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JORDAN INDUSTRIES, INC.
AND
FIRST TRUST NATIONAL ASSOCIATION
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AS TRUSTEE
$213,975,655
SERIES A AND SERIES B
11 3/4% SENIOR SUBORDINATED
DISCOUNT DEBENTURES DUE 2009
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INDENTURE
Dated as of April 2, 1997
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TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE........................................................1
Section 1.01 DEFINITIONS...........................................1
Section 1.02 OTHER DEFINITIONS....................................20
Section 1.03 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT....20
Section 1.04 RULES OF CONSTRUCTION................................20
ARTICLE 2
THE SECURITIES.....................................................21
Section 2.01 FORM AND DATING......................................21
Section 2.02 EXECUTION AND AUTHENTICATION.........................21
Section 2.03 REGISTRAR AND PAYING AGENT...........................22
Section 2.04 PAYING AGENT TO HOLD MONEY IN TRUST..................22
Section 2.05 HOLDER LISTS.........................................23
Section 2.06 TRANSFER AND EXCHANGE................................23
Section 2.07 REPLACEMENT SECURITIES...............................29
Section 2.08 OUTSTANDING SECURITIES...............................30
Section 2.09 TREASURY SECURITIES..................................30
Section 2.10 TEMPORARY SECURITIES.................................30
Section 2.11 CANCELLATION.........................................30
Section 2.12 DEFAULTED INTEREST...................................31
Section 2.13 RECORD DATE..........................................31
Section 2.14 CUSIP NUMBER.........................................31
ARTICLE 3
OPTIONAL REDEMPTION AND MANDATORY OFFERS TO PURCHASE...............31
Section 3.01 NOTICES TO TRUSTEE...................................31
Section 3.02 SELECTION OF SECURITIES TO BE REDEEMED OR PURCHASED..32
Section 3.03 NOTICE OF REDEMPTION.................................32
Section 3.04 EFFECT OF NOTICE OF REDEMPTION.......................33
Section 3.05 DEPOSIT OF REDEMPTION PRICE..........................34
Section 3.06 SECURITIES REDEEMED IN PART..........................34
Section 3.07 OPTIONAL REDEMPTION PROVISIONS.......................34
Section 3.08 MANDATORY PURCHASE PROVISIONS........................35
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ARTICLE 4
COVENANTS..........................................................36
Section 4.01. PAYMENT OF SECURITIES...............................36
Section 4.02. SEC REPORTS.........................................37
Section 4.03. COMPLIANCE CERTIFICATE..............................38
Section 4.04. STAY EXTENSION AND USURY LAWS.......................38
Section 4.05. LIMITATION ON RESTRICTED PAYMENTS...................39
Section 4.06. CORPORATE EXISTENCE.................................42
Section 4.07. LIMITATION ON INCURRENCE OF INDEBTEDNESS............43
Section 4.08. LIMITATION ON TRANSACTIONS WITH AFFILIATES..........44
Section 4.09. LIMITATION ON LIENS.................................45
Section 4.10. COMPLIANCE WITH LAWS, TAXES.........................45
Section 4.11. LIMITATION ON DIVIDENDS AND OTHER PAYMENT
RESTRICTIONS AFFECTING RESTRICTED SUBSIDIARIES......45
Section 4.12. MAINTENANCE OF OFFICE OR AGENCIES...................46
Section 4.13. CHANGE OF CONTROL...................................47
Section 4.14. LIMITATION ON ASSET SALES...........................47
Section 4.15. REDEMPTION OF OLD NOTES.............................48
Section 4.16. SENIOR SUBORDINATED INDEBTEDNESS....................48
Section 4.17. GUARANTEES BY RESTRICTED SUBSIDIARIES...............49
ARTICLE 5
SUCCESSORS.........................................................50
Section 5.01. MERGER OR CONSOLIDATION.............................50
Section 5.02. SUCCESSOR CORPORATION SUBSTITUTED...................51
ARTICLE 6
DEFAULTS AND REMEDIES..............................................51
Section 6.01. EVENTS OF DEFAULT...................................51
Section 6.02. ACCELERATION........................................53
Section 6.03. OTHER REMEDIES......................................53
Section 6.04. WAIVER OF PAST DEFAULTS.............................54
Section 6.05. CONTROL BY MAJORITY.................................54
Section 6.06. LIMITATION ON SUITS.................................54
Section 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT................55
Section 6.08. COLLECTION SUIT BY TRUSTEE..........................55
Section 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM....................55
Section 6.10. PRIORITIES..........................................55
Section 6.11. UNDERTAKING FOR COSTS...............................56
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ARTICLE 7
TRUSTEE............................................................56
Section 7.01. DUTIES OF TRUSTEE...................................56
Section 7.02. RIGHTS OF TRUSTEE...................................57
Section 7.03. INDIVIDUAL RIGHTS OF TRUSTEE........................58
Section 7.04. TRUSTEE'S DISCLAIMER................................58
Section 7.05. NOTICE TO HOLDERS OF DEFAULTS AND EVENTS OF
DEFAULTS............................................58
Section 7.06. REPORTS BY TRUSTEE TO HOLDERS.......................58
Section 7.07. COMPENSATION AND INDEMNITY..........................59
Section 7.08. REPLACEMENT OF TRUSTEE..............................59
Section 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC....................60
Section 7.10. ELIGIBILITY; DISQUALIFICATION.......................61
Section 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY...61
ARTICLE 8
DISCHARGE OF INDENTURE.............................................61
Section 8.01. DISCHARGE OF LIABILITY ON SECURITIES; DEFEASANCE....61
Section 8.02. CONDITIONS TO DEFEASANCE............................62
Section 8.03. APPLICATION OF TRUST MONEY..........................63
Section 8.04. REPAYMENT TO COMPANY................................63
Section 8.05. INDEMNITY FOR GOVERNMENT OBLIGATIONS................63
Section 8.06. REINSTATEMENT.......................................64
ARTICLE 9
AMENDMENTS.........................................................64
Section 9.01. AMENDMENTS AND SUPPLEMENTS PERMITTED WITHOUT
CONSENT OF HOLDERS
Section 9.02. AMENDMENTS AND SUPPLEMENTS REQUIRING CONSENT OF
HOLDERS.............................................65
Section 9.03. COMPLIANCE WITH TIA.................................66
Section 9.04. REVOCATION AND EFFECT OF CONSENTS...................66
Section 9.05. NOTATION ON OR EXCHANGE OF SECURITIES...............66
Section 9.06. TRUSTEE PROTECTED...................................67
Section 9.07. AMENDMENTS AND SUPPLEMENTS REQUIRING CONSENT OF
HOLDERS OF SENIOR INDEBTEDNESS......................67
ARTICLE 10
SUBORDINATION......................................................67
Section 10.01. AGREEMENT TO SUBORDINATE...........................67
Section 10.02. LIQUIDATION; DISSOLUTION; BANKRUPTCY...............67
Section 10.03. DEFAULT ON SENIOR INDEBTEDNESS.....................68
Section 10.04. ACCELERATION OF SECURITIES.........................69
Section 10.05. WHEN DISTRIBUTION MUST BE PAID OVER................69
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Section 10.06. NOTICE.............................................70
Section 10.07. SUBROGATION........................................70
Section 10.08. RELATIVE RIGHTS....................................70
Section 10.09. THE COMPANY AND HOLDERS MAY NOT IMPAIR
SUBORDINATION......................................71
Section 10.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE...........72
Section 10.11. RIGHTS OF TRUSTEE AND PAYING AGENT.................72
Section 10.12. AUTHORIZATION TO EFFECT SUBORDINATION..............72
Section 10.13. PAYMENT............................................73
ARTICLE 11
MISCELLANEOUS......................................................73
Section 11.01. TRUST INDENTURE ACT CONTROLS.......................73
Section 11.02. NOTICES............................................73
Section 11.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS........74
Section 11.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.74
Section 11.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION......74
Section 11.06. RULES BY TRUSTEE AND AGENTS........................75
Section 11.07. LEGAL HOLIDAYS.....................................75
Section 11.08. NO RECOURSE AGAINST OTHERS.........................75
Section 11.09. COUNTERPARTS.......................................75
Section 11.10. VALUABLE PROVISIONS................................75
Section 11.11. GOVERNING LAW......................................76
Section 11.12. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS......76
Section 11.13. SUCCESSORS.........................................76
Section 11.14. SEVERABILITY.......................................76
Section 11.15. THIRD PARTY BENEFICIARIES..........................76
Section 11.16. TABLE OF CONTENTS, HEADINGS, ETC...................76
EXHIBIT A Form of Security .......................................A-1
EXHIBIT B Certificate of Transferor...............................B-1
EXHIBIT C Certificate of Institutional Accredited Investor........C-1
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This Indenture, dated as of April 2, 1997, is between Jordan
Industries, Inc., an Illinois corporation, and First Trust National
Association, as trustee.
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the holders of the Company's 11 3/4%
Series A Senior Subordinated Discount Debentures due 2009 (the "Series A
Discount Debentures") and the Company's 11 3/4% Series B Senior Subordinated
Discount Debentures due 2009 (the "Series B Discount Debentures," and, together
with the Series A Discount Debentures, the "Securities"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. DEFINITIONS.
"Accreted Value" means with respect to any Security (i) as of any date
prior to April 1, 2002, the sum of (a) the initial offering price of such
Security, and (b) the portion of the original issue discount on such Security
(which for this purpose shall be deemed to be the excess of the principal
amount over the initial offering price) that has been amortized with respect to
such Security through such date, such original issue discount to be amortized
at the rate of 11 3/4% per annum (such percentage being expressed as a
percentage of the sum of the initial offering price plus previously amortized
original issue discount) using semi-annual compounding of such rate on each
April 1 and October 1, commencing April 1, 1997, from the date of original
Issuance of the Securities through such date, and (ii) on and after April 1,
2002, the principal amount of such Security.
"Affiliate" means any of the following:
(i) any Person directly or indirectly controlling or
controlled by or under direct or indirect common control
with the Company,
(ii) any spouse, immediate family member or other relative who
has the same principal residence as any person described
in clause (i) above,
(iii) any trust in which any such Persons described in clause
(i) or (ii) above has a beneficial interest, and
(iv) any corporation or other organization of which any such
Persons described above collectively own 50% or more of
the equity of such entity.
"Agent" means any Registrar, Paying Agent, or co-registrar.
"Asset Sale" means the sale, lease, conveyance or other disposition by
the Company or a Restricted Subsidiary of assets or property (other than (i)
the sale or disposition of any Restricted Investment, (ii) the sale of
inventory in the ordinary course of business, or (iii) Receivables Financings)
whether owned on the date of original Issuance of the Securities or thereafter
acquired, in a single transaction or in a series of related transactions, that
are outside of the ordinary course of business of the Company or such
Restricted Subsidiary.
"Bankruptcy Law" means Title 11 United States Code or any similar
federal or state law for the relief of Debtors.
"Board of Directors" means the Company's board of directors or any
authorized committee of such board of directors.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligations" means any obligation that is required to
be classified and accounted for as a capitalized lease for financial purposes
in accordance with GAAP, and the amount of Indebtedness represented by such
obligation shall be the capitalized amount of such obligation determined in
accordance with GAAP.
"Capital Stock" means any and all shares, interests, participations
or other equivalents (however designated) of corporate stock, including any
Preferred Stock.
"Cash Equivalents" means (a) securities with maturities of one year or
less from the date of acquisition issued or fully guaranteed or insured by the
United States Government or any agency thereof, (b) certificates of deposit,
time deposits, overnight bank deposits, bankers acceptances and repurchase
agreements of any commercial bank that has capital and surplus in excess of
$100,000,000 having maturities of one year or less from the date of
acquisition, (c) commercial paper of an issuer rated at least A-2 by Standard &
Poor's Corporation or P-2 by Xxxxx'x Investor Service, Inc., or carrying an
equivalent rating by a nationally recognized rating agency if both of the two
named rating agencies cease publishing ratings of investments, and (d) money
market accounts or funds with or issued by Qualified Issuers.
"Cash Flow" means, for any given period and Person, the sum of,
without duplication, Consolidated Net Income, plus
(i) the portion of Net Income attributable to the minority
interests in its Subsidiaries. to the extent not included in
calculating Consolidated Net Income, plus
(ii) any provision for taxes based on income or profits to the
extent such income or profits were included in computing
Consolidated Net Income, plus
(iii) Consolidated Interest Expense, to the extent deducted in
computing Consolidated Net Income, plus
(iv) the amortization of all intangible assets, to the extent such
amortization was deducted in computing Consolidated Net Income
(including, but not limited to, inventory), write-ups,
goodwill, debt and financing costs and Incentive Arrangements),
plus
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(v) any non-capitalized transaction costs incurred in connection
with financings or acquisitions, (including, but not limited
to, financing and refinancing fees, to the extent deducted in
computing Consolidated Net Income), plus
(vi) all depreciation and all other non-cash charges (including
without limitation, those charges relating to purchase
accounting adjustments, to the extent deducted in computing
Consolidated Net Income), plus
(vii) any interest income, to the extent such income was not included
in computing Consolidated Net Income, plus
(viii) all dividend payments on Preferred Stock (whether or not paid
in cash), to the extent deducted in computing Consolidated Net
Income, plus
(ix) any extraordinary or non-recurring charge or expense arising
out of the implementation of SFAS 106 or SFAS 109, to the
extent deducted in computing Consolidated Net Income;
provided, however, that if any such calculation includes any period during
which an acquisition or sale of a Person or the incurrence or repayment of
Indebtedness occurred, then such calculation for such period shall be made on
a Pro Forma Basis.
"Cash Flow Coverage Ratio" means, for any given period and Person, the
ratio of:
(a) Cash Flow, divided by
(b) the sum of Consolidated Interest Expense and the amount
of all dividend payments on any series of Preferred Stock
of such Person (except dividends paid or payable in
additional shares of Capital Stock (other than
Disqualified Stock)). in each case, without duplication;
provided, however, that if any such calculation includes any period during
which an acquisition or sale of a Person or the incurrence or repayment of
Indebtedness occurred, then such calculation for such period shall be made on
a Pro Forma Basis.
"Change of Control" means the occurrence of any of the following: (i)
the Jordan Stockholders shall fail to be the beneficial owners, directly or
indirectly, of at least 22% of the outstanding shares of common stock of the
Company on a fully-diluted basis (provided that the Issuance of any shares of
the Company's common stock pursuant to a primary public offering shall not be
considered to have diluted such percentage ownership); or (ii) the Company is
merged or consolidated with another corporation, or all or substantially all of
the assets of the Company are sold, leased or conveyed to another Person, and
the Jordan Stockholders are not the beneficial owners, directly or indirectly,
immediately following such transaction, of at least 22% of the Equity Interests
(which are entitled to vote in the election of directors or other governing
body) of the corporation surviving any such consolidation or merger, or the
Person
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to which such sale, lease or conveyance shall have been made; or (iii) the
Company is liquidated or dissolved.
"Claim" means any and all rights to payment under or in respect of any
Security or this Indenture or any related agreements or arrangements, all
rights, remedies, demands, causes of action and claims of every type and
description at any time held or asserted by, or arising in favor of, any Holder
against the Company or any of its Subsidiaries or any Affiliate, or any of
their assets, on account of any breach of any promise, obligation, agreement,
indemnity, representation, warranty or covenant in a Security or this Indenture
or any related agreements or arrangements or in any manner arising out of, or
relating to, the offer, sale or purchase of a Security or the transactions
contemplated by this Indenture or by related agreements or the performance or
nonperformance or the payment or nonpayment thereof, whether based on contract,
tort, duty imposed by law or any other theory, legal or equitable and whether
for rescission, indemnification, contribution or damages (including without
limitation, (a) any claim substituted for, or equivalent to, any of the
foregoing, and (b) any judgment with respect to any of the foregoing).
"Company" means Jordan Industries, Inc. until a successor replaces it
in accordance with Article 5 and thereafter means the successor, and shall
include any and all other obligors on the Securities.
"Consolidated Interest Expense" means, for any given period and
Person, the aggregate of the interest expense in respect of all Indebtedness of
such Person and its Subsidiaries for such period, on a consolidated basis,
determined in accordance with GAAP (including amortization of original issue
discount on any such Indebtedness, all non-cash interest payments, the interest
portion of any deferred payment obligation and the interest component of
Capital Lease Obligations, but excluding amortization of deferred financing
fees if such amortization would otherwise be included in interest expense);
provided, however, that for the purpose of the Cash Flow Coverage Ratio in
Sections 4.07 and 5.01, Consolidated Interest Expense shall be calculated on a
Pro Forma Basis as if all Indebtedness Issued or refinanced during the relevant
period had been Issued or refinanced on the first day of such period; provided
further that any premiums, fees and expenses (including the amortization
thereof) payable in connection with the Refinancing Plan or any other
refinancing of Indebtedness will be excluded.
