EXECUTION COPY
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INDENTURE
Dated as of May 1, 1998
Between
R.A.B. HOLDINGS, INC., as Issuer,
and
PNC BANK, NATIONAL ASSOCIATION, as Trustee
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$48,000,000
13% Senior Notes due 2008, Series A
13% Senior Notes due 2008, Series B
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CROSS-REFERENCE TABLE
Trust Indenture Indenture
Act Section Section
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Section 310(a)(1)....................................... 7.10
(a)(2)....................................... 7.10
(a)(3)....................................... N.A.
(a)(4)....................................... N.A.
(a)(5)....................................... 7.08, 7.10
(b).......................................... 7.08; 7.10; 10.02
(c).......................................... N.A.
Section 311(a).......................................... 7.11
(b).......................................... 7.11
(c).......................................... N.A.
Section 312(a).......................................... 2.05
(b).......................................... 11.03
(c).......................................... 11.03
Section 313(a).......................................... 7.06
(b)(1)....................................... N.A.
(b)(2)....................................... 7.06
(c).......................................... 7.06; 10.02
(d).......................................... 7.06
Section 314(a).......................................... 4.11; 4.12, 10.02
(b).......................................... N.A.
(c)(1)....................................... 10.04
(c)(2)....................................... 10.04
(c)(3)....................................... N.A.
(d).......................................... N.A.
(e).......................................... 10.05
(f).......................................... N.A.
Section 315(a).......................................... 7.01(b)
(b).......................................... 7.05; 10.02
(c).......................................... 7.01(a)
(d).......................................... 7.01(c)
(e).......................................... 6.11
Section 316(a)(last sentence)........................... 2.09
(a)(1)(A).................................... 6.05
(a)(1)(B).................................... 6.04
(a)(2)....................................... N.A.
(b).......................................... 6.07
(c).......................................... 9.04
Section 317(a)(1)....................................... 6.08
(a)(2)....................................... 6.09
(b).......................................... 2.04
Section 318(a)......................................... 10.01
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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.
TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions..............................................................................1
SECTION 1.02. Incorporation by Reference of Trust Indenture Act.......................................16
SECTION 1.03. Rules of Construction...................................................................17
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating.........................................................................17
SECTION 2.02. Execution and Authentication............................................................18
SECTION 2.03. Registrar and Paying Agent..............................................................19
SECTION 2.04. Paying Agent To Hold Assets in Trust....................................................19
SECTION 2.05. Holder Lists............................................................................19
SECTION 2.06. Transfer and Exchange...................................................................20
SECTION 2.07. Replacement Securities..................................................................20
SECTION 2.08. Outstanding Securities..................................................................21
SECTION 2.09. Treasury Securities.....................................................................21
SECTION 2.10. Temporary Securities....................................................................21
SECTION 2.11. Cancellation............................................................................21
SECTION 2.12. Defaulted Interest......................................................................22
SECTION 2.13. CUSIP Number............................................................................22
SECTION 2.14. Deposit of Moneys.......................................................................22
SECTION 2.15. Book-Entry Provisions for Global Securities.............................................22
SECTION 2.16. Registration of Transfers and Exchanges.................................................23
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee......................................................................27
SECTION 3.02. Selection of Securities To Be Redeemed..................................................27
SECTION 3.03. Notice of Redemption....................................................................27
SECTION 3.04. Effect of Notice of Redemption..........................................................28
SECTION 3.05. Deposit of Redemption Price.............................................................28
SECTION 3.06. Securities Redeemed in Part.............................................................29
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities...................................................................29
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SECTION 4.02. Maintenance of Office or Agency.........................................................29
SECTION 4.03. Limitation on Incurrence of Additional Indebtedness and Issuance of
Disqualified Capital Stock.............................................................29
SECTION 4.04. Limitation on Restricted Payments.......................................................30
SECTION 4.05. Limitation on Asset Sales...............................................................31
SECTION 4.06. Limitation on Dividend and Other Payment Restrictions Affecting
Subsidiaries...........................................................................33
SECTION 4.07. Limitation on Liens.....................................................................33
SECTION 4.08. Limitations on Transactions with Affiliates.............................................34
SECTION 4.09. Subsidiaries............................................................................34
SECTION 4.10. Designation of Unrestricted Subsidiaries................................................34
SECTION 4.11. Conduct of Business.....................................................................35
SECTION 4.12. Reports to Holders......................................................................35
SECTION 4.13. Payments for Consents...................................................................35
SECTION 4.14. Limitation on Investment Company Status.................................................36
SECTION 4.15. Notice of Defaults......................................................................36
SECTION 4.16. Change of Control.......................................................................36
SECTION 4.17. Compliance Certificate..................................................................38
SECTION 4.18. Existence...............................................................................38
SECTION 4.19. Maintenance of Properties and Insurance.................................................38
SECTION 4.20. Payment of Taxes and Other Claims.......................................................39
SECTION 4.21. Waiver of Stay, Extension or Usury Laws.................................................39
SECTION 4.22. Deposit of Funds with Escrow Agent......................................................39
ARTICLE FIVE
MERGERS; SUCCESSOR CORPORATION
SECTION 5.01. Merger, Consolidation and Sale of Assets................................................40
SECTION 5.02. Successor Corporation Substituted.......................................................40
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.......................................................................41
SECTION 6.02. Acceleration............................................................................42
SECTION 6.03. Other Remedies..........................................................................43
SECTION 6.04. Waiver of Past Default..................................................................43
SECTION 6.05. Control by Majority.....................................................................43
SECTION 6.06. Limitation on Suits.....................................................................44
SECTION 6.07. Rights of Holders To Receive Payment....................................................44
SECTION 6.08. Collection Suit by Trustee..............................................................44
SECTION 6.09. Trustee May File Proofs of Claim........................................................44
SECTION 6.10. Priorities..............................................................................45
SECTION 6.11. Undertaking for Costs...................................................................45
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ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.......................................................................45
SECTION 7.02. Rights of Trustee.......................................................................46
SECTION 7.03. Individual Rights of Trustee............................................................47
SECTION 7.04. Trustee's Disclaimer....................................................................48
SECTION 7.05. Notice of Defaults......................................................................48
SECTION 7.06. Reports by Trustee to Holders...........................................................48
SECTION 7.07. Compensation and Indemnity..............................................................48
SECTION 7.08. Replacement of Trustee..................................................................49
SECTION 7.09. Successor Trustee by Merger, etc........................................................50
SECTION 7.10. Eligibility; Disqualification...........................................................50
SECTION 7.11. Preferential Collection of Claims Against Holdings......................................51
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Termination of Holdings' Obligations....................................................51
SECTION 8.02. Legal Defeasance and Covenant Defeasance................................................52
SECTION 8.03. Conditions to Legal Defeasance or Covenant Defeasance...................................52
SECTION 8.04. Application of Trust Money; Trustee Acknowledgment and Indemnity........................53
SECTION 8.05. Repayment to Holdings...................................................................54
SECTION 8.06. Reinstatement...........................................................................54
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders..............................................................54
SECTION 9.02. With Consent of Holders.................................................................55
SECTION 9.03. Compliance with Trust Indenture Act.....................................................56
SECTION 9.04. Record Date for Consents and Effect of Consents.........................................56
SECTION 9.05. Notation on or Exchange of Securities...................................................57
SECTION 9.06. Trustee To Sign Amendments, etc.........................................................57
ARTICLE TEN
MISCELLANEOUS
SECTION 10.01. Trust Indenture Act Controls............................................................57
SECTION 10.02. Notices.................................................................................57
SECTION 10.03. Communications by Holders with Other Holders............................................58
SECTION 10.04. Certificate and Opinion as to Conditions Precedent......................................58
SECTION 10.05. Statements Required in Certificate......................................................59
SECTION 10.06. Rules by Trustee, Paying Agent, Registrar...............................................59
SECTION 10.07. Governing Law...........................................................................59
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SECTION 10.08. No Personal Liability of Directors, Officers, Employees and
Stockholders...........................................................................59
SECTION 10.09. Successors..............................................................................59
SECTION 10.10. Counterpart Originals...................................................................60
SECTION 10.11. Severability............................................................................60
SECTION 10.12. No Adverse Interpretation of Other Agreements...........................................60
SECTION 10.13. Legal Holidays..........................................................................60
ARTICLE ELEVEN
COLLATERAL AND SECURITY
SECTION 11.01. Holdings Escrow Agreement...............................................................60
SECTION 11.02. Opinions................................................................................61
SECTION 11.03. Release of Escrow Collateral............................................................61
SECTION 11.04. Authorization of Actions to Be Taken by the Trustee Under the Holdings
Escrow Agreement.......................................................................62
SECTION 11.05. Authorization of Receipt of Funds by the Trustee Under the Holdings
Escrow Agreement.......................................................................62
SECTION 11.06. Termination of Security Interest........................................................62
SIGNATURES ........................................................................................S-1
EXHIBIT A Form of Series A Security.............................................................A-1
EXHIBIT B Form of Series B Security.............................................................B-1
EXHIBIT C Form of Legend for Global Securities..................................................C-1
EXHIBIT D Form of Transfer Certificate..........................................................D-1
EXHIBIT E Form of Transfer Certificate for Institutional Accredited Investors...................E-1
EXHIBIT F Form of Transfer Certificate for Regulation S Transfers...............................F-1
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NOTE: This Table of Contents shall not, for any purpose, be deemed to be a
part of this Indenture.
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INDENTURE dated as of May 1, 1998, between R.A.B. HOLDINGS, INC., a
Delaware corporation ("Holdings"), and PNC BANK, NATIONAL ASSOCIATION, as
trustee (the "Trustee").
Each party hereto agrees as follows for the benefit of each other party and
for the equal and ratable benefit of the Holders of the Securities:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Acquired Indebtedness" means Indebtedness of a Person or any of its
Subsidiaries existing at the time such Person becomes a Restricted Subsidiary or
at the time it merges or consolidates with Holdings or any of its Restricted
Subsidiaries or assumed in connection with the acquisition of assets from such
Person and in each case not incurred by such Person in connection with, or in
anticipation or contemplation of, such Person becoming a Restricted Subsidiary
or such acquisition, merger or consolidation.
"Affiliate" means, with respect to any specified Person, any other Person
who, directly or indirectly, through one or more intermediaries controls, or is
controlled by, or is under common control with, such specified Person. The term
"control" means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of a Person, whether
through the ownership of voting securities or by contract; and the terms
"controlling" and "controlled" have meanings correlative of the foregoing.
"Affiliate Transaction" has the meaning provided in Section 4.08.
"Agent" means any Registrar, Paying Agent or co-Registrar.
"amend" means amend, modify, supplement, restate or amend and restate,
including successively; and "amending" and "amended" have correlative meanings.
"Asset Acquisition" means (a) an Investment by Holdings or any Restricted
Subsidiary in any other Person pursuant to which such Person shall become a
Restricted Subsidiary, or shall be merged with or into Holdings or any
Restricted Subsidiary, or (b) the acquisition by Holdings or any Restricted
Subsidiary of the assets of any Person (other than a Restricted Subsidiary)
which constitutes all or substantially all of the assets of such Person or
comprises any division or line of business of such Person or any other
properties or assets of such Person other than in the ordinary course of
business.
"Asset Sale" means any direct or indirect sale, issuance, conveyance,
transfer, lease (other than operating leases entered into in the ordinary course
of business), assignment or other transfer by Holdings or any of its Restricted
Subsidiaries (including any Sale and Leaseback Transaction) to any Person other
than Holdings or a Restricted Subsidiary of (a) any Capital Stock of any
Restricted Subsidiary; or (b) any other property or assets of Holdings or any
Restricted Subsidiary other than in the ordinary course of business; provided,
however, that Asset Sales shall not include (i) the sale or disposition of
inventory in the ordinary course of business, (ii) the sale or other disposition
of obsolete, worn out, damaged or otherwise unsuitable or unnecessary equipment
or other obsolete assets, (iii) the exchange of assets for other non-cash assets
that are (a) useful in the Permitted
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Business and (b) have a fair market value at least equal to the fair market
value of the assets being exchanged (as determined by the Board of Directors in
good faith), (iv) the sale or other disposition of Cash Equivalents, (v) the
grant of any license of intellectual property rights in the ordinary course of
business, (vi) any transaction or series of related transactions in any fiscal
year for which Holdings or its Restricted Subsidiaries receive aggregate
consideration of less than $1.0 million and (vii) the sale, lease, conveyance,
disposition or other transfer of all or substantially all of the assets of
Holdings as permitted under Article Five.
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code or any similar federal,
state or foreign law for the relief of debtors.
"Basket" has the meaning provided in Section 4.04.
"Board of Directors" means, as to any Person, the board of directors of
such Person or any duly authorized committee thereof.
"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"Borrowing Base Amount" means, as of the date of determination, an amount
equal to the sum, without duplication, of (i) 80% of the book value of the
accounts receivable and (ii) 55% of the book value of the inventories of
Holdings and its Restricted Subsidiaries, taken as a whole, as set forth in the
most recent monthly consolidated financial statements of Holdings prepared and
determined in accordance with GAAP.
"Business Day means any day other than a Saturday, Sunday or day on which
banking institutions in the City of New York or in New Jersey are required or
authorized by law or other governmental action to be closed.
"Capital Stock" means (i) with respect to any Person that is a corporation,
any and all shares, equity interests, participations or other equivalents
(however designated and whether or not voting) of corporate stock, including
each class of Common Stock and Preferred Stock of such Person and (ii) with
respect to any Person that is not a corporation, any and all partnership or
other equity interests of such Person.
"Capitalized Lease Obligation" means, as to any Person, the obligations of
such Person under a lease that are required to be classified and accounted for
as capital lease obligations under GAAP and, for purposes of this definition,
the amount of such obligations at any date shall be the capitalized amount of
such obligations at such date, determined in accordance with GAAP.
"Cash Equivalents" means (i) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition thereof;
provided, however, that securities deposited in the Escrow Account may have
longer maturities; (ii) marketable direct obligations issued by any state of the
United States of America or any political subdivision of any such state or any
public instrumentality thereof maturing within one year from the date of
acquisition thereof and, at the time of acquisition, having one of the two
highest ratings obtainable from either Standard & Poor's Corporation or any
successor thereto ("S&P") or Xxxxx'x Investors Service, Inc. or any successor
thereto ("Moody's"); (iii) commercial paper maturing no more than one year from
the date of creation thereof and, at the time of acquisition, having a rating of
at least A-1 (or the equivalent successor rating) from S&P or at least P-1 (or
the equivalent
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successor rating) from Moody's; (iv) certificates of deposit or bankers'
acceptances maturing within one year from the date of acquisition thereof issued
by any bank organized under the laws of the United States of America or any
state thereof or the District of Columbia or any U.S. branch of a foreign bank
having at the date of acquisition thereof combined capital and surplus of not
less than $250,000,000; (v) repurchase obligations with a term of not more than
seven days for underlying securities of the types described in clause (i) above
entered into with any bank meeting the qualifications specified in clause (iv)
above; and (vi) investments in money market funds which invest substantially all
their assets in securities of the types described in clauses (i) through (v)
above.
"Change of Control" means the occurrence of one or more of the following
events: (i) any sale, lease, exchange or other transfer (in one transaction or a
series of related transactions) of all or substantially all of the assets of
Holdings to any Person or group of related Persons for purposes of Section 13(d)
of the Exchange Act (a "Group"), together with any Affiliates thereof (whether
or not otherwise in compliance with the provisions of this Indenture) other than
to the Permitted Holders; (ii) the approval by the holders of Capital Stock of
Holdings of any plan or proposal for the liquidation or dissolution of Holdings
(whether or not otherwise in compliance with the provisions of this Indenture);
(iii) any Person or Group (other than the Permitted Holders) shall become the
owner, directly or indirectly, beneficially or of record, of shares representing
more than 50% of the aggregate ordinary voting power represented by the issued
and outstanding Capital Stock of Holdings; or (iv) the replacement of a majority
of the Board of Directors of Holdings over a two-year period from the directors
who constituted the Board of Directors of Holdings at the beginning of such
period, and such replacement shall not have been approved by a vote of at least
a majority of the Board of Directors of Holdings then still in office who either
were members of such Board of Directors at the beginning of such period or whose
election as a member of such Board of Directors was previously so approved.
"Change of Control Date" has the meaning provided in Section 4.16.
"Change of Control Offer" has the meaning provided in Section 4.16.
"Change of Control Payment Date" has the meaning provided in Section 4.16.
"Chase" means Chase Securities Inc. or any successor corporation thereto.
"Common Stock" of any Person means any and all shares, interests or other
participations in, and other equivalents (however designated and whether voting
or non-voting) of such Person's common stock, whether outstanding on the Issue
Date or issued after the Issue Date, and includes, without limitation, all
series and classes of such common stock.
"Company" means R.A.B. Enterprises, Inc., a Delaware corporation.
"Company Notes" means the 10 1/2% Senior Notes due 2005 of the Company.
"Company Notes Indenture" means the indenture dated May 1, 1998, among the
Company, the guarantors named therein and the trustee thereunder relating to the
Company Notes.
"Company Request" or "Company Order" means a written request or order
signed in the name of Holdings by its Chairman of the Board, its Vice Chairman
of the Board, its President, a Vice President, its Treasurer, its Assistant
Treasurer, its Secretary or its Assistant Secretary, and delivered to the
Trustee.
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"Consolidated EBITDA" means, with respect to any Person, for any period,
the sum (without duplication) of (i) Consolidated Net Income and (ii) to the
extent Consolidated Net Income has been reduced thereby, (A) all income taxes of
such Person and its Restricted Subsidiaries paid or accrued in accordance with
GAAP for such period (other than income taxes attributable to extraordinary,
unusual or nonrecurring gains or losses or taxes attributable to sales or
dispositions outside the ordinary course of business), (B) Consolidated Interest
Expense and (C) Consolidated Non-Cash Charges less any non-cash items increasing
Consolidated Net Income for such period, all as determined on a consolidated
basis for such Person and its Restricted Subsidiaries in accordance with GAAP.
"Consolidated Fixed Charge Coverage Ratio" means, with respect to any
Person, the ratio of Consolidated EBITDA of such Person during the four full
fiscal quarters (the "Four Quarter Period") ending on or prior to the date of
the transaction giving rise to the need to calculate the Consolidated Fixed
Charge Coverage Ratio (the "Transaction Date") to Consolidated Fixed Charges of
such Person for the Four Quarter Period. In addition to and without limitation
of the foregoing, for purposes of this definition, "Consolidated EBITDA" and
"Consolidated Fixed Charges" shall be calculated after giving effect on a pro
forma basis for the period of such calculation to (i) the incurrence or the
repayment, repurchase, defeasance or other discharge of any Indebtedness of such
Person or any of its Restricted Subsidiaries (and the application of the
proceeds thereof) giving rise to the need to make such calculation and any
incurrence or repayment of other Indebtedness (and the application of the
proceeds thereof), other than the incurrence or repayment of Indebtedness in the
ordinary course of business for working capital purposes pursuant to working
capital facilities, occurring during the Four Quarter Period or at any time
subsequent to the last day of the Four Quarter Period and on or prior to the
Transaction Date, as if such incurrence or the repayment, repurchase, defeasance
or other discharge, as the case may be (and the application of the proceeds
thereof), occurred on the first day of the Four Quarter Period and (ii) any
Asset Sales or Asset Acquisitions (including, without limitation, any Asset
Acquisition giving rise to the need to make such calculation as a result of such
Person or one of its Restricted Subsidiaries (including any Person who becomes a
Restricted Subsidiary as a result of the Asset Acquisition) incurring, assuming
or otherwise being liable for Acquired Indebtedness and also including or
excluding, as applicable, any Consolidated EBITDA (including any pro forma
expense and cost reductions), whether positive or negative attributable to the
assets which are the subject of the Asset Acquisition or Asset Sale, as the case
may be, during the Four Quarter Period) occurring during the Four Quarter Period
or at any time subsequent to the last day of the Four Quarter Period and on or
prior to the Transaction Date, as if such Asset Sale or Asset Acquisition
(including the incurrence, assumption or liability for any such Acquired
Indebtedness) occurred on the first day of the Four Quarter Period. If such
Person or any of its Restricted Subsidiaries directly or indirectly guarantees
Indebtedness of a third Person, the preceding sentence shall give effect to the
incurrence of such guaranteed Indebtedness as if such Person or any Restricted
Subsidiary of such Person had directly incurred or otherwise assumed such
guaranteed Indebtedness. Furthermore, in calculating "Consolidated Fixed
Charges" for purposes of determining the denominator (but not the numerator) of
this "Consolidated Fixed Charge Coverage Ratio," (1) interest on outstanding
Indebtedness determined on a fluctuating basis as of the Transaction Date and
which will continue to be so determined thereafter shall be deemed to have
accrued at a fixed rate per annum equal to the rate of interest on such
Indebtedness in effect on the Transaction Date; and (2) notwithstanding clause
(1) above, interest on Indebtedness determined on a fluctuating basis, to the
extent such interest is covered by agreements relating to Interest Swap
Obligations, shall be deemed to accrue at the rate per annum resulting after
giving effect to the operation of such agreements. For purposes of this
definition, whenever pro forma effect is to be given to an Asset Acquisition,
the amount of Consolidated Net Income relating thereto and the amount of
Consolidated Interest Expense associated with any Indebtedness incurred in
connection therewith, the pro forma calculations shall be determined in good
faith by a responsible financial or accounting officer of Holdings.
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"Consolidated Fixed Charges" means, with respect to any Person for any
period, the sum, without duplication, of (i) Consolidated Interest Expense, plus
(ii) the product of (x) the amount of all dividend payments on any series of
Preferred Stock of such Person or its Subsidiaries (other than dividends paid in
Qualified Capital Stock) paid or accrued during such period times (y) a
fraction, the numerator of which is one and the denominator of which is one
minus the then current effective consolidated federal, state and local tax rate
of such Person, expressed as a decimal.
"Consolidated Interest Expense" means, with respect to any Person for any
period, the sum of, without duplication: (i) the aggregate of the interest
expense of such Person and its Restricted Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP, including, without
limitation, (a) any amortization of debt discount and amortization or write-off
of deferred financing costs, (b) the net costs under Interest Swap Obligations,
and (c) the interest portion of any deferred payment obligation; and (ii) the
interest component of Capitalized Lease Obligations paid or accrued by such
Person and its Restricted Subsidiaries during such period as determined on a
consolidated basis in accordance with GAAP.
