assigned to them in the Indenture.
5. Optional Redemption.
The Securities will be subject to redemption, at the option of the
Company, in whole or in part, at any time on or after June 15, 2005 and prior
to maturity, upon not less than 30 nor more than 60 days' notice mailed to each
holder of Securities to be redeemed at his address appearing in the register
for the Securities, in amounts of $1,000 or an integral multiple of $1,000, at
the following redemption prices (expressed as percentages of principal amount)
plus accrued interest to but excluding the date fixed for redemption (subject
to the right of holders of record on the relevant Record Date to receive
interest due on an interest payment date that is on or prior to the date fixed
for redemption), if redeemed during the 12-month period beginning June 15 of
the years indicated:
Year Percentage
2005............................... 106.375%
2006............................... 104.250%
2007............................... 102.125%
2008 and thereafter................ 100.000%
A-3
In addition, prior to June 15, 2003 the Company may redeem up to 35% of
the principal amount of the Securities with the net cash proceeds
received by the Company from one or more public offerings of Capital Stock
(other than Disqualified Stock) of the Company, at a redemption price
(expressed as a percentage of the principal amount) of 112.75% of the principal
amount thereof, plus accrued and unpaid interest to the date fixed for
redemption; provided, however, that at least 65% of the aggregate principal
amount of the Securities originally issued on the Issue Date remains
outstanding immediately after any such redemption (excluding any Securities
owned by the Company or any of its Affiliates). Notice of redemption pursuant
to this paragraph must be mailed to holders of Securities not later than 60
days following the consummation of such public offering.
Selection of Securities for any partial redemption shall be made by the
Trustee, in accordance with the rules of any national securities exchange on
which the Securities may be listed or, if the Securities are not so listed, pro
rata or by lot or in such other manner as the Trustee shall deem appropriate
and fair. Securities in denominations larger than $1,000 may be redeemed in
part but only in integral multiples of $1,000. Notice of redemption will be
mailed before the date fixed for redemption to each holder of Securities to be
redeemed at his or her registered address. On and after the date fixed for
redemption, interest will cease to accrue on Securities or portions thereof
called for redemption.
The Securities will not have the benefit of any sinking fund.
6. Purchase upon Occurrence of a Change of Control.
Within 30 days of the occurrence of a Change of Control, the Company will
offer to purchase the Securities, in whole and not in part, at a purchase price
equal to 101% of the principal amount thereof plus any accrued and unpaid
interest thereon.
7. Notice of Redemption.
Notice of redemption will be mailed by first class mail at least 30 days
but not more than 60 days before the redemption date to each Holder of
Securities to be redeemed at his registered address. Securities in
denominations larger than $1,000 may be redeemed in part. On and after the
redemption date, interest ceases to accrue on those Securities or portion of
them called for redemption.
8. Denominations; Transfer; Exchange.
The Securities are in registered form without coupons in denominations of
$1,000 and integral multiples of $1,000. A Holder may transfer or exchange
Securities in accordance with the Indenture. The Registrar may require a
Holder, 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 transfer or exchange any Securities selected
for redemption.
A-4
9. Persons Deemed Owners.
The registered Holder of a Security may be treated as the owner of it for
all purposes.
10. Unclaimed Funds.
If funds for the payment of principal or interest remain unclaimed for two
years, the Trustee or Paying Agent will repay the funds to the Company at its
request. After such repayment Holders of Securities entitled to such funds must
look to the Company for payment unless an applicable abandoned property law
designates another person.
11. Discharge Prior to Redemption or Maturity.
The Indenture will be discharged and cancelled except for certain Sections
thereof, subject to the terms of the Indenture, upon the payment of all the
Securities or upon the irrevocable deposit with the Trustee of funds or United
States Government Obligations sufficient for such payment or redemption.
12. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Securities may be
amended or supplemented with the consent of the Holders of at least a majority
in principal amount of the outstanding Securities, and any past default or
compliance with any provision may be waived with the consent of the Holders of
a majority in principal amount of the outstanding Securities. Without notice to
or the consent of any Holder, the Company, the Guarantors and the Trustee may
amend or supplement the Indenture or the Securities to cure any ambiguity,
defect or inconsistency, or to make any change that does not adversely affect
the rights of any Holder of Securities.
13. Restrictive Covenants.
The Indenture restricts, among other things, the ability of the Company or
any of its Restricted Subsidiaries to permit any Liens to be imposed on their
assets, to make certain Restricted Payments and Investments, limits the
Indebtedness which the Company and its Restricted Subsidiaries may incur and
limits the terms on which the Company may engage in Asset Dispositions. The
Company is also obligated under certain circumstances to make an offer to
purchase Securities with the net cash proceeds of certain Asset Dispositions.