"Consolidated Net Income" means, for any given period and Person, the
aggregate of the Net Income of such Person and its Subsidiaries for such
period, on a consolidated basis, determined in accordance with GAAP; provided,
however, that:
(i) the Net Income of any Person acquired in a pooling of interests
transaction for any period prior to the date of such
acquisition shall be excluded, and
(ii) Consolidated Net Income of any Person will not include, without
duplication, any deduction for:
(A) any increased amortization or depreciation resulting from
the write-up of assets pursuant to Accounting Principles
Board Opinion Nos. 16 and 17, as amended or supplemented
from time to time,
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(B) the amortization of all intangible assets (including
amortization attributable to inventory write-ups,
goodwill, debt and financing costs, and Incentive
Arrangements),
(C) any non-capitalized transaction costs incurred in
connection with financings or acquisitions (including,
but not limited to, financing and refinancing fees),
(D) any extraordinary or nonrecurring charges relating to any
premium or penalty paid, write-off or deferred financing
costs or other financial recapitalization charges in
connection with redeeming or retiring any Indebtedness
prior to its stated maturity, and
(E) any non-recurring charge arising out of the restructuring
or consolidation of the operations of any Person(s) or
business either alone or together with the Company or any
Restricted Subsidiary, incurred within 18 months
following the acquisition of such Person(s) or business
by the Company or any Restricted Subsidiary;
provided, however, that for purposes of determining the Cash Flow Coverage
Ratio, Consolidated Net Income shall be calculated on a Pro Forma Basis.
"Consolidated Net Worth" with respect to any Person means, as of any
date, the consolidated equity of the common stockholders of such Person
(excluding the cumulated foreign currency translation adjustment), all
determined on a consolidated basis in accordance with GAAP, but without any
reduction in respect of the payment of dividends on any series of such
Person's Preferred Stock if such dividends are paid in additional shares of
Capital Stock (other than Disqualified Stock); provided, however, that
Consolidated Net Worth shall also include, without duplication:
(i) the amortization of all write-ups of inventory,
(ii) the amortization of all intangible assets (including
amortization of goodwill, debt and financing costs, and
Incentive Arrangements),
(iii) any non-capitalized transaction costs incurred in connection
with financings or acquisitions (including, but not limited to,
financing and refinancing fees),
(iv) any increased amortization or depreciation resulting from the
write-up of assets pursuant to Accounting Principles Board
Opinion Nos. 16 and 17, as amended and supplemented from time
to time,
(v) any extraordinary or nonrecurring charges or expenses relating
to any premium or penalty paid, write-off or deferred financing
costs or other financial recapitalization charges incurred in
connection with redeeming or retiring any Indebtedness prior to
its stated maturity,
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(vi) any non-recurring cash charge arising out of the restructuring
or consolidation of the operations of any Person(s) or business
either alone or together with the Company or any Restricted
Subsidiary, incurred within 18 months following the acquisition
of such Person(s) or business by the Company or any Restricted
Subsidiary, and
(vii) any extraordinary or non-recurring charge arising out of the
implementation of SFAS 106 or SFAS 109;
provided, however, that for purposes of determining Consolidated Net Worth in
Section 5.01, Consolidated Net Worth shall be calculated on a Pro Forma Basis.
"Consulting Agreement" means the Amended and Restated Management
Consulting Agreement, between the Company and TJC Management Corporation, as in
effect on the date of original Issuance of the Securities.
"Corporate Trust Office" shall be at the address of the Trustee
specified in Section 11.02 or such other address as the Trustee may give notice
to the Company.
"Credit Agent" means the agent under the Credit Agreement or the New
Credit Agreement, as the case may be, or such other Person as may be designated
as such by the Company from time to time by notifying the Trustee.
"Credit Agreement" means the amended and restated revolving credit
agreement dated December 10, 1991 among the Company, certain of its
Subsidiaries and The First National Bank of Boston, as amended or supplemented
from time to time.
"Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
"Default" means any event that is, or after notice or passage of time
or both would be, an Event of Default.
"Definitive Securities" means Securities that are in the form of
Exhibit A attached hereto (but without including the text referred to in
footnotes 1 and 2 thereto).
"Depositary" means, with respect to the Securities issuable or issued
in whole or in part in global form, the Person specified in Section 2.03 hereof
as the Depositary with respect to the Securities, until a successor shall have
been appointed and become such pursuant to Section 2.06 of this Indenture, and,
thereafter, "Depositary" shall mean or include such successor.
"Designated Senior Indebtedness" means (i) Indebtedness evidenced by
(A) the Securities and (B) the Credit Agreement or the New Credit Agreement if
such Indebtedness constitutes Senior Indebtedness, irrespective of amount, and
(ii) any other Senior Indebtedness Issued under a credit agreement or other
credit facility (x) in an aggregate outstanding principal amount of at least
$50,000,000 (or, in the case of any revolving credit agreement or other
committed credit facility, having an aggregate commitment
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of at least $50,000,000), and (y) that is specifically designated by the
Company in the instrument creating or evidencing such Senior Indebtedness as
"Designated Senior Indebtedness."
"Disqualified Stock" means any Capital Stock that by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is
redeemable at the option of the holder thereof, in whole or in part on, or
prior to, the maturity date of the Securities.
"Dura-Line Agreement" means the Preferred Stock Agreement, dated March
1, 1991-2, among Dura-Line and certain other Persons, as in effect on the date
of original Issuance of the Securities.
"Equity Interests" means Capital Stock or partnership interests or
warrants, options or other rights to acquire Capital Stock or partnership
interests (but excluding (i) any debt security that is convertible into or
exchangeable for, Capital Stock or partnership interests, and (ii) any other
Indebtedness or Obligation); provided, however, that Equity Interests will not
include any Incentive Arrangements or obligations or payments thereunder.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Offer" means the offer by the Company to Holders to exchange
Series B Securities for Series A Securities pursuant to the Registration Rights
Agreement.
"GAAP" means generally accepted accounting principles, consistently
applied, as of the date of original Issuance of the Securities. All financial
and accounting determinations and calculations under this Indenture will be
made in accordance with GAAP.
"Global Security" means a Security that contains the paragraph
referred to in footnote 1 and the additional schedule referred to in footnote 2
to the form of the Note attached hereto as Exhibit A.
"Hedging Obligations" means, with respect to any Person, the
Obligations of such Persons under (i) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements, (ii) foreign exchange
contracts, currency swap agreements or similar agreements, and (iii) other
agreements or arrangements designed to protect such Person against
fluctuations, or otherwise to establish financial xxxxxx in respect of,
exchange rates, currency rates or interest rates.
"Holder" means a Person in whose name a Security is registered.
"Incentive Arrangements" means any earn-out agreements, stock
appreciation rights, "phantom" stock plans, employment agreements,
non-competition agreements, subscription and stockholders agreements and other
incentive and bonus plans and similar arrangements made in connection with
acquisitions of Persons or businesses by the Company or the Restricted
Subsidiaries or the retention of executives, officers or employees by the
Company or the Restricted Subsidiaries.
"Indebtedness" means, with respect to any Person, any indebtedness,
whether or not contingent, in respect of borrowed money or evidenced by bonds,
notes, debentures or similar instruments or letters
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of credit (or reimbursement agreements in respect thereof) or representing the
deferred and unpaid balance of the purchase price of any property (including
pursuant to capital leases), except any such balance that constitutes an
accrued expense or a trade payable, and any Hedging Obligations, if and to the
extent such indebtedness (other than a Hedging Obligation) would appear as a
liability upon a balance sheet of such Person prepared on a consolidated basis
in accordance with GAAP, and also includes, to the extent not otherwise
included, the guarantee of items that would be included within this
definition; provided, however, that "Indebtedness" will not include any
Incentive Arrangements or obligations or payments thereunder.
"Indenture" means this Indenture as amended or supplemented from time
to time.
"Initial Purchasers" means the initial purchasers from the Company of
the Series A Discount Debentures.
"Insolvency or Liquidation Proceeding" means (i) any insolvency or
bankruptcy or similar case or proceeding, or any reorganization, receivership,
liquidation, dissolution or winding up of the Company, whether voluntary or
involuntary, or (ii) any assignment for the benefit of creditors or any other
marshalling of assets and liabilities of the Company.
"Issue" means create, issue, assume, guarantee, incur or otherwise
become directly or indirectly liable for any Indebtedness or Capital Stock, as
applicable; provided, however, that any Indebtedness or Capital Stock of a
Person existing at the time such Person becomes a Restricted Subsidiary,
(whether by merger, consolidation, acquisition or otherwise) shall be deemed to
be issued by such Restricted Subsidiary at the time it becomes a Restricted
Subsidiary. For this definition, the terms "Issuing," "Issuer," "Issuance" and
"Issued" have meanings correlative to the foregoing.
"Jordan Stockholders" means Xxxx X. Xxxxxx, XX and/or his heirs,
executors and administrators, and/or The Xxxx X. Xxxxxx, XX Revocable Trust,
The Jordan Family Trust and/or any other trust established by Xxxx X. Xxxxxx,
XX whose beneficiaries are Xxxx X. Xxxxxx, XX and/or his lineal descendants or
other relatives.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security, interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law,
(including any conditional sale or other title retention agreement, any lease
in the nature thereof, any option or other agreement to sell and any filing of
or agreement to give any financing statement under the Uniform Commercial Code
(or equivalent statutes) of any jurisdiction).
"Liquidated Damages" means all liquidated damages then owing pursuant
to Section 5 of the Registration Rights Agreement.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York are not required to be open.
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"Marketable Securities" means debt or equity securities of any Person
(other than the Company, or any Affiliate) that are freely tradeable under all
applicable federal and state securities laws and that are either listed on a
national stock exchange or traded over the counter.
"Net Income" means, with respect to any Person, the net income (loss)
of such Person. determined in accordance with GAAP, excluding, however, any
gain or loss, together with any related provision for taxes, realized in
connection with any Asset Sale (including, without limitation, dispositions
pursuant to sale and leaseback transactions).
"Net Proceeds" means. with respect to any Asset Sale, the aggregate
amount of cash proceeds (including an cash received by way of deferred payment
pursuant to a note receivable Issued in connection with such Asset Sale, other
than the portion of such deferred payment constituting interest, and including
any amounts received as disbursements or withdrawals from any escrow or similar
account established in connection with any such Asset Sale, but, in either such
case, only as and when so received) received by the Company or any of its
Restricted Subsidiaries in respect of such Asset Sale, net of:
(i) the cash expenses of such Asset Sale (including, without
limitation, the payment of principal of, and premium, if any,
and interest on, Indebtedness required to be paid as a result
of such Asset Sale (other than the Securities) and legal,
accounting and investment banking fees and sales commissions),
(ii) taxes paid or payable as a result thereof,
(iii) any portion of cash proceeds that the Company determines in
good faith should be reserved for post-closing adjustments, it
being understood and agreed that on the day that all such
post-closing adjustments have been determined, the amount (if
any) by which the reserved amount in respect of such Asset Sale
exceeds the actual post-closing adjustments payable by the
Company or any of its Restricted Subsidiaries shall constitute
Net Proceeds on such date, and
(iv) any relocation expenses and pension, severance and shutdown
costs incurred as a result thereof.
"New Credit Agreement" means the credit agreement to be entered into
by the Company and/or certain of its Restricted Subsidiaries and The First
National Bank of Boston, as in effect at the date hereof, and as subsequently
amended, modified, extended, restated, replaced or supplemented, from time to
time, and any documents governing refinancings or extensions of amounts
borrowed thereunder.
"Non-Restricted Subsidiary" means J.I. Finance Company, Motors and
Gears Holdings, Inc. and its Subsidiaries, SPL Holdings, Inc. and its
Subsidiaries and any other Subsidiary of the Company other than a Restricted
Subsidiary.
"Obligations" means, with respect to any Indebtedness, all principal,
premiums, interest. penalties, fees, indemnities, expenses (including legal
fees and expenses), reimbursement obligations and
-9-
other liabilities payable to the holder of such Indebtedness under the
documentation governing such Indebtedness, and any other claims of such holder
arising in respect of such Indebtedness.
"Officer" means the President, the Treasurer, any Assistant
Treasurer, the Controller, the Secretary or any Vice-President of the Company.
"Officers' Certificate" means a certificate signed by two Officers.
"Old Debentures" means the Company's 11 3/4% Senior Subordinated
Discount Debentures due 2005.
"Old Note Indenture" means the indenture, dated as of December 15,
1988, between the Company and First Bank National Association, as trustee, as
amended or supplemented.
"Old Notes" means the Company's 13-7/8 % Series A Senior Subordinated
Notes due 1998, and the Company's 16% Series B Senior Subordinated Reset Notes
due 1998, each Issued under the Old Note Indenture.
"Opinion of Counsel" means a written opinion in form and substance
satisfactory to, and from legal counsel acceptable to, the Trustee (such
counsel may be an employee of or counsel to the Company or the Trustee).
"Other Permitted Indebtedness" means:
(i) Indebtedness of the Company and its Restricted Subsidiaries
existing as of the date of original issuance of the Securities
(including Old Notes, if any, the Securities and the
Securities);
(ii) Indebtedness of the Company and its Restricted Subsidiaries in
respect of bankers acceptances and letters of credit
(including, without limitation, letters of credit in respect of
workers' compensation claims) Issued in the ordinary course of
business, or other Indebtedness with respect to
reimbursement-type obligations regarding workers' compensation
claims;
(iii) Refinancing Indebtedness, provided that:
(A) the principal amount of such Refinancing Indebtedness
shall not exceed the outstanding principal amount of
Indebtedness (including unused commitments) so extended,
refinanced, renewed, replaced, substituted or refunded
plus any amounts incurred to pay premiums, fees and
expenses in connection therewith,
(B) Refinancing Indebtedness of Indebtedness other than
Senior Indebtedness shall have a Weighted Average Life to
Maturity equal to or greater than the Weighted Average
Life to Maturity of the Indebtedness being extended,
refinanced, renewed, replaced, substituted or refunded;
and
-10-
(C) in the case of Refinancing Indebtedness of Subordinated
Indebtedness, such Refinancing Indebtedness shall be
subordinated to the Securities at least to the same
extent as the Indebtedness being extended, refinanced,
renewed, replaced, substituted or refunded;
(iv) intercompany Indebtedness of and among the Company and its
Restricted Subsidiaries (excluding guarantees by Restricted
Subsidiaries of Indebtedness of the Company not Issued in
compliance with Section 4.17);
(v) Indebtedness of the Company and its Restricted Subsidiaries
Issued in connection with making permitted Restricted Payments
under Sections 4.05(b)(iv), (b)(v) or (b)(ix);
(vi) Indebtedness of any Non-Restricted Subsidiary Issued after the
date of original Issuance of the Securities, provided that such
Indebtedness is nonrecourse to the Company and its Restricted
Subsidiaries and the Company and its Restricted Subsidiaries
have no Obligations with respect to such Indebtedness;
(vii) Indebtedness of the Company and its Restricted Subsidiaries
under Hedging Obligations;
(viii) Indebtedness of the Company and its Restricted Subsidiaries
arising from the honoring by a bank or other financial
institution of a check, draft or similar instrument
inadvertently (except in the case of daylight overdrafts, which
will not be, and will not be deemed to be, inadvertent) drawn
against insufficient funds in the ordinary course of business;
(ix) Indebtedness of any Person at the time it is acquired as a
Restricted Subsidiary, provided that such Indebtedness was not
Issued by such Person in connection with or in anticipation of
such acquisition;
(x) guarantees by Restricted Subsidiaries of Indebtedness of any
Restricted Subsidiary if the Indebtedness so guaranteed is
permitted under this Indenture;
(xi) guarantees by a Restricted Subsidiary of Indebtedness of the
Company, if the Indebtedness so guaranteed is permitted under
this Indenture and the Securities are guaranteed by such
Restricted Subsidiary to the extent required by Section 4.17;
(xii) guarantees by the Company of Indebtedness of any Restricted
Subsidiary if the Indebtedness so guaranteed is permitted under
this Indenture;
(xiii) Indebtedness of the Company and its Restricted Subsidiaries
Issued in connection with performance, surety, statutory,
appeal or similar bonds in the ordinary course of business; and
(xiv) Indebtedness of the Company and its Restricted Subsidiaries
Issued in connection with agreements providing for
indemnification, purchase price adjustments and similar
-11-
obligations in connection with the sale or disposition of any
of their business, properties or assets.