"Consolidated Net Income" means, with respect to any Person, for any
period, the aggregate net income (or loss) of such Person and its Restricted
Subsidiaries for such period on a consolidated basis, determined in accordance
with GAAP; provided that there shall be excluded therefrom (a) after-tax gains
from Asset Sales or abandonments or reserves relating thereto, (b) after-tax
items classified as extraordinary or nonrecurring gains, (c) the net income of
any Person acquired in a "pooling of interests" transaction accrued prior to the
date it becomes a Restricted Subsidiary of the referent Person or is merged or
consolidated with the referent Person or any Restricted Subsidiary of the
referent Person, (d) the net income (but not loss) of any Restricted Subsidiary
of the referent Person to the extent that the declaration of dividends or
similar distributions by that Restricted Subsidiary of that income is restricted
by a contract or operation of law, (e) the net income of any Person, other than
a Restricted Subsidiary of the referent Person, except, for purposes of Section
4.04, to the extent of cash dividends or distributions paid to the referent
Person or to a Wholly Owned Restricted Subsidiary of the referent Person by such
Person, (f) any restoration to income of any contingency reserve, except to the
extent that provision for such reserve was made out of Consolidated Net Income
accrued at any time following the Issue Date, and (g) income or loss
attributable to discontinued operations (including, without limitation,
operations disposed of during such period whether or not such operations were
classified as discontinued).
"Consolidated Non-Cash Charges" means, with respect to any Person, for any
period, the aggregate depreciation, amortization and other non-cash expenses of
such Person and its Restricted Subsidiaries reducing Consolidated Net Income of
such Person and its Restricted Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP (excluding any such charges
constituting an extraordinary item or loss or any such charge which requires an
accrual of or a reserve for cash charges for any future period).
"Corporate Trust Office of the Trustee" means the office of the Trustee at
which at any particular time its corporate trust business shall be administered,
which office at the date of original execution of this Indenture is located at
Xxx Xxxxx Xxxxxx Xxxxxxxxx, 00xx Xxxxx, Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000.
"Corporate Trust Operations Office of the Trustee" means the Trustee's
offices located in Pittsburgh, Pennsylvania.
"Credit Agreement" means the Amended and Restated Credit Agreement dated as
of May 1, 1998, by and among Millbrook Distribution Services Inc., The B.
Manischewitz Company, LLC, The Chase Manhattan Bank, as agent, and NationsBank,
N.A., as co-agent, and the lenders party thereto in their capacities as lenders
thereunder, together with the related agreements entered into in connection
therewith (including,
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without limitation, any guarantee agreements and security documents), in each
case as such agreements may be amended (including any amendment and restatement
thereof), supplemented or otherwise modified from time to time, including any
agreement extending the maturity of, refinancing, replacing or otherwise
restructuring (including increasing the amount of available borrowings
thereunder (provided that such increase in borrowings is permitted by Section
4.03) or adding Restricted Subsidiaries of Holdings as additional borrowers or
guarantors thereunder) all or any portion of the Indebtedness under such
agreement or any successor or replacement agreement and whether by the same or
any other agent, co-agent, lender or group of lenders.
"Currency Agreement" means any foreign exchange contract, currency swap
agreement or other similar agreement or arrangement.
"Custodian" means any receiver, trustee, assignee, liquidator, sequestrator
or similar official under any Bankruptcy Law.
"Default" means an event or condition the occurrence of which is, or with
the lapse of time or the giving of notice or both would be, an Event of Default.
"Depository" means, with respect to the Securities issued in the form of
one or more Global Securities, The Depository Trust Company or another Person
designated as Depository by Holdings, which must be a clearing agency registered
under the Exchange Act.
"Designation" has the meaning provided in Section 4.10.
"Designation Amount" has the meaning provided in Section 4.10.
"Disqualified Capital Stock" means that portion of any Capital Stock 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 sole option of the holder thereof on or prior to the final
maturity date of the Securities.
"Escrow Account" has the meaning set forth in Section 2 of the Holdings
Escrow Agreement.
"Escrow Agent" means PNC Bank, National Association, as escrow agent under
the Holdings Escrow Agreement, until a successor replaces it in accordance with
the provisions of the Holdings Escrow Agreement and thereafter means such
successor.
"Escrow Collateral" has the meaning set forth in Section 6 of the Holdings
Escrow Agreement.
"Escrow Funds" has the meaning set forth in Section 6 of the Holdings
Escrow Agreement.
"Event of Default" has the meaning provided in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any successor statute or statutes thereto and the rules and regulations
promulgated thereunder.
"Exchange Securities" means the 13% Senior Notes due 2008, Series B, to be
issued in exchange for the Initial Securities pursuant to the Registration
Rights Agreement.
-7-
"fair market value" means, with respect to any asset or property, the price
which could be negotiated in an arm's-length, free market transaction, for cash,
between a willing seller and a willing and able buyer, neither of whom is under
undue pressure or compulsion to complete the transaction. Fair market value
shall be determined by the Board of Directors of Holdings acting reasonably and
in good faith and shall be evidenced by a Board Resolution of the Board of
Directors of Holdings delivered to the Trustee.
"Final Maturity Date" means May 1, 2008.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board, which are in effect as of the Issue
Date.
"Global Securities" means one or more 144A Global Securities, Regulation S
Global Securities or IAI Global Securities.
"Guarantees" means the guarantees of Millbrook Distribution Services Inc.
and The B. Manischewitz Company, LLC of the Company Notes in accordance with the
Company Notes Indenture.
"Holders" means the registered holders of the Securities.
"Holdings" means the Person named as "Holdings" in the first paragraph of
this Indenture until a successor shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Holdings" shall mean
such successor.
"Holdings Escrow Agreement" means the escrow agreement dated as of May 1,
1998 among Holdings, PNC Bank, National Association, as escrow agent and
securities intermediary, and PNC Bank, National Association as trustee under
this Indenture.
"IAI Global Security" means a permanent global security in
registered form representing the aggregate principal amount at maturity of
Securities transferred after the Issue Date to Institutional Accredited
Investors.
"incur" means, with respect to any Indebtedness, to create, issue, incur
(including by conversion, exchange or otherwise), assume, guarantee or otherwise
become liable in respect of such Indebtedness (and "incurrence," "incurred" and
"incurring" shall have meanings correlative to the foregoing). Indebtedness of a
Person existing at the time such Person becomes a Restricted Subsidiary or is
merged or consolidated with or into Holdings or any Restricted Subsidiary shall
be deemed to be incurred at such time. The accrual of interest or the accretion
of original issue discount shall not be deemed to be an incurrence.
"Indebtedness" means with respect to any Person, without duplication, (i)
the principal amount of all indebtedness of such Person for borrowed money, (ii)
the principal amount of all indebtedness of such Person evidenced by bonds,
debentures, the Securities or other similar instruments, (iii) all Capitalized
Lease Obligations of such Person, (iv) all indebtedness of such Person issued or
assumed as the deferred purchase price of property, all conditional sale
obligations and all obligations under any title retention agreement (but
excluding trade accounts payable and other accrued liabilities arising in the
ordinary course of business that are not overdue by 90 days or more or are being
contested in good faith), (v) reimbursement obligations of such Person on any
letter of credit, banker's acceptance or similar credit transaction, (vi)
guarantees and other similar
-8-
contingent obligations in respect of indebtedness or obligations referred to in
clauses (i) through (v) above and clause (viii) below, (vii) all obligations of
any other Person of the type referred to in clauses (i) through (vi) which are
secured by any lien on any property or asset of such Person, the amount of such
obligation being deemed to be the lesser of the fair market value of such
property or asset or the amount of the obligation so secured and (viii) all
obligations of such Person under Currency Agreements and Interest Swap
Obligations.
"Indenture" means this Indenture, as amended or supplemented from time to
time.
"Indentures" means this Indenture and the Company Notes Indenture.
"Independent Financial Advisor" means a firm (i) which does not, and whose
directors, officers and employees or Affiliates do not, have a direct or
indirect financial interest in Holdings (excluding an interest consisting solely
of monies owed for services rendered) and (ii) which, in the judgment of the
Board of Directors of Holdings, is otherwise independent and qualified to
perform the task for which it is to be engaged.
"Initial Purchaser" means Chase Securities Inc.
"Initial Securities" means the 13% Senior Notes due 2008, Series A, of
Holdings.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act.
"interest" means, with respect to the Securities, the sum of any cash
interest and any Liquidated Damages (as defined in the Registration Rights
Agreement) on the Securities.
"Interest Payment Date" means May 1 and November 1 of each year, commencing
on November 1, 1998.
"Interest Record Date" for the interest payable on any Interest Payment
Date (except a date for payment of defaulted interest) means the April 15 or
October 15 (whether or not a Business Day), as the case may be, immediately
preceding such Interest Payment Date.
"Interest Swap Obligations" means the obligations of any Person pursuant to
any arrangement with any other Person, whereby, directly or indirectly, such
Person is entitled to receive from time to time periodic payments calculated by
applying either a floating or a fixed rate of interest on a stated notional
amount in exchange for periodic payments made by such other Person calculated by
applying a fixed or a floating rate of interest on the same notional amount and
shall include, without limitation, interest rate swaps, caps, floors, collars
and similar agreements.
"Investment" means, with respect to any Person, any direct or indirect loan
or other extension of credit (including, without limitation, a guarantee) or
capital contribution to (by means of any transfer of cash or other property to
others or any payment for property or services for the account or use of
others), or any purchase or acquisition by such Person of any Capital Stock,
bonds, Securities, debentures or other securities or evidences of Indebtedness
issued by, any other Person. "Investment" shall exclude extensions of trade
credit and advances to customers by Holdings and its Restricted Subsidiaries in
accordance with normal trade practices of Holdings or such Restricted
Subsidiary, as the case may be. For the purposes of Section 4.04, (i)
"Investment" shall include and be valued at the fair market value of the net
assets of any Restricted Subsidiary at the time that such Restricted Subsidiary
is designated an Unrestricted Subsidiary and shall exclude the fair
-9-
market value of the net assets of any Unrestricted Subsidiary at the time that
such Unrestricted Subsidiary is designated a Restricted Subsidiary and (ii) the
amount of any Investment shall be the original cost of such Investment plus the
cost of all additional Investments by Holdings or any of its Restricted
Subsidiaries, without any adjustments for increases or decreases in value, or
write-ups, write-downs or write-offs with respect to such Investment, reduced by
the payment of dividends or distributions in connection with such Investment or
any other amounts received in respect of such Investment; provided that no such
payment of dividends or distributions or receipt of any such other amounts shall
reduce the amount of any Investment if such payment of dividends or
distributions or receipt of any such amounts would be included in Consolidated
Net Income. If Holdings or any Restricted Subsidiary sells or otherwise disposes
of any Common Stock of any direct or indirect Restricted Subsidiary such that,
after giving effect to any such sale or disposition, Holdings no longer owns,
directly or indirectly, greater than 50% of the outstanding Common Stock of such
Restricted Subsidiary, Holdings shall be deemed to have made an Investment on
the date of any such sale or disposition equal to the fair market value of the
Common Stock of such Restricted Subsidiary not sold or disposed of.
"Issue Date" means the date of original issuance of the Initial Securities.
"Lien" means any lien, mortgage, deed of trust, pledge, security interest,
charge or encumbrance of any kind (including any conditional sale or other title
retention agreement, any lease in the nature thereof and any agreement to give
any security interest).
"Net Cash Proceeds" means, with respect to any Asset Sale, the aggregate
proceeds in the form of cash or Cash Equivalents including payments in respect
of deferred payment obligations when received in the form of cash or Cash
Equivalents (other than the portion of any such deferred payment constituting
interest) and cash and Cash Equivalents received upon the disposition of
non-cash consideration received in any Asset Sale received by Holdings or any of
its Restricted Subsidiaries from such Asset Sale net of (a) reasonable
out-of-pocket expenses and fees incurred in connection with such Asset Sale
(including, without limitation, legal, accounting and investment banking fees
and sales commissions), (b) taxes paid or payable after taking into account any
reduction in consolidated tax liability due to available tax credits or
deductions and any tax sharing arrangements, (c) repayment of Indebtedness that
is required to be repaid in connection with such Asset Sale and (d) appropriate
amounts to be provided by Holdings or any Restricted Subsidiary, as the case may
be, as a reserve, in accordance with GAAP, against any liabilities associated
with such Asset Sale and retained by Holdings or any Restricted Subsidiary, as
the case may be, after such Asset Sale.
"Net Proceeds Offer" has the meaning provided in Section 4.05.
"Net Proceeds Offer Amount" has the meaning provided in Section 4.05.
"Net Proceeds Offer Payment Date" has the meaning provided in Section 4.05.
"Net Proceeds Offer Trigger Date" has the meaning provided in Section 4.05.
"Obligations" means, with respect to any Indebtedness, all obligations for
principal, premium, interest, penalties, fees, indemnifications, reimbursements,
damages and other liabilities payable under the documentation governing any such
Indebtedness.
"Offerings" means the initial offerings of the Securities and the Company
Notes.
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"Offering Memorandum" means the final offering memorandum dated April 28,
1998 setting forth information concerning the Company, Holdings, Millbrook
Distribution Services Inc., The B. Manischewitz Company, LLC, the Securities and
the Senior Notes.
"Officer" means the Chairman, any Vice Chairman, the President, any Vice
President, the Chief Financial Officer, the Treasurer or the Secretary of
Holdings or any other officer designated by the Board of Directors serving in a
similar capacity.
"Officers' Certificate" means a certificate signed by two Officers or by an
Officer and an Assistant Treasurer or an Assistant Secretary of Holdings
complying with Sections 10.04 and 10.05.
"144A Global Security" means a permanent global security in registered form
representing the aggregate principal amount at maturity of Initial Securities
sold in reliance on Rule 144A.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. The legal counsel may be an employee of or
counsel to Holdings or the Trustee.
"Pari Passu Indebtedness" means any Indebtedness of Holdings ranking pari
passu in right of payment with the Securities.
"Participants" has the meaning provided in Section 2.15.
"Paying Agent" has the meaning provided in Section 2.03.
"Permitted Business" means the business of food manufacturing and
processing, food distribution and other businesses similar thereto or reasonably
related thereto, including without limitation, providing merchandising services.
"Permitted Holders" means (i) Xx. Xxxxxxx X. Xxxxxxxxx, (ii) trusts for the
benefit of Xx. Xxxxxxxxx and/or members of his immediate family and (iii) in the
event of the incompetence or death of Xx. Xxxxxxxxx, his estate, executor,
administrator or other personal representative.
"Permitted Indebtedness" means, without duplication, each of the following:
(i) Indebtedness under the Securities, the Company Notes and the
Guarantees; and Permitted Refinancings thereof;
(ii) Indebtedness incurred pursuant to the Credit Agreement in an
aggregate principal amount, at any time outstanding, not to exceed the
greater of (x) $55.0 million and (y) the Borrowing Base Amount, in each
case, less mandatory, permanent repayments (excluding amounts refinanced as
permitted under the Credit Agreement) actually made in respect of any
Indebtedness thereunder (which are accompanied by a permanent reduction in
commitment in the case of the Revolving Credit Facility);
(iii) Permitted Refinancings of (x) other Indebtedness of Holdings or
any Restricted Subsidiary to the extent outstanding on the Issue Date
reduced by the amount of any scheduled amortization payments or mandatory
prepayments when actually paid or permanent reductions thereon and (y)
Indebtedness incurred under the Consolidated Fixed Charge Coverage Ratio
test of Section 4.03;
(iv) Interest Swap Obligations of Holdings covering Indebtedness of
Holdings or any Restricted Subsidiary and Interest Swap Obligations of any
Restricted Subsidiary covering Indebtedness
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of such Restricted Subsidiary; provided, however, that such Interest Swap
Obligations are entered into to protect Holdings and/or its Restricted
Subsidiaries from fluctuations in interest rates on Indebtedness incurred
in accordance with the Indentures to the extent the notional principal
amount of such Interest Swap Obligation does not exceed the principal
amount of the Indebtedness to which such Interest Swap Obligation relates;
(v) Indebtedness under Currency Agreements; provided that in the case
of Currency Agreements which relate to Indebtedness, such Currency
Agreements are designed to protect Holdings or any Restricted Subsidiary
against fluctuations in currency values and do not increase the
Indebtedness of Holdings and its Restricted Subsidiaries outstanding other
than as a result of fluctuations in foreign currency exchange rates or by
reason of fees, indemnities and compensation payable thereunder;
(vi) Indebtedness of a Wholly Owned Restricted Subsidiary to Holdings
or to a Wholly Owned Restricted Subsidiary for so long as such Indebtedness
is held by Holdings or a Wholly Owned Restricted Subsidiary, in each case
subject to no Lien being held by a Person other than Holdings or a Wholly
Owned Restricted Subsidiary; provided that if as of any date any Person
other than Holdings or a Wholly Owned Restricted Subsidiary owns or holds
any such Indebtedness or holds a Lien in respect of such Indebtedness, such
date shall be deemed the incurrence of Indebtedness not constituting
Permitted Indebtedness by the issuer of such Indebtedness;
(vii) Indebtedness of Holdings to a Wholly Owned Restricted Subsidiary
for so long as such Indebtedness is held by a Wholly Owned Restricted
Subsidiary, in each case subject to no Lien; provided that (a) any
Indebtedness of Holdings to any Wholly Owned Restricted Subsidiary is
unsecured and subordinated, pursuant to a written agreement, to Holdings'
obligations under this Indenture and the Securities and (b) if as of any
date any Person other than a Wholly Owned Restricted Subsidiary owns or
holds any such Indebtedness or any Person holds a Lien in respect of such
Indebtedness, such date shall be deemed the incurrence of Indebtedness not
constituting Indebtedness permitted by this clause (vii);
(viii) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument inadvertently
(except in the case of daylight overdrafts) drawn against insufficient
funds in the ordinary course of business; provided, however, that such
Indebtedness is extinguished within two business days of incurrence;
(ix) Indebtedness of Holdings or any Restricted Subsidiary (a)
represented by letters of credit for the account of Holdings or such
Restricted Subsidiary, as the case may be, in order to provide security for
workers' compensation claims, payment obligations in connection with
self-insurance or similar requirements in the ordinary course of business
and (b) in respect of performance, surety or appeal bonds incurred in the
ordinary course of business;
(x) Indebtedness of Holdings or any Restricted Subsidiary (other than
for borrowed money) pursuant to agreements providing for indemnification,
purchase price adjustments and similar obligations that is incurred in the
ordinary course of business or in connection with the sale of a business,
assets or a Subsidiary;
(xi) Indebtedness represented by Capitalized Lease Obligations and
Purchase Money Indebtedness of Holdings and its Restricted Subsidiaries
incurred in the ordinary course of business not to exceed $2.0 million at
any one time outstanding; and
(xii) Additional Indebtedness of Holdings or any Restricted Subsidiary
in an amount not to exceed $25.0 million at any one time outstanding;
provided that such amount is incurred on or before the nine month
anniversary of the Issue Date; and provided further that, on or prior to
the nine month
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anniversary of the Issue Date, such amount is used to consummate the
acquisition of one or more Permitted Businesses that becomes upon the
closing of such acquisition a Restricted Subsidiary of Holdings or any
Restricted Subsidiary.
"Permitted Investments" means (i) Investments by Holdings or any Restricted
Subsidiary in any Person that is or will become immediately after such
Investment a Restricted Subsidiary or that will merge or consolidate into
Holdings or a Restricted Subsidiary; (ii) Investments in Holdings by any
Restricted Subsidiary; provided that any Indebtedness evidencing such Investment
is unsecured and subordinated, pursuant to a written agreement, to Holdings'
obligations under the Securities and this Indenture; (iii) investments in cash
and Cash Equivalents; (iv) loans and advances to employees and officers of
Holdings and its Restricted Subsidiaries (other than to Permitted Holders) in
the ordinary course of business for bona fide business purposes not in excess of
$250,000 at any one time outstanding; (v) Currency Agreements and Interest Swap
Obligations entered into in the ordinary course of Holdings' or its Restricted
Subsidiaries' businesses and otherwise in compliance with this Indenture; (vi)
Investments in securities of trade creditors or customers received pursuant to
any plan of reorganization or similar arrangement upon the bankruptcy or
insolvency of such trade creditors or customers; (vii) Investments made by
Holdings or its Restricted Subsidiaries as a result of consideration received in
connection with an Asset Sale made in compliance with Section 4.05; and (viii)
Investments existing on the Issue Date.
"Permitted Liens" means (a) Liens securing Acquired Indebtedness; provided,
however, that such Liens were in existence prior to the contemplation of such
acquisition, merger or consolidation and do not secure any property or assets of
Holdings or any Restricted Subsidiary of Holdings other than the property or
assets subject to the Liens prior to such acquisition, merger or consolidation;
(b) Liens imposed by law such as carriers', warehousemen's and mechanic's Liens
and other similar Liens arising in the ordinary course of business which secure
payment of obligations not more than 30 days past due or which are being
contested in good faith and by appropriate proceedings; (c) Liens for taxes,
assessments or governmental charges or claims that are not yet delinquent or
that are being contested in good faith by appropriate proceedings; provided,
however, that any reserve or other appropriate provision as shall be required in
conformity with GAAP shall have been made therefor; (d) easements, reservation
of rights of way, licenses of intellectual property in the ordinary course and
other similar restrictions on the use of properties or assets, or minor
imperfections of title that in the aggregate are not material in amount and do
not in any case materially detract from the properties subject thereto or
interfere with the ordinary conduct of the business of Holdings and its
Restricted Subsidiaries; (e) Liens resulting from the deposit of cash or
Securities in connection with contracts, tenders or expropriation proceedings,
or to secure workers' compensation, surety or appeal bonds, costs of litigation
when required by law and public and statutory obligations or obligations under
franchise arrangements entered into in the ordinary course of business; (f)
Liens securing Indebtedness incurred pursuant to clause (xii) of the definition
of "Permitted Indebtedness" in an aggregate amount not to exceed $15.0 million
at any one time outstanding; (g) Liens securing Indebtedness consisting of
Capitalized Lease Obligations or industrial revenue bonds, in each case incurred
solely for the purpose of financing all or any part of the purchase price or
cost of construction or installation of assets used in the business of Holdings
or its Restricted Subsidiaries, or repairs, additions or improvements to such
assets; provided, however, that (i) such Liens secure Indebtedness in an amount
not in excess of the original purchase price or the original cost of any such
assets or repairs, additions or improvements thereto (plus an amount equal to
the reasonable fees and expenses, including attorneys fees and expenses,
incurred in connection with the incurrence of such Indebtedness), (ii) such
Liens do not extend to any other assets of Holdings or its Restricted
Subsidiaries (and, in the case of repairs, additions or improvements to any such
assets, such Lien extends only to the assets repaired, added to or improved),
(iii) the Incurrence of such Indebtedness is permitted under this Indenture and
(iv) such Liens attach within 60 days of such purchase, construction,
installation, repair, addition or improvement; and (h) Liens arising under the
Holdings Escrow Agreement.
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"Permitted Refinancing" means, with respect to any Indebtedness of any
Person, any Refinancing of such Indebtedness; provided, however, that (i) such
Refinancing shall not result in an increase in the aggregate principal amount of
Indebtedness of such Person as of the date of such proposed Refinancing (plus
the amount of any premium required to be paid under the terms of the instrument
governing such Indebtedness and plus the amount of reasonable expenses incurred
by Holdings in connection with such Refinancing), (ii) such Indebtedness shall
not have a Weighted Average Life to Maturity that is less than the Weighted
Average Life to Maturity of the Indebtedness being Refinanced or a final
maturity earlier than the final maturity of the Indebtedness being Refinanced,
(iii) if the Indebtedness being Refinanced is Indebtedness of Holdings, then
such Refinancing Indebtedness shall be Indebtedness solely of Holdings and (iv)
if the Indebtedness being Refinanced is subordinate or junior to the Securities,
then such Refinancing Indebtedness shall be subordinate to the Securities at
least to the same extent and in the same manner as the Indebtedness being
Refinanced.