The Company must report annually to the Trustee on compliance with the
covenants in the Indenture.
A-5
14. Successor Corporation.
Pursuant to the Indenture, the ability of the Company to consolidate with,
merge with or into or transfer its assets to another Person is conditioned upon
certain requirements, including certain financial requirements applicable to
the surviving Person.
15. Defaults and Remedies.
If an Event of Default shall occur and be continuing, the principal of all
of the outstanding Securities, plus all accrued and unpaid interest, if any, to
the date the Securities become due and payable, may be declared due and payable
in the manner and with the effect provided in the Indenture.
16. Trustee Dealings with Company.
The Trustee in its individual or any other capacity, may become the owner
or pledgee of Securities and make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not Trustee.
17. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company or
any Guarantor shall not have any liability for any obligations of the Company
or any Guarantor under the Securities, the Guarantee or the Indenture or for
any claim based on, in respect of or by reason of such obligations or their
creation. Each Holder of a Security by accepting a Security waives and releases
all such liability. The waiver and release are part of the consideration for
the issue of the Securities.
18. Authentication.
This Security shall not be valid until the Trustee signs the certificate
of authentication on the other side of this Security.
19. Abbreviations.
Customary abbreviations may be used in the name of Securityholder 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).
20. CUSIP or CINS Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP or CINS
A-6
numbers to be printed on the Securities and has directed the Trustee to use
CUSIP or CINS numbers in notices of redemption as a convenience to
Securityholders. No representation is made as to the accuracy of such numbers
either as printed on the Securities or as contained in any notice of redemption
and reliance may be placed only on the other identification numbers placed
thereon.
21. Governing Law.
The laws of the State of New York shall govern the Indenture, this
Security and the Guarantee without regard to principles of conflicts of law.
The Company will furnish to any Holder of record of Securities upon
written request and without charge a copy of the Indenture. Requests may be
made to:
Tekni-Plex, Inc.
000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
-A-7
[FORM OF NOTATION ON SECURITY RELATING TO GUARANTEE]
SENIOR SUBORDINATED GUARANTEE
The Guarantors (as defined in the Indenture referred to in the Security
upon which this notation is endorsed) hereby, jointly and severally,
unconditionally guarantee (such guarantee by each Guarantor being referred to
herein as the "Guarantee") the due and punctual payment of the principal of,
premium, if any, and interest on the Securities, whether at maturity, by
acceleration or otherwise, the due and punctual payment of interest on the
overdue principal, premium and interest, if any, on the Securities, and the due
and punctual performance of all other obligations of the Company to the Holders
or the Trustee, all in accordance with the terms set forth in Article Eleven of
the Indenture.
The obligations of each Guarantor to the Holders of Securities and to the
Trustee pursuant to the Guarantee and the Indenture are expressly set forth, to
the extent and in the manner provided, in Article Twelve of the Indenture, and
reference is hereby made to such Indenture for the precise terms of the
Guarantee therein made.
The Guarantee shall not be valid or obligatory for any purpose until the
certificate of authentication on the Securities upon which the Guarantee is
noted shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.
This Guarantee shall be governed by and construed in accordance with the
laws of the State of New York without regard to principles of conflicts of law.
This Guarantee is subject to release upon the terms set forth in the
Indenture.
PURETEC CORPORATION
PLASTIC SPECIALTIES AND TECHNOLOGIES, INC.
PLASTIC SPECIALTIES AND TECHNOLOGIES
INVESTMENTS, INC.
BURLINGTON RESINS, INC.
DISTRIBUTORS RECYCLING, INC.
REI DISTRIBUTORS, INC.
ALUMET SMELTING CORP.
XXXXXX HOLDINGS, INC.
TRI-SEAL HOLDINGS, INC.
PURE TECH RECYCLING OF CALIFORNIA
MULTI CONTAINER RECYCLER, INC.
COAST RECYCLING NORTH, INC.
PURE TECH APR, INC.
collectively, the Guarantors
By:
---------------------------------------
Name:
Title:
A-9
ASSIGNMENT FORM
If you the Holder want to assign this Security, fill in the form below and
have your signature guaranteed:
I or we assign and transfer this Security to:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint ______________________________________________________
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Dated: Signed:
---------------------------- -----------------------
(Sign exactly as name appears
on the other side of this
Security)
Signature Guarantee:
-----------------------------------------------------------
A-10
OPTION OF HOLDER TO ELECT PURCHASE
If you the Holder want to elect to have this Security purchased by the Company,
check the box: [ ]
If you want to elect to have only part of this Security purchased by the
Company, state the amount: $
Dated: Signed:
--------------------------- -----------------------
(Sign exactly as name appears
on the other side of this
Security)
Signature Guarantee:
-----------------------------------------------------------
A-11
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Tekni-Plex, Inc.