"Permitted Liens" means: (a) with respect to the Company and its
Restricted Subsidiaries,
(1) Liens for taxes, assessments, governmental charges or claims
which are being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted and if
a reserve or other appropriate provision, if any, as shall be
required in conformity with GAAP shall have been made therefor;
(2) statutory Liens of landlords and carriers', warehousemen's,
mechanics', suppliers', materialmen's, repairmen's or other
like Liens arising in the ordinary course of business and with
respect to amounts not yet delinquent or being contested in
good faith by appropriate proceedings, if a reserve or other
appropriate provision, if any as shall be required in
conformity with GAAP shall have been made therefor;
(3) Liens incurred on deposits made in the ordinary course of
business in connection with workers' compensation, unemployment
insurance and other types of social security;
(4) Liens incurred on deposits made to secure the performance of
tenders, bids, leases, statutory obligations, surety and appeal
bonds, government contracts, performance and return of moneys,
bonds and other obligations of a like nature incurred in the
ordinary course of business (exclusive of obligations for the
payment of borrowed money);
(5) easements, rights-of-way, zoning or other restrictions, minor
defects or irregularities in title and other similar charges or
encumbrances not interfering in any material respect with the
business of the Company or any of its Restricted Subsidiaries
incurred in the ordinary course of business;
(6) Liens (including extensions, renewals and replacements thereof)
upon property acquired (the "Acquired Property") after the date
of original Issuance of the Securities, provided that:
(A) any such Lien is created solely for the purpose of
securing Indebtedness representing, or Issued to finance,
refinance or refund, the cost (including the cost of
construction) of the Acquired Property,
(B) the principal amount of the Indebtedness secured by such
Lien does not exceed 100% of the cost of the Acquired
Property,
(C) such Lien does not extend to or cover any property other
than the Acquired Property and any improvements on such
Acquired Property, and
(D) the Issuance of the Indebtedness to purchase the Acquired
Property is permitted by Section 4.07;
-12-
(7) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection
with the importation of goods;
(8) judgment and attachment Liens not giving rise to an Event of
Default;
(9) leases or subleases granted to others not interfering in any
material respect with the business of the Company or any of its
Restricted Subsidiaries;
(10) Liens encumbering customary initial deposits and margin
deposits, and other Liens incurred in the ordinary course of
business and that are within the general parameters customary
in the industry, in each case securing Indebtedness under
Hedging Obligations;
(11) Liens encumbering deposits made to secure obligations arising
from statutory, regulatory, contractual or warranty
requirements of the Company or its Restricted Subsidiaries,
(12) Liens arising out of consignment or similar arrangements for
the sale of goods entered into by the Company or its Restricted
Subsidiaries in the ordinary course of business;
(13) any interest or title of a lessor in property subject to any
Capital Lease Obligation or operating lease;
(14) Liens arising from filing Uniform Commercial Code financing
statements regarding leases;
(15) Liens existing on the date of original Issuance of the
Securities and any extensions, renewals or replacements
thereof; and
(16) any (a) Lien granted to any trustee (including, but not limited
to, the Security Trustee) or similar institution under any
indenture for Senior Indebtedness, and (b) any Lien granted to
the Trustee under this Indenture and any substantially
equivalent Lien granted to any trustee or similar institution
under any indenture for Senior Subordinated Indebtedness
permitted by the terms of this Indenture;
(b) with respect to the Restricted Subsidiaries,
(1) Liens securing Restricted Subsidiaries' reimbursement
Obligations with respect to letters of credit that encumber
documents and other property relating to such letters of credit
and the products and proceeds thereof;
(2) Liens securing Indebtedness Issued by Restricted Subsidiaries
if such Indebtedness is permitted by (A) Section 4.07(a), (B)
Sections 4.07(b)(i), (b)(ii), (b)(iii) or (b)(iv), or (C)
clauses (i), (iii) (to the extent the Indebtedness subject to
such Refinancing Indebtedness was subject to Liens), (vii),
(ix) or (x) of the definition of Other Permitted Indebtedness;
(3) Liens securing intercompany Indebtedness Issued by any
Restricted Subsidiary to the Company or another Restricted
Subsidiary;
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(4) additional Liens at any one time outstanding with respect to
assets of the Restricted Subsidiaries the aggregate fair market
value of which does not exceed $10,000,000 (the fair market
value of any such asset is to be determined on the date such
Lien is granted on such asset);
(5) Liens securing guarantees by Restricted Subsidiaries of
Indebtedness Issued by the Company if such guarantees are
permitted by clause (xi) (but only in respect of the property,
rights and assets of the Restricted Subsidiaries Issuing such
guarantees) of the definition of Other Permitted Indebtedness;
and
(c) with respect to the Company,
(1) Liens securing Indebtedness Issued by the Company under the
Credit Agreement or the New Credit Agreement if such
Indebtedness is permitted by Section 4.07 (including, but not
limited to, Indebtedness Issued by the Company under the Credit
Agreement or the New Credit Agreement pursuant to Section
4.07(b)(i) and/or (b)(iv));
(2) Liens securing Indebtedness of the Company if such Indebtedness
is permitted by clauses (i), (iii) (to the extent the
Indebtedness subject to such Refinancing Indebtedness was
subject to Liens) or (vii) of the definition of Other Permitted
Indebtedness; and
(3) Liens securing guarantees by the Company of Indebtedness Issued
by Restricted Subsidiaries if such Indebtedness is permitted by
Section 4.07 (including, but not limited to, Indebtedness
Issued by Restricted Subsidiaries under the Credit Agreement or
the New Credit Agreement pursuant to Section 4.07(b)(i) and/or
(b)(iv)) and if such guarantees are permitted by clause (xii)
(but only in respect of Indebtedness Issued by the Restricted
Subsidiaries under the Credit Agreement or the New Credit
Agreement pursuant to Section 4.07) of the definition of Other
Permitted Indebtedness;
provided, however, that, notwithstanding any of the foregoing, the Permitted
Liens referred to in clause (c) of this definition shall not include any Lien
on Capital Stock of Restricted Subsidiaries held by the Company (as
distinguished from Liens on Capital Stock of Restricted Subsidiaries held by
other Restricted Subsidiaries) other than Liens securing (A) Indebtedness of
the Company Issued under the Credit Agreement or the New Credit Agreement
pursuant to Section 4.07 and any permitted Refinancing Indebtedness of such
Indebtedness, and (B) guarantees by the Company of Indebtedness Issued by
Restricted Subsidiaries under the Credit Agreement or the New Credit Agreement
pursuant to Section 4.07 and any permitted Refinancing Indebtedness of such
Indebtedness.
"Person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"Post-Petition Interest" means, with respect to any Senior
Indebtedness, all interest accrued or accruing on such Senior Indebtedness
after the commencement of any Insolvency or Liquidation Proceeding in
accordance with and at the contract rate (including, without limitation, any
rate applicable upon default) specified in the agreement or instrument
creating, evidencing or governing such Senior
-14-
Indebtedness, whether or not, pursuant to applicable law or otherwise, the
claim for such interest is allowed as a claim in such Insolvency or
Liquidation Proceeding.
"Preferred Stock" as applied to the Capital Stock of any corporation,
means Capital Stock of any class or classes (however designated) that is
preferred as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock or any other class of such
corporation.
"Pro Forma Basis" means, for purposes of determining Consolidated Net
Income, Cash Flow and the Cash Flow Coverage Ratio (including in connection
with Section 4.05, Section 4.16, Section 5.01, the incurrence of Indebtedness
pursuant to Section 4.07(a) and Consolidated Net Worth for purposes of Section
5.01, giving pro forma effect to (x) any acquisition or sale of a Person,
business or asset, related incurrence, repayment or refinancing of
Indebtedness or other related transactions, including any related
restructuring charges in respect of restructurings, consolidations,
compensation or headcount reductions or other cost savings which would
otherwise be accounted for as an adjustment permitted by Regulation S-X under
the Securities Act or on a pro forma basis under GAAP, or (y) any incurrence,
repayment or refinancing of any Indebtedness and the application of the
proceeds therefrom, in each case, as if such acquisition or sale and related
restructuring charges, incurrence, repayment or refinancing were realized on
the first day of the relevant period permitted by Regulation S-X under the
Securities Act or on a pro forma basis under GAAP. Furthermore, in calculating
the Cash Flow Coverage Ratio, (1) interest on outstanding Indebtedness
determined on a fluctuating basis as of the determination date and which will
continue to be so determined thereafter shall be deemed to have accrued at a
fixed rate per annum equal to the rate of interest on such Indebtedness in
effect on the determination date; (2) if interest on any Indebtedness actually
incurred on the determination date may optionally be determined at an interest
rate based upon a factor of a prime or similar rate, a eurocurrency interbank
offered rate, or other rates, then the interest rate in effect on the
determination date will be deemed to have been in effect during the relevant
period; and (3) notwithstanding clause (1) above, interest on Indebtedness
determined on a fluctuating basis, to the extent such interest is covered by
agreements relating to interest rate swaps or similar interest rate protection
Hedging Obligations, shall be deemed to accrue at the rate per annum resulting
after giving effect to the operation of such agreements.
"Qualified Issuer" means any commercial bank (a) which has capital
and surplus in excess of $100,000,000 and (b) the outstanding long-term debt
securities of which are rated as least A-2 by Standard & Poor's Corporation or
P-2 by Xxxxx'x Investor Service, Inc., or carry an equivalent rating by a
nationally recognized rating agency if both of the two named rating agencies
cease publishing ratings of investments.
"Receivables" means, with respect to any Person all of the following
property and interests in property of such Person whether now existing or
existing in the future or hereafter acquired or arising: (i) accounts, (ii)
accounts receivable, (including, without limitation, all rights to payment
created by or arising from sales of goods, leases of goods or the rendition of
services, no matter how evidenced, whether or not earned by performance),
(iii) all unpaid seller's or lessor's rights (including without limitation,
recession, replevin, reclamation and stoppage in transit, relating to any of
the foregoing or arising therefrom), (iv) all rights to any goods or
merchandise represented by any of the foregoing (including, without
limitation, returned or repossessed goods, (v) all reserves and credit
balances with respect to any such accounts receivable or account debtors, (vi)
all letters of credit, security or guarantees
-15-
of any of the foregoing, (vii) all insurance policies or reports relating to
any of the foregoing, (viii) all collection or deposit accounts relating to
any of the foregoing, (ix) all proceeds of any of the foregoing, and (x) all
books and records relating to any of the foregoing.
"Receivables Financing" means (i) the sale or other disposition of
Receivables that arise in the ordinary course of business, or (ii) the sale or
other disposition of Receivables that arise in the ordinary course of business
to a Receivables Subsidiary followed by a financing transaction in connection
with such sale or disposition of such Receivables.
"Receivables Subsidiary" means any Subsidiary of the Company or any
other corporation, trust or entity that is exclusively engaged in Receivables
Financings and activities reasonably related thereto.
"Refinancing Indebtedness" means (i) Indebtedness of the Company
and/or its Restricted Subsidiaries Issued or given in exchange for, or the
proceeds of which are used to, extend, refinance, renew, replace, substitute
or refund any Indebtedness permitted under this Indenture or any Indebtedness
Issued to so extend, refinance, renew, replace, substitute or refund such
Indebtedness, (ii) any refinancings of Indebtedness Issued under the Credit
Agreement or the New Credit Agreement, and (iii) any additional Indebtedness
Issued to pay premiums and fees in connection with clauses (i) and (ii).
"Refinancing Plan" means (i) the repayment of all outstanding
Indebtedness Issued under the Credit Agreement; (ii) the redemption of all the
outstanding Old Notes, including accrued interest thereon, whether pursuant to
a debt tender offer or Section 4.15; (iii) the payment of prepayment premiums
on the Old Notes and consent fees for the solicitation of consents to
amendments to the Old Indenture and the Old Notes from holders of Old Notes,
and (iv) the payment of fees and expenses relating to clauses (i), (ii), and
(iii).
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of April 2, 1997, by and among the Company and the Initial
Purchasers.
"Representative" means with respect to any Senior Indebtedness, the
indenture trustee or other trustee, agent or other representative(s), if any,
of holders of such Senior Indebtedness.
"Restricted Investment" means any capital contribution to, or other
debt or equity investment in (other than certain investments in marketable
securities and other negotiable instruments permitted by this Indenture) any
Non-Restricted Subsidiary or any Person other than a Restricted Subsidiary or
the Company, provided that Restricted Investments will not include any
Incentive Arrangements. The amount of any Restricted Investment shall be the
amount of cash and the fair market value at the time of transfer of all other
property (as determined by the Board of Directors in good faith) initially
invested or paid for such Restricted Investment, plus all additions thereto,
without any adjustments for increases or decreases in value of, or write-ups,
write-downs or write-offs with respect to, such Restricted Investment.
"Restricted Subsidiary" means:
-16-
(i) any Subsidiary of the Company existing on the date of original
Issuance of the Securities under this Indenture, other than a
Non-Restricted Subsidiary, and
(ii) any other Subsidiary of the Company formed, acquired or
existing after the date of original Issuance of the Securities
that is designated as a "Restricted Subsidiary" by the Company
pursuant to a resolution approved by a majority of the Board of
Directors.
"SEC" means the Securities and Exchange Commission.
"Securities" means the Series A Discount Debentures and Series B
Discount Debentures Issued under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Indebtedness" means:
(d) (i) all Obligations (including Post-Petition Interest) whether
existing on the date of original Issuance of the Securities
or Issued thereafter, in respect of:
(A) all Indebtedness of the Company for money borrowed, and
(B) all Indebtedness evidenced by notes, debentures, bonds
or other similar instruments for the payment of which
the Company is responsible or liable;
(ii) all Capitalized Lease Obligations of the Company;
(iii) all Obligations of the Company:
(A) for the reimbursement of any obligor on any letter of
credit, banker's acceptance or similar credit
transaction,
(B) constituting Hedging Obligations, or
(C) Issued as the deferred purchase price of property and
all conditional sale Obligations of the Company and all
Obligations of the Company under any title retention
agreement;
(iv) all guarantees of the Company with respect to Obligations of
other Persons of the type referred to in clauses (ii) and
(iii) and with respect to the payment of dividends of other
Persons; and
(v) all Obligations of the Company consisting of modifications.
renewals, extensions. replacements and refundings of any
Obligations described in clauses (i), (ii), (iii) or (iv);
-17-
unless, in the instrument creating or evidencing the same or pursuant to which
the same is outstanding. it is provided that such Obligations are not
superior, or are pari passu, in right of payment to the Securities; provided,
however, that Senior Indebtedness shall not be deemed to include:
(1) any Obligation of the Company to any Subsidiary,
(2) any liability for federal, state, local or other taxes owed
or owing by the Company,
(3) any accounts payable or other liability to trade creditors
arising in the ordinary course of business (including
guarantees thereof or instruments evidencing such
liabilities),
(4) any Indebtedness, guarantee or Obligation of the Company
that is contractually subordinated or junior in any respect
to any other Indebtedness, guarantee or Obligation of the
Company, or
(5) any Indebtedness incurred in violation of this Indenture.
(e) To the extent any payment of Senior Indebtedness, whether by or
on behalf of the Company, as proceeds of security or enforcement
of any right of setoff or otherwise, is declared to be fraudulent
or preferential, set aside or required to be paid to a trustee,
receiver or other similar Person under any Bankruptcy Law, then
if such payment is recovered by, or paid over to, such trustee,
receiver or other similar Person, the Senior Indebtedness or part
thereof originally intended to be satisfied by such payment shall
be deemed to be reinstated and outstanding as if such payment had
not occurred. All Senior Indebtedness shall be and remain Senior
Indebtedness for all purposes of this Indenture, whether or not
subordinated in an Insolvency or Liquidation Proceeding.
"Senior Subordinated Indebtedness' means all Obligations of the type
referred to in clauses (i) through (v) of the definition of Senior Indebtedness
and including the Old Debentures unless, in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it is
provided that such Obligations are Senior Indebtedness, or it is provided that
such Obligations are subordinated or junior in right of payment to the
Securities, or it is not provided how such Obligations will rank in right of
payment to the Securities; provided, however, that Senior Subordinated
Indebtedness shall not be deemed to include any Indebtedness or Obligations of
the type referred to in clauses (1) through (5) at the end of paragraph (a) of
the definition of Senior Indebtedness.
"Series A Discount Debentures" means the Company's 11 3/4 Series A
Senior Subordinated Discount Debentures due 2009.
"Series B Discount Debentures" means the Company's 11 3/4 Series B
Senior Subordinated Discount Debentures due 2009.
-18-
"Significant Subsidiary" means (i) any Restricted Subsidiary of the
Company that would be a "significant subsidiary" as defined in clause (2) of
the definition of such term in Rule 1-02 of Regulation S-X under the Securities
Act and the Exchange Act, and (ii) any other Restricted Subsidiary of the
Company that is material to the business, earnings, prospects, assets or
condition, financial or otherwise, of the Company and its Restricted
Subsidiaries taken as a whole.
"SFAS 106" means Statement of Financial Accounting Standards No. 106.
"SFAS 109" means Statement of Financial Accounting Standards No. 109.
"Subordinated Indebtedness" means all Obligations of the type
referred to in clauses (i) through (v) of the definition of Senior
Indebtedness if the instrument creating or evidencing the same or pursuant to
which the same is outstanding designates such Obligations as being
subordinated or junior in right of payment to Senior Subordinated
Indebtedness.
"Subsidiary" of any Person means any entity of which the Equity
Interests entitled to cast at least a majority of the votes that may be cast
by all Equity Interests having ordinary voting power for the election of
directors or other governing body of such entity are owned by such Person
(regardless of whether such Equity Interests are owned directly by such Person
or through one or more Subsidiaries).
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code xx.xx.
77aaa-77bbbb) as in effect on the date of original Issuance of the Securities.
"Transfer Restricted Securities" means securities that bear or are
required to bear the legend set forth in Section 2.06
"Trustee" means First Trust National Association until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor.
"Trust Officer" means the chairman of the board, the president or any
other officer or assistant officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"U.S. Government Obligations" means direct obligations of the United
States of America for the payment of which the full faith and credit of the
United States of America is pledged, provided that no U.S. Government
Obligation shall be callable at the Issuer's option.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the then
outstanding principal amount of such Indebtedness into (ii) the sum of the
product(s) obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other requirement payment of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment.
-19-
Section 1.02 OTHER DEFINITIONS.
Defined in
Term Section
"Affiliate Transaction"........................................ 4.08
"Asset Sale Disposition Date".................................. 4.14
"Asset Sale Trigger Date"...................................... 4.14
"Change of Control Trigger Date"............................... 4.13
"covenant defeasance option"................................... 8.01
"Disposition".................................................. 5.01
"DTC".......................................................... 2.03
"Event of Default"............................................. 6.01
"Excess Proceeds".............................................. 4.14
"legal defeasance option"...................................... 8.01
"Notice of Default"............................................ 6.01
"Offer"........................................................ 3.08
"Other Indebtedness"........................................... 4.17
"Other Indebtedness Guarantee"................................. 4.17
"Paying Agent"................................................. 2.03
"Payment Blockage Period"...................................... 10.03
"Payment Notice"............................................... 10.03
"Purchase Date"................................................ 3.08
"Registrar".................................................... 2.03
"Restricted Payments".......................................... 4.05
"Successor Corporation"........................................ 5.01
"Trustee Expenses"............................................. 6.08
SECTION 1.03 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in, and made a part of, this Indenture.