"Person" means an individual, partnership, corporation, unincorporated
organization, limited liability company, trust or joint venture, or a
governmental agency or political subdivision thereof.
"Physical Securities" means one or more certificated Securities in
registered form.
"Preferred Stock" of any Person means any Capital Stock of such Person that
has preferential rights to any other Capital Stock of such Person with respect
to dividends or redemptions or upon liquidation.
"Private Exchange Securities" has the meaning provided in the Registration
Rights Agreement.
"Private Placement Legend" means the legend initially set forth on the
Initial Securities in the form set forth on Exhibit A hereto.
"Public Equity Offering" means an underwritten public offering of Qualified
Capital Stock pursuant to a registration statement filed with the Commission in
accordance with the Securities Act generating gross cash proceeds of at least
$50.0 million.
"Purchase Money Indebtedness" means Indebtedness of Holdings and its
Restricted Subsidiaries incurred in the normal course of business for the
purpose of financing all or any part of the purchase price, or the cost of
installation, construction or improvement, of property, equipment or other
assets; provided, however, (A) the Indebtedness shall not exceed the cost of
such property, equipment or assets and shall not be secured by any property,
equipment or assets of Holdings or any Restricted Subsidiary other than the
property, equipment and assets so acquired or constructed and (B) the Lien
securing such Indebtedness shall be created within 180 days of such acquisition
or construction or, in the case of a refinancing of any Purchase Money
Indebtedness, within 180 days of such refinancing.
"Qualified Capital Stock" means any Capital Stock that is not Disqualified
Capital Stock.
"Qualified Institutional Buyer" or "QIB" means a "qualified institutional
buyer" as that term is defined in Rule 144A under the Securities Act.
"redeem" means redeem, repurchase, defease or otherwise acquire or retire
for value; and "redemption" and "redeemed" have correlative meanings.
-14-
"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 hereto as Exhibit A.
"Reference Date" has the meaning provided in Section 4.04.
"Refinance" means, in respect of any security or Indebtedness, to
refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or
to issue a security or Indebtedness in exchange or replacement for, such
security or Indebtedness in whole or in part. "Refinanced" and "Refinancing"
shall have correlative meanings.
"Registrar" has the meaning provided in Section 2.03.
"Registration Rights Agreement" means the Exchange and Registration Rights
Agreement dated as of the Issue Date by and between Holdings and the Initial
Purchaser.
"Registration" means a registered exchange offer for the Securities by
Holdings or other registration of the Securities under the Securities Act
pursuant to and in accordance with the terms of the Registration Rights
Agreement.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Global Security" means a permanent global security in
registered form representing the aggregate principal amount at maturity of
Securities sold in reliance on Regulation S under the Securities Act.
"Replacement Assets" means (i) properties and assets that replace the
properties and assets that were the subject of such Asset Sale or in properties
and assets that will be used in a Permitted Business or (ii) all of the Capital
Stock of a Person whose assets are of the type described in clause (i), provided
that such Person becomes a Restricted Subsidiary of Holdings.
"Restricted Payment" has the meaning provided in Section 4.04.
"Restricted Security" means a Security that is a "restricted security"
within the meaning set forth in Rule 144(a)(3) under the Securities Act;
provided, however, that the Trustee shall be entitled to request and
conclusively rely upon an Opinion of Counsel with respect to whether any
Security is a Restricted Security.
"Restricted Subsidiary" means any Subsidiary of Holdings which at the time
of determination is not an Unrestricted Subsidiary.
"Revolving Credit Facility" means one or more revolving credit facilities
under the Credit Agreement.
"Rule 144A" means Rule 144A under the Securities Act.
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"Sale and Leaseback Transaction" means any direct or indirect arrangement
with any Person or to which any such Person is a party, providing for the
leasing to Holdings or a Restricted Subsidiary of any property, whether owned by
Holdings or any Restricted Subsidiary at the Issue Date or later acquired, which
has been or is to be sold or transferred by Holdings or such Restricted
Subsidiary to such Person or to any other Person from whom funds have been or
are to be advanced by such Person on the security of such Property.
"SEC" or "Commission" means the Securities and Exchange Commission.
"Securities" means, collectively, the Initial Securities, the Private
Exchange Securities and the Unrestricted Securities treated as a single class of
securities, as amended or supplemented from time to time in accordance with the
terms of this Indenture.
"Securities Act" means the Securities Act of 1933, as amended, and any
other successor statute or statutes thereto and the rules and regulations
promulgated thereunder.
"Stated Maturity" means with respect to any installment of interest or
principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"Subsidiary," with respect to any Person, means (i) any corporation of
which the outstanding Capital Stock having at least a majority of the votes
entitled to be cast in the election of directors under ordinary circumstances
shall at the time be owned, directly or indirectly, by such Person or (ii) any
other Person of which at least a majority of the voting interest under ordinary
circumstances is at the time, directly or indirectly, owned by such Person.
"Surviving Entity" has the meaning provided in Section 5.01.
"Term Loan Facility" means one or more term loan facilities under the
Credit Agreement.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb), as amended, as in effect on the date of this Indenture (except as
provided in Section 9.03) until such time as this Indenture is qualified under
the TIA, and thereafter as in effect on the date on which this Indenture is
qualified under the TIA.
"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.
"Trustee" means the party named as such in the first paragraph of this
Indenture until a successor replaces it in accordance with the provisions of
this Indenture and thereafter means such successor.
"Unrestricted Securities" means one or more Securities that do not and are
not required to bear the Private Placement Legend in the form set forth in
Exhibit A hereto, including, without limitation, the Ex-
-16-
change Securities and any Securities registered under the Securities Act
pursuant to and in accordance with the Registration Rights Agreement.
"Unrestricted Subsidiary" of any Person means (i) any Subsidiary of such
Person that at the time of determination shall be or continue to be designated
an Unrestricted Subsidiary by the Board of Directors of such Person in the
manner provided below and (ii) any Subsidiary of an Unrestricted Subsidiary.
"U.S. Government Obligations" means direct obligations (or certificates
representing an ownership interest in such obligations) of the United States of
America (including any agency or instrumentality thereof) for the payment of
which the full faith and credit of the United States of America is pledged and
which are not callable or redeemable at the issuer's option.
"Weighted Average Life to Maturity" means, when applied to any Indebtedness
at any date, the number of years obtained by dividing (a) the then outstanding
aggregate principal amount of such Indebtedness into (b) the sum of the total of
the products obtained by multiplying (i) the amount of each then remaining
installment, sinking fund, serial maturity or other required payment of
principal, including payment at final maturity, in respect thereof, by (ii) the
number of years (calculated to the nearest one-twelfth) which will elapse
between such date and the making of such payment.
"Wholly Owned Restricted Subsidiary" of any Person means any Restricted
Subsidiary of such Person of which all the outstanding voting securities (other
than in the case of a foreign Restricted Subsidiary, directors' qualifying
shares or an immaterial amount of shares required to be owned by other Persons
pursuant to applicable law) are owned by such Person or any Wholly Owned
Restricted Subsidiary of such Person.
SECTION 1.02. 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 SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" means Holdings 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 SEC rule and not
otherwise defined herein have the meanings assigned to them therein.
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SECTION 1.03. 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;
(5) provisions apply to successive events and transactions; and
(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.
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating.
The Initial Securities and the Trustee's certificate of authentication
thereof shall be substantially in the form of Exhibit A hereto, which is hereby
incorporated in and expressly made a part of this Indenture. The Exchange
Securities and the Trustee's certificate of authentication thereof shall be
substantially in the form of Exhibit B hereto, which is hereby incorporated in
and expressly made a part of this Indenture. The Securities may have notations,
legends or endorsements required by law, stock exchange rule or usage. Holdings
and the Trustee shall approve the form of the Securities and any notation,
legend or endorsement on them. Each Security shall be dated the date of its
issuance and shall show the date of its authentication.
Securities offered and sold in reliance on Rule 144A and Securities offered
and sold in reliance on Regulation S shall be issued initially in the form of
one or more Global Securities, substantially in the form set forth in Exhibit A
hereto, deposited with the Trustee, as custodian for the Depository, duly
executed by Holdings and authenticated by the Trustee as hereinafter provided
and shall bear the legend set forth in Exhibit C hereto. The aggregate principal
amount of the Global Securities may from time to time be increased or decreased
by adjustments made on the records of the Trustee, as custodian for the
Depository, as hereinafter provided.
SECTION 2.02. Execution and Authentication.
An Officer who has been duly authorized by all requisite corporate action
shall sign the Securities for Holdings by manual or facsimile signature.
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If an Officer whose signature is on a Security was an Officer at the time
of such execution but no longer holds that office at the time the Trustee
authenticates the Security, the Security shall be valid nevertheless.
A Security shall not be valid until an authorized signatory of the Trustee
manually signs the certificate of authentication on the Security. The signature
shall be conclusive evidence that the Security has been authenticated under this
Indenture.
The Trustee shall authenticate (i) Initial Securities for original issue in
an aggregate principal amount at maturity not to exceed $48,000,000, (ii)
Private Exchange Securities from time to time only in exchange for a like
principal amount at maturity of Initial Securities and (iii) Unrestricted
Securities from time to time only in exchange for (A) a like principal amount at
maturity of Initial Securities or (B) a like principal amount at maturity of
Private Exchange Securities, in each case upon a written order of Holdings in
the form of an Officers' Certificate. Each such written order shall specify the
amount of Securities to be authenticated and the date on which the Securities
are to be authenticated, whether the Securities are to be Initial Securities,
Private Exchange Securities or Unrestricted Securities and whether the
Securities are to be issued as Physical Securities or Global Securities and such
other information as the Trustee may reasonably request. The aggregate principal
amount at maturity of Securities outstanding at any time may not exceed
$48,000,000, except as provided in Sections 2.07 and 2.08.
Notwithstanding the foregoing, all Securities issued under this Indenture
shall vote and consent together on all matters (as to which any of such
Securities may vote or consent) as one class and no series of Securities will
have the right to vote or consent as a separate class on any matter.
The Trustee may appoint an authenticating agent reasonably acceptable to
Holdings to authenticate Securities. Unless otherwise provided in the
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent shall
have the same rights as an Agent to deal with Holdings and Affiliates of
Holdings.
The Securities shall be issuable only in registered form, without coupons,
in denominations of $1,000 and any integral multiple thereof.
SECTION 2.03. Registrar and Paying Agent.
Holdings shall maintain an office or agency, which may be in the Borough of
Manhattan, The City of New York, where (a) Securities may be presented or
surrendered for registration of transfer or for exchange (the "Registrar"), (b)
Securities may be presented or surrendered for payment (the "Paying Agent") and
(c) notices and demands in respect of the Securities and this Indenture may be
served. The Registrar shall keep a register of the Securities and of their
transfer and exchange. Holdings, upon written notice to the Trustee, may appoint
one or more co-Registrars and one or more additional Paying Agents. The term
"Paying Agent" includes any additional Paying Agent. Except as provided herein,
Holdings may act as Paying Agent, Registrar or co-Registrar.
Holdings shall enter into an appropriate agency agreement with any Agent
not a party to this Indenture, which shall incorporate the provisions of the
TIA. The agreement shall implement the provisions of this Indenture that relate
to such Agent. Holdings shall notify the Trustee in writing of the name and
address of
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any such Agent. If Holdings fails to maintain a Registrar or Paying Agent, or
fails to give the foregoing notice, the Trustee shall act as such and shall be
entitled to appropriate compensation in accordance with Section 7.07.
Holdings initially appoints the Trustee as Registrar and Paying Agent until
such time as the Trustee has resigned or a successor has been appointed. The
Securities may be presented for registration of transfer and exchange at the
offices of the Registrar, which initially will be the Corporate Trust Operations
Office of the Trustee. The Company will pay principal (and premium, if any) on
the Securities at the Corporate Trust Operations Office of the Trustee. Holdings
will maintain an office in New York, New York and will also pay principal (and
premium, if any) on the Securities at the Company's offices in New York, New
York.
SECTION 2.04. Paying Agent To Hold Assets in Trust.
Holdings shall require each Paying Agent other than the Trustee to agree in
writing that each Paying Agent shall hold in trust for the benefit of Holders or
the Trustee all assets held by the Paying Agent for the payment of principal of,
or interest on, the Securities, and shall notify the Trustee of any Default by
Holdings in making any such payment. Holdings at any time may require a Paying
Agent to distribute all assets held by it to the Trustee and account for any
assets 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 distribute all assets held by it to the Trustee and to account for any
assets distributed. Upon distribution to the Trustee of all assets that shall
have been delivered by Holdings to the Paying Agent (if other than Holdings),
the Paying Agent shall have no further liability for such assets. If Holdings or
any of its Affiliates acts as Paying Agent, it shall, on or before each due date
of the principal of or interest on the Securities, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum sufficient to pay the
principal or interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and will promptly notify the
Trustee in writing of its action or failure so to act.
SECTION 2.05. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders. If the Trustee is not the Registrar, Holdings shall furnish to the
Trustee before each Interest Record Date and at such other times as the Trustee
may request in writing a list as of such date and in such form as the Trustee
may reasonably require of the names and addresses of Holders, which list may be
conclusively relied upon by the Trustee.
SECTION 2.06. Transfer and Exchange.
Subject to the provisions of Sections 2.15 and 2.16, when Securities are
presented to the Registrar or a co-Registrar with a request to register the
transfer of such Securities or to exchange such Securities for an equal
principal amount of Securities of other authorized denominations of the same
series, the Registrar or co-Registrar shall register the transfer or make the
exchange as requested if its requirements for such transaction are met;
provided, however, that the Securities surrendered for transfer or exchange
shall be duly endorsed or accompanied by a written instrument of transfer in
form satisfactory to Holdings and the Registrar or co-Registrar, duly executed
by the Holder thereof or his attorney-in-fact duly authorized in writing. To
permit registrations of transfers and exchanges, Holdings shall execute and the
Trustee shall authenticate Securities at the Registrar's or co-Registrar's
written request. No service charge shall be made for any registration of
transfer or exchange, but Holdings may require payment of a sum sufficient to
cover any transfer tax or similar governmental charge payable in connection
therewith (other than any such transfer taxes or other governmental charge
payable upon exchanges or transfers pursuant to Section 2.02, 2.10, 3.06, or
9.05). The Registrar or co-Registrar
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shall not be required to register the transfer or exchange of any Security (i)
during a period beginning at the opening of business 15 days before the mailing
of a notice of redemption of Securities and ending at the close of business on
the day of such mailing and (ii) selected for redemption in whole or in part
pursuant to Article Three hereof, except the unredeemed portion of any Security
being redeemed in part.
Prior to the registration of any transfer by a Holder as provided herein,
Holdings, the Trustee and any Agent of Holdings shall treat the person in whose
name the Security is registered as the owner thereof for all purposes whether or
not the Security shall be overdue, and none of Holdings, the Trustee nor any
such Agent shall be affected by notice to the contrary. Any consent, waiver or
actions of a Holder shall be binding upon any subsequent Holders of such
Security or a Security received upon transfer. Any Holder of a beneficial
interest in a Global Security shall, by acceptance of such beneficial interest
in a Global Security, agree that transfers of beneficial interests in such
Global Security may be effected only through a book-entry system maintained by
the Depository (or its agent), and that ownership of a beneficial interest in a
Global Security shall be required to be reflected in a book entry.
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,
Holdings shall issue and the Trustee shall authenticate a replacement Security
if the Trustee's requirements for replacement of Securities are met. If required
by Holdings or the Trustee, such Holder must provide an indemnity bond or other
indemnity, sufficient in the judgment of Holdings and the Trustee, to protect
Holdings, the Trustee and any Agent from any loss which any of them may suffer
if a Security is replaced. Holdings may charge such Holder for their reasonable
out-of-pocket expenses in replacing a Security, including reasonable fees and
expenses of counsel.
Every replacement Security is an obligation of Holdings.
SECTION 2.08. Outstanding Securities.
Securities outstanding at any time are all the Securities that have been
authenticated by the Trustee except those canceled by it, those delivered to it
for cancellation and those described in this Section 2.08 as not outstanding.
Subject to Section 2.09, a Security does not cease to be outstanding because
Holdings or any Affiliates of Holdings holds the Security.
If a Security is replaced pursuant to Section 2.07 (other than a mutilated
Security surrendered for replacement), it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Security is held by
a bona fide purchaser. A mutilated Security ceases to be outstanding upon
surrender of such Security and replacement thereof pursuant to Section 2.07.
If on a Redemption Date or the Final Maturity Date the Paying Agent holds
money sufficient to pay all of the principal and interest due on the Securities
payable on that date, and is not prohibited from paying such money to the
Holders pursuant to the terms of this Indenture, 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 Holdings or any of its Affiliates shall be disre-
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garded, 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 a Trust Officer of the Trustee actually knows are so owned shall
be disregarded. Holdings shall notify the Trustee, in writing, when Holdings or
any of its Affiliates repurchases or otherwise acquires Securities, of the
aggregate principal amount of such Securities so repurchased or otherwise
acquired.
SECTION 2.10. Temporary Securities.
Until definitive Securities are ready for delivery, Holdings may prepare
and the Trustee shall authenticate temporary Securities upon receipt of a
written order of Holdings in the form of an Officers' Certificate. The Officers'
Certificate shall specify the amount of temporary Securities to be authenticated
and the date on which the temporary Securities are to be authenticated.
Temporary Securities shall be substantially in the form of definitive
Securities but may have variations that Holdings considers appropriate for
temporary Securities. Without unreasonable delay, Holdings shall prepare and the
Trustee shall authenticate upon receipt of a written order of Holdings pursuant
to Section 2.02 definitive Securities in exchange for temporary Securities.
SECTION 2.11. Cancellation.
Holdings 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
Trustee, or at the direction of the Trustee, the Registrar or the Paying Agent,
and no one else, shall cancel, and at the written direction of Holdings, dispose
of and deliver evidence of such disposal of all Securities surrendered for
transfer, exchange, payment or cancellation. Subject to Section 2.07, Holdings
may not issue new Securities to replace Securities that they have paid or
delivered to the Trustee for cancellation. If Holdings shall acquire any of the
Securities, such acquisition shall not operate as a redemption or satisfaction
of the Indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation pursuant to this Section 2.11.
SECTION 2.12. Defaulted Interest.
Holdings shall pay interest on overdue principal from time to time on
demand at the rate of interest then borne by the Securities. Holdings shall, to
the extent lawful, pay interest on overdue installments of interest (without
regard to any applicable grace periods) from time to time on demand at the rate
of interest then borne by the Securities.
If Holdings defaults in a payment of interest on the Securities, it shall
pay the defaulted interest, plus (to the extent lawful) any interest payable on
the defaulted interest to the Persons who are Holders on a subsequent special
record date, which date shall be the fifteenth day preceding the date fixed by
Holdings for the payment of defaulted interest or the next succeeding Business
Day if such date is not a Business Day. At least 15 days before the subsequent
special record date, Holdings shall mail to each Holder, with a copy to the
Trustee, a notice that states the subsequent special record date, the payment
date and the amount of defaulted interest, and interest payable on such
defaulted interest, if any, to be paid.
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Notwithstanding the foregoing, any interest which is paid prior to the
expiration of the 30-day period set forth in Section 6.01(a) shall be paid to
Holders as of the Interest Record Date for the Interest Payment Date for which
interest has not been paid.
SECTION 2.13. CUSIP Number.
Holdings in issuing the Securities will use a "CUSIP" number and the
Trustee shall use the CUSIP number in notices of redemption or exchange as a
convenience to Holders; provided, however, that any such notice may state that
no representation is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Securities, and that reliance may be placed only
on the other identification numbers printed on the Securities. Holdings shall
promptly notify the Trustee in writing of any changes in CUSIP numbers.
SECTION 2.14. Deposit of Moneys.
On the Business Day immediately preceding each Interest Payment Date,
Redemption Date, and the Final Maturity Date, Holdings shall deposit with the
Paying Agent in immediately available funds money sufficient to make cash
payments, if any, due on such Interest Payment Date, Redemption Date or Final
Maturity Date, as the case may be, in a timely manner which permits the Paying
Agent to remit payment to the Holders on such Interest Payment Date, Redemption
Date or Final Maturity Date, as the case may be.
SECTION 2.15. Book-Entry Provisions for Global Securities.
(a) The Global Securities initially shall (i) be registered in the name of
the Depository or the nominee of such Depository, (ii) be delivered to the
Trustee as custodian for such Depository and (iii) bear legends as set forth in
Exhibit C.
Members of, or participants in, the Depository ("Participants") shall have
no rights under this Indenture with respect to any Global Security held on their
behalf by the Depository, or the Trustee as its custodian, or under the Global
Security, and the Depository may be treated by Holdings, the Trustee and any
agent of Holdings or the Trustee as the absolute owner of the Global Security
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent Holdings, the Trustee or any agent of Holdings or the Trustee from
giving effect to any written certification, proxy or other authorization
furnished by the Depository or impair, as between the Depository and
Participants, the operation of customary practices governing the exercise of the
rights of a Holder of any Security.
(b) Transfers of Global Securities shall be limited to transfers in whole,
but not in part, to the Depository, its successors or their respective nominees.
Interests of beneficial owners in the Global Securities may be transferred or
exchanged for Physical Securities in accordance with the rules and procedures of
the Depository and the provisions of Section 2.16; provided, however, that
Physical Securities shall be transferred to all beneficial owners in exchange
for their beneficial interests in Global Securities if (i) the Depository
notifies Holdings that it is unwilling or unable to continue as Depository for
any Global Security and a successor Depository is not appointed by Holdings
within 90 days of such notice or (ii) an Event of Default has occurred and is
continuing and the Registrar has received a request from the Depository to issue
Physical Securities.
(c) In connection with the transfer of Global Securities as an entirety to
beneficial owners pursuant to paragraph (b) of this Section 2.15, the Global
Securities shall be deemed to be surrendered to the Trustee for cancellation,
and Holdings shall execute, and the Trustee shall upon written instructions from
Hold-
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ings authenticate and deliver, to each beneficial owner identified by the
Depository in exchange for its beneficial interest in the Global Securities, an
equal aggregate principal amount of Physical Securities of authorized
denominations.
(d) Any Physical Security constituting a Restricted Security delivered in
exchange for an interest in a Global Security pursuant to paragraph (c) of this
Section 2.15 shall, except as otherwise provided by Section 2.16, bear the
Private Placement Legend.
(e) The Holder of any Global Security may grant proxies and otherwise
authorize any Person, including Participants and Persons that may hold interests
through Participants, to take any action which a Holder is entitled to take
under this Indenture or the Securities.