000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention:
HSBC Bank USA
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Services-
Tekni-Plex
Re: 12 3/4% Senior Subordinated Notes due 2010
Reference is hereby made to the Indenture, dated as of June
21, 2000 (the "Indenture"), among Tekni-Plex, Inc. (the "Company"), the
Guarantors party thereto and HSBC Bank USA, as trustee. Capitalized terms used
but not defined herein shall have the meanings given to them in the Indenture.
________________ (the "Transferor") owns and proposes to transfer the
Security[s] specified in Annex A hereto in the principal amount of $___ in such
Security[s] (the "Transfer") to ________ (the "Transferee"), as further
specified in Annex A hereto. In the event that Transferor holds Physical
Securities, this Certificate is accompanied by one or more certificates
aggregating at least the principal amount of Securities proposed to be
Transferred. In connection with the Transfer, the Transferor hereby certifies
that:
1. [ ] Check if Transferee will take an Interest in the 144A Global
Security. The Transfer is being effected pursuant to and in accordance with
Rule 144A under the United States Securities Act of 1933, as amended (the
"Securities Act"), and, accordingly, the Transferor hereby further certifies
that the Securities are being transferred to a Person that the Transferor
reasonably believes is purchasing the Securities for its own account, or for
one or more accounts with respect to which such Person exercises sole
investment discretion, and such Person and each such account is a "qualified
institutional buyer" within the meaning of Rule 144A in a transaction meeting
the requirements of Rule 144A and such Transfer is in compliance with any
applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Transfer in accordance with the terms of the
B-1
Indenture, the transferred Security will be subject to the restrictions on
transfer enumerated in the Securities Act Legend and in the Indenture and the
Securities Act.
2. [ ] Check if Transferee will take an Interest in the Regulation S Global
Security pursuant to Regulation S. The Transfer is being effected pursuant to
and in accordance with Rule 904 under the Securities Act and, accordingly, the
Transferor hereby further certifies that (i) the Transfer is not being made to
a person in the United States and (x) at the time the buy order was originated,
the Transferee was outside the United States or such Transferor and any Person
acting on its behalf reasonably believed and believes that the Transferee was
outside the United States or (y) the transaction was executed in, on or through
the facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 904(b) of
Regulation S under the Securities Act and (iii) the transaction is not part of
a plan or scheme to evade the registration requirements of the Securities Act.
Upon consummation of the proposed transfer in accordance with the terms of the
Indenture, the Security will be subject to the restrictions on Transfer
enumerated in the Securities Act Legend printed on the Regulation S Global
Security and in the Indenture and the Securities Act.
3. [ ] Check and complete if Transferee will take delivery of a Restricted
Physical Security pursuant to Rule 144A or Regulation S. One or more of the
events specified in Section 2.06(a) of the Indenture have occurred and the
Transfer is being effected in compliance with the transfer restrictions
applicable to Securities bearing the Securities Act Legend and pursuant to and
in accordance with the Securities Act, and accordingly the Transferor hereby
further certifies that (check one):
(a) [ ] such Transfer is being effected pursuant to and in
accordance with Rule 144A under the Securities Act and the Transferor certifies
to the effect set forth in paragraph 1 above; or
(b) [ ] such Transfer is being effected pursuant to and in
accordance with Rule 904 under the Securities Act and the Transferor certifies
to the effect set forth in paragraph 2 above.
4. [ ] Check if Transferee will take an Interest in the Unrestricted Global
Security. The Transfer is being effected pursuant to and in accordance with
Rule 144 under the Securities Act and in compliance with the transfer
restrictions contained in the Indenture, and the restrictions on transfer
contained in the Indenture and the Securities Act Legend are not required in
order to maintain compliance with the Securities Act. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the transfer
Securities will no longer be subject to the restrictions on transfer enumerated
in the Securities Act Legend and in the Indenture and the Securities Act.
B-2
5. [ ] Check if Transferee will take delivery of a Physical Security that
does not bear the Securities Act Legend. One or more of the events specified in
Section 2.06(a) of the Indenture have occurred and the Transfer is being
effected pursuant to and in accordance with Rule 144 under the Securities Act
and in compliance with the transfer restrictions contained in the Indenture,
and the restrictions on transfer contained in the Indenture and the Securities
Act Legend are not required in order to maintain compliance with the Securities
Act. Upon consummation of the proposed Transfer in accordance with the terms of
the Indenture, the transferred Securities will no longer be subject to the
restrictions on transfer enumerated in the Securities Act Legend and in the
Indenture and the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
------------------------------
[Insert Name of Transferor]
By:
---------------------------
Name:
Title:
Dated:_____________________
B-3
FORM OF ANNEX A TO CERTIFICATE
OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [ ] Interests in the
(i) [ ] 144A Global Security (CUSIP _____), or
(ii) [ ] Regulation S Global Security (CINS _____).