Any terms incorporated by reference in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule under
the TIA have the meanings so assigned to them therein.
Section 1.04 RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it herein;
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(2) an accounting term not otherwise defined herein has the meaning
assigned to it under GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular: and
(5) provisions apply to successive events and transactions.
ARTICLE 2
THE SECURITIES
Section 2.01 FORM AND DATING.
The Securities and the Trustee's certificate of authentication shall
be substantially in the form of Exhibit A, which is part of this Indenture.
The Securities may have notations, legends or endorsements required by law,
stock exchange rule or usage. Each Security shall be dated the date of its
authentication.
The terms and provisions contained in the Securities shall
constitute, and are hereby expressly made, a part of this Indenture and to the
extent applicable, the Company and the Trustee, by their execution and
delivery of this Indenture, expressly agree to such terms and provisions and
to be bound thereby.
Each Global Security shall represent such of the outstanding
Securities as shall be specified therein and each shall provide that it shall
represent the aggregate amount of outstanding Securities from time to time
endorsed thereon and that the aggregate amount of outstanding Securities
represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any endorsement of a Global
Security to reflect the amount of any increase or decrease in the amount of
outstanding Securities represented thereby shall be made by the Trustee or the
Security Custodian, at the direction of the Trustee, in accordance with
instructions given by the Holder thereof as required by Section 2.06.
Section 2.02 EXECUTION AND AUTHENTICATION.
Two officers shall sign the Securities for the Company by manual or
facsimile signature. The Company's seal shall be reproduced on the Securities.
If an Officer whose signature is on a Security no longer holds that
office at the time the Security is authenticated, the Security shall
nevertheless be valid.
A Security shall not be valid until authenticated by the manual
signature of the Trustee, and the Trustee's signature shall be conclusive
evidence that the Security has been authenticated under this
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Indenture. The form of Trustee's certificate of authentication to be borne by
the Securities shall be substantially as set forth in Exhibit A.
The Trustee shall, upon a written order of the Company signed by two
Officers, authenticate Securities for original Issuance up to an aggregate
principal amount stated in paragraph 4 of each Security (the aggregate
principal amount of outstanding Securities may not exceed that amount at any
time, except as provided in Section 2.07).
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company or an Affiliate.
Section 2.03 REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency (the "Registrar")
where Securities may be presented for registration of transfer or for exchange
and an office or agency (the "Paying Agent") where Securities may be presented
for payment. The Registrar shall keep a register of the Securities and of
their transfer and exchange. The Company may appoint one or more co-registrars
and one or more additional paying agents. The term "Paying Agent" includes any
additional paying agent. The Company may change the Paying Agent, Registrar or
co-registrar without prior notice to any Holder. The Company shall notify the
Trustee and the Trustee shall notify the Holders of the name and address of
any Agent not a party to this Indenture. The Company shall enter into an
appropriate agency agreement with any Agent not a party to this Indenture, and
such agreement shall incorporate the TIA's provisions and implement the
provisions of this Indenture that relate to such Agent.
The Company initially appoints The Depository Trust Company ("DTC")
to act as Depositary with respect to the Global Securities.
The Company initially appoints the Trustee as Registrar, Paying Agent
and agent for service of notices and demands in connection with the
Securities. The Company or any of its Subsidiaries may act as Paying Agent,
Registrar or co-registrar. If the Company fails to appoint or maintain a
Registrar and Paying Agent, the Trustee shall act as such, and shall be
entitled to appropriate compensation in accordance with Section 7.07.
Section 2.04 PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the Holders'
benefit or the Trustee all money the Paying Agent holds for redemption or
purchase of the Securities or for the payment of principal of, or premium, if
any, or interest on, or Liquidated Damages, if any, with respect to the
Securities, and will notify the Trustee of any Default by the Company in
providing the Paying Agent with sufficient funds to (i) purchase Securities
tendered pursuant to a Change of Control Offer, (ii) redeem Securities called
for redemption, or (iii) make any payment of principal, premium or interest or
Liquidated Damages due on the Securities. While any such Default continues,
the Trustee may require the Paying Agent to pay all money it holds to the
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Trustee. The Company at any time may require the Paying Agent to pay all money
it holds to the Trustee. Upon payment over to the Trustee, the Paying Agent
(if other than the Company or any of its Subsidiaries) shall have no further
liability for the money it delivered to the Trustee. If the Company or any of
its Subsidiary acts as Paying Agent, it shall segregate and hold in a separate
trust fund for the Holders' benefit or the Trustee all money it holds as
Paying Agent.
Section 2.05 HOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders and shall otherwise comply with section 312(a) of the TIA. If the
Trustee is not the Registrar, the Company shall furnish to the Trustee, at
least seven Business Days before each interest payment date and at such other
times as the Trustee may request in writing, a list in such form and as of
such date as the Trustee may reasonably require that sets forth the names and
addresses of, and the aggregate principal amount of Securities held by, each
Holder, and the Company shall otherwise comply with section 312(a) of the TIA.
Section 2.06 TRANSFER AND EXCHANGE.
(a) Transfer and Exchange of Definitive Securities. When Definitive
Securities are presented by a Holder to the Registrar with a request:
(x) to register the transfer of the Definitive Securities; or
(y) to exchange such Definitive Securities for an equal
principal amount of Definitive Securities of other
authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if
its requirements for such transactions are met; provided, however, that the
Definitive Securities presented or surrendered for register of transfer or
exchange:
(i) shall be duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the
Registrar duly executed by such Holder or by his attorney,
duly authorized in writing; and
(ii) in the case of a Definitive Security that is a Transfer
Restricted Security, such request shall be accompanied by
the following additional information and documents, as
applicable:
(A) if such Transfer Restricted Security is being delivered
to the Registrar by a Holder for registration in the
name of such Holder, without transfer, a certification
to that effect from such Holder (in substantially the
form of Exhibit B hereto); or
(B) if such Transfer Restricted Security is being
transferred (1) to a "qualified institutional buyer"
(as defined in Rule 144A under the Securities Act) in
accordance with Rule 144A under the Securities Act
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or (2) pursuant to an exemption from registration in
accordance with Rule 144 under the Securities Act (and
based on an opinion of counsel if the Company so
requests) or (3) pursuant to an effective registration
statement under the Securities Act, a certification to
that effect from such Holder (in substantially the form
of Exhibit B hereto);
(C) if such Transfer Restricted Security is being
transferred to an institutional "accredited investor,"
within the meaning of Rule 501(a)(1), (2), (3) or (7)
under the Securities Act pursuant to a private
placement exemption from the registration requirements
of the Securities Act (and based on an opinion of
counsel if the Company so requests), a certification to
that effect from such Holder (in substantially the form
of Exhibit B hereto) and a certification from the
applicable transferee (in substantially the form of
Exhibit C hereto);
(D) if such Transfer Restricted Security is being
transferred in reliance on another exemption from the
registration requirements of the Securities Act (and
based on an opinion of counsel if the Company so
requests), a certification to that effect from such
Holder (in substantially the form of Exhibit B hereto).
(b) Transfer of a Definitive Security for a Beneficial Interest in a
Global Security. A Definitive Security may not be exchanged for a beneficial
interest in a Global Security except upon satisfaction of the requirements set
forth below. Upon receipt by the Trustee of a Definitive Security, duly
endorsed or accompanied by appropriate instruments of transfer, in form
satisfactory to the Trustee, together with:
(i) if such Definitive Security is a Transfer Restricted
Security, a certification from the Holder thereof (in
substantially the form of Exhibit B hereto) to the effect
that such Definitive Security is being transferred by such
Holder to a "qualified institutional buyer" (as defined in
Rule 144A under the Securities Act) in accordance with Rule
144A under the Securities Act; and
(ii) whether or not such Definitive Security is a Transfer
Restricted Security, written instructions from the Holder
thereof directing the Trustee to make, or to direct the
Security Custodian to make, an endorsement on the Global
Security to reflect an increase in the aggregate principal
amount of the Securities represented by the Global Security,
the Trustee shall cancel such Definitive Security in accordance with Section
2.11 and cause, or direct the Security Custodian to cause, in accordance with
the standing instructions and procedures existing between the Depositary and
the Security Custodian, the aggregate principal amount of Securities
represented by the Global Security to be increased accordingly. If no Global
Securities are then outstanding, the Company shall issue and, upon receipt of
an authentication order in accordance with Section 2.02, the Trustee shall
authenticate a new Global Security in the appropriate principal amount.
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(c) Transfer and Exchange of Global Securities. The transfer and
exchange of Global Securities or beneficial interests therein shall be effected
through the Depositary, in accordance with this Indenture and the procedures of
the Depositary therefor, which shall include restrictions on transfer
comparable to those set forth herein to the extent required by the Securities
Act.
(d) Transfer of a Beneficial Interest in a Global Security for a
Definitive Security.
(i) Any Person having a beneficial interest in a Global Security
may upon request exchange such beneficial interest for a
Definitive Security. Upon receipt by the Trustee of written
instructions or such other form of instructions as is
customary for the Depositary, from the Depositary or its
nominee on behalf of any Person having a beneficial interest
in a Global Security, and, in the case of a Transfer
Restricted Security, the following additional information
and documents (all of which may be submitted by facsimile):
(A) if such beneficial interest is being transferred to the
Person designated by the Depositary as being the
beneficial owner, a certification to that effect from
such Person (in substantially the form of Exhibit B
hereto); or
(B) if such beneficial interest is being transferred (1) to
a "qualified institutional buyer" (as defined in Rule
144A under the Securities Act) in accordance with Rule
144A under the Securities Act or (2) pursuant to an
exemption from registration in accordance with Rule 144
under the Securities Act (and based on an opinion of
counsel if the Company so requests) or (3) pursuant to
an effective registration statement under the
Securities Act, a certification to that effect from the
transferor (in substantially the form of Exhibit B
hereto); or
(C) if such beneficial interest is being transferred to an
institutional "accredited investor," within the meaning
of Rule 501(a)(1), (2), (3) or (7) under the Securities
Act pursuant to a private placement exemption from the
registration requirements of the Securities Act (and
based on an opinion of counsel if the Company so
requests), a certification to that effect from such
Holder (in substantially the form of Exhibit B hereto)
and a certification from the applicable transferee (in
substantially the form of Exhibit C hereto);
(D) if such beneficial interest is being transferred in
reliance on another exemption from the registration
requirements of the Securities Act (and based on an
opinion of counsel if the Company so requests), a
certification to that effect from such Holder (in
substantially the form of Exhibit B hereto).
the Trustee or the Security Custodian, at the direction of
the Trustee, shall, in accordance with the standing
instructions and procedures existing between the Depositary
and the Security Custodian, cause the aggregate principal
amount of
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Global Securities to be reduced accordingly and, following
such reduction, the Company shall execute and, upon receipt
of an authentication order in accordance with Section 2.02
hereof, the Trustee shall authenticate and deliver to the
transferee a Definitive Security in the appropriate
principal amount.
(ii) Definitive Securities issued in exchange for a beneficial
interest in a Global Security pursuant to this Section
2.06(d) shall be registered in such names and in such
authorized denominations as the Depositary, pursuant to
instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee. The Trustee shall
deliver in accordance with the standard procedures of the
Depositary such Definitive Securities to the Persons in
whose names such Securities are so registered.
(e) Restrictions on Transfer and Exchange of Global Securities.
Notwithstanding any other provision of this Indenture (other than the
provisions set forth in subsection (f) of this Section 2.06), a Global Security
may not be transferred as a whole except by the Depositary 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) Authentication of Definitive Securities in Absence of Depository.
If at any time:
(i) the Depository for the Securities notifies the Company that
the Depository is unwilling or unable to continue as
Depository for the Global Securities and a successor
Depository for the Global Securities is not appointed by the
Company within 90 days after delivery of such notice; or
(ii) The Company, at its sole discretion, notifies the Trustee in
writing that it elects to cause the issuance of Definitive
Securities under this Indenture,
then the Company shall execute, and the Trustee shall, upon receipt of an
authentication order in accordance with Section 2.02, authenticate and
deliver, Definitive Securities in an aggregate principal amount equal to the
principal amount of the Global Securities in exchange for such Global
Securities and registered in such names as the Depository shall instruct the
Trustee or the Company in writing.
(g) Legends.
(i) Except for any Transfer Restricted Security sold or
transferred (including any Transfer Restricted Security
represented by a Global Security) as described in (ii)
below, each Security certificate evidencing Global
Securities and Definitive Securities (and all Securities
issued in exchange therefor or substitution thereof) shall
bear legends in substantially the following form:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER SECTION 5 OF THE UNITED STATES
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SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), AND THE
SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR
AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE
SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED HEREBY
AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY
MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a)
INSIDE THE UNITED STATES TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, OR (c) IN ACCORDANCE WITH ANOTHER EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
(AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO
REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION
AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY
EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A)
ABOVE."
(ii) Upon any sale or transfer of a Transfer Restricted Security
(including any Transfer Restricted Security represented by a
Global Security) pursuant to an effective registration
statement under the Securities Act, pursuant to Rule 144
under the Securities Act or pursuant to an opinion of
counsel reasonably satisfactory to the Company and the
Registrar that no legend is required:
(A) in the case of any Transfer Restricted Security that is
a Definitive Security, the Registrar shall permit the
Holder thereof to exchange such Transfer Restricted
Security for a Definitive Security that does not bear
the legend set forth in (i) above and rescind any
restriction on the transfer of such Transfer Restricted
Security; and
(B) in the case of any Transfer Restricted Security
represented by a Global Security, such Transfer
Restricted Security shall not be required to bear the
legend set forth in (i) above if all other interests in
such Global Security have been or are concurrently
being sold or transferred pursuant to Rule 144 under
the Securities Act or pursuant to an effective
registration statement under the Securities Act, but
such Transfer
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Restricted Security shall continue to be subject to the
provisions of Section 2.06(c); provided, however, that
with respect to any request for an exchange of a
Transfer Restricted Security that is represented by a
Global Security for a Definitive Security that does not
bear the legend set forth in (i) above, which request
is made in reliance upon Rule 144, the Holder thereof
shall certify in writing to the Registrar that such
request is being made pursuant to Rule 144 (such
certification to be substantially in the form of
Exhibit B hereto).
(iii) Notwithstanding the foregoing, upon consummation of the
Exchange Offer, the Company shall issue and, upon receipt of
an authentication order in accordance with Section 2.02, the
Trustee shall authenticate, Series B Securities in exchange
for Series A Securities accepted for exchange in the
Exchange Offer, which Series B Securities shall not bear the
legend set forth in (i) above, and the Registrar shall
rescind any restriction on the transfer of such Securities,
in each case unless the Holder of such Series A Securities
is either (A) a broker-dealer, (B) a Person participating in
the distribution of the Series A Securities or (C) a Person
who is an affiliate (as defined in Rule 144A) of the
Company. The Company shall identify to the Trustee such
Holders of the Securities in a written certification signed
by an Officer of the Company and, absent certification from
the Company to such effect, the Trustee shall assume that
there are no such Holders.
(h) Cancellation and/or Adjustment of Global Securities. At such time
as all beneficial interests in Global Securities have been exchanged for
Definitive Securities, redeemed, repurchased or canceled, all Global Securities
shall be returned to or retained and canceled by the Trustee in accordance with
Section 2.11. At any time prior to such cancellation, if any beneficial
interest in a Global Security is exchanged for Definitive Securities, redeemed,
repurchased or cancelled, the principal amount of Securities represented by
such Global Security shall be reduced accordingly and an endorsement shall be
made on such Global Security, by the Trustee or the Securities Custodian, at
the direction of the Trustee, to reflect such reduction.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate
Definitive Securities and Global Securities at the
Registrar's request.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any transfer
tax or similar governmental charge payable in connection
therewith (other than any such transfer taxes or similar
governmental charge payable upon exchange or transfer
pursuant to Sections 3.07, 4.13, 4.14 and 9.05).
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(iii) Neither the Company nor the Registrar shall be required to
register the transfer of or exchange any Security selected
for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
(iv) All Definitive Securities and Global Securities issued upon
any registration of transfer or exchange of Definitive
Securities or Global Securities in accordance with this
Indenture (including any increase in the aggregate
principal amount of the Securities represented by the
Global Security pursuant to subsection (b) above) shall be
the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this
Indenture, as the Definitive Securities or Global
Securities surrendered upon such registration of transfer
or exchange.
(v) The Company shall not be required to issue Securities and
the Registrar shall not be required to register the
transfer of or to exchange Securities during a period
beginning at the opening of business 15 days before the day
of any selection of Securities for redemption under Section
3.02 and ending at the close of business on the day of
selection, or to register the transfer of or to exchange a
Security between a record date and the next succeeding
interest payment date.
(vi) Prior to due presentment for the registration of a transfer
of any Security, the Trustee, any Agent and the Company may
deem and treat the Person in whose name any Security is
registered as the absolute owner of such Security for the
purpose of receiving payment of principal of, premium, if
any, accrued and unpaid interest, and Liquidated Damages,
if any, on such Securities, and neither the Trustee, any
Agent nor the Company shall be affected by notice to the
contrary.
(vii) The Trustee shall authenticate Definitive Securities and
Global Securities in accordance with the provisions of
Section 2.02.
Section 2.07 REPLACEMENT SECURITIES.