SECTION 2.16. Registration of Transfers and Exchanges.
(a) Transfer and Exchange of Physical Securities. When Physical Securities
are presented to the Registrar (so long as the Trustee is the Registrar, such
presentment to be made at the Corporate Trust Operations Office of the Trustee)
or co-Registrar with a request:
(i) to register the transfer of the Physical Securities; or
(ii) to exchange such Physical Securities for an equal principal amount of
Physical Securities of other authorized denominations,
the Registrar or co-Registrar shall register the transfer or make the exchange
as requested if the requirements under this Indenture as set forth in this
Section 2.16 for such transactions are met; provided, however, that the Physical
Securities presented or surrendered for registration of transfer or exchange:
(A) shall be duly endorsed or accompanied by a written instrument of
transfer in form satisfactory to the Registrar or co-Registrar, duly
executed by the Holder thereof or his attorney-in-fact duly authorized in
writing; and
(B) in the case of Physical Securities the offer and sale of which
have not been registered under the Securities Act, such Physical Securities
shall be accompanied, in the sole discretion of Holdings, by the following
additional information and documents, as applicable:
(I) if such Physical Security is being delivered to the
Registrar or co-Registrar by a Holder for
registration in the name of such Holder, without
transfer, a certification from such Holder to that
effect (substantially in the form of Exhibit D
hereto); or
(II) if such Physical Security is being transferred to a
QIB in accordance with Rule 144A, a certification to
that effect (substantially in the form of Exhibit D
hereto); or
(III) if such Physical Security is being transferred to an
Institutional Accredited Investor, delivery of a
certification to that effect (substantially in the
form of Exhibit D hereto) and a transferee letter of
representation (substantially in the form of Exhibit
E hereto) and, at the option of Holdings, an Opinion
of Counsel reasonably satisfactory to Holdings to the
effect that such transfer is in compliance with the
Securities Act; or
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(IV) if such Physical Security is being transferred in
reliance on Rule 144 under the Securities Act,
delivery of a certification to that effect
(substantially in the form of Exhibit D hereto) and,
at the option of Holdings, an Opinion of Counsel
reasonably satisfactory to Holdings to the effect
that such transfer is in compliance with the
Securities Act; or
(V) if such Physical Security is being transferred in
reliance on Regulation S, delivery of a certification
to that effect (substantially in the form of Exhibit
D hereto) and a transferor certificate for Regulation
S transfers (substantially in the form of Exhibit F
hereto) and, at the option of Holdings, an Opinion of
Counsel reasonably satisfactory to Holdings to the
effect that such transfer is in compliance with the
Securities Act; or
(VI) if such Physical Security is being transferred in
reliance on another exemption from the registration
requirements of the Securities Act, a certification
to that effect (substantially in the form of Exhibit
D hereto) and, at the option of Holdings, an Opinion
of Counsel reasonably acceptable to Holdings to the
effect that such transfer is in compliance with the
Securities Act.
(b) Restrictions on Transfer of a Physical Security for a Beneficial
Interest in a Global Security. A Physical Security the offer and sale of which
has not been registered under the Securities Act may not be exchanged for a
beneficial interest in a Global Security except upon satisfaction of the
requirements set forth below. Upon receipt by the Registrar or co-Registrar of a
Physical Security, duly endorsed or accompanied by appropriate instruments of
transfer, in form satisfactory to the Registrar or co-Registrar, together with:
(i) certification, substantially in the form of Exhibit D hereto, that
such Physical Security is being transferred (A) to a QIB, (B) to an
Institutional Accredited Investor or (C) in an offshore transaction in
reliance on Regulation S and, with respect to (B) or (C), at the option of
Holdings, an Opinion of Counsel reasonably acceptable to Holdings to the
effect that such transfer is in compliance with the Securities Act; and
(ii) written instructions directing the Registrar or co-Registrar to
make, or to direct the Depository to make, an endorsement on the applicable
Global Security to reflect an increase in the aggregate amount of the
Securities represented by the Global Security,
then the Registrar or co-Registrar shall cancel such Physical Security and
cause, or direct the Depository to cause, in accordance with the standing
instructions and procedures existing between the Depository and the Registrar or
co-Registrar, the principal amount of Securities represented by the applicable
Global Security to be increased accordingly. If no 144A Global Security, IAI
Global Security or Regulation S Global Security, as the case may be, is then
outstanding, Holdings shall, unless either of the events in the proviso to
Section 2.15(b) have occurred and are continuing, issue and the Trustee shall,
upon written instructions from Holdings in accordance with Section 2.02,
authenticate such a Global Security in the appropriate principal amount.
(c) Transfer and Exchange of Global Securities. The transfer and exchange
of Global Securities or beneficial interests therein shall be effected through
the Depository in accordance with this Indenture (including the restrictions on
transfer set forth herein) and the procedures of the Depository therefor. Upon
receipt by the Registrar or Co-Registrar of written instructions, or such other
instruction as is customary for the Depository, from the Depository or its
nominee, requesting the registration of transfer of an interest in a 144A Global
Security, an IAI Global Security or a Regulation S Global Security, as the case
may be, to another type of Global Security, together with the applicable Global
Securities (or, if the applicable type of Global Security re-
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quired to represent the interest as requested to be obtained is not then
outstanding, only the Global Security representing the interest being
transferred), the Registrar or Co-Registrar shall reflect on its books and
records (and the applicable Global Security) the applicable increase and
decrease of the principal amount of Securities represented by such types of
Global Securities, giving effect to such transfer. If the applicable type of
Global Security required to represent the interest as requested to be obtained
is not outstanding at the time of such request, Holdings shall issue and the
Trustee shall, upon written instructions from Holdings in accordance with
Section 2.02, authenticate a new Global Security of such type in principal
amount equal to the principal amount of the interest requested to be
transferred.
(d) Transfer of a Beneficial Interest in a Global Security for a Physical
Security.
(i) Any Person having a beneficial interest in a Global Security may
upon request exchange such beneficial interest for a Physical Security;
provided, however, that prior to the Registration, a transferee that is a
QIB or Institutional Accredited Investor may not exchange a beneficial
interest in Global Security for a Physical Security. Upon receipt by the
Registrar or co-Registrar of written instructions, or such other form of
instructions as is customary for the Depository, from the Depository or its
nominee on behalf of any Person having a beneficial interest in a Global
Security and upon receipt by the Trustee of a written order or such other
form of instructions as is customary for the Depository or the Person
designated by the Depository as having such a beneficial interest
containing registration instructions and, in the case of any such transfer
or exchange of a beneficial interest in Securities the offer and sale of
which have not been registered under the Securities Act, the following
additional information and documents:
(A) if such beneficial interest is being transferred in
reliance on Rule 144 under the Securities Act,
delivery of a certification to that effect
(substantially in the form of Exhibit D hereto) and,
at the option of Holdings, an Opinion of Counsel
reasonably satisfactory to Holdings to the effect
that such transfer is in compliance with the
Securities Act; or
(B) if such beneficial interest is being transferred in
reliance on another exemption from the registration
requirements of the Securities Act, a certification
to that effect (substantially in the form of Exhibit
D hereto) and, at the option of Holdings, an Opinion
of Counsel reasonably satisfactory to Holdings to the
effect that such transfer is in compliance with the
Securities Act,
then the Registrar or co-Registrar will cause, in accordance with the
standing instructions and procedures existing between the Depository and
the Registrar or co-Registrar, the aggregate principal amount of the
applicable Global Security to be reduced and, following such reduction,
Holdings will execute and, upon receipt of an authentication order in the
form of an Officers' Certificate in accordance with Section 2.02, the
Trustee will authenticate and deliver to the transferee a Physical Security
in the appropriate principal amount.
(ii) Securities issued in exchange for a beneficial interest in a
Global Security pursuant to this Section 2.16(d) shall be registered in
such names and in such authorized denominations as the Depository, pursuant
to instructions from its direct or indirect participants or otherwise,
shall instruct the Registrar or co-Registrar in writing. The Registrar or
co-Registrar shall deliver such Physical Securities to the Persons in whose
names such Physical Securities are so registered.
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(e) Restrictions on Transfer and Exchange of Global Securities.
Notwithstanding any other provisions of this Indenture, a Global Security may
not be transferred as a whole except by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
(f) Private Placement Legend. Upon the transfer, exchange or replacement of
Securities not bearing the Private Placement Legend, the Registrar or
co-Registrar shall deliver Securities that do not bear the Private Placement
Legend. Upon the transfer, exchange or replacement of Securities bearing the
Private Placement Legend, the Registrar or co-Registrar shall deliver only
Securities that bear the Private Placement Legend unless, and the Trustee is
hereby authorized to deliver Securities without the Private Placement Legend if,
(i) there is delivered to the Trustee an Opinion of Counsel reasonably
satisfactory to Holdings and the Trustee to the effect that neither such legend
nor the related restrictions on transfer are required in order to maintain
compliance with the provisions of the Securities Act; (ii) such Security has
been sold pursuant to an effective registration statement under the Securities
Act (including pursuant to a Registration); or (iii) the date of such transfer,
exchange or replacement is two years after the later of (x) the Issue Date and
(y) the last date that Holdings or any affiliate (as defined in Rule 144 under
the Securities Act) of Holdings was the owner of such Securities (or any
predecessor thereto).
(g) General. By its acceptance of any Security bearing the Private
Placement Legend, each Holder of such a Security acknowledges the restrictions
on transfer of such Security set forth in this Indenture and in the Private
Placement 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 Participants 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.
The Registrar shall retain copies of all letters, notices and other written
communications received pursuant to Section 2.15 or this Section 2.16. Holdings
shall have the right to inspect and make copies of all such letters, notices or
other written communications at any reasonable time upon the giving of
reasonable written notice to the Registrar.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.
If Holdings elects 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. Holdings shall give such notice to the Trustee at
least 45 days before
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the Redemption Date (unless a shorter notice shall be agreed to by the Trustee
in writing), 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 of the Securities, the Trustee shall select the Securities to be redeemed in
compliance with the requirements of the national securities exchange, if any, on
which the Securities are listed or, in the absence of such requirements or if
the Securities are not then listed on a national securities exchange, on a pro
rata basis, by lot or in such other manner as may be required pursuant to this
Indenture or otherwise as the Trustee shall deem fair and appropriate. 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 pursuant to paragraph 5 of the
Securities portions of the principal amount of Securities that have
denominations equal to or larger than $1,000 principal amount. Securities and
portions of them the Trustee so selects shall be in amounts of $1,000 principal
amount or integral multiples thereof. 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,
Holdings shall mail a notice of redemption by first-class mail to each Holder
whose Securities are to be redeemed at such Holder's registered address.
Each notice of redemption shall identify the Securities to be redeemed
(including the CUSIP number thereon) and shall state:
(1) the Redemption Date;
(2) the redemption price;
(3) the name and address of the Paying Agent to which the Securities
are to be surrendered for redemption;
(4) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(5) that, as long as Holdings has deposited with the Paying Agent
funds in satisfaction of the applicable redemption price pursuant to this
Indenture, 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;
(6) in the case of any redemption pursuant to paragraph 5 of the
Securities, 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; and
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(7) that no representation is made as to the accuracy of the CUSIP
number listed in such notice or printed on such Security.
At Holdings' written request, the Trustee shall give the notice of
redemption on behalf of Holdings, in Holdings' name and at Holdings' 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, if any, to the Redemption Date.
SECTION 3.05. Deposit of Redemption Price.
At least one Business Day before the Redemption Date, Holdings shall
deposit with the Paying Agent (or if Holdings is its own Paying Agent, it shall,
on or before the Redemption Date, segregate and hold in trust) money sufficient
to pay the redemption price of and accrued interest, if any, 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 Holdings to the Trustee for
cancellation.
If any Security surrendered for redemption in the manner provided in the
Securities shall not be so paid on the Redemption Date due to the failure of
Holdings to deposit with the Paying Agent money sufficient to pay the redemption
price thereof, the principal and accrued and unpaid interest, if any, thereon
shall, until paid or duly provided for, bear interest as provided in Sections
2.12 and 4.01 with respect to any payment default.
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.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities.
Holdings shall pay the principal of and interest on the Securities in the
manner provided in this Indenture, the Securities and the Registration Rights
Agreement. An installment of principal or interest shall be considered paid on
the date due if the Trustee or Paying Agent (other than Holdings or any
Affiliates of Holdings) 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.
Holdings shall pay cash interest on overdue principal at the same rate per
annum borne by the Securities. Holdings shall pay cash interest on overdue
installments of interest at the same rate per annum borne by the Securities, to
the extent lawful, as provided in Section 2.12.
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SECTION 4.02. Maintenance of Office or Agency.
Holdings shall give prompt written notice to the Trustee of the location,
and any change in the location, of any office or agency required by Section
2.03. If at any time Holdings 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 Article 10. Holdings hereby initially
designates the Trustee at its address set forth in Section 10.02 as its office
for such purposes.
SECTION 4.03. Limitation on Incurrence of Additional Indebtedness and
Issuance of Disqualified Capital Stock.
Holdings shall not, and shall not permit any of its Restricted Subsidiaries
to, directly or indirectly, create, incur, assume, guarantee or otherwise become
directly or indirectly liable, contingently or otherwise, with respect to
(collectively, "incur") any Indebtedness (other than Permitted Indebtedness) and
Holdings will not issue any Disqualified Capital Stock and will not permit its
Restricted Subsidiaries to issue any Preferred Stock except Preferred Stock of a
Restricted Subsidiary issued to (and as long as it is held by) Holdings or a
Wholly Owned Restricted Subsidiary of Holdings; provided, however, that if no
Default or Event of Default shall have occurred and be continuing at the time of
or as a consequence of the incurrence of any such Indebtedness, Holdings may
incur Indebtedness (including, without limitation, Acquired Indebtedness) and
Holdings may issue Disqualified Capital Stock of Holdings, if, in either case,
at the time of and immediately after giving pro forma effect to such incurrence
of such Indebtedness or the issuance of such Disqualified Capital Stock, as the
case may be, and the use of proceeds therefrom, Holdings' Consolidated Fixed
Charge Coverage Ratio is greater than 2.0 to 1.0.
Holdings shall not incur any Indebtedness that purports to be by its terms
(or by the terms of any agreement governing such Indebtedness) subordinated to
any other Indebtedness of Holdings unless such Indebtedness is also by its terms
(or by the terms of any agreement governing such Indebtedness) made expressly
subordinated to the Securities to the same extent and in the same manner as such
Indebtedness is subordinated to such other Indebtedness.
For purposes of determining compliance with this Section 4.03, in the event
that an item of Indebtedness meets the criteria of more than one of the types of
Indebtedness described in the various clauses of the definition of Permitted
Indebtedness, Holdings, in its sole discretion, shall classify such item of
Indebtedness and shall only be required to include the amount and type of such
Indebtedness in one of such clauses.
SECTION 4.04. Limitation on Restricted Payments.
Holdings shall not, and shall not cause or permit any Restricted Subsidiary
to, directly or indirectly, (a) declare or pay any dividend or make any
distribution (other than dividends or distributions payable in Qualified Capital
Stock of Holdings) on or in respect of shares of Holdings' Capital Stock, (b)
redeem any Capital Stock of Holdings or any warrants, rights or options to
purchase or acquire shares of any class of such Capital Stock, or (c) make any
Investment (other than Permitted Investments) (each of the foregoing actions set
forth in clauses (a), (b), and (c) being referred to as a "Restricted Payment"),
if at the time of such Restricted Payment or immediately after giving effect
thereto, (i) a Default shall have occurred and be continuing or (ii) Holdings is
not able to incur at least $1.00 of additional Indebtedness (other than
Permitted Indebtedness) in compliance with Section 4.03 or (iii) the aggregate
amount of Restricted Payments (including such proposed Restricted Payment) made
subsequent to the Issue Date (the amount expended for such purposes, if other
than in
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cash, being the fair market value of such property as determined reasonably and
in good faith by the Board of Directors of Holdings) shall exceed the sum (the
"Basket"), without duplication, of: (v) 50% of the cumulative Consolidated Net
Income (or if cumulative Consolidated Net Income shall be a loss, minus 100% of
such loss) of Holdings earned subsequent to the Issue Date and on or prior to
the date the Restricted Payment occurs (the "Reference Date") (treating such
period as a single accounting period); plus (w) 100% of the aggregate net cash
proceeds received by Holdings from any Person (other than a Restricted
Subsidiary of Holdings) from the issuance and sale subsequent to the Issue Date
and on or prior to the Reference Date of Qualified Capital Stock of Holdings
(other than Qualified Capital Stock, the proceeds of which are to be used to
redeem Company Notes pursuant to the provisions described in paragraph 5(b) of
the Company Notes); plus (x) 100% of the net cash proceeds received by Holdings
from any Person (other than a Restricted Subsidiary of Holdings) from the
issuance subsequent to the Issue Date of Indebtedness convertible or
exchangeable into Qualified Capital Stock of Holdings that has actually been so
converted or exchanged, together with the aggregate net cash proceeds received
by Holdings (other than from a Restricted Subsidiary of Holdings) at the time of
such conversion or exchange; plus (y) without duplication of any amounts
included in clause (iii) (x) above, 100% of the aggregate net cash proceeds of
any equity contribution received by Holdings from a holder of Capital Stock;
plus (z) the amount equal to the net reduction in Investments (other than
Permitted Investments) made by Holdings or any of its Restricted Subsidiaries in
any Person resulting from, and without duplication, (i) repurchases or
redemptions of such Investments by such Person, proceeds realized upon the sale
of such Investment to an unaffiliated purchaser and repayments of loans or
advances or other transfers of assets by such Person to Holdings or any
Restricted Subsidiary of Holdings or (ii) the redesignation of Unrestricted
Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the
definition of "Investment") not to exceed, in the case of any Restricted
Subsidiary, the amount of Investments previously made by Holdings or any
Restricted Subsidiary in such Unrestricted Subsidiary, which amount was included
in the calculation of Restricted Payments; provided, however, that no amount
shall be included under this clause (z) to the extent it is already included in
Consolidated Net Income.
Notwithstanding the foregoing, the provisions set forth in the immediately
preceding paragraph do not prohibit: (1) the payment of any dividend within 60
days after the date of declaration of such dividend if the dividend would have
been permitted on the date of declaration; (2) if no Default shall have occurred
and be continuing, (i) the acquisition of any shares of Capital Stock of
Holdings solely in exchange for shares of Qualified Capital Stock of Holdings or
(ii) the making of any Restricted Payment from the net proceeds of a
substantially concurrent sale for cash (other than to a Subsidiary of Holdings)
of shares of Qualified Capital Stock of Holdings; (3) so long as no Default
shall have occurred and be continuing, repurchases by Holdings of Common Stock
of Holdings from employees of Holdings or any of its Subsidiaries or their
authorized representatives (other than Permitted Holders) upon the death,
disability or termination of employment of such employees, in an aggregate
amount not to exceed 5% of the cumulative Consolidated Net Income of the Company
earned subsequent to the Issue Date and on or prior to the date such repurchase
occurs; and (4) any repurchase of equity interests deemed to occur upon the
exercise of stock options if such equity interest represents a portion of the
exercise price of such option. In determining the aggregate amount of Restricted
Payments made subsequent to the Issue Date in accordance with clause (iii) of
the immediately preceding paragraph, amounts expended pursuant to clauses (1),
(2)(ii), (3) and (4) shall be included in such calculation and amounts expended
pursuant to clause (2)(i) shall not be included in such calculation.
The amount of any non-cash Restricted Payment shall be the fair market
value, on the date such Restricted Payment is made, of the assets or securities
proposed to be transferred or issued by Holdings or such Restricted Subsidiary,
as the case may be, pursuant to such Restricted Payment. The fair market value
of any non-cash Restricted Payment shall be determined by the Board of Directors
of Holdings whose resolution with respect thereto shall be delivered to the
Trustee, such determination to be based upon an opinion or ap-
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praisal issued by an accounting, appraisal or investment banking firm of
national standing if such fair market value exceeds $1.5 million. Not later than
60 days after the end of any fiscal quarter (100 days in the case of the last
fiscal quarter of the fiscal year) during which any Restricted Payment is made,
Holdings shall deliver to the Trustee an Officers' Certificate stating that all
Restricted Payments made during such fiscal quarter were permitted and setting
forth the basis upon which the calculations required by this Section 4.04 were
computed, together with a copy of any opinion or appraisal required by this
Indenture.
SECTION 4.05. Limitation on Asset Sales.
Holdings shall not, and shall not permit any of its Restricted Subsidiaries
to, consummate an Asset Sale unless (i) Holdings or the applicable Restricted
Subsidiary, as the case may be, receives consideration at the time of such Asset
Sale at least equal to the fair market value of the assets sold or otherwise
disposed of (as determined in good faith by the Board of Directors of Holdings
or such Restricted Subsidiary), (ii) at least 80% of the consideration received
by Holdings or the Restricted Subsidiary, as the case may be, from such Asset
Sale shall be in the form of (x) cash or Cash Equivalents, (y) Replacement
Assets or (z) any combination of the foregoing and is received at the time of
such disposition; and (iii) upon the consummation of an Asset Sale, Holdings
shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds
relating to such Asset Sale within 270 days of receipt thereof either (A) to
prepay any Indebtedness incurred pursuant to clause (ii) or clause (xii) of the
definition of "Permitted Indebtedness" (other than subordinated Indebtedness) or
any Indebtedness for borrowed money of any Restricted Subsidiary and effect a
permanent reduction thereunder, (B) to make an investment in Replacement Assets
or (C) a combination of prepayment and investment permitted by the foregoing
clauses (iii)(A) and (iii)(B). On the 271st day after an Asset Sale or such
earlier date, if any, as the Board of Directors of Holdings or of such
Restricted Subsidiary determines, as the case may be, not to apply the Net Cash
Proceeds relating to such Asset Sale as set forth in clauses (iii)(A), (iii)(B)
and (iii)(C) of the next preceding sentence (each, a "Net Proceeds Offer Trigger
Date"), such aggregate amount of Net Cash Proceeds which have not been applied
on or before such Net Proceeds Offer Trigger Date as permitted in clauses
(iii)(A), (iii)(B) and (iii)(C) of the next preceding sentence (each a "Net
Proceeds Offer Amount") shall be applied by Holdings or such Restricted
Subsidiary to make an offer to purchase (the "Net Proceeds Offer") on a date
(the "Net Proceeds Offer Payment Date") not less than 30 nor more than 45 days
following the applicable Net Proceeds Offer Trigger Date, from all holders of
Securities and Pari Passu Indebtedness (to the extent required by the terms of
such Pari Passu Indebtedness) on a pro rata basis based on the aggregate
outstanding amount of Securities and Pari Passu Indebtedness, that amount of
Securities and Pari Passu Indebtedness in the aggregate equal to the Net
Proceeds Offer Amount at a price equal to, with respect to the Securities, 100%
of the principal amount thereof, plus accrued and unpaid interest thereon, if
any, to the date of purchase, and with respect to any Pari Passu Indebtedness,
an amount not greater than 100% of the principal amount or accreted value of
such Pari Passu Indebtedness; provided, however, that if at any time any
non-cash consideration received by Holdings or any Restricted Subsidiary, as the
case may be, in connection with any Asset Sale is converted into or sold or
otherwise disposed of for cash (other than interest received with respect to any
such non-cash consideration), then such conversion or disposition shall be
deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof
shall be applied in accordance with this covenant. Holdings may defer the Net
Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount
equal to or in excess of $5,000,000 resulting from one or more Asset Sales (at
which time, the entire unutilized Net Proceeds Offer Amount, and not just the
amount in excess of $5,000,000, shall be applied as required pursuant to this
paragraph). Pending the final application of such Net Cash Proceeds, Holdings
may temporarily cause the Company to cause the Guarantors to reduce Indebtedness
under the Revolving Credit Facility or invest such Net Cash Proceeds in Cash
Equivalents.