(b) [ ] Physical Security.
2. That the Transferee will hold:
[CHECK ONE]
(a) [ ] Interests in the:
(i) [ ] 144A Global Security (CUSIP _____), or
(ii) [ ] Regulation S Global Security (CINS _____), or
(iii) [ ] Unrestricted Global Security (CUSIP _____); or
(b) [ ] Physical Securities that bear the Securities Act
Legend;
(c) [ ] Physical Securities that do not bear the
Securities Act Legend;
in accordance with the terms of the Indenture.
B-4
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Tekni-Plex, Inc.
000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention:
HSBC Bank USA
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Services-
Tekni-Plex
Re: 12 3/4% Senior Subordinated Notes due 2010
(CUSIP _______________)
Reference is hereby made to the Indenture, dated as of June 21, 2000 (the
"Indenture"), among Tekni-Plex, Inc. (the "Company"), the Guarantors party
thereto and HSBC Bank USA, as trustee. Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
__________ (the "Holder") owns and proposes to exchange the Security[s]
specified herein, in the principal amount of $___ in such Security[s] (the
"Exchange"). In the event Holder holds Physical Securities, this Certificate is
accompanied by one or more certificates aggregating at least the principal
amount of Securities proposed to be Exchanged. In connection with the Exchange,
the Holder hereby certifies that:
1. Exchange of restricted Securities or Interests in the Restricted Global
Security for Securities that do not bear the Securities Act Legend
(a) [ ] Check if Exchange is from Restricted Global Securities to the
Unrestricted Global Security. In connection with the Exchange of the Holder's
Restricted Global Security to the Unrestricted Global Security in an equal
principal amount, the Holder hereby certifies (i) the Unrestricted Global
Securities are being acquired for the Holder's own account without transfer,
(ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Restricted Global Securities and pursuant to and
in accordance with the Securities Act of 1933, as amended (the "Securities
C-1
Act") and (iii) the restrictions on transfer contained in the Indenture and the
Securities Act Legend are not required in order to maintain compliance with the
Securities Act.
(b) [ ] Check if Exchange is from Restricted Physical Securities to an
Interest in the Unrestricted Global Security. In connection with the Holder's
Exchange of Restricted Physical Securities for Interest in the Unrestricted
Global Security, (i) the Interest in the Unrestricted Global Security are being
acquired for the Holder's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to
Restricted Physical Securities and pursuant to and in accordance with the
Securities Act and (iii) the restrictions on transfer contained in the
Indenture and the Securities Act Legend are not required in order to maintain
compliance with the Securities Act.
(c) [ ] Check if Exchange is from Restricted Physical Securities to
Physical Securities that do not bear the Securities Act Legend. In connection
with the Holder's Exchange of a Restricted Physical Security for Physical
Securities that do not bear the Securities Act Legend, the Holder hereby
certifies (i) the Physical Securities that do not bear the Securities Act
Legend are being acquired for the Holder's own account without transfer, (ii)
such Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Physical Securities and pursuant to and in accordance
with the Securities Act and (iii) the restrictions on transfer contained in the
Indenture and the Securities Act Legend are not required in order to maintain
compliance with the Securities Act and (iv) one or more of the events specified
in Section 2.06(a) of the Indenture have occurred.
2. [ ] Check if Exchange is from Restricted Physical Securities to Interests in
a Restricted Global Security. In connection with the Exchange of the Holder's
Restricted Physical Security for interests in the Restricted Global Security in
the [CHECK ONE] [ ] 144A Global Security, [ ] Regulation S Global Security,
with an equal principal amount, (i) the interests in the Restricted Global
Security are being acquired for the Holder's own account without transfer and
(ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Restricted Physical Security and pursuant to and
in accordance with the Securities Act. Upon consummation of the proposed
Exchange in accordance with the terms of the Indenture, the Restricted Global
Security issued will be subject to the restrictions on transfer enumerated in
the Securities Act Legend printed on the Restricted Global Securities and in
the Indenture and the Securities Act.
3. [ ] Check if Exchange is from an interest in a Global Security to Physical
Securities pursuant to Section 2.06(a) of the Indenture. In connection with the
exchange of the Holder's interest in a Global Security pursuant to Section
2.06(a) of the Indenture, the Holder hereby certifies (i) the Physical Security
is being acquired for the Holder's own account without transfer and (ii) one or
more of the events specified in Section 2.06(a) of the Indenture have occurred.
C-2
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
------------------------------
[Insert Name of Holder]
By:
--------------------------
Name:
Title:
Dated: _________________
C-3