If any mutilated Security is surrendered to the Trustee. or if the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, the Company shall Issue and the
Trustee, upon the Company's written order signed by two Officers, shall
authenticate a replacement Security if the Trustee's requirements are met. If
the Trustee or the Company requires, the Holder must supply an indemnity bond
that is sufficient in the judgment of the Trustee and the Company to protect
the Company, the Trustee, any Agent or any authenticating agent from any loss
that any of them may suffer if a Security is replaced. The Company and the
Trustee may charge for its expenses in replacing a Security.
Every replacement Security is an additional Obligation of the
Company.
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Section 2.08 OUTSTANDING SECURITIES.
The Securities outstanding at any time are all the Securities the
Trustee has authenticated except for those it has cancelled, those delivered
to it for cancellation, those representing reductions in the interest in a
Global Security effected by the Trustee in accordance with the provisions
hereof, and those described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that a bona
fide purchaser holds the replaced Security.
If the entire Accreted Value of, and premium, if any, and accrued
interest on, and Liquidated Damages, if any, with respect to, any Security is
considered paid under Section 4.01, it ceases to be outstanding and interest
and Liquidated Damages on it cease to accrue.
Subject to Section 2.09, a Security does not cease to be outstanding
because the Company or an Affiliate holds the Security.
Section 2.09 TREASURY SECURITIES.
In determining whether the Holders of the required principal amount
of Securities have concurred in any direction, waiver or consent, Securities
owned by the Company or an Affiliate shall be considered as though they are
not outstanding, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or
consent, only Securities that the Trustee knows are so owned shall be so
disregarded. Notwithstanding the foregoing, Securities that the Company or an
Affiliate offers to purchase or acquires pursuant to an Offer, exchange offer,
tender offer or otherwise shall not be deemed to be owned by the Company or an
Affiliate until legal title to such Securities passes to the Company or such
Affiliate, as the case may be.
Section 2.10 TEMPORARY SECURITIES.
Until Definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of Definitive Securities but may
have variations that the Company considers appropriate for temporary
Securities. Without unreasonable delay, the Company shall prepare and the
Trustee, upon receipt of the Company's written order signed by two Officers,
shall authenticate Definitive Securities in exchange for temporary Securities.
Until such exchange, temporary Securities shall be entitled to the same
rights, benefits and privileges as Definitive Securities.
Section 2.11 CANCELLATION.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar, any co-registrar and the Paying Agent shall
forward to the Trustee any Securities surrendered to them for registration of
transfer, exchange, replacement, payment (including all Securities called for
redemption and all Securities accepted for payment pursuant to an Offer) or
cancellation, and the Trustee shall cancel all such Securities and shall
destroy all cancelled Securities (subject to the Exchange Act's record
retention requirements) and deliver a certificate of their destruction to the
Company unless by written
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order, signed by two Officers of the Company, the Company shall direct that
cancelled Securities be returned to it. The Company may not Issue new
Securities to replace any Securities that have been cancelled by the Trustee
or that have been delivered to the Trustee for cancellation. If the Company or
an Affiliate acquires any Securities (other than by redemption or pursuant to
an Offer), such acquisition shall not operate as a redemption or satisfaction
of the Indebtedness represented by such Securities unless and until such
Securities are delivered to the Trustee for cancellation.
Section 2.12 DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Securities,
it shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to Holders on a subsequent
special record date, in each case at the rate provided in the Securities and
Section 4.01. The Company shall, with the Trustee's consent, fix or cause to
be fixed each such special record date and payment date. At least 15 days
before the special record date, the Company (or the Trustee, in the name of
and at the expense of the Company) shall mail a notice that states the special
record date, the related payment date and the amount of interest to be paid.
Section 2.13 RECORD DATE.
The record date for purposes of determining the identity of holders
of Securities entitled to vote or consent to any action by vote or consent
authorized or permitted under this Indenture shall be determined as provided
for in section 316(c) of the TIA.
Section 2.14 CUSIP NUMBER.
A "CUSIP" number will be printed on the Securities, and the Trustee
shall use the CUSIP number in notices of redemption, purchase or exchange as a
convenience to Holders, provided that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Securities and that reliance may be placed
only on the other identification numbers printed on the Securities. The
Company will promptly notify the Trustee of any change in the CUSIP number.
ARTICLE 3
OPTIONAL REDEMPTION AND MANDATORY OFFERS TO PURCHASE
Section 3.01 NOTICES TO TRUSTEE.
If the Company elects to redeem Securities pursuant to Section 3.07
it shall furnish to the Trustee, at least 10 but not more than 15 days before
notice of redemption is to be mailed by the Company to Holders, an Officers'
Certificate stating that the Company has elected to redeem Securities pursuant
to Section 3.07(a) or 3.07(b), as the case may be, the date notice of
redemption is to be mailed to Holders, the redemption date, the aggregate
principal amount of Securities to be redeemed, the redemption price for such
Securities and the amount of accrued and unpaid interest on and Liquidated
Damages, if any,
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with respect to such Securities as of the redemption date. If the Trustee is
not the Registrar, the Company shall, concurrently with delivery of its notice
to the Trustee of a redemption, cause the Registrar to deliver to the Trustee
a certificate (upon which the Trustee may rely) setting forth the name of, and
the aggregate principal amount of Securities held by, each Holder.
If the Company is required to offer to purchase Securities pursuant
to Section 4.13 or 4.14, it shall furnish to the Trustee, at least 2 Business
Days before notice of the Offer is to be mailed to Holders, an Officers'
Certificate setting forth that the Offer is being made pursuant to Section
4.13 or 4.14, as the case may be, the Purchase Date, the maximum principal
amount of Securities the Company is offering to purchase pursuant to the
Offer, the purchase price for such Securities, and the amount of accrued and
unpaid interest on and Liquidated Damages, if any, with respect to such
Securities as of the Purchase Date.
The Company will also provide the Trustee with any additional
information that the Trustee reasonably requests in connection with any
redemption or Offer.
Section 3.02 SELECTION OF SECURITIES TO BE REDEEMED OR PURCHASED.
If less than all outstanding Securities are to be redeemed or if less
than all Securities tendered pursuant to an Offer are to be accepted for
payment, the Trustee shall select the outstanding Securities to be redeemed or
accepted for payment pro rata, by lot or by a method that complies with the
requirements of any stock exchange on which the Securities are listed and that
the Trustee considers fair and appropriate. If the Company elects to mail
notice of a redemption to Holders, the Trustee shall at least 5 business days
prior to the date notice of redemption is to be mailed, (i) select the
Securities to be redeemed from Securities outstanding not previously called
for redemption, and (ii) notify the Company of the names of each Holder of
Securities selected for redemption, the principal amount of Securities held by
each such Holder and the principal amount of such Holder's Securities that are
to be redeemed. If less than all Securities tendered pursuant to an Offer on
the Purchase Date are to be accepted for payment, the Trustee shall select on
or promptly after the Purchase Date the Securities to be accepted for payment.
The Trustee shall select for redemption or purchase Securities or portions of
Securities in principal amounts of at least $1,000; except that if all of the
Securities of a Holder are selected for redemption or purchase, the aggregate
principal amount of the Securities held by such Holder shall be redeemed or
purchased. Except as provided in the preceding sentence, provisions of this
Indenture that apply to Securities called for redemption or tendered pursuant
to an Offer also apply to portions of Securities called for redemption or
tendered pursuant to an Offer. The Trustee shall notify the Company promptly
of the Securities or portions of Securities to be called for redemption or
selected for purchase.
Section 3.03 NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a redemption date,
the Company shall mail a notice of redemption to each Holder of Securities or
portions thereof that are to be redeemed .
The notice shall identify the Securities or portions thereof to be
redeemed and shall state:
(1) the redemption date;
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(2) the redemption price for the Securities and the amount of
accrued and unpaid interest on and Liquidated Damages, if
any, with respect to such Securities from April 1, 2002 to
the date of redemption;
(3) 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 will be Issued;
(4) the name and address of the Paying Agent;
(5) that Securities called for redemption must be surrendered to
the Paying Agent to collect the redemption price for the
Securities, and any accrued and unpaid interest on and
Liquidated Damages, if any, with respect to such Securities
from April 1, 2002 to the date of redemption;
(6) that, unless the Company defaults in making such redemption
payment, interest on Securities called for redemption ceases
to accrue on and after the redemption date;
(7) the paragraph of the Securities pursuant to which the
Securities called for redemption are being redeemed; and
(8) that no representation is made as to the correctness or
accuracy of the CUSIP number listed in such notice and
printed on the Securities.
At the Company's request, the Trustee shall (at the Company's expense)
give the notice of redemption in the Company's name at least 30 but not more
than 60 days before a redemption, provided, however, that the Company shall
deliver to the Trustee, at least 45 days prior to the redemption date and at
least 10 days prior to the date that notice of the redemption is to be mailed
to Holders, an Officers' Certificate that (i) requests the Trustee to give
notice of the redemption to Holders, (ii) sets forth the information to be
provided to Holders in the notice of redemption, as set forth in the preceding
paragraph, (iii) states that the Company has elected to redeem Securities
pursuant to Section 3.07(a) or 3.07(b), as the case may be, and (iv) sets forth
the aggregate principal amount of Securities to be redeemed and the amount of
accrued and unpaid interest and Liquidated Damages, if any, thereon as of the
redemption date. If the Trustee is not the Registrar, the Company shall,
concurrently with any such request, cause the Registrar to deliver to the
Trustee a certificate (upon which the Trustee may rely) setting forth the name
of, the address of, and the aggregate principal amount of Securities held by,
each Holder.
Section 3.04 EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed, Securities called for redemption
become due and payable on the redemption date at the price set forth in the
Security.
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Section 3.05 DEPOSIT OF REDEMPTION PRICE.
On or prior to any redemption date, the Company shall deposit with the
Trustee or with the Paying Agent money sufficient to pay the redemption price
of, and accrued interest on, and Liquidated Damages, if any, with respect to,
all Securities to be redeemed on that date. The Trustee or the Paying Agent
shall return to the Company any money that the Company deposited with the
Trustee or the Paying Agent in excess of the amounts necessary to pay the
redemption price of, and accrued interest on, and Liquidated Damages, if any,
with respect to, all Securities to be redeemed.
If the Company complies with the preceding paragraph, interest on the
Securities to be redeemed will cease to accrue on such Securities on the
applicable redemption date, whether or not such Securities are presented for
payment. If a Security is redeemed on or after an interest record date but on
or prior to the related interest payment date, then any accrued and unpaid
interest and Liquidated Damages shall be paid to the Person in whose name such
Security was registered at the close of business on such record date. If any
Security called for redemption shall not be so paid upon surrender for
redemption because of the failure of the Company to comply with the preceding
paragraph, interest will be paid on the unpaid principal, premium, interest,
and Liquidated Damages from the redemption date until such principal, premium,
interest and Liquidated Damages is paid, at the rate of interest provided in
the Securities and Section 4.01.
Section 3.06 SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is redeemed in part, the Company
shall Issue and the Trustee shall authenticate for the Holder at the Company's
expense a new Security equal in principal amount to the unredeemed portion of
the Security surrendered.
Section 3.07 OPTIONAL REDEMPTION PROVISIONS.
The Securities may not be redeemed at the option of the Company prior
to April 1, 2002. During the twelve (12) month period beginning April 1 of the
years indicated below, the Securities will be redeemable at the option of the
Company, in whole or in part, on at least 30 but not more than 60 days' notice
to each Holder to be redeemed, at the redemption prices (expressed as
percentages of the principal amount of the Securities) set forth below, plus
any accrued and unpaid interest and Liquidated Damages to the date of
redemption:
Year Percentage
---- ----------
2002.............................................................105.87500%
2003.............................................................102.93750%
2004 and thereafter..............................................100.00000%
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Section 3.08 MANDATORY PURCHASE PROVISIONS.
(a) Within 30 days after any Change of Control Trigger Date or Asset Sale
Trigger Date, the Company shall mail a notice to each Holder stating:
(i) that an offer ("Offer") is being made pursuant to Section 4.13
or 4.14, as the case may be, the length of time the Offer shall
remain open, and the maximum aggregate principal amount of
Securities that the Company is offering to purchase;
(ii) the purchase price for the Securities (as set forth in Section
4.13 or 4.14, as the case may be), the amount of accrued and
unpaid interest, and Liquidated Damages, if any, with respect
to such Securities as of the purchase date if such date occurs
after April 1, 2002, and the purchase date (which shall be no
earlier than 30 days nor later than 40 days from the date such
notice is mailed (the "Purchase Date"));
(iii) that any Security not accepted for payment will continue to
accrue interest, and Liquidated Damages, if any;
(iv) that, unless the Company fails to deposit with the Paying Agent
on the Purchase Date an amount sufficient to purchase all
Securities accepted for payment, interest shall cease to accrue
on such Securities after the Purchase Date;
(v) that Holders electing to tender any Security or portion thereof
will be required to surrender their Security, with a form
entitled "Option of Holder to Elect Purchase" completed, to the
Paying Agent at the address specified in the notice prior to
the close of business on the Business Day preceding the
Purchase Date, provided that Holders electing to tender only a
portion of any Security must tender a principal amount of at
least $1,000:
(vi) that Holders will be entitled to withdraw their election to
tender Securities if the paying Agent receives, not later than
the close of business on the third Business Day preceding the
Purchase Date, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the principal
amount of Securities delivered for purchase, and a statement
that such Holder is withdrawing his election to have such
Security purchase; and
(vii) that Holders whose Securities are accepted for payment in part
will be Issued new Securities equal in principal amount to the
unpurchased portion of Securities surrendered: provided that
only Securities in a principal amount of at least $1,000.
(b) On the Purchase Date, the Company will, to the extent required by this
Indenture and the Offer:
(i) accept for payment the Securities or portions thereof tendered
pursuant to such Offer,
(ii) deposit with the Paying Agent an amount sufficient to purchase
the lesser of (a) the Securities or portions thereof tendered
pursuant to such Offer, and (b) the maximum
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aggregate principal amount of Securities that the Company
offered to purchase pursuant to such Offer, and
(iii) deliver, or cause to be delivered, to the Trustee all
Securities tendered pursuant to the Offer, together with an
Officers' Certificate setting forth the name of each Holder
that tendered Securities and the principal amount of the
Securities or portions thereof tendered by each such Holder.
(c) With respect to any Offer, if less than all of the Securities tendered
pursuant to an Offer are to be purchased by the Company, the Trustee shall
select on the Purchase Date the Securities or portions thereof to be accepted
for payment pursuant to Section 3.02.
(d) Promptly after consummation of an Offer, (i) the Paying Agent shall mail
to each Holder of Securities or portions thereof accepted for payment an
amount equal to the purchase price for such Securities, plus any accrued and
unpaid interest on, and Liquidated Damages, if any, with respect to such
Securities from April 1, 2002 to the Purchase Date if such purchase occurs
after April 1, 2002, (ii) with respect to any tendered Security not accepted
for payment in whole or in part, the Trustee shall return such Security to the
Holder thereof, and (iii) with respect to any Security accepted for payment in
part, the Trustee shall authenticate and mail to each such Holder a new
Security equal in principal amount to the unpurchased portion of the tendered
Security.
(e) The Company will publicly announce the results of the Offer on or as soon
as practicable after the Purchase Date.
(f) The Company will comply with Rule 14(e)-1 under the Exchange Act and any
other securities laws and regulations to the extent such laws and regulations
are applicable to any Offer.
(g) With respect to any Offer, if the Company deposits with the Paying Agent
on the Purchase Date an amount sufficient to purchase all Securities accepted
for payment, interest shall cease to accrue on such Securities after the
Purchase Date; provided, however, that if the Company fails to deposit such
amount on the Purchase Date, interest shall continue to accrue on such
Securities until such deposit is made.
ARTICLE 4
COVENANTS
Section 4.01. PAYMENT OF SECURITIES.
The Company shall pay the principal of, and any premium due on, the
Securities, and interest that accrues on such Securities after April 1, 2002,
on the dates and in the manner provided in the Securities. Holders of
Securities must surrender their Securities to the Paying Agent to collect
principal payments. Principal, premium, interest, and Liquidated Damages, if
any, shall be considered paid on the date due if the Paying Agent rather than
the Company or any of its Subsidiaries) holds as of 10:00 a.m. Eastern
Standard Time money the Company deposited in immediately available funds
designated for and sufficient to pay all principal, premium, if any, and
interest, and Liquidated Damages, if any,
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then due. The Paying Agent shall return to the Company, no later than five
days following the date of payment, any money (including accrued interest)
that exceeds the amount of principal, premium, if any, accrued and unpaid
interest, and Liquidated Damages, if any, paid on the Securities.
To the extent lawful, the Company shall pay interest (including
Post-Petition Interest) on (i) overdue principal and premium at the rate equal
to 2% per annum in excess of the then applicable interest rate on the
Securities, compounded semiannually, and (ii) overdue installments of interest
and Liquidated Damages (without regard to any applicable grace period) at the
same rate as set forth in clause (i), compounded semiannually. In the event of
an Insolvency or Liquidation Proceeding prior to April 1, 2002, the Accreted
Value of the Securities shall continue to increase pursuant to the terms of
this Indenture and the Securities to the extent lawful.
Section 4.02. SEC REPORTS.