For purposes of clause (ii)(x) of the immediately preceding paragraph, the
term "cash" shall include the amount of any Indebtedness for borrowed money or
any Capitalized Lease Obligations (A) that is
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assumed by the transferee of any assets or property which constitutes the Asset
Sale or (B) with respect to the sale or disposition of all of the Capital Stock
of a Restricted Subsidiary, that remains the liability of such Restricted
Subsidiary subsequent to such sale or other disposition, in each case provided
that there is no further recourse to Holdings or any of its Restricted
Subsidiaries with respect to such Indebtedness.
In the event of the transfer of substantially all (but not all) of the
property and assets of Holdings and its Restricted Subsidiaries as an entirety
to a Person in a transaction permitted under Article Five, the successor
corporation shall be deemed to have sold the properties and assets of Holdings
and its Restricted Subsidiaries not so transferred for purposes of this
covenant, and shall comply with the provisions of this covenant with respect to
such deemed sale as if it were an Asset Sale. In addition, the fair market value
of such properties and assets of Holdings or its Restricted Subsidiaries deemed
to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section
4.05.
Each Net Proceeds Offer shall be mailed to the record Holders as shown on
the register of Holders within 25 days following the Net Proceeds Offer Trigger
Date, with a copy to the Trustee, and shall comply with the procedures set forth
in this Indenture. Upon receiving notice of the Net Proceeds Offer, Holders may
elect to tender their Securities in whole or in part in integral multiples of
$1,000 in exchange for cash. To the extent Holders properly tender Securities in
an amount exceeding the Net Proceeds Offer Amount, Securities of tendering
Holders will be purchased on a pro rata basis (based on amounts tendered). A Net
Proceeds Offer shall remain open for a period of 20 business days or such longer
period as may be required by applicable law.
Holdings shall comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of Securities pursuant to a Net Proceeds Offer. To the extent that
the provisions of any securities laws or regulations conflict with this Section
4.05, Holdings shall comply with the applicable securities laws and regulations
and shall not be deemed to have breached or violated any of its obligations
under this Section 4.05 by virtue thereof.
SECTION 4.06. Limitation on Dividend and Other Payment Restrictions
Affecting Subsidiaries.
Holdings shall not, and shall not cause or permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or permit to
exist or become effective any encumbrance or restriction on the ability of any
Restricted Subsidiary to (a) pay dividends or make any other distributions on or
in respect of its Capital Stock; (b) make loans or advances or to pay any
Indebtedness or other obligation owed to Holdings or any other Restricted
Subsidiary; or (c) transfer any of its property or assets to Holdings or any
other Restricted Subsidiary, except for such encumbrances or restrictions
existing under or by reason of: (1) applicable law; (2) the Indentures; (3)
customary non-assignment provisions of any contract or any lease governing a
leasehold interest of any Restricted Subsidiary; (4) any instrument governing
Acquired Indebtedness, which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other than the Person or the
properties or assets of the Person so acquired; (5) agreements existing on the
Issue Date, including, without limitation, the Credit Agreement, to the extent
and in the manner such agreements are in effect on the Issue Date; (6) an
agreement governing Indebtedness incurred to Refinance the Indebtedness issued,
assumed or incurred pursuant to an agreement referred to in clause (2), (4) or
(5) above; provided, however, that the provisions relating to such encumbrance
or restriction contained in any such Indebtedness are no less favorable, taken
as a whole, to Holdings in any material respect as determined by the Board of
Directors of Holdings in their reasonable and good faith judgment than the
provisions relating to such encumbrance or restriction contained in agreements
referred to in such clause (2), (4), (5); or (7) restrictions imposed by any
agreement to sell, or otherwise dispose of, assets pending the closing of such
sale.
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SECTION 4.07. Limitation on Liens.
Holdings shall not, and shall not cause or permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or permit or
suffer to exist any Liens of any kind against or upon any property or assets of
Holdings or any of its Restricted Subsidiaries whether owned on the Issue Date
or acquired after the Issue Date, or any proceeds therefrom, or assign or
otherwise convey any right to receive income or profits therefrom unless (i) in
the case of Liens securing Indebtedness that is expressly subordinate or junior
in right of payment to the Securities, the Securities are secured by a Lien on
such property, assets or proceeds that is senior in priority to such Liens and
(ii) in all other cases, the Securities are equally and ratably secured, except
for (1) Liens existing as of the Issue Date to the extent and in the manner such
Liens are in effect on the Issue Date; (2) Indebtedness incurred pursuant to
clause (ii) of the definition of "Permitted Indebtedness"; (3) Liens securing
the Securities, the Senior Notes and the Guarantees; (4) Liens of Holdings or a
Wholly Owned Restricted Subsidiary on assets of any Restricted Subsidiary; (5)
Liens securing Refinancing Indebtedness which is incurred to Refinance any
Indebtedness which has been secured by a Lien permitted under this Indenture and
which has been incurred in accordance with the provisions of this Indenture;
provided, however, that such Liens (x) are no less favorable, taken as a whole,
to the Holders and are not more favorable to the lienholders with respect to
such Liens than the Liens in respect of the Indebtedness being Refinanced and
(y) do not extend to or cover any property or assets of Holdings or any of its
Restricted Subsidiaries not securing the Indebtedness so Refinanced; and (6)
Permitted Liens.
SECTION 4.08. Limitations on Transactions with Affiliates.
(a) Holdings shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, enter into or permit to exist any
transaction or series of related transactions (including, without limitation,
the purchase, sale, lease or exchange of any property or the rendering of any
service) with, or for the benefit of, any of its Affiliates (each an "Affiliate
Transaction"), other than (x) Affiliate Transactions permitted under paragraph
(b) below and (y) Affiliate Transactions on terms that are no less favorable,
taken as a whole, than those that might reasonably have been obtained in a
comparable transaction at such time on an arm's-length basis from a Person that
is not an Affiliate of Holdings or such Restricted Subsidiary. All Affiliate
Transactions (and each series of related Affiliate Transactions which are
similar or part of a common plan) involving aggregate payments or other property
with a fair market value in excess of $500,000 shall be approved by the Board of
Directors of Holdings or such Restricted Subsidiary, as the case may be, such
approval to be evidenced by a Board Resolution stating that such Board of
Directors has determined that such transaction complies with the foregoing
provisions. If Holdings or any Restricted Subsidiary enters into an Affiliate
Transaction (or a series of related Affiliate Transactions related to a common
plan) that involves an aggregate fair market value of more than $1,500,000,
Holdings or such Restricted Subsidiary, as the case may be, shall, prior to the
consummation thereof, obtain a favorable opinion as to the fairness of such
transaction or series of related transactions to Holdings or the relevant
Restricted Subsidiary, as the case may be, from a financial point of view, from
an Independent Financial Advisor and file the same with the Trustee.
(b) The restrictions set forth in clause (a) shall not apply to (i)
reasonable fees and compensation paid to and indemnity provided on behalf of,
officers, directors, employees or consultants of Holdings or any Restricted
Subsidiary in the ordinary course as determined in good faith by the Board of
Directors of Holdings or such Restricted Subsidiary; (ii) transactions
exclusively between or among Holdings and any of its Wholly Owned Restricted
Subsidiaries or exclusively between or among such Wholly Owned Restricted
Subsidiaries, provided such transactions are not otherwise prohibited by the
Indentures; (iii) any written agreement as in effect as of the Issue Date or any
amendment thereto or any transaction contemplated thereby (including pursuant to
any amendment thereto so long as any such amendment is not more disadvantageous
to the Holders
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in any material respect than the agreement as in effect on the Issue Date); (iv)
loans or advances to employees of Holdings or any Restricted Subsidiary (other
than Permitted Holders) in the ordinary course and in an aggregate amount not to
exceed $250,000 at any one time outstanding; (v) payments (A) to P&E Properties,
Inc. or any of its Affiliates in an aggregate amount not to exceed $600,000 in
any fiscal year to pay management fees and (B) to reimburse P&E Properties, Inc.
or any of its Affiliates for reasonable services and out-of-pocket and other
costs and expenses actually incurred in connection with such services; and (vi)
payments permitted by Section 4.04.
SECTION 4.09. Subsidiaries.
Holdings shall not have any Subsidiaries except Wholly Owned Restricted
Subsidiaries and Unrestricted Subsidiaries.
SECTION 4.10. Designation of Unrestricted Subsidiaries.
Holdings may designate after the Issue Date any Subsidiary of Holdings as
an "Unrestricted Subsidiary" under this Indenture (a "Designation") only if:
(i) no Default or Event of Default shall have occurred and be
continuing at the time of or after giving effect to such Designation; and
(ii) Holdings would be permitted to make an Investment (other than a
Permitted Investment) at the time of such Designation (assuming the
effectiveness of such Designation) pursuant to Section 4.04 in an amount
(the "Designation Amount") equal to the fair market value of Holdings'
proportionate interest in the net worth of such Subsidiary on such date
calculated in accordance with GAAP.
Neither Holdings nor any Restricted Subsidiary shall at any time (x)
provide credit support for or guarantee any Indebtedness of any Unrestricted
Subsidiary (including any undertaking, agreement or instrument evidencing such
Indebtedness); provided, that Holdings may pledge equity interests or
Indebtedness of any Unrestricted Subsidiary on a nonrecourse basis such that the
pledgee has no claim whatsoever against Holdings other than to obtain such
pledged property, (y) be directly or indirectly liable for any Indebtedness of
any Unrestricted Subsidiary or (z) be directly or indirectly liable for any
Indebtedness which provides that the holder thereof may (upon notice, lapse of
time or both) declare a default thereon or cause the payment thereof to be
accelerated or payable prior to its final scheduled maturity upon the occurrence
of a default with respect to any Indebtedness of any Unrestricted Subsidiary,
except for any nonrecourse guarantee given solely to support the pledge by
Holdings of the Capital Stock of any Unrestricted Subsidiary. For purposes of
the foregoing, the Designation of a Subsidiary of Holdings as an Unrestricted
Subsidiary shall be deemed to include the Designation of all of the Subsidiaries
of such Subsidiary.
Any such Designation by Holdings shall be evidenced to the Trustee by
promptly filing with the Trustee a copy of a Board Resolution of Holdings giving
effect to such designation and an Officers' Certificate certifying that such
designation complied with the foregoing provisions.
SECTION 4.11. Conduct of Business.
Holdings and its Restricted Subsidiaries shall not engage in any businesses
other than Permitted Businesses.
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SECTION 4.12. Reports to Holders.
Holdings shall deliver to the Trustee within 15 days after the filing of
the same with the Commission, copies of the quarterly and annual reports and of
the information, documents and other reports, if any, which Holdings is required
to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act.
Notwithstanding that Holdings may not be subject to the reporting requirements
of Section 13 or 15(d) of the Exchange Act, Holdings shall file with the
Commission, to the extent permitted, and provide the Trustee and Holders with
such annual reports and such information, documents and other reports specified
in Sections 13 and 15(d) of the Exchange Act. For so long as any Securities
remain outstanding, Holdings shall furnish to the Holders and to securities
analysts and prospective investors, upon their request, the information required
to be delivered pursuant to Rule 144A(d)(4) under the Securities Act, and, to
any beneficial holder of Securities, if not obtainable from the SEC, information
of the type that would be filed with the SEC pursuant to the foregoing
provisions, upon the request of any such holder. The first such report that
Holdings shall be required to deliver shall be for the period ending June 30,
1998.
SECTION 4.13. Payments for Consents.
Neither Holdings nor any of its Subsidiaries shall, directly or indirectly,
pay or cause to be paid any consideration, whether by way of interest, fee or
otherwise, to any Holder of any Securities for or as an inducement to any
consent, waiver or amendment of any of the terms or provisions of this Indenture
or the Securities unless such consideration is offered to be paid or is paid to
all Holders of the Securities that consent, waive or agree to amend in the time
frame set forth in the solicitation documents relating to such consent, waiver
or agreement.
SECTION 4.14. Limitation on Investment Company Status.
Holdings and its Subsidiaries shall not take any action, or otherwise
permit to exist any circumstance, that would require Holdings to register as an
"investment company" under the Investment Company Act of 1940, as amended.
SECTION 4.15. Notice of Defaults.
(a) In the event that any Indebtedness of Holdings or any of its
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, Holdings shall
promptly give written notice to the Trustee of such declaration, the status of
such Default or event and what action Holdings is taking or proposes to take
with respect thereto.
(b) Upon becoming aware of the occurrence and continuation of any Default
or Event of Default, Holdings shall promptly deliver an Officers' Certificate to
the Trustee specifying the Default or Event of Default.
SECTION 4.16. Change of Control.
(a) Upon the occurrence of a Change of Control, each Holder shall have the
right to require that Holdings purchase all or a portion of such Holder's
Securities pursuant to the offer described below (the "Change of Control
Offer"), at a purchase price equal to 101% of the principal amount at maturity
plus accrued and unpaid interest, if any, to the date of purchase.
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(b) Prior to the mailing of the notice referred to below, but in any event
within 30 days following the date on which Holdings becomes aware that a Change
of Control has occurred (the "Change of Control Date"), Holdings covenants that
if the purchase of the Securities would violate or constitute a default under
any other Indebtedness of Holdings, then Holdings shall, to the extent needed to
permit such purchase of Securities, either (i) repay all such Indebtedness and
terminate all commitments outstanding thereunder or (ii) obtain the requisite
consents, if any, under any such Indebtedness to permit the purchase of the
Securities as provided below. Holdings shall first comply with the covenant in
the preceding sentence before it will be required to make the Change of Control
Offer or purchase the Securities pursuant to the provisions described below.
(c) Within 30 days following the date on which a Change of Control has
occurred, Holdings shall send, by first class mail, a notice to each Holder,
with a copy to the Trustee, which notice shall govern the terms of the Change of
Control Offer. The notice to the Holders shall contain all instructions and
materials necessary to enable such Holders to tender Securities pursuant to the
Change of Control Offer. Such notice shall state:
(1) that the Change of Control Offer is being made pursuant to this
Section 4.16 and that all Securities validly tendered and not withdrawn
will be accepted for payment;
(2) the purchase price (including the amount of accrued interest, if
any), and the purchase date (which shall be a Business Day no earlier than
30 days nor later than 60 days from the date such notice is mailed, other
than as may be required by law) (the "Change of Control Payment Date");
(3) that any Security not tendered will continue to accrue interest;
(4) that, unless Holdings defaults in making payment therefor, any
Security accepted for payment pursuant to the Change of Control Offer shall
cease to accrue interest after the Change of Control Payment Date;
(5) that Holders electing to have a Security purchased pursuant to a
Change of Control Offer will be required to surrender the Security, with
the form entitled "Option of Holder to Elect Purchase" on the reverse of
the Security completed, to the Paying Agent for the Securities at the
address specified in the notice prior to the close of business on the third
Business Day prior to the Change of Control Payment Date;
(6) that Holders shall be entitled to withdraw their election if the
Paying Agent receives, not later than three Business Days prior to the
Change of Control Payment Date, a telegram, telex, facsimile transmission
or letter setting forth the name of the Holder, the principal amount of the
Securities the Holder delivered for purchase and a statement that such
Holder is withdrawing his election to have such Security purchased;
(7) that Holders whose Securities are purchased only in part shall be
issued new Securities in a principal amount equal to the unpurchased
portion of the Securities surrendered; provided, however, that each
Security purchased and each new Security issued shall be in a principal
amount of $1,000 or integral multiples thereof; and
(8) the circumstances and relevant facts regarding such Change of
Control.
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(d) On or before the Change of Control Payment Date, Holdings shall (i)
accept for payment Securities or portions thereof (in integral multiples of
$1,000) validly tendered pursuant to the Change of Control Offer, (ii) deposit
with the Paying Agent in accordance with Section 2.14 cash in U.S. dollars or
United States Government Obligations sufficient to pay the purchase price plus
accrued and unpaid interest, if any, of all Securities so tendered and (iii)
deliver to the Trustee Securities so accepted together with an Officers'
Certificate stating the Securities or portions thereof being purchased by
Holdings. Upon receipt by the Paying Agent of the monies specified in clause
(ii) above and a copy of the Officers' Certificate specified in clause (iii)
above, the Paying Agent shall promptly mail to the Holders of Securities so
accepted payment in an amount equal to the purchase price plus accrued and
unpaid interest, if any, out of the funds deposited with the Paying Agent in
accordance with the immediately preceding sentence. The Trustee shall promptly
authenticate and mail to such Holders new Securities equal in principal amount
to any unpurchased portion of the Securities surrendered. Upon the payment of
the purchase price for the Securities accepted for purchase, the Trustee shall
return the Securities purchased to Holdings for cancellation. Any monies
remaining after the purchase of Securities pursuant to a Change of Control Offer
shall be returned within three Business Days by the Trustee to Holdings except
with respect to monies owed as obligations to the Trustee pursuant to Article
Eight. For purposes of this Section 4.16, the Trustee shall, except with respect
to monies owed as obligations to the Trustee pursuant to Article Seven, act as
the Paying Agent.
(e) Holdings shall comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the purchase
of the Securities pursuant to a Change of Control Offer. To the extent that the
provisions of any securities laws or regulations conflict with the provisions of
this Indenture relating to a Change of Control Offer, Holdings shall comply with
the applicable securities laws and regulations and shall not be deemed to have
breached its obligations relating to such Change of Control Offer by virtue
thereof.
SECTION 4.17. Compliance Certificate.
Holdings shall deliver to the Trustee within 120 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 Holdings has been made under the supervision of the
signing officer 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 Holdings that occurred during such fiscal year. If they do know of
such a Default or Event of Default, their status and the action Holdings is
taking or proposes to take with respect thereto. The first certificate to be
delivered by Holdings pursuant to this Section 4.17 shall be for the fiscal year
ending March 31, 1999.
SECTION 4.18. Existence.
Subject to Article Five, Holdings shall do or shall cause to be done all
things necessary to preserve and keep in full force and effect its existence and
the corporate, partnership or other existence of each Subsidiary in accordance
with the respective organizational documents of each such Subsidiary and the
rights (charter and statutory) and material franchises of Holdings and the
Subsidiaries; provided, however, that Holdings shall not be required to preserve
any such right or franchise, or the corporate or other existence of any
Subsidiary, if the Board of Directors of Holdings shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
Holdings and the Subsidiaries, taken as a whole; provided, further, however,
that a determination of the Board of Directors of Holdings shall not be required
in the event of a merger of one or more Restricted Subsidiaries of Holdings with
or into another Restricted Subsidiary of Holdings or another Person, if the
surviving Person is a Restricted Subsidiary of Holdings organized under the laws
of the United
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States or a State thereof or of the District of Columbia. This Section 4.18
shall not prohibit Holdings from taking any other action otherwise permitted by,
and made in accordance with, the provisions of this Indenture.
SECTION 4.19. Maintenance of Properties and Insurance.
(a) Holdings shall, and shall cause each of its Restricted Subsidiaries to,
maintain its material properties in normal condition (subject to ordinary wear
and tear) and make all reasonably necessary repairs, renewals or replacements
thereto as in the judgment of Holdings may be reasonably necessary to the
conduct of the business of Holdings and its Restricted Subsidiaries; provided,
however, that nothing in this Section 4.19 shall prevent Holdings or any of its
Restricted Subsidiaries from discontinuing the operation and maintenance of any
of its properties, if such properties are, in the reasonable and good faith
judgment of the Board of Directors of Holdings or the Restricted Subsidiary, as
the case may be, no longer reasonably necessary in the conduct of their
respective businesses.
(b) Holdings shall provide or cause to be provided, for itself and each of
its Restricted Subsidiaries, insurance (including appropriate self-insurance)
against loss or damage of the kinds that, in the reasonable, good faith opinion
of Holdings, are reasonably adequate and appropriate for the conduct of the
business of Holdings and such Restricted Subsidiaries.
SECTION 4.20. Payment of Taxes and Other Claims.
Holdings shall pay or discharge or cause to be paid or discharged, before
the same shall become delinquent, (i) all material taxes, assessments and
governmental charges (including withholding taxes and any penalties, interest
and additions to taxes) levied or imposed upon it or any of its Restricted
Subsidiaries or properties of it or any of its Restricted Subsidiaries and (ii)
all material lawful claims for labor, materials, supplies and services that, if
unpaid, might by law become a Lien upon the property of it or any of its
Restricted Subsidiaries; provided, however, that there shall not be required to
be paid or discharged any such tax, assessment, charge or claim, the amount,
applicability or validity of which is being contested in good faith by
appropriate proceedings and for which adequate provision has been made or where
the failure to effect such payment or discharge is not adverse in any material
respect to the financial condition of Holdings and its Restricted Subsidiaries,
taken as a whole.
SECTION 4.21. Waiver of Stay, Extension or Usury Laws.
Holdings covenants (to the extent that it may lawfully do so) that it will
not at any time insist upon, plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay or extension law or any usury law or other
law that would prohibit or forgive Holdings from paying all or any portion of
the principal of, premium or interest on the Securities as contemplated herein,
wherever enacted, now or at any time hereafter in force, or which may affect the
obligations or the performance of this Indenture; and (to the extent that it may
lawfully do so) Holdings hereby expressly waives all benefit or advantage of any
such law, and covenants that it will not hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
SECTION 4.22. Deposit of Funds with Escrow Agent.
(a) On the Issue Date, Holdings shall deposit, or shall cause to be
deposited, with the Escrow Agent funds that together with the proceeds from the
investment thereof will be sufficient to pay the first six scheduled interest
payments on the Securities (excluding any additional amounts which may become
due
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pursuant to the Registration Rights Agreement). All Escrow Collateral shall be
held in the Escrow Account until permitted to be disbursed pursuant to the
Holdings Escrow Agreement and then shall be disbursed strictly in accordance
with the terms thereof.
(b) Pending release of the Escrow Funds as provided in the Holdings Escrow
Agreement, the Escrow Funds will be invested in accordance with the Holdings
Escrow Agreement as directed in writing by Holdings. Any interest or other
profit resulting from such investment will be deposited in the Escrow Account.
ARTICLE FIVE
MERGERS; SUCCESSOR CORPORATION
SECTION 5.01. Merger, Consolidation and Sale of Assets.
(a) Holdings shall not, in a single transaction or series of related
transactions, consolidate or merge with or into any Person, or sell, assign,
transfer, lease, convey or otherwise dispose of (or cause or permit any
Restricted Subsidiary to sell, assign, transfer, lease, convey or otherwise
dispose of) all or substantially all of Holdings' assets (determined on a
consolidated basis for Holdings and Holdings' Restricted Subsidiaries) whether
as an entirety or substantially as an entirety to any Person unless: (i) either
(1) Holdings shall be the surviving or continuing corporation or (2) the Person
(if other than Holdings) formed by such consolidation or into which Holdings is
merged or the Person which acquires by sale, assignment, transfer, lease,
conveyance or other disposition the properties and assets of Holdings and of
Holdings' Restricted Subsidiaries substantially as an entirety (the "Surviving
Entity") (x) shall be a corporation organized and validly existing under the
laws of the United States or any state thereof or the District of Columbia and
(y) shall expressly assume, by supplemental indenture (in form and substance
reasonably satisfactory to the Trustee), executed and delivered to the Trustee,
the due and punctual payment of the principal of, and premium, if any, and
interest on all of the Securities and the performance of every covenant of the
Securities, this Indenture and the Holdings Escrow Agreement on the part of
Holdings to be performed or observed; (ii) immediately after giving effect to
such transaction and the assumption contemplated by clause (i)(2)(y) above
(including giving effect to any Indebtedness and Acquired Indebtedness incurred
or anticipated to be incurred in connection with or in respect of such
transaction), Holdings or such Surviving Entity, as the case may be, shall be
able to incur at least $1.00 of additional Indebtedness (other than Permitted
Indebtedness) pursuant to Section 4.03; (iii) immediately before and immediately
after giving effect to such transaction and the assumption contemplated by
clause (i)(2)(y) above (including, without limitation, giving effect to any
Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred
and any Lien granted in connection with or in respect of the transaction), no
Default or Event of Default shall have occurred or be continuing; and (iv)
Holdings or the Surviving Entity shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, sale, assignment, transfer, lease, conveyance or other
disposition and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture, comply with the applicable provisions
of this Indenture and that all conditions precedent in this Indenture relating
to such transaction have been satisfied.
(b) For purposes of the foregoing subsection (a), the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all of the properties or assets of one or
more Restricted Subsidiaries of Holdings the Capital Stock of which constitutes
all or substantially all of the properties and assets of Holdings, shall be
deemed to be the transfer of all or substantially all of the properties and
assets of Holdings.
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SECTION 5.02. Successor Corporation Substituted.
In the event of any transaction (other than a lease) described in and
complying with the conditions listed in Section 5.01 in which Holdings is not
the surviving person and the surviving person is to assume all the Obligations
of Holdings under the Securities, this Indenture, the Holdings Escrow Agreement
and the Registration Rights Agreement pursuant to a supplemental indenture, such
surviving person shall succeed to, and be substituted for, and may exercise
every right and power of Holdings, and Holdings shall be discharged from its
Obligations under this Indenture, the Securities, the Holdings Escrow Agreement
and the Registration Rights Agreement.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.
Each of the following shall be an "Event of Default" for purposes of this
Indenture:
(a) the failure to pay interest on any Securities when the same
becomes due and payable and the default continues for a period of 30 days;
(b) the failure to pay the principal on any Securities, when such
principal becomes due and payable, at maturity, upon redemption or
otherwise (including the failure to make a payment to purchase Securities
tendered pursuant to Section 4.05 or 4.16);
(c) a default in the observance or performance of any other covenant
or agreement contained in this Indenture which default continues for a
period of 30 days after Holdings receives written notice specifying the
default (and demanding that such default be remedied) from the Trustee or
the Holders of at least 25% of the outstanding principal amount of the
Securities (except in the case of a default with respect to Article Five,
which will constitute an Event of Default with such notice requirement but
without such passage of time requirement);
(d) a default or defaults under the terms of one or more instruments
evidencing or securing Indebtedness of Holdings or its Restricted
Subsidiaries having an outstanding principal amount of $2,000,000 or more
individually or in the aggregate that has resulted in the acceleration of
the payment of such Indebtedness or failure by Holdings or such Restricted
Subsidiary to pay principal when due at the stated maturity of any such
Indebtedness and such default or defaults shall have continued after any
applicable grace period and shall not have been cured or waived;
(e) one or more judgments in an aggregate amount in excess of
$2,000,000 shall have been rendered against Holdings or any of its
Restricted Subsidiaries and such judgments remain undischarged, unpaid or
unstayed for a period of 60 days after such judgment or judgments become
final and non-appealable;
(f) Holdings or any of its Restricted Subsidiaries pursuant to or
within the meaning of any Bankruptcy Law: (i) admits in writing its
inability to pay its debts generally as they become due; (ii) commences a
voluntary case or proceeding; (iii) consents to the entry of an order for
relief against it
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in an involuntary case or proceeding; (iv) consents or acquiesces in the
institution of a bankruptcy or insolvency proceeding against it; (v)
consents to the appointment of a Custodian of it or for all or
substantially all of its property; or (vi) makes a general assignment for
the benefit of its creditors, or any of them takes any action to authorize
or effect any of the foregoing;
(g) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that: (i) is for relief against Holdings or any of its
Restricted Subsidiaries in an involuntary case or proceeding; (ii) appoints
a Custodian of Holdings or any such Restricted Subsidiary for all or
substantially all of its property; or (iii) orders the liquidation of
Holdings or any of its Restricted Subsidiaries; 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
(h) the Holdings Escrow Agreement ceases to be in full force and
effect (other than pursuant to its terms), or is declared by a court of
competent jurisdiction to be null and void, or Holdings shall deny in
writing or fail to perform any of its obligations under the Holdings Escrow
Agreement, which failure shall continue for a period of 30 days after
Holdings receives written notice of such failure from the escrow agent.
SECTION 6.02. Acceleration.
If an Event of Default with respect to the Securities (other than an Event
of Default specified in clause (f) or (g) of Section 6.01 with respect to
Holdings or any of its Restricted Subsidiaries) shall occur and be continuing,
the Trustee may, or the Trustee upon the request of Holders of at least 25% in
principal amount of the outstanding Securities shall, or the Holders of at least
25% in aggregate principal amount of the outstanding Securities may declare the
principal of all the Securities, together with all accrued and unpaid interest
and premium, if any, to be due and payable by notice in writing to Holdings and
the Trustee specifying the respective Event of Default and that it is a "notice
of acceleration" (the "Acceleration Notice"), and the same shall become
immediately due and payable (unless all Events of Default specified in such
Acceleration Notice have been cured or waived).
If an Event of Default specified in clause (f) or (g) of Section 6.01 with
respect to Holdings or any of its Restricted Subsidiaries occurs and is
continuing, then all unpaid principal of, and premium, if any, and accrued and
unpaid interest on all of the outstanding Securities shall ipso facto become and
be immediately due and payable without any declaration or other act on the part
of the Trustee or any Holder.
At any time after a declaration of acceleration with respect to the
Securities as described in this Section 6.02, the Holders of a majority in
principal amount of the Securities may rescind and cancel such declaration and
its consequences (i) if the rescission would not conflict with any outstanding
judgment or judicial decree, (ii) if all existing Events of Default have been
cured or waived except nonpayment of principal or accrued and unpaid interest
that has become due solely because of the acceleration, (iii) to the extent the
payment of such interest is lawful, interest on overdue installments of interest
and overdue principal, which has become due otherwise than by such declaration
of acceleration, has been paid, (iv) if Holdings has paid the Trustee its
reasonable compensation and reimbursed the Trustee for its expenses,
disbursements and advances and (v) in the event of the cure or waiver of an
Event of Default of the type described in clause (f) or (g) of Section 6.01, the
Trustee shall have received an Officers' Certificate and an Opinion of Counsel
that such Event of Default has been cured or waived. No such rescission shall
affect any subsequent Default or impair any right consequent thereto. The
Holders of a majority in principal amount of the Securities may waive any
existing Default or
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Event of Default under this Indenture, and its consequences, except a Default in
the payment of the principal of or accrued and unpaid interest on any
Securities.
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, this Indenture or the Holdings Escrow Agreement.
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 Holder in exercising any right or remedy maturing
upon an Event of Default shall not impair the right or remedy or 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.
Upon a declaration of acceleration of the Securities in accordance with
Section 6.02, the Trustee shall foreclose on all Escrow Collateral and take all
other actions permitted of a secured party under the applicable Uniform
Commercial Code or otherwise.
SECTION 6.04. Waiver of Past Default.
Subject to Sections 2.09, 6.07 and 9.02, 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 (a) and (b) 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
9.02. Holdings 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, Holdings, 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 Section 316(a)(1)(B) of the TIA and such Section
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, this Indenture or the Holdings Escrow
Agreement that the Trustee determines may be unduly prejudicial to the rights of
another Holder, it being understood that the Trustee shall have no duty (subject
to Section 7.01) to ascertain whether or not such actions or forebearances are
unduly prejudicial to such Holders, 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
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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 Section 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.
SECTION 6.06. Limitation on Suits.
A Holder may not pursue any remedy with respect to this Indenture or the
Securities unless:
(i) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(ii) 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;
(iii) such Holder or Holders offer and, if requested, provide to the
Trustee indemnity satisfactory to the Trustee against any loss, liability
or expense;
(iv) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and
(v) during such 60-day period the Holders of a majority in principal
amount of the outstanding Securities do not give the Trustee a direction
which, in the opinion of the Trustee, is inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over such other Holder.
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 or interest on a 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 such Holder.
SECTION 6.08. Collection Suit by Trustee.
If an Event of Default in payment of principal or interest specified in
Section 6.01(a) or (b) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against Holdings 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 reasonable
costs and expenses of collection which would be out-of-pocket, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and legal counsel.
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 legal counsel) and the Holders
allowed in any judicial proceedings relative to Holdings (or any other obligor
upon the Securities), its creditors or its prop-
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erty 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 Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due to it for the reasonable compensation,
expenses, disbursements and 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 Holder 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
Holder in any such proceeding; provided, however, that the Trustee may, on
behalf of the Holders, vote for the election of a trustee in bankruptcy or
similar official and may be a member of the creditors' committee.
SECTION 6.10. Priorities.
If the Trustee collects any money or property pursuant to this Article Six
or the Holdings Escrow Agreement, 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 Holdings.
The Trustee, upon prior written notice to Holdings, may fix a record date
and payment date for any payment to the Holders 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 other than the Trustee of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees and expenses, against any party litigant in the suit,
having due regard to the merits and good faith of the claims or defenses made by
the party litigant.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.
(a) If a 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 man would exercise or
use under the circumstances in the conduct of his own affairs.
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(b) Except during the continuance of a Default:
(i) The Trustee agrees and undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(ii) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions conforming to
the requirements of this Indenture or the Holdings Escrow Agreement;
provided, however, that in the case of any such certificates or opinions
which by any provision hereof are specifically required to be furnished to
the Trustee, the Trustee shall examine such certificates and opinions to
determine whether or not they conform to the requirements of this Indenture
or the Holdings Escrow Agreement.
(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:
(i) This paragraph does not limit the effect of paragraph (b) of this
Section 7.01;
(ii) The Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(iii) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Sections 6.02, 6.04 and 6.05.
(d) No provision of this Indenture or the Holdings Escrow Agreement 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 from such Holders 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 received by
it except as the Trustee may agree in writing with Holdings. Money held in trust
by the Trustee need not be segregated from other funds except to the extent
required by law.
SECTION 7.02. Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may rely, and shall be protected in acting or
refraining from acting, on any document believed by it to be genuine and to
have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate and/or an Opinion of Counsel, which shall conform to
the provisions of Section 10.05. 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.
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(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) Before the Trustee acts or refrains from acting, it may consult
with legal counsel and the advice or opinion of such legal 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 legal counsel.
(f) Any request or direction of Holdings mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution.
(g) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture or the Holdings Escrow
Agreement at the request or direction of any of the Holders pursuant to
this Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request
or direction.
(h) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of Holdings,
personally or by agent or attorney.
(i) The Trustee shall not be deemed to have notice of any Event of
Default unless a Trust Officer of the Trustee has actual knowledge thereof
or unless the Trustee shall have received written notice thereof at the
Corporate Trust Office of the Trustee, and such notice references the
Securities and this Indenture.
(j) The Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder.
(k) The permissive rights of the Trustee to do things enumerated in
this Indenture shall not be construed as a duty and the Trustee shall not
be answerable for other than its gross negligence or willful misconduct.
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 Holdings 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.
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This Indenture and the provisions of the TIA contain certain limitations on
the rights of the Trustee, should it become a creditor of Holdings, to obtain
payments of claims in certain cases or to realize on certain property received
in respect of any such claim as security or otherwise. Subject to the TIA, the
Trustee will be permitted to engage in other transactions; provided that if the
Trustee acquires any conflicting interest as described in the TIA, it must
eliminate such conflict within 30 days, obtain permission within 30 days from
the Commission to continue as Trustee or resign.
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, the Holdings Escrow Agreement or the
Securities, it shall not be accountable for Holdings' use of the proceeds from
the Securities, and it shall not be responsible for any statement of Holdings 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 has actual knowledge of such Defaults or Events of Default, the Trustee
shall mail to each Holder notice of the Default or Event of Default within 30
days after obtaining such knowledge. Except in the case of a Default or an Event
of Default in payment of principal of or interest on any Security or a Default
or Event of Default in complying with Section 5.01, the Trustee may withhold the
notice if and so long as a Trust Officer in good faith determines that
withholding the notice is in the interest of the Holders. This Section 7.05
shall be in lieu of the proviso to Section 315(b) of the TIA and such proviso to
ss. 315(b) of the TIA is hereby expressly excluded from this Indenture and the
Securities, as permitted by the TIA.
SECTION 7.06. Reports by Trustee to Holders.
If required by TIA Section 313(a), within 60 days after each November 1
beginning with November 1, 1998, the Trustee shall mail to each Holder a report
dated as of such November 1 that complies with TIA Section 313(a). If required
by law, 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 Holders shall be
filed with the Commission and each stock exchange, if any, on which the
Securities are listed.
Holdings shall promptly notify the Trustee in writing if the Securities
become listed on any stock exchange or of any delisting thereof.
SECTION 7.07. Compensation and Indemnity.
Holdings shall pay to the Trustee and the Agents from time to time, and the
Trustee and the Agents shall be entitled to, such compensation as Holdings and
the Trustee and the Agents shall from time to time agree in writing for their
respective services. The Trustee's compensation shall not be limited by any law
on compensation of a trustee of an express trust. Holdings shall reimburse the
Trustee and the Agents upon request for all reasonable disbursements, expenses
and advances, including all reasonable costs and expenses of collection which
would be out-of-pocket and reasonable fees, disbursements and expenses of its
agents and outside legal counsel incurred or made by any of them in addition to
the compensation for their respective services except any such disbursements,
expenses and advances as may be attributable to negligence or willful miscon-
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duct of the party to be reimbursed. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents, accountants,
experts and outside legal counsel and any taxes or other expenses incurred by a
trust created pursuant to Section 8.01 hereof.
Holdings shall indemnify the Trustee and the Agents and each of their
directors, officers, attorneys and 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 indemnified party and taxes based upon,
measured by or determined by the income of the indemnified party) and reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel,
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses of defending
themselves against or investigating any claim 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
negligence or willful misconduct of the indemnified party. The indemnified party
shall notify Holdings promptly of any claim asserted against the indemnified
party for which it may seek indemnity. However, the failure by the indemnified
party to so notify Holdings shall not relieve Holdings of its obligations
hereunder unless Holdings has been materially prejudiced thereby. Holdings shall
defend the claim and the indemnified party shall cooperate in the defense at the
expense of Holdings; provided the Trustee may, if it so elects, have separate
legal counsel of its own choosing and Holdings shall pay the reasonable fees and
expenses of such legal counsel; provided, that Holdings will not be required to
pay such fees and expenses if they assume the Trustee's defense and there is no
conflict of interest between Holdings (on the one hand) and the Trustee (on the
other hand) in connection with such defense; provided further, however, that in
any such event, the reimbursement obligation of Holdings with respect to
separate counsel of the indemnified party will be limited to the reasonable fees
and expenses of such legal counsel.
Holdings need not pay for any settlement made without its written consent,
which consent shall not be unreasonably withheld. Holdings need not reimburse
any expense or indemnify against any loss or liability incurred by the Trustee
or an Agent as a result of its own negligence or willful misconduct.
To secure the payment obligations of Holdings 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 clause (f) or (g) of Section 6.01 occurs, the expenses
(including the reasonable fees and expenses of its agents and legal 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.
SECTION 7.08. Replacement of Trustee.
The Trustee may resign at any time by so notifying Holdings in writing. The
Holders of a majority in principal amount of the outstanding Securities may
remove the Trustee by so notifying the Trustee and Holdings in writing and may
appoint a successor Trustee with Holdings' consent. Holdings may remove the
Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged bankrupt or insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
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(c) a Custodian or other public officer takes charge of the Trustee or
its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason (the Trustee in such event being referred to herein as
the retiring Trustee), Holdings 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 Holdings.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to Holdings. 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 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
Holder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, Holdings or the
Holders of at least 25% in principal amount of the outstanding Securities may
petition, at the expense of Holdings, any court of competent jurisdiction for
the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder 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,
Holdings' obligations under Section 7.07 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;
provided, however, that such corporation shall be otherwise qualified and
eligible under this Article Seven.
SECTION 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee which shall be eligible to act
as Trustee under TIA Sections 310(a)(1) and 310(a)(2). The Trustee shall have a
combined capital and surplus of at least U.S.$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 Section 310(b), the
Trustee and Holdings shall comply with the provisions of TIA Sectiion 310(b);
provided, however, that there shall be excluded from the operation of TIA
Section 310(b)(1) any indenture or indentures under which other securities or
certificates of interest or participation in other securities of Holdings are
outstanding if the requirements for such exclusion set forth in TIA Section
310(b)(1) are met. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 7.10, the Trustee shall resign
immediately in the manner and with the effect hereinbefore specified in this
Article Seven. The provisions of TIA Section 310 shall apply to Holdings and any
other obligor of the Securities.
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SECTION 7.11. Preferential Collection of Claims Against Holdings.
The Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Termination of Holdings' Obligations.
Holdings may, at its option and at any time, terminate its obligations
under the Securities and this Indenture, except those obligations referred to in
the penultimate paragraph of this Section 8.01, if:
(a) either (i) all the Securities theretofore authenticated and
delivered (except lost, stolen or destroyed Securities which have been
replaced or paid and Securities for whose payment money has theretofore
been deposited in trust or segregated and held in trust by Holdings and
thereafter repaid to Holdings or discharged from such trust) have been
delivered to the Trustee for cancellation or (ii) all Securities not
theretofore delivered to the Trustee for cancellation have become due and
payable or have been called for redemption and Holdings has irrevocably
deposited or caused to be deposited with the Trustee funds in an amount
sufficient to pay and discharge the entire Indebtedness on the Securities
not theretofore delivered to the Trustee for cancellation, for principal
of, premium, if any, and interest on the Securities to the date of deposit
together with irrevocable instructions from Holdings directing the Trustee
to apply such funds to the payment thereof at maturity or redemption, as
the case may be;
(b) Holdings has paid all other sums payable under this Indenture by
Holdings; and
(c) Holdings has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel stating that all conditions precedent under this
Indenture relating to the satisfaction and discharge of this Indenture have
been complied with.
Notwithstanding the first paragraph of this Section 8.01, Holdings'
obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07, 7.07, 7.08, 8.05 and 8.06
shall survive until the Securities are no longer outstanding pursuant to Section
2.08. After the Securities are no longer outstanding, Holdings' obligations in
Sections 7.07, 8.05 and 8.06 shall survive.
After such delivery or irrevocable deposit, the Trustee upon request shall
acknowledge in writing the discharge of Holdings' obligations under the
Securities and this Indenture, except for those surviving obligations specified
above.
SECTION 8.02. Legal Defeasance and Covenant Defeasance
(a) Holdings may, at its option and at any time, terminate its obligations
in respect of the Securities by delivering all outstanding Securities to the
Trustee for cancellation and paying all sums payable by it on account of
principal of and interest on all Securities or otherwise. In addition to the
foregoing, Holdings
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may, at its option and at any time, elect to have either paragraph (b) or (c)
below be applied to all outstanding Securities, subject in either case to
compliance with the conditions set forth in Section 8.03.
(b) Upon Holdings' exercise under paragraph (a) hereof of the option
applicable to this paragraph (b), Holdings shall, subject to the satisfaction of
the conditions set forth in Section 8.03, be deemed to have paid and discharged
the entire indebtedness represented by the outstanding Securities, except for
(i) the rights of Holders to receive payments in respect of the principal of,
premium, if any, and interest on the Securities when such payments are due, (ii)
Holdings' obligations with respect to the Securities under Sections 2.03 through
2.07, inclusive, and 4.02, (iii) the rights, powers, trust, duties and
immunities of the Trustee under this Indenture and Holdings' obligations in
connection therewith and (iv) this Article Eight of this Indenture (hereinafter,
"Legal Defeasance"). Subject to compliance with this Article Eight, Holdings may
exercise its option under this paragraph (b) notwithstanding the prior exercise
of its option under paragraph (c) hereof.
(c) Upon Holdings' exercise under paragraph (a) hereof of the option
applicable to this paragraph (c), Holdings shall, subject to the satisfaction of
the conditions set forth in Section 8.03, be released from its obligations under
Sections 4.03 through 4.16, inclusive, 4.19, 4.20 and Article Five with respect
to the outstanding Securities (hereinafter, "Covenant Defeasance") and
thereafter any omission to comply with such obligations shall not constitute a
Default or an Event of Default with respect to the Securities.
SECTION 8.03. Conditions to Legal Defeasance or Covenant Defeasance.
In order to exercise either Legal Defeasance pursuant to Section 8.02(b) or
Covenant Defeasance pursuant to Section 8.02(c):
(a) Holdings must irrevocably deposit with the Trustee, in trust, for
the benefit of the Holders, cash in U.S. dollars or United States
Government Obligations, or a combination thereof, in such amounts as will
be sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay the principal of, premium, if any,
and interest on the Securities on the stated date for payment thereof or on
the applicable redemption date, as the case may be;
(b) in the case of an election under Section 8.02(b), Holdings shall
have delivered to the Trustee an Opinion of Counsel reasonably acceptable
to the Trustee confirming that (A) Holdings has received from, or there has
been published by, the Internal Revenue Service a ruling or (B) since the
date of this Indenture, there has been a change in the applicable federal
income tax law, in either case to the effect that, and based thereon such
Opinion of Counsel shall confirm that, the Holders will not recognize
income, gain or loss for federal income tax purposes as a result of such
Legal Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such Legal Defeasance had not occurred;
(c) in the case of an election under Section 8.02(c), Holdings shall
have delivered to the Trustee an Opinion of Counsel reasonably acceptable
to the Trustee confirming that the Holders will not recognize income, gain
or loss for federal income tax purposes as a result of such Covenant
Defeasance and will be subject to federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if
such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of
Default resulting from the borrowing of funds to be ap-
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plied to such deposit) or insofar as clauses (f) and (g) of Section 6.01
are concerned, at any time in the period ending on the 91st day after the
date of such deposit;
(e) such Legal Defeasance or Covenant Defeasance, as the case may be,
shall not result in a breach or violation of or constitute a Default under
this Indenture or any other material agreement or instrument to which
Holdings or any of its Restricted Subsidiaries is a party or by which
Holdings or any of its Restricted Subsidiaries is bound;
(f) Holdings shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by Holdings with the
intent of preferring the Holders over any other creditors of Holdings or
with the intent of defeating, hindering, delaying or defrauding any other
creditors of Holdings or others;
(g) Holdings shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the Covenant
Defeasance, as the case may be, have been complied with; and
(h) Holdings shall have delivered to the Trustee an Opinion of Counsel
to the effect that assuming no intervening bankruptcy or insolvency of
Holdings between the date of deposit and the 91st day following the deposit
and that no Holder is an insider of Holdings, after the 91st day following
the deposit, the trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar law affecting
creditors' rights generally.