(a) The Company shall file with the Trustee, within 15 days after it files
them with the SEC, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the
foregoing as the SEC may by rules and regulations prescribe) that the Company
is required to file with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act. If the Company is not subject to the requirements of Section 13
or 15(d) of the Exchange Act, the Company shall file with the Trustee, within
15 days after it would have been required to file with the SEC, financial
statements, including any notes thereto (and with respect to annual reports,
an auditor's report by a firm of established national reputation reasonably
satisfactory to the Trustee), and a "Management's Discussion and Analysis of
Financial Condition and Results of Operations," both comparable to that which
the Company would have been required to include in such annual reports,
information, documents or other reports if the Company were subject to the
requirements of Section 13 or 15(d) of the Exchange Act. Subsequent to the
qualification of the Indenture under the TIA, the Company also shall comply
with the provisions of section 314(a) of the TIA. Notwithstanding anything to
the contrary herein, the Trustee shall have no duty to review such documents
for the purposes of determining compliance with any provisions of this
Indenture.
(b) If the Company is required to furnish annual or quarterly reports to its
stockholders pursuant to the Exchange Act. the Company shall cause any annual
report furnished to its stockholders generally and any quarterly or other
financial reports it furnishes to its stockholders generally to be filed with
the Trustee and mailed to the Holders at their addresses appearing in the
register of Securities maintained by the Registrar. If the Company is not
required to furnish annual or quarterly reports to its stockholders pursuant
to the Exchange Act, the Company shall cause its financial statements referred
to in Section 4.02(a), including any notes thereto (and with respect to annual
reports, an auditors' report by a firm of established national reputation
reasonably satisfactory to the Trustee), and a "Management's Discussion and
Analysis of Financial Condition and Results of Operations," to be so mailed to
the Holders within 120 days after the end of each of the Company's fiscal
years and within 60 days after the end of each of the first three fiscal
quarters of each year. The Company will cause to be disclosed in a statement
accompanying any annual report or comparable information as of the date of the
most recent financial statements in each such report or comparable information
the amount available for payments pursuant to Section 4.05 hereof. As of the
date hereof, the Company's fiscal year ends on December 31.
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(c) If the Company is not subject to the requirements of Section 13 or 15(d)
of the Exchange Act, for so long as any Securities remain outstanding, the
Company shall furnish to the Holders and prospective investors, upon their
request, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act.
Section 4.03. COMPLIANCE CERTIFICATE.
The Company shall deliver to the Trustee, within 120 days after the
end of each fiscal year of the Company, an Officers' Certificate stating that
a review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that to the best of
his or her knowledge the Company has kept, observed, performed and fulfilled
each and every covenant contained in this Indenture and is not in default in
the performance or observance of any of the terms, provisions and conditions
hereof (or, if a Default or Event of Default shall have occurred, describing
all such Defaults or Events of Default of which he or she may have knowledge
and what action the Company has taken or proposes to take with respect
thereto) and that to the best of his or her knowledge no event has occurred
and remains in existence by reason of which payments on account of the
principal of, premium, if any, any accrued and unpaid interest on, and
Liquidated Damages, if any, with respect to the Securities are prohibited or
if such event has occurred. a description of the event and what action the
Company is taking or proposes to take with respect thereto.
So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, the financial statements
delivered pursuant to Section 4.02 shall be accompanied by a written statement
of the Company's independent public accountants (who shall be a firm of
established national reputation reasonably satisfactory to the Trustee) that
in making the examination necessary for certification of such financial
statements nothing has come to their attention that would lead them to believe
that the Company has violated any provisions of Section 4.01, 4.05, 4.06,
4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16, or 4.17 or of
Article 5 or, if any such violation has occurred, specifying the nature and
period of existence thereof, it being understood that such accountants shall
not be liable directly or indirectly to any Person for any failure to obtain
knowledge of any such violation.
The Company will, so long as any of the Securities are outstanding,
deliver to the Trustee, forthwith upon any Officer becoming aware of (i) any
Default or Event of Default, or (ii) any default or event of default under any
other mortgage, indenture or instrument that could result in an Event of
Default under Section 6.01(4), an Officers' Certificate specifying such
Default, Event of Default or default and what action the Company is taking or
proposes to take with respect thereto.
Section 4.04. STAY EXTENSION AND USURY LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, that might affect the
covenants or the performance of this Indenture; and the Company (to the extent
it may lawfully do so) hereby expressly waives all benefit or advantage of any
such law, and covenants that it will not, by resort to any
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such law, hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law has been enacted.
Section 4.05. LIMITATION ON RESTRICTED PAYMENTS.
(a) The Company will not, and will not permit any Restricted Subsidiary to,
directly or indirectly,
(i) declare or pay any dividend or make any distribution on account
of the Company's or such Restricted Subsidiary's Capital Stock
or other Equity Interests (other than dividends or
distributions payable in Equity Interests (other than
Disqualified Stock) of the Company or a Restricted Subsidiary
and other than dividends or distributions payable by a
Restricted Subsidiary to another Restricted Subsidiary or to
the Company),
(ii) purchase, redeem or otherwise acquire or retire for value any
Equity Interests of the Company or any of its Restricted
Subsidiaries (other than any such Equity Interest purchased
from the Company or any Restricted Subsidiary),
(iii) voluntarily prepay Indebtedness that is subordinated to the
Securities, whether any such Subordinated Indebtedness is
outstanding on, or issued after, the date of original issuance
of the Securities, except as specifically permitted by the
terms of this Indenture,
(iv) make any Restricted Investment (all such dividends,
distributions, purchases, redemptions or other acquisition,
retirements, prepayments and Restricted Investments being
collectively referred to as "Restricted Payments"), if, at the
time of such Restricted Payment:
(1) a Default or Event of Default shall have occurred and
be continuing or shall occur as a consequence thereof;
or
(2) immediately after such Restricted Payment and after
giving effect thereto on a Pro Forma Basis, the Company
shall not be able to Issue $1.00 of additional
Indebtedness pursuant to Section 4.07(a); or
(3) such Restricted Payment, together with the aggregate of
all other Restricted Payments made after the date of
original Issuance of the Securities, exceeds the sum
of, without duplication:
(A) 50% of the aggregate Consolidated Net Income
(including, for this purpose, gains from Asset
Sales and, to the extent not already included in
the aggregate Consolidated Net Income, gains from
Restricted Investments shall be added to the
aggregate Consolidated Net Income) of the Company
(or, in case such aggregate is a loss, 100% of
such loss) for the period (taken as one accounting
period) from the beginning of the first quarter
commencing immediately after the date of original
Issuance of the Securities and ended as of the
Company's most recently ended fiscal quarter at
the time of such Restricted Payment, plus
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(B) 100% of the aggregate net cash proceeds and the
fair market value of any property or securities
(as determined by the Board of Directors in good
faith) received by the Company from the Issue or
sale of Equity Interests or warrants, options or
rights to acquire Equity Interests of the Company
or any Restricted Subsidiary subsequent to the
date of original Issuance of the Securities (other
than Equity Interests Issued or sold to a
Restricted Subsidiary and other than Disqualified
Stock), plus
(C) $5,000,000, plus
(D) the amount by which the principal amount of and
any accrued interest on:
1) any Senior Indebtedness or Senior
Subordinated Indebtedness of the Company, or
2) any Indebtedness of the Restricted
Subsidiaries,
is reduced on the Company's consolidated balance
sheet upon the conversion or exchange (other than
by a Restricted Subsidiary) subsequent to the date
of original Issuance of the Securities of any
Indebtedness of the Company or any Restricted
Subsidiary (not held by the Company or any
Restricted Subsidiary) for Equity Interests (other
than Disqualified Stock) of the Company or any
Restricted Subsidiaries (less the amount of any
cash, or the fair market value of any other
property or securities (as determined by the Board
of Directors in good faith), distributed by the
Company or any Restricted Subsidiary (to Persons
other than the Company or any other Restricted
Subsidiary) upon such conversion or exchange),
plus
(E) if any Non-Restricted Subsidiary is redesignated
as a Restricted Subsidiary, the fair market value
(as determined by the Board of Directors in good
faith) of such Non-Restricted Subsidiary as of the
date it is redesignated; provided, however, that
for purposes of this clause (E), the fair market
value of any redesignated Non-Restricted
Subsidiary shall be reduced by the amount that any
such redesignation replenishes or increases the
amount of Restricted Investments permitted to be
made pursuant to Section 4.05(b)(iii).
(b) Notwithstanding Section 4.05(a), the following Restricted Payments
may be made:
(i) the payment of any dividend within 60 days after the date of
declaration thereof, if at said date of declaration such
payment would comply with the provisions hereof;
(ii) the retirement of any of the Company's Capital Stock or
Subordinated Indebtedness in exchange for, or out of the net
proceeds of the substantially concurrent sale (other than
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to a Restricted Subsidiary) of, other Capital Stock (other than
Disqualified Stock) and neither such retirement nor the
proceeds of any such sale or exchange shall be included in any
computation made pursuant to Section 4.05(a);
(iii) making Restricted Investments at any time, and from time to
time, in an aggregate outstanding amount of $40,000,000 after
the date of original Issuance of the Securities under this
Indenture (it being understood that if any Restricted
Investment acquired with a Restricted Payment after the date of
original Issuance of the Securities pursuant to this clause
(iii) is sold, transferred or otherwise conveyed to any Person
other than the Company or a Restricted Subsidiary, the portion
of the net cash proceeds or fair market value of securities or
properties paid or transferred to the Company and its
Restricted Subsidiaries in connection with such sale, transfer
or conveyance that relates to the repayment or return of the
original cost of such a Restricted Investment will replenish or
increase the amount of Restricted Investments permitted to be
made pursuant to this Section 4.05(b)(iii), so that up to
$40,000,000 of Restricted Investments may be outstanding under
this Section 4.05(b)(iii) at any given time);
(iv) the repurchase or redemption of the Company's common stock upon
the death of Xxxxxx X. Xxxxx, pursuant to the terms of an
Employment Agreement, dated as of February 25, 1988, between
the Company and Xxxxxx X. Xxxxx, as amended or supplemented;
provided, however, that the funds necessary to satisfy the
Company's obligation to repurchase or redeem such Common Stock
shall be fully reimbursed by insurance;
(v) the repurchase or redemption of the Company's common stock
pursuant to the terms of the several Restricted Stock
Agreements, each dated as of February 25, 1988, between the
Company and each of Xxxxxx X. Xxxxx, Xxxxxxxx X. Xxxxxxx and
Xxxx X. Xxxxxx, the Restricted Stock Agreement, dated as of
December 31, 1992, between the Company and Xxxxxx Xxxxx and the
Restricted Stock Agreements, each dated as of January 1, 1992,
between the Company and each of Xxxxxxxx X. Xxxxxxx, Xxxx Max
and Xxxxxx Xxxxx, in each case as amended or supplemented, up
to an aggregate amount not to exceed $7,500,000;
(vi) any loans, advances, distributions or payments from the Company
to its Restricted Subsidiaries, or any loans, advances,
distributions or payments by a Restricted Subsidiary to the
Company or to another Restricted Subsidiary, pursuant to
intercompany Indebtedness, intercompany management agreements,
intercompany tax sharing agreements, and other intercompany
agreements and obligations;
(vii) the payment of directors' fees in an annual aggregate amount
not to exceed $250,000;
(viii) investments in marketable securities and other negotiable
instruments through the Xxxxxxx Penn Funds (including the
Xxxxxxx Penn Interest Income Fund);
(ix) scheduled payments of dividends on, and redemptions of,
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(A) the Preferred Stock of Sate-Lite in an annual aggregate
amount not to exceed $20,000, and
(B) the Preferred Stock of Dura-Line,
1) in an aggregate annual amount not to exceed $300,000
for dividends, and
2) in an aggregate amount not to exceed $3,750,000 for
redemptions pursuant to the terms of the Dura-Line
Agreement;
(x) to the extent constituting Restricted Payments, if no Default
or Event of Default shall have occurred and be continuing or
shall occur as a consequence thereof, the payment of
consulting, financial and investment banking fees (but not
limiting the payment of indemnities, expenses and other
amounts) under the Consulting Agreement, provided that the
obligation of the Company to pay such fees under the Consulting
Agreement shall be subordinated expressly to the Company's
Obligations on the Securities;
(xi) the purchase, redemption, retirement or other acquisition of
(a) any Senior Indebtedness required by its terms to be
purchased, redeemed, retired or acquired with the net proceeds
from asset sales (as defined in the instrument evidencing such
Senior Indebtedness) or upon a change of control (as defined in
the instrument evidencing such Senior Indebtedness), and (b)
the Securities pursuant to Sections 4.13 and 4.14;
(xii) the exchanging, refinancing or refunding of Subordinated
Indebtedness through the Issuance of Subordinated Indebtedness
so long as the Subordinated Indebtedness to be Issued is
Refinancing Indebtedness permitted under Section 4.07; or
(xiii) any payments made in connection with the Refinancing Plan.
Section 4.06. CORPORATE EXISTENCE.
Subject to Section 4.14 and Article 5 hereof, the Company will do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence and the corporate, partnership or other
existence of each of its Restricted Subsidiaries in accordance with the
respective organizational documents of each of its Restricted Subsidiaries and
the rights (charter and statutory), licenses and franchises of the Company and
each of its Restricted Subsidiaries; provided, however, that the Company shall
not be required to preserve any such right, license or franchise, or the
corporate, partnership or other existence of any Restricted Subsidiary, if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and its Restricted
Subsidiaries taken as a whole, and that the loss thereof is not adverse in any
material respect to the Holders.
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Section 4.07 LIMITATION ON INCURRENCE OF INDEBTEDNESS.
(a) The Company will not, and will not permit any Restricted Subsidiary to
Issue any Indebtedness (other than the Indebtedness represented by the
Securities, the Old Notes and the Securities) unless: the Company's Cash Flow
Coverage Ratio for its four full fiscal quarters next preceding the date such
additional Indebtedness is Issued would have been at least:
(i) 1.7 to 1, if such date is between the date of original Issuance
of the Securities under this Indenture and June 30, 1999,
(ii) 1.85 to 1, from July 1, 1999 through June 30, 2001, or
(iii) 2.0 to 1, from July 1, 2001 and thereafter,
in each case determined on a Pro Forma Basis (including a pro
forma application of proceeds of such Indebtedness and any
other Indebtedness incurred since the end of the applicable
four quarter period including, without limitation, the earnings
of any business acquired by the Company with the proceeds of
such Indebtedness) as if such additional Indebtedness and any
other Indebtedness issued since the end of the applicable four
quarter period had been Issued at the beginning of such
four-quarter period.
(b) Section 4.07(a) will not apply to the Issuance of:
(i) Indebtedness of the Company and/or its Restricted Subsidiaries
up to the greater of (A) $75.0 million in aggregate principal
amount pursuant to the Credit Agreement or the New Credit
Agreement, and (B) an aggregate principal amount up to the sum
of: (x) 85% of the book value of the Company and its Restricted
Subsidiaries' Receivables on a consolidated basis, and (y) 65%
of the book value of the Company and its Restricted
Subsidiaries' inventories on a consolidated basis;
(ii) Indebtedness of the Company and its Restricted Subsidiaries
pursuant to any Receivables Financing;
(iii) Indebtedness of the Company and its Restricted Subsidiaries in
connection with capital leases, sale and leaseback
transactions, purchase money obligations, capital expenditures
or similar financing transactions relating to:
(A) their properties, assets and rights as of the date of
original Issuance of the Securities up to $20,000,000 in
aggregate principal amount, or
(B) their properties, assets and rights acquired after the
date of original Issuance of the Securities, provided
that such Indebtedness under this Section
4.07(b)(iii)(B) does not exceed 100% of the cost of such
properties, assets and rights:
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(iv) additional Indebtedness of the Company and its Restricted
Subsidiaries in an aggregate principal amount up to $25,000,000
(all or any portion of which may be Issued as additional
Indebtedness under the Credit Agreement or the New Credit
Agreement); and
(v) Other Permitted Indebtedness.
(c) Notwithstanding Sections 4.07(a) and (b), no Restricted Subsidiary shall
under any circumstances Issue a guarantee of any Indebtedness of the Company
except for guarantees Issued by Restricted Subsidiaries pursuant to Section
4.17, provided, however, that this Section 4.07(c) will not limit or restrict
guarantees Issued by Restricted Subsidiaries in respect of Indebtedness of
other Restricted Subsidiaries.
Section 4.08. LIMITATION ON TRANSACTIONS WITH AFFILIATES.
(a) Neither the Company nor any of its Restricted Subsidiaries may make any
loan, advance, guarantee or capital contribution to, or for the benefit of, or
sell, lease, transfer or dispose of any properties or assets to, or for the
benefit of, or purchase or lease any property or assets from, or enter into
any or amend any contract, agreement or understanding with, or for the benefit
of, an Affiliate (each such transaction or series of related transactions that
are part of a common plan an "Affiliate Transaction"), except in good faith
and on terms that are no less favorable to the Company or the relevant
Restricted Subsidiary than those that would have been obtained in a comparable
transaction on an arm's length basis from an unrelated Person.
(b) Neither the Company nor any of its Restricted Subsidiaries may engage in
any Affiliate Transaction involving aggregate payments or other transfers by
the Company and its Restricted Subsidiaries in excess of $5,000,000 (including
cash and non-cash payments and benefits valued at their fair market value by
the Board of Directors in good faith) unless the Company delivers to the
Trustee (i) a resolution of the Board of Directors stating that the Board of
Directors (including a majority of the disinterested directors, if any) has,
in good faith, determined that such Affiliate Transaction complies with the
provisions of this Indenture, and (ii) an opinion as to the fairness of such
Affiliate Transaction to the Company or such Restricted Subsidiary from a
financial point of view by an investment banking firm of national prominence
that is not an Affiliate.