Notwithstanding the foregoing, the Opinion of Counsel required by clause
(b) above need not be delivered if all Securities not theretofore delivered to
the Trustee for cancellation (x) have become due and payable, (y) will become
due and payable on the Final Maturity Date within one year or (z) are to be
called for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name, and
at the expense, of Holdings.
SECTION 8.04. Application of Trust Money; Trustee Acknowledgment and
Indemnity.
The Trustee shall hold in trust money or United States Government
Obligations deposited with it pursuant to Section 8.03, and shall apply the
deposited money and the money from United States Government Obligations in
accordance with this Indenture solely to the payment of principal of, premium,
if any, and interest on the Securities.
After such delivery or irrevocable deposit and delivery of an Officers'
Certificate and Opinion of Counsel, the Trustee upon request shall acknowledge
in writing the discharge of Holdings' obligations under the Securities and this
Indenture except for those surviving obligations specified above.
Holdings shall pay and indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against the United States Government Obligations
deposited pursuant to Section 8.03 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of outstanding Securities.
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SECTION 8.05. Repayment to Holdings.
Subject to Sections 7.07 and 8.04, the Trustee shall promptly pay to
Holdings upon written request any excess money held by it at any time. The
Trustee shall pay to Holdings 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 Holdings cause to be published once in a newspaper of general
circulation in The City of New York or mail 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 shall be repaid to
Holdings. After payment to Holdings, Holders entitled to money must look solely
to Holdings for payment as general creditors unless an applicable abandoned
property law designates another person and all liability of the Trustee or
Paying Agent with respect to such money shall thereupon cease.
SECTION 8.06. Reinstatement.
If the Trustee is unable to apply any money or United States Government
Obligations in accordance with Section 8.02 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, Holdings'
obligations under this Indenture and the Securities shall be revived and
reinstated as though no deposit had occurred pursuant to Section 8.02 until such
time as the Trustee is permitted to apply all such money or United States
Government Obligations in accordance with Section 8.02; provided, however, that
if Holdings has made any payment of interest on or principal of any Securities
because of the reinstatement of its obligations, Holdings shall be subrogated to
the rights of the Holders of such Securities to receive such payment from the
money or United States Government Obligations held by the Trustee.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.
Holdings and the Trustee may amend this Indenture or the Securities without
the consent of the Holders:
(a) to cure any ambiguity, defect or inconsistency; provided, however,
that such amendment or supplement does not, in the opinion of the Trustee,
adversely affect the rights of any Holder in any material respect;
(b) to effect the assumption by a successor Person of all obligations
of Holdings under the Securities, this Indenture and the Holdings Escrow
Agreement in connection with any transaction complying with Article Five of
this Indenture;
(c) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
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(d) to comply with any requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA;
(e) to make any change that would provide any additional benefit or
rights to the Holders;
(f) to make any other change that does not adversely affect the rights
of any Holder under this Indenture;
(g) to add to the covenants of Holdings for the benefit of the
Holders, or to surrender any right or power herein conferred upon Holdings;
or
(h) to secure the Securities pursuant to the requirements of Section
4.07 or otherwise;
provided, however, that Holdings has delivered to the Trustee an Opinion of
Counsel stating that such amendment or supplement complies with the provisions
of this Section 9.01.
SECTION 9.02. With Consent of Holders.
Subject to Section 6.07, Holdings and the Trustee may modify, amend or
supplement, or waive compliance by Holdings with any provision of, this
Indenture or the Securities with the written consent of the Holders of at least
a majority in principal amount of the outstanding Securities. However, without
the consent of each Holder affected, no such modification, amendment, supplement
or waiver, including a waiver pursuant to Section 6.04, may:
(a) reduce the principal amount of or change the Stated Maturity of
any Security or alter the provisions with respect to the repurchase or
redemption of the Securities (other than provisions relating to Section
4.05 or 4.16);
(b) reduce the rate of or change the time for payment of interest on
any Security;
(c) make any Security payable in money other than that stated in the
Securities;
(d) make any change in the provisions of this Indenture relating to
the rights of Holders of Securities to receive payments of principal of or
premium, if any, or interest on the Securities;
(e) modify any provisions of Section 6.04 (other than to add sections
of this Indenture or the Securities subject thereto) or 6.07 or this
Section 9.02 (other than to add sections of this Indenture or the
Securities which may not be modified, amended, supplemented or waived
without the consent of each Holder affected);
(f) 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
in respect thereof;
(g) waive a Default or Event of Default in the payment of principal of
or premium, if any, or interest on the Securities (except a rescission of
acceleration of the Securities by the Holders thereof as provided in
Section 6.02 and a waiver of the payment default that resulted from such
acceleration);
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(h) waive a mandatory repurchase or redemption payment with respect to
any Security required by Section 4.05 or 4.16;
(i) modify the ranking or priority of any Security in any manner
adverse to the Holders of the Securities; or
(j) modify the provisions of the Holdings Escrow Agreement or this
Indenture relating to the Escrow Collateral or release the Escrow
Collateral from the Lien under the Holdings Escrow Agreement or permit any
other obligation to be secured by the Escrow Collateral.
It shall not be necessary for the consent of the Holders under this Section
9.02 to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section 9.02 becomes
effective, Holdings shall mail to the Holders affected thereby a notice briefly
describing the amendment, supplement or waiver. Any failure of Holdings to mail
such notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such amendment, supplement or waiver.
SECTION 9.03. 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 9.04. Record Date for Consents and Effect of Consents.
Holdings may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders of Securities entitled to consent to any
amendment, supplement or waiver. If a record date is fixed, then those persons
who were Holders of Securities 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 of such Securities after such
record date. No such consent shall be valid or effective for more than 90 days
after such record date. The Trustee is entitled to rely upon any electronic
instruction from beneficial owners to the Holders of any Global Security.
After an amendment, supplement or waiver becomes effective, it shall bind
every Holder, unless it makes a change described in any of clauses (a) through
(i) of Section 9.02. 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 9.05. 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 Holdings or the Trustee so
determine, Holdings 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.
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SECTION 9.06. Trustee To Sign Amendments, etc.
The Trustee shall be entitled to receive, and shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of any amendment,
supplement or waiver authorized pursuant to this Article Nine is authorized or
permitted by this Indenture and that such amendment, supplement or waiver
constitutes the legal, valid and binding obligation of Holdings, 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.
ARTICLE TEN
MISCELLANEOUS
SECTION 10.01. 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 Sections 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 10.02. 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:
if to Holdings:
R.A.B. Holdings, Inc.
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
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if to the Trustee:
PNC Bank, National Association
Xxx Xxxxx Xxxxxx Xxxxxxxxx
00xx Xxxxx, Xxxxxxxxx Trust Department
East Brunswick, New Jersey 08816
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Holdings 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
Holder including any notice delivered in connection with TIA Section 310(b), TIA
Section 313(c), TIA Section 314(a) and TIA Section 315(b), shall be mailed to
him at his address as set forth on the Security register and shall be
sufficiently given to him if so mailed within the time prescribed. To the extent
required by the TIA, any notice or communication shall also be mailed to any
Person described in TIA Section 313(c).
Failure to mail a notice or communication to a Holder or any defect in it
shall not affect its sufficiency with respect to other Holders. 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 10.03. Communications by Holders with Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with other Holders
with respect to their rights under this Indenture or the Securities. Holdings,
the Trustee, the Registrar and any other person shall have the protection of TIA
Section 312(c).
SECTION 10.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by Holdings to the Trustee to take or
refrain from taking any action under this Indenture, Holdings shall furnish to
the Trustee at the request of the Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such counsel,
all such conditions precedent have been complied with; 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 10.05. Statements Required in Certificate.
Each certificate with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
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(1) a statement that the person making such certificate has read such
covenant or condition;
(2) a statement that, in the opinion of such person, such person has
made such examination or investigation as is necessary to enable such
person to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(3) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with.
SECTION 10.06. Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Paying Agent or Registrar may make reasonable rules for its
functions.
SECTION 10.07. Governing Law.
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS INDENTURE AND THE
SECURITIES WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 10.08. No Personal Liability of Directors, Officers, Employees and
Stockholders.
No director, officer, employee or stockholder, as such, of Holdings or any
of its Affiliates, or any of their respective heirs, estates or personal
representatives, shall have any liability for any obligations of Holdings under
the Securities or this Indenture or for any claim based on, or in respect of, or
by reason of, such obligations or their creation. Each holder of Securities by
accepting a Security unconditionally and irrevocably waives and releases all
such liability. The waiver and release are part of the consideration for
issuance of the Securities.
SECTION 10.09. Successors.
All agreements of Holdings in this Indenture and the Securities shall bind
its successor. All agreements of the Trustee in this Indenture shall bind its
successor.
SECTION 10.10. 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.
SECTION 10.11. Severability.
In case any provision in this Indenture, in the Securities 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.
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SECTION 10.12. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or debt
agreement of Holdings or a Subsidiary of Holdings. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
SECTION 10.13. Legal Holidays.
If a payment date is not a Business Day at a place of payment, payment may
be made at that place on the next succeeding Business Day.
ARTICLE ELEVEN
COLLATERAL AND SECURITY
SECTION 11.01. Holdings Escrow Agreement.
The due and punctual payment of the first six scheduled interest payments
on the Securities when and as the same shall be due and payable on an Interest
Payment Date or by acceleration shall be secured as provided in the Holdings
Escrow Agreement which Holdings and the Trustee shall have entered into
simultaneously with the execution of this Indenture. Upon the acceleration of
the maturity of the Securities, the Trustee shall foreclose upon the Escrow
Collateral. Each Holder of Securities, by its acceptance thereof, consents and
agrees to the terms of the Holdings Escrow Agreement (including, without
limitation, the provisions providing for foreclosure and disbursement of Escrow
Collateral) as the same may be in effect or may be amended from time to time in
accordance with its terms and the terms hereof and authorizes and directs the
Escrow Agent and the Trustee to enter into the Holdings Escrow Agreement and to
perform their respective obligations and exercise their respective rights
thereunder in accordance therewith. The Trustee is hereby empowered and directed
to act as a secured party under the Holdings Escrow Agreement for the benefit of
the Holders. Holdings shall deliver to the Trustee copies of the Holdings Escrow
Agreement, and shall do or cause to be done all such acts and things as may be
required by the provisions of the Holdings Escrow Agreement, to assure and
confirm to the Trustee the security interest in the Escrow Collateral
contemplated by the Holdings Escrow Agreement so as to render the same available
for the security and benefit of this Indenture with respect to, and of, the
Securities, according to the intent and purposes expressed in the Holdings
Escrow Agreement. Holdings shall take any and all actions reasonably required to
cause the Holdings Escrow Agreement to create and maintain (to the extent
possible under applicable law), as security for the obligations of Holdings
hereunder, a first priority security interest in and on all the Escrow
Collateral, in favor of the Trustee for the benefit of the Holders of
Securities, superior to and prior to the rights of all third Persons and subject
to no other Liens. The Trustee shall have no responsibility for perfecting or
maintaining the perfection of the Trustee's security interest in the Escrow
Collateral or for filing any instrument, document or notice in any public office
at any time or times.
SECTION 11.02. Opinions.
Holdings shall furnish to the Trustee on each anniversary of the Issue Date
(upon receipt of written notice from the Escrow Agent) until the date upon which
the balance of Escrow Funds shall have been reduced to zero, an Opinion of
Counsel, dated as of such date, either (i) stating that (A) in the opinion of
such
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counsel, action has been taken with respect to the recording, registering,
filing, re-recording, re-registering and refiling of all supplemental
indentures, financing statements, continuation statements or other instruments
of further assurance as is necessary to maintain the Lien created by the
Holdings Escrow Agreement and reciting the details of such action or referring
to prior Opinions of Counsel in which such details are given and (B) based on
relevant laws as in effect on the date of such Opinion of Counsel, all financing
statements and continuation statements have been executed and filed that are
necessary as of such date and during the succeeding 12 months fully to preserve,
to the extent such preservation is possible by filing, the Lien created by the
Holdings Escrow Agreement with respect to the security interest in the Escrow
Collateral or (ii) stating that, in the opinion of such counsel, no such action
is necessary to maintain such Lien and assignment.
SECTION 11.03. Release of Escrow Collateral.
(a) Subject to subsections (b) and (c) of this Section 11.03, the Escrow
Collateral may be released from the security interest created by the Holdings
Escrow Agreement only in accordance with the provisions of the Holdings Escrow
Agreement.
(b) At any time when an Event of Default shall have occurred and be
continuing and the maturity of the Securities shall have been accelerated
(whether by declaration or otherwise), no Escrow Collateral shall be released
pursuant to the provisions of the Holdings Escrow Agreement, and no release of
Escrow Collateral in contravention of this Section 11.03(b) shall be effective
as against the Holders of Securities, except for the disbursement of all Escrow
Funds (as defined in the Holdings Escrow Agreement) and other Escrow Collateral
to the Trustee pursuant to Section 6(c) of the Holdings Escrow Agreement.
(c) The release of any Escrow Collateral from the security interests
created by this Indenture and the Holdings Escrow Agreement shall not be deemed
to impair the security under this Indenture in contravention of the provisions
hereof if and to the extent the Escrow Collateral is released pursuant to the
terms hereof or pursuant to the terms of the Holdings Escrow Agreement. To the
extent applicable, Holdings shall cause TIA Section 314(d) relating to the
release of property or securities from the security interest of the Holdings
Escrow Agreement to be complied with. Any certificate or opinion required by TIA
Section 314(d) may be made by an Officer of Holdings except in cases where TIA
Section 314(d) requires that such certificate or opinion be made by an
independent Person, which Person shall be an independent engineer, appraiser or
other expert selected or approved by the Trustee in the exercise of reasonable
care.
SECTION 11.04. Authorization of Actions to Be Taken by the Trustee Under the
Holdings Escrow Agreement.
Subject to the provisions of Section 7.01 and Section 7.02, the Trustee
may, without the consent of the Holders of Securities, on behalf of the Holders
of Securities, take all actions it deems necessary or appropriate in order to
(a) enforce any of the terms of the Holdings Escrow Agreement and (b) collect
and receive any and all amounts payable in respect of the obligations of
Holdings hereunder. The Trustee shall have power to institute and maintain such
suits and proceedings as it may deem expedient to prevent any impairment of the
Escrow Collateral by any acts that may be unlawful or in violation of the
Holdings Escrow Agreement or this Indenture, and such suits and proceedings as
the Trustee may deem expedient to preserve or protect its security interest in
the Escrow Collateral (including power to institute and maintain suits or
proceedings to restrain the enforcement of or compliance with any legislative or
other governmental enactment, rule or order that may be unconstitutional or
otherwise invalid if the enforcement of, or compliance with, such enactment,
rule or order would impair the security interest hereunder or be prejudicial to
the interests of the Holders of Securities or of the Trustee).
-61-
SECTION 11.05. Authorization of Receipt of Funds by the Trustee Under the
Holdings Escrow Agreement.
The Trustee is authorized to receive any funds for the benefit of the
Holders of Securities disbursed under the Holdings Escrow Agreement, and to make
further distributions of such funds to the Holders of Securities according to
the provisions of this Indenture.
SECTION 11.06. Termination of Security Interest.
Upon the earliest to occur of (i) the date upon which the balance of Escrow
Funds and other Escrow Collateral shall have been reduced to zero, (ii) the
payment of the first six scheduled interest payments on the Securities, (iii)
legal defeasance pursuant to Section 8.01 and (iv) covenant defeasance pursuant
to Section 8.01, the Trustee shall, at the written request of Holdings, release
the security interest in the Escrow Collateral pursuant to this Indenture and
the Holdings Escrow Agreement upon Holdings' compliance with the provisions of
the TIA pertaining to release of collateral.
[Signature Pages Follow]
S-1
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the date first written above.
R.A.B. HOLDINGS, INC.
By:
---------------------------------------
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION, as Trustee
By:
---------------------------------------
Name:
Title:
EXHIBIT A
[FORM OF SERIES A SECURITY]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY
BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL
OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS
THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO
THE ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE
UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E)
TO AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR
(7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL INVESTOR ACQUIRING THE
SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE
SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR
OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES
ACT OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER AND THE TRUSTEE'S
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR
(F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
A-1
R.A.B. HOLDINGS, INC.
13% Senior Note due 2008
CUSIP No.: [ ]
$[ ]
No.[ ]
R.A.B. HOLDINGS, INC., a Delaware corporation ("Holdings," which term
includes any successor corporation), for value received, promises to pay to [ ]
or registered assigns the principal sum of [ ] Dollars, on May 1, 2008.
Interest Payment Dates: May 1 and November 1, commencing on November 1,
1998.
Interest Record Dates: April 15 and October 15.
Reference is made to the further provisions of this Security contained
herein, which will for all purposes have the same effect as if set forth at this
place.
IN WITNESS WHEREOF, Holdings has caused this Security to be signed manually
or by facsimile by its duly authorized officer.
R.A.B. HOLDINGS, INC.
By:
----------------------------------------
Name:
Title:
Dated: May 1, 1998
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[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the 13% Senior Notes due 2008, described in the
within-mentioned Indenture.
Dated: May, 1998
PNC BANK, NATIONAL ASSOCIATION, as Trustee
By:
---------------------------------------
Authorized Signatory
A-3
(REVERSE OF SECURITY)
R.A.B. HOLDINGS, INC.
13% Senior Note due 2008
1. Interest.
R.A.B. HOLDINGS, INC., a Delaware corporation ("Holdings"), promises to pay
cash interest on the principal amount of this Security at the rate per annum
shown above. Cash interest on the Securities will accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from May
1, 1998. Holdings will pay interest semi-annually in arrears on each Interest
Payment Date, commencing on November 1, 1998. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal from time to time on
demand and on overdue installments of interest (without regard to any applicable
grace periods) to the extent lawful from time to time on demand, in each case at
the rate borne by the Securities.
2. Method of Payment.
Holdings shall pay interest on the Securities (except defaulted interest)
to the persons who are the registered Holders at the close of business on the
Interest Record Date immediately preceding the Interest Payment Date even if the
Securities are canceled on registration of transfer or registration of exchange
after such Interest Record Date. Holders must surrender the Securities to a
Paying Agent to collect principal payments. Holdings shall pay principal and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts ("U.S. Legal Tender"). However,
Holdings may pay principal and interest by wire transfer of Federal funds
(provided that the Paying Agent shall have received wire instructions on or
prior to the relevant Interest Record Date), or interest by check payable in
such U.S. Legal Tender. Holdings may deliver any such interest payment to the
Paying Agent or to a Holder at the Holder's registered address.
3. Paying Agent and Registrar.
Initially, PNC Bank, National Association (the "Trustee") will act as
Paying Agent and Registrar. Holdings may change any Paying Agent or Registrar
without notice to the Holders. Holdings may, subject to certain exceptions, act
as Registrar.
4. Indenture.
Holdings issued the Securities under an Indenture, dated as of May 1, 1998
(the "Indenture"), by and between Holdings and the Trustee. Capitalized terms
herein are used as defined in the Indenture unless otherwise defined herein.
This Security is one of a duly authorized issue of Securities of Holdings
designated as its 13% Senior Notes due 2008, Series A (the "Initial
Securities"), limited in aggregate principal amount to $48,000,000, which may be
issued under the Indenture. The Securities include the Initial Securities, the
Private Exchange Securities (as defined in the Indenture) and the Unrestricted
Securities (as defined in the Indenture). All Securities issued under the
Indenture are treated as a single class of securities under the Indenture. The
terms of the Securities include those stated in the Indenture and those made
part of the Indenture by reference to
A-4
the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) (the "TIA"),
as in effect on the date of the Indenture (except as otherwise indicated in the
Indenture) until such time as the Indenture is qualified under the TIA, and
thereafter as in effect on the date on which the Indenture is qualified under
the TIA. Notwithstanding anything to the contrary herein, the Securities are
subject to all such terms, and Holders are referred to the Indenture and the TIA
for a statement of them. The Securities are general unsecured obligations of
Holdings.
5. Optional Redemption.
The Securities will be redeemable, at Holdings' option, in whole or in part
at any time, on and after May 1, 2003, upon not less than 30 nor more than 60
days notice, at the following redemption prices (expressed as percentages of the
principal amount thereof) if redeemed during the twelve-month period commencing
on May 1 of the year set forth below, plus, in each case, accrued and unpaid
interest thereon, if any, to the date of redemption:
Year Percentage
---- ----------
2003 106.500%
2004 104.333%
2005 102.167%
2006 and thereafter 100.000%
6. 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 its registered address. The Trustee may select for
redemption portions of the principal amount of Securities that have
denominations equal to or larger than $1,000 principal amount. Securities and
portions of them the Trustee so selects shall be in amounts of $1,000 principal
amount or integral multiples thereof.
If any Security is to be redeemed in part only, the notice of redemption
that relates to such Security shall state the portion of the principal amount
thereof to be redeemed. A new Security in a principal amount equal to the
unredeemed portion thereof will be issued in the name of the Holder thereof upon
cancellation of the original Security. On and after the Redemption Date,
interest will cease to accrue on Securities or portions thereof called for
redemption so long as Holdings has deposited with the Paying Agent for the
Securities funds in satisfaction of the redemption price pursuant to the
Indenture and the Paying Agent is not prohibited from paying such funds to the
Holders pursuant to the terms of the Indenture.
7. Change of Control Offer.
Following the occurrence of a Change of Control (the date of such
occurrence being the "Change of Control Date"), Holdings shall, within 30 days
after the Change of Control Date, be required to offer to purchase all
Securities then outstanding at a purchase price equal to 101% of the principal
amount at maturity plus accrued and unpaid interest to the date of purchase.
8. Limitation on Disposition of Assets.
Holdings is, subject to certain conditions and certain exceptions,
obligated to offer to purchase the Securities and any Pari Passu Indebtedness at
a purchase price equal to, with respect to the Securities, 100% of the principal
amount thereof, plus accrued and unpaid interest thereon, if any, to the date of
purchase, and
A-5
with respect to any Pari Passu Indebtedness, an amount not greater than 100% of
the principal amount or accreted value of such Pari Passu Indebtedness with the
proceeds of certain asset dispositions.