(c) Notwithstanding Sections 4.08(a) and (b), this Section 4.08 will not apply
to:
(i) transactions between the Company and any Restricted Subsidiary
or between Restricted Subsidiaries,
(ii) any payments or transactions permitted pursuant to Section
4.05,
(iii) payments of fees and other amounts due under the Consulting
Agreement, or
(iv) the payment of reasonable and customary directors' fees to
directors of the Company, its Restricted Subsidiaries.
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Section 4.09. LIMITATION ON LIENS.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Lien (other than Permitted Liens) upon any asset now owned or
hereafter acquired by them, or any income or profits therefrom or assign or
convey any right to receive income therefrom; provided, however, that in
addition to creating Permitted Liens on its properties or assets, the Company
may create any Lien upon any of its properties or assets (including, but not
limited to, any Capital Stock of its Subsidiaries) if the Securities are
equally, and ratably secured.
Section 4.10. COMPLIANCE WITH LAWS, TAXES.
The Company shall, and shall cause each of its Restricted
Subsidiaries to, comply with all statutes, laws, ordinances, or government
rules and regulations to which it is subject, non-compliance with which would
materially adversely affect the business, prospects, earnings, properties,
assets or condition, financial or otherwise, of the Company and its Restricted
Subsidiaries taken as a whole.
The Company shall, and shall cause each of its Restricted
Subsidiaries to, pay prior to delinquency, all taxes, assessments and
governmental levies, except those contested in good faith by appropriate
proceedings,
Section 4.11. LIMITATION ON DIVIDENDS AND OTHER PAYMENT RESTRICTIONS AFFECTING
RESTRICTED SUBSIDIARIES.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer
to exist or become effective, any encumbrance or restriction on the ability of
any Restricted Subsidiary to:
(i) pay dividends or make any other distributions on its Capital
Stock or any other interest or participation in, or measured
by, its profits, owned by the Company or any Restricted
Subsidiary, or pay any Indebtedness owed to, the Company or any
Restricted Subsidiary,
(ii) make loans or advances to the Company, or
(iii) transfer any of its properties or assets to the Company, except
for such encumbrances or restrictions existing under or by
reason of:
(A) applicable law,
(B) Indebtedness permitted;
1) under Section 4.07(a),
2) under Sections 4.07(b)(i), (b)(ii) and (b)(iv) and
clauses (i), (vi) and (ix) of the definition of
Other Permitted Indebtedness, or
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3) agreements and transactions permitted under
Section 4.05,
(C) customary provisions restricting subletting or assignment
of any lease or license of the Company or any Restricted
Subsidiary,
(D) customary provisions of any franchise, distribution or
similar agreement,
(E) any instrument governing Indebtedness or any other
encumbrance or restriction of a Person acquired by the
Company or any Restricted Subsidiary at the time of such
acquisition, which encumbrance or restriction is not
applicable to any Person, or the properties or assets of
any Person, other than the Person, or the property or
assets of the Person, so acquired,
(F) Indebtedness or other agreements existing on the date of
original Issuance of the Securities,
(G) any Refinancing Indebtedness of Indebtedness described in
Section 4.07(b)(i), (b)(ii), and (b)(iv) and clauses (i),
(vii), and (ix) of the definition of Other Permitted
Indebtedness; provided that the encumbrances and
restrictions created in connection with such Refinancing
Indebtedness are no more restrictive in any material
respect with regard to the interests of the Holders than
the encumbrances and restrictions in the refinanced
Indebtedness,
(H) any restrictions, with respect to a Restricted
Subsidiary, imposed pursuant to an agreement that has
been entered into for the sale or disposition of the
stock, business, assets or properties of such Restricted
Subsidiary,
(I) the terms of any Indebtedness of the Company incurred in
connection with Section 4.07, provided that the terms of
such Indebtedness constitute no greater encumbrance or
restriction on the ability of any Restricted Subsidiary
to pay dividends or make distributions, make loans or
advances or transfer properties or assets than is
permitted by this Section 4.11, and
(J) the terms of purchase money obligations, but only to the
extent such purchase money obligations restrict or
prohibit the transfer of the property so acquired.
(b) Nothing contained in this Section 4.11 shall prevent the Company from
entering into any agreement or instrument providing for the incurrence of
Permitted Liens or restricting the sale or other disposition of property or
assets of the Company or any of its Restricted Subsidiaries that are subject
to Permitted Liens.
Section 4.12. MAINTENANCE OF OFFICE OR AGENCIES.
The Company will maintain in the Borough of Manhattan, the City of
New York an office or an agency (which may be an office of any Agent) where
Securities may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in respect of the Securities
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and this Indenture may be served. The Company will give prompt written notice
to the Trustee of any change in the location of such office or agency. If at
any time the Company shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or recision shall in any matter
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, the City of New York for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or recision
and of any change in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the
Trustee as one such office or agency of the Company in accordance with Section
2.03.
Section 4.13. CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control (such date being the "Change of
Control Trigger Date"), each Holder shall have the right to require the
Company to purchase such Holder's Securities pursuant to an Offer at a
purchase price equal to 101% of the Accreted Value of such Security at the
date of purchase, plus any accrued and unpaid interest and Liquidated Damages
from April 1, 2002 to the Purchase Date if such date occurs after April 1,
2002. Although the failure of the Company to purchase all Securities tendered
in such an Offer shall be a Default, if the Company is unable to purchase all
Securities tendered in such an Offer, the Company shall nevertheless purchase
the maximum principal amount of Securities that it is able to purchase at that
time.
(b) Notwithstanding Section 4.13(a), if any Senior Indebtedness entitled to be
redeemed or purchased by the Company upon a Change of Control is outstanding
when a Change of Control occurs, the Change of Control Trigger Date shall be
the first date on which all Senior Indebtedness that is required or entitled
pursuant to its terms to be redeemed or purchased upon a Change of Control has
been redeemed or purchased.
Section 4.14. LIMITATION ON ASSET SALES.
(a) The Company may not, and may not permit any Restricted Subsidiary to,
directly or indirectly, consummate an Asset Sale (including the sale of any of
the Capital Stock of any Restricted Subsidiary) providing for Net Proceeds in
excess of $2,500,000 unless at least (A) 50% of the consideration thereof
received by the Company or such Restricted Subsidiary is in the form of cash
and/or Cash Equivalents and/or Marketable Securities, and (B) 75% of the Net
Proceeds from such Asset Sale are applied to one or more of the following in
such combination as the Company shall elect:
(i) an investment in another asset or business in the same line of
business as, or a line of business similar to that of, the line
of business of the Company and its Restricted Subsidiaries at
that time; provided that such investment occurs on or prior to
the 365th day following the date of such Asset Sale (the "Asset
Sale Disposition Date"),
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(ii) the purchase, redemption or other prepayment or repayment of
outstanding Senior Indebtedness on or prior to the Asset Sale
Disposition Date, or
(iii) an offer expiring on or prior to the Purchase Date.
(b) Any Net Proceeds from the Asset Sale that are not applied or invested as
provided in Sections 4.14(a)(1) or (a)(ii) shall constitute "Excess Proceeds";
provided, however, that if an offer to purchase Senior Indebtedness with Net
Proceeds from any Asset Sales has commenced on or prior to 30 days after the
Asset Sale Disposition Date and completed on or prior to 70 days after the
Asset Sale Disposition Date, only the Net Proceeds not used to purchase Senior
Indebtedness in such offer shall be deemed Excess Proceeds.
(c) When the aggregate amount of Excess Proceeds exceeds $10,000,000 (the
"Asset Sale Trigger Date"),the Company shall make an Offer to all Holders to
purchase the maximum principal amount of the Securities then outstanding that
may be purchased out of Excess Proceeds, at an offer price in cash in an
amount equal to 100% of the Accreted Value of such Securities, plus any
accrued and unpaid interest and Liquidated Damages from April 1, 2002 to the
Purchase Date if such date occurs after April 1, 2002.
(d) To the extent that any Excess Proceeds remain after completion of the
Offer, the Company may use such remaining amount for general corporate
purposes.
(e) Upon completion of an Offer, the amount of Excess Proceeds shall be reset
at zero.
(f) Notwithstanding the foregoing, to the extent that any or all of the Net
Proceeds of an Asset Sale is prohibited or delayed by applicable local law
from being repatriated to the United States, the portion of such Net Proceeds
so affected will not be required to be applied pursuant to this Section 4.14,
but may be retained for so long, but only for so long, as the applicable local
law prohibits repatriation to the United States. The Company will promptly
take all reasonable actions required by the applicable local law to permit
such repatriation, and once such repatriation of any affected Net Proceeds is
not prohibited under applicable local law, such repatriation will be
immediately effected and such repatriated Net Proceeds will be applied in the
manner set forth above as if such Asset Sale had occurred on the date of
repatriation.
Section 4.15. REDEMPTION OF OLD NOTES.
The Company will, on December 15, 1993, exercise its right to make an
optional redemption of all outstanding Old Notes, if any, in accordance with
the terms of the Old Indenture.
Section 4.16. SENIOR SUBORDINATED INDEBTEDNESS.
The Company shall not Issue any Indebtedness that is subordinate or
junior in right of payment to any Senior Indebtedness and senior in any
respect in right of payment to the Securities.
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Section 4.17. GUARANTEES BY RESTRICTED SUBSIDIARIES.
(a) The Company will not permit any Restricted Subsidiary, directly or
indirectly, to guarantee any Indebtedness of the Company other than the
Securities ("Other Indebtedness") unless:
(i) such Restricted Subsidiary contemporaneously executes and
delivers a supplemental indenture to this Indenture providing
for a guarantee of payment of the Securities then outstanding
by such Restricted Subsidiary to the same extent as the
guarantee (the "Other Indebtedness Guarantee") of the Other
Indebtedness (including waiver of subrogation, if any), and
(ii) if the Other Indebtedness guaranteed by such Restricted
Subsidiary is:
(A) Senior Indebtedness. the guarantee for the Securities
shall be subordinated in right of payment to the Other
Indebtedness Guarantee, and
(B) Senior Subordinated Indebtedness, the guarantee for the
Securities shall be pari passu in right of payment with
the Other Indebtedness Guarantee, and
(C) Subordinated Indebtedness, the guarantee for the
Securities shall be senior in right of payment to the
Other Indebtedness Guarantee,
provided that none of that the foregoing will limit or restrict
guarantees Issued by Restricted Subsidiaries in respect of
Indebtedness of other Restricted Subsidiaries.
(b) Each guarantee of the Securities created by a Restricted Subsidiary
pursuant to Section 4.17(a) shall be in form and substance satisfactory to the
Trustee and shall provide, among other things, that it will be automatically
and unconditionally released and discharged upon:
(i) any sale, exchange or transfer permitted by this Indenture to
any Person not an Affiliate of (A) all of the Company's Capital
Stock in such Restricted Subsidiary, or (B) the sale of all or
substantially all of the assets of the Restricted Subsidiary
and upon the application of the Net Proceeds from such sale in
accordance with Section 4.14, or
(ii) the release or discharge of the Other Indebtedness Guarantee
that resulted in the creation of such guarantee of the
Securities, except a discharge or release by or as a result of
payment under such Other Indebtedness Guarantee.
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ARTICLE 5
SUCCESSORS
Section 5.01. MERGER OR CONSOLIDATION.
(a) The Company shall not consolidate or merge with or into, or sell, lease,
convey or otherwise dispose of all or substantially all of its assets to, any
Person, (any such consolidation, merger or sale being a "Disposition") unless:
(i) the successor entity of such Disposition or the Person to which
such Disposition shall have been made is a corporation
organized or existing under the laws of the United States, any
state thereof or the District of Columbia;
(ii) the successor corporation of such Disposition or the
corporation to which such Disposition shall have been made
expressly assumes the Obligations of the Company, pursuant to a
supplemental indenture in a form reasonably satisfactory to the
Trustee, under the Securities and this Indenture;
(iii) immediately after such Disposition no Default or Event of
Default exists; and
(iv) the entity (the "Successor Corporation") formed by or surviving
any such Disposition or the corporation to which such
Disposition shall have been made;
(A) shall have Consolidated Net Worth (immediately after the
Disposition but prior to any purchase accounting
adjustments resulting from the Disposition) equal to or
greater than the Consolidated Net Worth of the Company
immediately preceding the Disposition,
(B) shall be permitted immediately after the Disposition by
the terms of Section 4.07(a) to Issue at least $1.00 of
additional Indebtedness, and
(C) shall have a Cash Flow Coverage Ratio on a Pro Forma
Basis, for the four fiscal quarters immediately
preceding the applicable Disposition, equal to or
greater than the actual Cash Flow Coverage Ratio of the
Company for such four-quarter period;
provided, however, that for purposes of this Section 5.01
(a)(iv), wherever applicable, the Cash Flow Coverage Ratio
shall be calculated on a Pro Forma Basis after giving effect to
such Disposition as if the same had occurred at the beginning
of the applicable four-quarter period.
Prior to the consummation of any proposed Disposition, the Company
shall deliver to the Trustee an Officers' Certificate to the foregoing effect
and an Opinion of Counsel stating that the proposed Disposition and such
supplemental indenture comply with this Indenture.
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Section 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any Disposition. the Successor Corporation resulting from such
Disposition shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the same effect as
if such Successor has been named as the Company herein; provided, however,
that neither the Company nor any Successor Corporation shall be released from
its Obligation to pay the principal of, premium, if any, accrued and unpaid
interest on, and Liquidated Damages, if any, with respect to the Securities.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. EVENTS OF DEFAULT.
(a) An "Event of Default" is:
(1) a default for 30 days in payment of interest on, or Liquidated
Damages, if any, with respect to the Securities;
(2) a default in payment when due of principal or premium, if any;
(3) the failure of the Company to comply with any of its other
agreements or covenants in, or provisions of, the outstanding
Securities or this Indenture and the Default continues for the
period, if applicable, and after the notice specified in Section
6.01(b);
(4) a default by the Company or any Restricted Subsidiary under any
mortgage, indenture or instrument under which there may be Issued
or by which there may be secured or evidenced any Indebtedness
for money borrowed by the Company or any Restricted Subsidiary
(or the payment of which is guaranteed by the Company or any
Restricted Subsidiary), whether such Indebtedness exists prior
to, or is created after, the date of original Issuance of the
Securities if:
(A) either (i) such default results from the failure to pay
principal of or interest on any such Indebtedness and such
default continues for 30 days beyond any applicable grace
period, or (ii) as a result of such default the maturity of
such Indebtedness has been accelerated prior to its
expressed maturity, and
(B) the principal amount of such Indebtedness, together with the
principal amount of any other such Indebtedness in default
for failure to pay principal or interest thereon, or the
maturity of which has been accelerated, aggregates in excess
of $15,000,000;
(5) a failure by the Company or any Restricted Subsidiary to pay
final judgments (not covered by insurance) aggregating in excess
of $7,500,000 which judgments a court of
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competent jurisdiction does not rescind, annul or stay within 45
days after their entry and the Default continues for the period
and after the notice specified in Section 6.01(b);
(6) in existence when the Company or any Significant Subsidiary
pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in
an involuntary case,
(C) consents to the appointment of a Custodian of it or for all
or substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors;
(7) in existence when a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that:
(A) is for relief against the Company or any Significant
Subsidiary in an involuntary case,
(B) appoints a Custodian of the Company or any Significant
Subsidiary or for all or substantially all of the property
of the Company or any Significant Subsidiary, or
(C) orders the liquidation of the Company or any Significant
Subsidiary, and any such order or decree remains unstayed
and in effect for 60 days.
(b) A Default under Section 6.01 (a)(3) (other than a Default under Sections
4.05, 4.07, 4.08, 4.11, 4.13, 4.14, 4.15, 4.16, 4.17 and 5.01 any of which
shall be an Event of Default with the notice but without the passage of time
specified in this Section 6.01(b)) or Section 6.01(a)(5) is not an Event of
Default until the Trustee or the Holders of at least 25% in principal amount
of the then outstanding Securities notify the Company of the Default and the
Company does not cure the Default within 30 days after receipt of the notice.
The notice must specify the Default and state that the notice is a "Notice of
Default."
(c) In the case of any Event of Default pursuant to Section 6.01(a) occurring
by reason of any willful, action (or inaction) taken (or not taken) by or on
behalf of the Company with the intention of avoiding payment of the premium
that the Company would have to pay if the Company then had elected to redeem
the Securities pursuant to paragraph 5 of the Securities, an equivalent
premium shall also become and be immediately due and payable to the extent
permitted by law, anything in this Indenture or in the Securities contained to
the contrary notwithstanding.
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Section 6.02. ACCELERATION.
(a) Upon the occurrence of an Event of Default (other than an Event of Default
under Section 6.01(a)(6) or (a)(7)) occurs and is continuing, the Trustee or
the Holders of at least 25% in principal amount of the then outstanding
Securities may declare all outstanding Securities to be due and payable
immediately and upon such declaration, the Accreted Value of, and any premium
due on, all such Securities, and any accrued and unpaid interest from April 1,
2002 to the date of payment if such declaration is made after April 1, 2002,
shall be due and payable immediately; provided, however, that if an Event of
Default arises under Section 6.01(a)(6) or (a)(7), the Accreted Value of, and
any premium due on, all such Securities, plus any accrued and unpaid interest
on such Securities from April 1, 2002 to the date of any such Event of Default
if it occurs after April 1, 2002, shall ipso facto become and be immediately
due and payable without any declaration or other act on the part of the
Trustee or any Holders; provided further that if any Indebtedness is
outstanding under the Credit Agreement or the New Credit Agreement, upon a
declaration of acceleration, the Accreted Value of, and any premium due on,
all such Securities, and any accrued and unpaid interest from April 1, 2002 to
the date of payment if such declaration is made after April 1, 2002, shall not
be payable until the earlier of (1) the day that is five Business Days after
notice of acceleration is given to the Company and the Credit Agent, or (2)
the date of acceleration of the Indebtedness under the Credit Agreement or the
New Credit Agreement, as the case may be.