9. Denominations; Transfer; Exchange.
The Securities are in registered form, without coupons, in denominations of
$1,000 and integral multiples of $1,000. A Holder shall register the transfer of
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 certain transfer taxes or similar governmental
charges payable in connection therewith as permitted by the Indenture. The
Registrar need not register the transfer of or exchange any Securities or
portions thereof selected for redemption, except the unredeemed portion of any
security being redeemed in part.
10. Persons Deemed Owners.
The registered Holder of a Security shall be treated as the owner of it for
all purposes.
11. Unclaimed Funds.
If funds for the payment of principal or interest remain unclaimed for two
years, the Trustee and the Paying Agent will repay the funds to Holdings at its
written request. After that, all liability of the Trustee and such Paying Agent
with respect to such funds shall cease.
12. Legal Defeasance and Covenant Defeasance.
Holdings may be discharged from its obligations under the Indenture and the
Securities, except for certain provisions thereof, and may be discharged from
obligations to comply with certain covenants contained in the Indenture and the
Securities, in each case upon satisfaction of certain conditions specified in
the Indenture.
13. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture and the Securities may be
amended or supplemented with the written consent of the Holders of at least a
majority in principal amount of the Securities then outstanding, and any
existing Default or Event of Default or compliance with any provision may be
waived with the consent of the Holders of a majority in aggregate principal
amount of the Securities then outstanding. Without notice to or consent of the
Holders, the parties thereto may amend or supplement the Indenture and the
Securities to, among other things, cure any ambiguity, defect or inconsistency,
provide for uncertificated Securities in addition to or in place of certificated
Securities or comply with any requirements of the SEC in connection with the
qualification of the Indenture under the TIA, or make any other change that does
not materially adversely affect the rights of any Holder.
14. Restrictive Covenants.
The Indenture contains certain covenants that, among other things, limit
the ability of Holdings and the Restricted Subsidiaries to make restricted
payments, to incur indebtedness, to sell assets, to permit restrictions on
dividends and other payments by Subsidiaries to Holdings, to consolidate, merge
or sell all or substantially all of its assets and to engage in transactions
with affiliates. The limitations are subject to a number
A-6
of important qualifications and exceptions. Holdings must report annually to the
Trustee on compliance with such limitations.
15. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee or the Holders
of at least 25% in aggregate principal amount of Securities then outstanding may
declare all the Securities to be due and payable immediately in the manner and
with the effect provided in the Indenture. Holders of Securities may not enforce
the Indenture or the Securities except as provided in the Indenture. The Trustee
is not obligated to enforce the Indenture or the Securities unless it has
received indemnity satisfactory to it. The Indenture permits, subject to certain
limitations therein provided, Holders of a majority in aggregate principal
amount of the Securities then outstanding to direct the Trustee in its exercise
of any trust or power. The Trustee may withhold from Holders of Securities
notice of certain continuing Defaults or Events of Default if it determines that
withholding notice is in their interest.
16. Trustee Dealings with Holdings.
The Trustee under the Indenture, in its individual or any other capacity,
may become the owner or pledgee of Securities and may otherwise deal with
Holdings, its Subsidiaries or their respective Affiliates as if it were not the
Trustee.
17. No Personal Liability of Directors, Officers, Employees and Stockholders.
No director, officer, employee or stockholder, as such, of Holdings or any
of its Affiliates, or any of their respective heirs, estates or personal
representatives, shall have any liability for any obligations of Holdings under
the Securities or the Indenture or for any claim based on, or in respect of, or
by reason of, such obligations or their creation. Each holder of Securities by
accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Securities.
18. Authentication.
This Security shall not be valid until the Trustee or authenticating agent
signs the certificate of authentication on this Security.
19. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a Security
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 Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, Holdings has caused CUSIP numbers to be
printed on the Securities as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
A-7
21. Registration Rights.
Pursuant to the Registration Rights Agreement, Holdings will be obligated
to consummate an exchange offer pursuant to which the Holder of this Security
shall have the right to exchange this Security for a 13% Senior Note due 2008 of
Holdings which has been registered under the Securities Act, in like principal
amount and having terms identical in all material respects to the Initial
Securities. The Holders shall be entitled to receive certain liquidated damages
payments in the event such exchange offer is not consummated and upon certain
other conditions, all pursuant to and in accordance with the terms of the
Registration Rights Agreement.
22. Governing Law.
The laws of the State of New York shall govern the Indenture and this
Security without regard to principles of conflicts of laws to the extent that
the application of the laws of another jurisdiction would be required thereby.
A-8
ASSIGNMENT FORM
I or we assign and transfer this Security to
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code of assignee or transferee)
________________________________________________________________________________
(Insert Social Security or other identifying number of assignee or transferee)
and irrevocably appoint_________________________________________________________
agent to transfer this Security on the books of Holdings. The agent may
substitute another to act for him.
Dated:___________________ Signed: ___________________________________
(Signed exactly as name appears
on the other side of this Security)
Signature Guarantee: ___________________________________________________________
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor program
reasonably acceptable to the Trustee)
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by Holdings pursuant
to Section 4.05 or Section 4.16 of the Indenture, check the appropriate box:
Section 4.05 [ ] Section 4.16 [ ]
If you want to elect to have only part of this Security purchased by
Holdings pursuant to Section 4.05 or Section 4.16 of the Indenture, state the
amount: $_____________
Dated:___________________ Your Signature: ___________________________________
(Signed exactly as name appears
on the other side of this Security)
Signature Guarantee: ___________________________________________________________
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor program
reasonably acceptable to the Trustee)
EXHIBIT B
[FORM OF SERIES B SECURITY]
R.A.B. HOLDINGS, INC.
13% Senior Note due 2008, Series B
CUSIP No.: [ ]
No. [ ] $[ ]
R.A.B. HOLDINGS, INC., a Delaware corporation ("Holdings," which term
includes any successor corporation), for value received, promises to pay to [ ]
or registered assigns the principal sum of [ ] Dollars, on May 1, 2008.
Interest Payment Dates: May 1 and November 1, commencing on November 1,
1998.
Interest Record Dates: April 15 and October 15.
Reference is made to the further provisions of this Security contained
herein, which will for all purposes have the same effect as if set forth at this
place.
IN WITNESS WHEREOF, Holdings has caused this Security to be signed manually
or by facsimile by its duly authorized officer.
R.A.B. HOLDINGS, INC.
By:
----------------------------------------
Name:
Title:
Dated:
B-1
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the 13% Senior Notes due 2008, Series B, described in the
within-mentioned Indenture.
Dated:
PNC BANK, NATIONAL ASSOCIATION, as Trustee
By:
--------------------------------------
Authorized Signatory
B-2
(REVERSE OF SECURITY)
R.A.B. HOLDINGS, INC.
13% Senior Note due 2008, Series B
1. Interest.
R.A.B. HOLDINGS, INC., a Delaware corporation ("Holdings"), promises to pay
cash interest on the principal amount of this Security at the rate per annum
shown above. Cash interest on the Securities will accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from May
1, 1998. Holdings will pay interest semi-annually in arrears on each Interest
Payment Date, commencing on November 1, 1998. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal from time to time on
demand and on overdue installments of interest (without regard to any applicable
grace periods) to the extent lawful from time to time on demand, in each case at
the rate borne by the Securities.
2. Method of Payment.
Holdings shall pay interest on the Securities (except defaulted interest)
to the persons who are the registered Holders at the close of business on the
Interest Record Date immediately preceding the Interest Payment Date even if the
Securities are canceled on registration of transfer or registration of exchange
after such Interest Record Date. Holders must surrender the Securities to a
Paying Agent to collect principal payments. Holdings shall pay principal and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts ("U.S. Legal Tender"). However,
Holdings may pay principal and interest by wire transfer of Federal funds
(provided that the Paying Agent shall have received wire instructions on or
prior to the relevant Interest Record Date), or interest by check payable in
such U.S. Legal Tender. Holdings may deliver any such interest payment to the
Paying Agent or to a Holder at the Holder's registered address.
3. Paying Agent and Registrar.
Initially, PNC Bank, National Association (the "Trustee") will act as
Paying Agent and Registrar. Holdings may change any Paying Agent or Registrar
without notice to the Holders. Holdings may, subject to certain exceptions, act
as Registrar.
4. Indenture.
Holdings issued the Securities under an Indenture, dated as of May 1, 1998
(the "Indenture"), by and between Holdings and the Trustee. Capitalized terms
herein are used as defined in the Indenture unless otherwise defined herein.
This Security is one of a duly authorized issue of Securities of Holdings
designated as its 13% Senior Notes due 2008, Series B limited in aggregate
principal amount at maturity to $48,000,000, which may be issued under the
Indenture. The Securities include the Initial Securities (as defined in the
Indenture), the Private Exchange Securities (as defined in the Indenture) and
the Unrestricted Securities (as defined in the Indenture). All Securities issued
under the Indenture are treated as a single class of securities under the
Indenture. The terms of the Securities include those stated in the Indenture and
those made part of the Indenture
B-3
by reference to the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) (the "TIA"), as in effect on the date of the Indenture (except as
otherwise indicated in the Indenture) until such time as the Indenture is
qualified under the TIA, and thereafter as in effect on the date on which the
Indenture is qualified under the TIA. Notwithstanding anything to the contrary
herein, the Securities are subject to all such terms, and Holders are referred
to the Indenture and the TIA for a statement of them. The Securities are general
unsecured obligations of Holdings.
5. Optional Redemption.
The Securities will be redeemable, at Holdings' option, in whole or in part
at any time, on and after May 1, 2003, upon not less than 30 nor more than 60
days notice, at the following redemption prices (expressed as percentages of the
principal amount thereof) if redeemed during the twelve-month period commencing
on of the year set forth below, plus, in each case, accrued and unpaid interest
thereon, if any, to the date of redemption:
Year Percentage
---- ----------
2003 106.500%
2004 104.333%
2005 102.167%
2006 and thereafter 100.000%
6. 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 its registered address. The Trustee may select for
redemption portions of the principal amount of Securities that have
denominations equal to or larger than $1,000 principal amount. Securities and
portions of them the Trustee so selects shall be in amounts of $1,000 principal
amount or integral multiples thereof.
If any Security is to be redeemed in part only, the notice of redemption
that relates to such Security shall state the portion of the principal amount
thereof to be redeemed. A new Security in a principal amount equal to the
unredeemed portion thereof will be issued in the name of the Holder thereof upon
cancellation of the original Security. On and after the Redemption Date,
interest will cease to accrue on Securities or portions thereof called for
redemption so long as Holdings has deposited with the Paying Agent for the
Securities funds in satisfaction of the redemption price pursuant to the
Indenture and the Paying Agent is not prohibited from paying such funds to the
Holders pursuant to the terms of the Indenture.
7. Change of Control Offer.
Following the occurrence of a Change of Control (the date of such
occurrence being the "Change of Control Date"), Holdings shall, within 30 days
after the Change of Control Date, offer to purchase all Securities then
outstanding at a purchase price equal to 101% of the principal amount plus
accrued and unpaid interest to the date of purchase.
8. Limitation on Disposition of Assets.
Holdings is, subject to certain conditions and certain exceptions,
obligated to offer to purchase the Securities and any Pari Passu Indebtedness at
a purchase price equal to, with respect to the Securities, 100%
B-4
of the principal amount thereof, plus accrued and unpaid interest thereon, if
any, to the date of purchase, and with respect to any Pari Passu Indebtedness,
an amount not greater than 100% of the principal amount or accreted value of
such Pari Passu Indebtedness with the proceeds of certain asset dispositions.
9. Denominations; Transfer; Exchange.
The Securities are in registered form, without coupons, in denominations of
$1,000 and integral multiples of $1,000. A Holder shall register the transfer of
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 certain transfer taxes or similar governmental
charges payable in connection therewith as permitted by the Indenture. The
Registrar need not register the transfer of or exchange any Securities or
portions thereof selected for redemption, except the unredeemed portion of any
security being redeemed in part.
10. Persons Deemed Owners.
The registered Holder of a Security shall be treated as the owner of it for
all purposes.
11. Unclaimed Funds.
If funds for the payment of principal or interest remain unclaimed for two
years, the Trustee and the Paying Agent will repay the funds to Holdings at its
written request. After that, all liability of the Trustee and such Paying Agent
with respect to such funds shall cease.
12. Legal Defeasance and Covenant Defeasance.
Holdings may be discharged from its obligations under the Indenture and the
Securities, except for certain provisions thereof, and may be discharged from
obligations to comply with certain covenants contained in the Indenture and the
Securities, in each case upon satisfaction of certain conditions specified in
the Indenture.
13. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture and the Securities may be
amended or supplemented with the written consent of the Holders of at least a
majority in principal amount of the Securities then outstanding, and any
existing Default or Event of Default or compliance with any provision may be
waived with the consent of the Holders of a majority in aggregate principal
amount of the Securities then outstanding. Without notice to or consent of the
Holders, the parties thereto may amend or supplement the Indenture and the
Securities to, among other things, cure any ambiguity, defect or inconsistency,
provide for uncertificated Securities in addition to or in place of certificated
Securities or comply with any requirements of the SEC in connection with the
qualification of the Indenture under the TIA, or make any other change that does
not materially adversely affect the rights of any Holder.
14. Restrictive Covenants.
The Indenture contains certain covenants that, among other things, limit
the ability of Holdings and the Restricted Subsidiaries to make restricted
payments, to incur indebtedness, to sell assets, to permit restrictions on
dividends and other payments by Subsidiaries to Holdings, to consolidate, merge
or sell all or
B-5
substantially all of its assets and to engage in transactions with affiliates.
The limitations are subject to a number of important qualifications and
exceptions. Holdings must report annually to the Trustee on compliance with such
limitations.
15. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee or the Holders
of at least 25% in aggregate principal amount of Securities then outstanding may
declare all the Securities to be due and payable immediately in the manner and
with the effect provided in the Indenture. Holders of Securities may not enforce
the Indenture or the Securities except as provided in the Indenture. The Trustee
is not obligated to enforce the Indenture or the Securities unless it has
received indemnity satisfactory to it. The Indenture permits, subject to certain
limitations therein provided, Holders of a majority in aggregate principal
amount of the Securities then outstanding to direct the Trustee in its exercise
of any trust or power. The Trustee may withhold from Holders of Securities
notice of certain continuing Defaults or Events of Default if it determines that
withholding notice is in their interest.
16. Trustee Dealings with Holdings.
The Trustee under the Indenture, in its individual or any other capacity,
may become the owner or pledgee of Securities and may otherwise deal with
Holdings, its Subsidiaries or their respective Affiliates as if it were not the
Trustee.
17. No Personal Liability of Directors, Officers, Employees and Stockholders.
No director, officer, employee or stockholder, as such, of Holdings or any
of its Affiliates, or any of their respective heirs, estates or personal
representatives, shall have any liability for any obligations of Holdings under
the Securities or the Indenture or for any claim based on, or in respect of, or
by reason of, such obligations or their creation. Each holder of Securities by
accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Securities.
18. Authentication.
This Security shall not be valid until the Trustee or authenticating agent
signs the certificate of authentication on this Security.
19. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a Security
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 Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, Holdings has caused CUSIP numbers to be
printed on the Securities as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
B-6
21. Governing Law.
The laws of the State of New York shall govern the Indenture and this
Security without regard to principles of conflicts of laws to the extent that
the application of the laws of another jurisdiction would be required thereby.
B-7
ASSIGNMENT FORM
I or we assign and transfer this Security to
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code of assignee or transferee)
________________________________________________________________________________
(Insert Social Security or other identifying number of assignee or transferee)
and irrevocably appoint_________________________________________________________
agent to transfer this Security on the books of Holdings. The agent may
substitute another to act for him.
Dated:___________________ Signed: ___________________________________
(Signed exactly as name appears
on the other side of this Security)
Signature Guarantee: ___________________________________________________________
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor program
reasonably acceptable to the Trustee)
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by Holdings pursuant
to Section 4.05 or Section 4.16 of the Indenture, check the appropriate box:
Section 4.05 [ ] Section 4.16 [ ]
If you want to elect to have only part of this Security purchased by
Holdings pursuant to Section 4.05 or Section 4.16 of the Indenture, state the
amount: $_____________
Dated:___________________ Your Signature: ___________________________________
(Signed exactly as name appears
on the other side of this Security)
Signature Guarantee: ___________________________________________________________
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor program
reasonably acceptable to the Trustee)
EXHIBIT C
FORM OF LEGEND FOR GLOBAL SECURITIES
Any Global Security authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required in the case of
a Restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS SECURITY IS NOT
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS
SECURITY AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A
NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUERS OR
THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTION 2.16 OF THE INDENTURE.
C-1
EXHIBIT D
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF SECURITIES
Re: 13% Senior Notes due 2008
(the "Securities") of R.A.B. Holdings, Inc.
This Certificate relates to $_______ principal amount of Securities held in
the form of* ___ a beneficial interest in a Global Security or* _______ Physical
Securities by ______ (the "Transferor").
The Transferor:*
has requested by written order that the Registrar deliver in exchange
for its beneficial interest in the Global Security held by the Depositary a
Physical Security or Physical Securities in definitive, registered form of
authorized denominations and an aggregate number equal to its beneficial
interest in such Global Security (or the portion thereof indicated above); or
has requested that the Registrar by written order exchange or register
the transfer of a Physical Security or Physical Securities.
In connection with such request and in respect of each such Security, the
Transferor does hereby certify that the Transferor is familiar with the
Indenture relating to the above captioned Securities and the restrictions on
transfers thereof as provided in Section 2.16 of such Indenture, and that the
transfer of the Securities does not require registration under the Securities
Act of 1933, as amended (the "Act"), because*:
Such Security is being acquired for the Transferor's own account,
without transfer (in satisfaction of Section 2.16 of the Indenture).
Such Security is being transferred to a "qualified institutional buyer"
(as defined in Rule 144A under the Act), in reliance on Rule 144A.
Such Security is being transferred to an institutional "accredited
investor" (within the meaning of subparagraph (a)(1), (2), (3) or (7) of Rule
501 under the Act) which delivers a certificate to the Trustee in the form of
Exhibit E to the Indenture.
Such Security is being transferred in reliance on Rule 144 under the
Act.
Such Security is being transferred in reliance on and in compliance
with an exemption from the registration requirements of the Act other than Rule
144A or Rule 144 under the Act to a person other than an institutional
"accredited investor." [An Opinion of Counsel to the effect that such transfer
does not require registration under the Securities Act accompanies this
certification.]
-----------------------------------
[INSERT NAME OF TRANSFEROR]
By:
-------------------------------
[Authorized Signatory]
Date: ___________________
*Check applicable box.
D-1
EXHIBIT E
Form of Transferee Letter of Representation
R.A.B. HOLDINGS, INC.
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This certificate is delivered to request a transfer of $________ aggregate
principal amount of the 13% Senior Notes due 2008 (the "Notes") of R.A.B.
HOLDINGS, INC., a Delaware corporation ("Holdings"). Upon transfer, the Notes
would be registered in the name of the new beneficial owner as follows:
Name:_______________________________
Address:____________________________
Taxpayer ID Number:_________________
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933 (the "Securities
Act")) purchasing for our own account or for the account of such an
institutional "accredited investor" at least $250,000 principal amount of the
Notes, and we are acquiring the Notes not with a view to, or for offer or sale
in connection with, any distribution in violation of the Securities Act. We have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risk of our investment in the Notes and we invest
in or purchase securities similar to the Notes in the normal course of our
business. We and any accounts for which we are acting are each able to bear the
economic risk of our or its investment.
2. We understand that the Notes have not been registered under the
Securities Act and, unless so registered, may not be sold except as permitted in
the following sentence. We agree on our own behalf and on behalf of any investor
account for which we are purchasing Notes to offer, sell or otherwise transfer
such Notes prior to the date which is two years after the later of the date of
original issue and the last date on which Holdings or any affiliate of Holdings
was the owner of such Notes (or any predecessor thereto) (the "Resale
Restriction Termination Date") only (a) to Holdings, (b) pursuant to a
registration statement which has been declared effective under the Securities
Act, (c) in a transaction complying with the requirements of Rule 144A under the
Securities Act, to a person we reasonably believe is a qualified institutional
buyer under Rule 144A (a "QIB") that purchases for its own account or for the
account of a QIB and to whom notice is given that the transfer is being made in
reliance on Rule 144A, (d) to an institutional "accredited investor" within the
meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act that is
purchasing for its own account or for the account of such an institutional
"accredited investor," in each case in a minimum principal amount of Notes of
$250,000, (e) pursuant to offers and sales that occur outside the United States
within the meaning of Regulation S under the Securities Act or (f) pursuant to
any other available exemption from the registration requirements of the
Securities Act, subject in each of the foregoing cases to any requirement of law
that the disposition of our property or the property of such investor account or
accounts be at all times within our or their control and in compliance
E-1
with any applicable state securities laws. The foregoing restrictions on resale
will not apply subsequent to the Resale Restriction Termination Date. If any
resale or other transfer of the Notes is proposed to be made pursuant to clause
(d) above prior to the Resale Restriction Termination Date, the transferor shall
deliver a letter from the transferee substantially in the form of this letter to
Holdings and the Trustee, which shall provide, among other things, that the
transferee is an institutional "accredited investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) under the Securities Act and that it is acquiring
such Notes for investment purposes and not for distribution in violation of the
Securities Act. Each purchaser acknowledges that Holdings and the Trustee
reserve the right prior to any offer, sale or other transfer prior to the Resale
Restriction Termination Date of the Notes pursuant to clause (d), (e) or (f)
above to require the delivery of an opinion of counsel, certificates and/or
other information satisfactory to Holdings and the Trustee.
Dated: ______________________ TRANSFEREE:________________________
By:________________________________
E-2
EXHIBIT F
Form of Certificate To Be
Delivered in Connection
with Regulation S Transfers
---------------, ----
PNC Bank, National Association
Xxx Xxxxx Xxxxxx Xxxxxxxxx
00xx Xxxxx
Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Corporate Trust Department
Re: R.A.B. HOLDINGS, INC. ("Holdings")
13% Senior Notes due 2008, Series A and
13% Senior Notes due 2008, Series B (collectively, the "Securities")
Ladies and Gentlemen:
In connection with our proposed sale of $____________ aggregate principal
amount of the Securities, we confirm that such sale has been effected pursuant
to and in accordance with Regulation S under the Securities Act of 1933, as
amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Securities was not made to a person in the United
States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United
States, or (b) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we nor
any person acting on our behalf knows that the transaction has been
prearranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) we have advised the transferee of the transfer restrictions
applicable to the Securities.
F-1
You and Holdings are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby. Defined terms used herein without definition have the
respective meanings provided in Regulation S.
Very truly yours,
[Name of Transferor]
By:________________________________
[Authorized Signatory]
F-2