(b) The Holders of a majority in principal amount of the then outstanding
Securities by notice to the Trustee may rescind any declaration of
acceleration of such Securities and its consequences if the rescission would
not conflict with any judgment or decree and if all existing Defaults and
Events of Default (other than the nonpayment of principal of, or premium, if
any, or interest on, the Securities which shall have become due by such
declaration) shall have been cured or waived.
(c) If there has been a declaration of acceleration of the Securities because
an Event of Default under Section 6.01(a)(4) has occurred and is continuing,
such declaration of acceleration shall be automatically annulled if the
holders of the Indebtedness described in Section 6.01(a)(4) have rescinded the
declaration of acceleration in respect of such Indebtedness within 30 Business
Days thereof and if:
(i) the annulment of such acceleration would not conflict with any
judgment or decree of a court of competent jurisdiction,
(ii) all existing Events of Default, except non-payment of principal
or interest that shall have become due solely because of the
acceleration, have been cured or waived, and
(iii) the Company has delivered an Officer's Certificate to the
Trustee to the effect of clauses (i) and (ii) above.
Section 6.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy, to collect the payment of principal of, or
premium, if any, or interest on, the Securities or to enforce the performance
of any provision of the Securities or this Indenture.
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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
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
Section 6.04. WAIVER OF PAST DEFAULTS.
The Holders of a majority in principal amount of the then outstanding
Securities by notice to the Trustee may waive any existing Default or Event of
Default and its consequences, except a continuing Default or Event of Default
in the payment of the principal of, or premium, if any, or interest on, any
Security (which may only be waived with the consent of each Holder affected) .
Upon any such waiver, such Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured for every purpose
of this Indenture; provided that no such waiver shall extend to any subsequent
or other Default or impair any right consequent thereon.
Section 6.05. CONTROL BY MAJORITY.
Subject to Section 7.01(e), the Holders of a majority in principal
amount of the then 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 by this Indenture. However, the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture, that the Trustee determines may be unduly prejudicial to the rights
of other Holders, or would involve the Trustee in personal liability.
Section 6.06. LIMITATION ON SUITS.
A Holder may pursue a remedy with respect to this Indenture or the
Securities only if:
(i) the Holder gives to the Trustee notice of a continuing Event of
Default;
(ii) the Holders of at least 25% in principal amount of the then
outstanding Securities make a request to the Trustee to pursue
the remedy;
(iii) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or
expense;
(iv) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of indemnity; and
(v) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Securities do not give
the Trustee a direction inconsistent with the request.
A Holder may, not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over another Holder.
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Holders of the Securities may not enforce this Indenture, except as
provided herein.
Section 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of
any Holder to receive payment of principal of, and premium, if any, and
interest on, a Security, on or after a respective due date expressed in the
Security, or to bring suit for the enforcement of any such payment on or after
such respective date, shall not be impaired or affected without the consent of
the Holder.
Section 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(a)(1) or (a)(2)
occurs and is continuing, the Trustee is authorized to recover judgment in its
own name and as trustee of an express trust against the Company for (i) the
Accreted Value, premium and interest remaining unpaid on the Securities, (ii)
interest on overdue principal and premium, if any, and, to the extent lawful,
interest, and (iii) such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel
("Trustee Expenses").
Section 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable to have the claims of the
Trustee (including any claim for Trustee Expenses) and the Holders
allowed in any Insolvency or Liquidation Proceeding or other judicial
proceeding relative to the Company (or any other obligor upon the
Securities), its creditors or its property and shall be entitled and
empowered to collect, receive and distribute to Holders any money or
other property payable or deliverable on any such claims and each
Holder authorizes any Custodian in any such Insolvency or Liquidation
Proceeding or other judicial proceeding to make such payments to the
Trustee, and if the Trustee shall consent to the making of such
payments directly to the Holders any such Custodian is hereby
authorized to make such payments directly to the Holders, and to pay
to the Trustee any amount due to it hereunder for Trustee Expenses,
and any other amounts due the Trustee under Section 7.07. To the
extent that the payment of any such Trustee Expenses, and any other
amounts due the Trustee under Section 7.07 out of the estate in any
such proceeding, shall be denied for any reason, payment of the same
shall be secured by a Lien on, and shall be paid out of, any and all
distributions, dividends, money, securities and other properties
which the Holders may be entitled to receive in such proceeding,
whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt
on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of
any Holder, or to authorize the Trustee to vote in respect of the
claim of any Holder in any Insolvency or Liquidation Proceeding.
Section 6.10. PRIORITIES.
If the Trustee collects any money pursuant to this Article, it shall
pay out the money in the following order:
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First: to the Trustee for amounts due under Section 7.07;
Second: to the holders of Senior Indebtedness to the extent
required by Article 10 hereof;
Third: to Holders for amounts due and unpaid on the Securities
for principal, premium, if any, and interest, ratably,
without preference or priority of any kind, according
to the amounts due and payable on the Securities for
principal, premium, if any, and interest, respectively;
and
Fourth: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders.
Section 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted
by it as a Trustee, a court in its discretion may require the filing by any
party litigant in the suit of an undertaking to pay the costs of the suit; and
the court in its discretion may assess reasonable costs, including reasonable
attorneys' fees against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party
litigant. This Section does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.07, or a suit by Holders of more than 10% in
principal amount of the then outstanding Securities.
ARTICLE 7
TRUSTEE
Section 7.01. DUTIES OF TRUSTEE.
(a) if an Event of Default occurs (and has not been cured) the Trustee shall
(i) exercise the rights and powers vested in it by this Indenture, and (ii)
use the same degree of care and skill in exercising such rights and powers as
a prudent man would exercise or use under the circumstances in the conduct of
his own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee's duties shall be determined solely by the express
provisions of this Indenture and the Trustee need perform only
those duties that are specifically set forth in this Indenture
and no others, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
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(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture. However, the
Trustee shall examine the certificates and opinions to
determine whether they conform to this Indenture's requirements
and to confirm the correctness of all mathematical
computations.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act, or its own wilful misconduct, except
that:
(i) this paragraph does not limit the effect of Section 7.01(b);
(ii) the Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a
direction it receives pursuant to Section 6.05.
(d) Whether or not expressly so provided, every provision of this Indenture
that in any way relates to the Trustee is subject to paragraphs (a), (b) and
(c) of this Section.
(e) No provision of this Indenture shall require the Trustee to expend or risk
its own funds or incur any liability . The Trustee shall be under no
obligation to exercise any of its rights and powers under this Indenture at
the request of any Holders unless such Holders shall have offered to the
Trustee security and indemnity satisfactory to it against any loss, liability
or expense.
(f) The Trustee shall not be liable for interest on any money it receives
except as the Trustee may agree in writing with the Company. Money the Trustee
holds in trust need not be segregated from other funds except to the extent
required by law.
Section 7.02. RIGHTS OF TRUSTEE.
(a) The Trustee may rely on any document it believes to be genuine and to have
been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel, or both. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance
on such Officers' Certificate or Opinion of Counsel. The Trustee may consult
with counsel and advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due care.
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(d) The Trustee shall not be liable for any action it takes or omits to take
in good faith that it believes to be authorized or within its rights or
powers.
(e) Unless otherwise specifically provided in the Indenture, any demand,
request, direction or notice from the Company shall be sufficient if signed by
an Officer.
Section 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or an
Affiliate with the same rights it would have if it were not the Trustee.
However, if the Trustee acquires any conflicting interest it must eliminate
such conflict within 90 days, apply to the SEC for permission to continue as
trustee or resign. Any Agent may do the same with like rights. The Trustee is
also subject to Sections 7.10 and 7.11.
Section 7.04. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Securities, it shall
not be accountable for the Company's use of the proceeds from the Securities
or for any money paid to the Company or upon the Company's direction under any
provisions hereof, it shall not be responsible for the use or application of
any money any Paying Agent other than the Trustee receives, and it shall not
be responsible for any statement or recital herein or any statement in the
Securities or any other document in connection with the sale of the Securities
or pursuant to this Indenture, other than its certificate of authentication.
Except with respect to Section 4.01, the Trustee shall have no duty to inquire
as to the performance of the Issuer's covenants in Article IV. In addition,
the Trustee shall be deemed not to have any knowledge of a Default or an Event
of Default except (i) any Event of Default occurring pursuant to Sections
6.01(a)(1), 6.01(a)(2) and 4.01, or (ii) any Default or Event of Default of
which the Trustee shall have received written notification or actual
knowledge.
Section 7.05. NOTICE TO HOLDERS OF DEFAULTS AND EVENTS OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and if it
is known to the Trustee, the Trustee shall mail to Holders a notice of the
Default or Event of Default within 90 days after it occurs. Except in the case
of a Default or Event of Default in payment on any Security (including any
failure to redeem Securities called for redemption or any failure to purchase
Securities tendered pursuant to an Offer that are required to be purchased by
the terms of this Indenture), the Trustee may withhold the notice if and so
long as a committee of its Trust Officers in good faith determines that
withholding the notice is in the Holders' interests.
Section 7.06. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each April 1 beginning with April 1, 1998, the
Trustee shall mail to Holders a brief report dated as of such reporting date
that complies with section 313(a) of the TIA (but if no event described in
section 313(a) of the TIA has occurred within the twelve months preceding the
reporting date, no report need be transmitted). The Trustee also shall comply
with section 313(b)(2) of the TIA.
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Commencing at the time this Indenture is qualified under the TIA, a
copy of each report at the time of its mailing to Holders shall be filed with
the SEC and each stock exchange on which the Securities are listed. The
Company shall notify the Trustee when the Securities are listed on any stock
exchange.
Section 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time reasonable
compensation for its services hereunder. The Trustee's compensation shall not
be limited by any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee upon request for all reasonable
disbursements, advances and expenses it incurs or makes in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee against any and all losses,
liabilities or expenses the Trustee incurs arising out of or in connection
with the acceptance or administration of its duties under this Indenture,
except as set forth below. The Trustee shall notify the Company promptly of
any claim for which it may seek indemnity. Failure by the Trustee to so notify
the Company shall not relieve the Company of its Obligations hereunder. The
Company shall defend the claim and the Trustee shall cooperate in the defense.
The Trustee may have separate counsel and the Company shall pay the reasonable
fees and expenses of such counsel. The Company need not pay for any settlement
made without its consent, which consent shall not be unreasonably withheld.
The Company's Obligations under this Section 7.07 shall survive the
satisfaction and discharge of this Indenture.
The Company need not reimburse any expense or indemnify against any
loss or liability the Trustee incurs through negligence or bad faith.
To secure the Company's payment of its Obligations in this Section,
the Trustee shall have a Lien prior to the Securities on all money or property
the Trustee holds or collects, except that held in trust to pay the principal
of, and premium, if any, and interest on, particular Securities. Such Lien
shall survive the satisfaction and discharge of this Indenture. Compensation,
reimbursement and indemnification to the Trustee under this Section is not
subordinated to any Senior Indebtedness.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.01(6) or (7) occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents
and counsel) are intended to constitute administrative expenses under any
Bankruptcy Law .
Section 7.08. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
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The Trustee may resign and be discharged from the trust hereby
created by so notifying the Company. The Holders of a majority in principal
amount of the then outstanding Securities may remove the Trustee by so
notifying the Trustee and the Company. The Company may remove the Trustee if:
(i) the Trustee fails to comply with Section 7.10;
(ii) the Trustee is adjudged a bankrupt or an insolvent or an order
for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(iii) a Custodian or public officer takes charge of the Trustee or
its property; or
(iv) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee, provided that the Holders of a majority in principal amount
of the then outstanding Securities may appoint a successor Trustee to replace
any successor Trustee appointed by Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of at least 10% in principal amount of the then outstanding
Securities may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
appointment to Holders. The retiring Trustee shall promptly transfer all
property it holds as Trustee to the successor Trustee, provided all sums owing
to the retiring Trustee hereunder have been paid and subject to the Lien
provided for in Section 7.07. Notwithstanding replacement of the Trustee
pursuant to this Section 7.08, the Company's obligations under Section 7.07
shall continue for the retiring Trustee's benefit with respect to expenses and
liabilities it incurred prior to being replaced.
Section 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
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Section 7.10. ELIGIBILITY; DISQUALIFICATION.
The Trustee shall at all times (i) be a corporation organized and
doing business under the laws of the United States of America, of any state
thereof, or the District of Columbia authorized under such laws to exercise
corporate trustee power, (ii) be subject to supervision or examination by
federal or state authority, (iii) have a combined capital and surplus of at
least $25 million ($100 million in the case of any successor Trustee) as set
forth in its most recent published annual report of condition, and (iv)
satisfy the requirements of sections 310(a)(1), (2) and (5) of the TIA. The
Trustee is subject to section 310(b) of the TIA.
Section 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to section 31l(a) of the TIA, excluding any
creditor relationship listed in section 311(b) of the TIA. A Trustee who has
resigned or been removed shall be subject to 311(a) of the TIA to the extent
indicated therein.
ARTICLE 8
DISCHARGE OF INDENTURE
Section 8.01. DISCHARGE OF LIABILITY ON SECURITIES; DEFEASANCE.
(a) When (i) the Company delivers to the Trustee all outstanding Securities
(other than Securities replaced pursuant to Section 2.07) for cancellation, or
(ii) all outstanding Securities have become due and payable and the Company
irrevocably deposits with the Trustee funds sufficient to pay at maturity all
outstanding Securities, including interest and Liquidated Damages, if any,
thereon (other than Securities replaced pursuant to Section 2.07), and if in
either case the Company pays all other sums payable under this Indenture by
the Company, then this Indenture shall, subject to Sections 8.01(c) and 8.06,
cease to be of further effect.
(b) Subject to Sections 8.01(c), 8.02, and 8.06, the Company at any time may
terminate (i) all its obligations under the Securities and this Indenture
("legal defeasance option") or (ii) its obligations under Sections 4.02, 4.03,
4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.13, 4.14, 4.15, 4.16 and 4.17, and
the operation of Sections 5.01(iii), 5.01(iv), or 6.01(a)(3) through (a)(7)
("covenant defeasance option"). The Company may exercise its legal defeasance
option notwithstanding its prior exercise of its covenant defeasance option.
If the Company exercises its legal defeasance option, payment of the
Securities may not be accelerated because of an Event of Default. If the
Company exercises its covenant defeasance option, payment of the Securities
may not be accelerated because of an Event of Default specified in 6.01(a)(3)
through (a)(7) or because of the Company's failure to comply with Sections
5.01(iii) or 5.01(iv).
Upon satisfaction of the conditions set forth herein and upon the
Company's request (and at the Company's expense), the Trustee shall
acknowledge in writing the discharge of those obligations that the
Company has terminated.
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(c) Notwithstanding clauses (a) and (b) above, the Company's obligations in
Sections 2.03, 2.04, 2.05, 2.06, 2.07, 4.01, 4.04, 7.07, 7.08, 8.04, 8.05, and
8.06, and the Trustee's and the Paying Agent's obligations in Section 8.04
shall survive until the Securities have been paid in full. Thereafter, the
Company's obligations in Sections 7.07 and 8.05 and the Company's, Trustee's
and Paying Agent's obligations in Section 8.04 shall survive.
Section 8.02. CONDITIONS TO DEFEASANCE.
The Company may exercise its legal defeasance option or its covenant
defeasance option only if:
(1) the Company irrevocably deposits in trust with the Trustee money
or U.S. Government Obligations sufficient for the payment in full
of the principal of, and any premium due on, the Securities, and
any accrued and unpaid interest on, and Liquidated Damages, if
any, with respect to the Securities then outstanding, from April
1, 2002, as the maturity date, the redemption date or the
Purchase Date, as the case may be;
(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing
their opinion that the payments of principal and interest when
due and without reinvestment of the deposited U.S. Government
Obligations plus any deposited money without investment will
provide cash at such times and in such amounts as will be
sufficient to pay principal of, premium, if any, any accrued and
unpaid interest when due on, and Liquidated Damages, if any, with
respect to all the Securities to maturity or redemption, as the
case may be;
(3) since the Company's irrevocable deposit provided for in Section
8.02(1) 91 days have passed;
(4) no Default has occurred and is continuing on the date of such
deposit and after giving effect to it;
(5) the deposit does not constitute a default under any other
agreement binding on the Company;
(6) the Company delivers to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit does not
constitute, or is qualified as, a regulated investment company
under the Investment Company Act of 1940, as amended;
(7) in the case of the legal defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that
(i) the Company has received from, or there has been published
by, the Internal Revenue Service a ruling, or (ii) under
applicable federal 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 on the same
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amounts, in the same manner and at the same times as would have
been the case if such defeasance had not occurred;
(8) in the case of the covenant defeasance option, the Company shall
have delivered to the Trustee and Opinion of Counsel to the
effect that the Holders will not recognize income, gain or loss
for federal income tax purposes as a result of such 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; and
(9) the Company delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent
to the defeasance and discharge of the Securities contemplated by
this Article 8 have been satisfied.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption or purchase of Securities at a
future date in accordance with Article 3.
Section 8.03. APPLICATION OF TRUST MONEY.
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to this Article 8. It shall apply the deposited
money and the money from U.S. Government Obligations through the Paying Agent
and in accordance with this Indenture to the payment of principal of, premium,
if any, and interest on, and Liquidated Damages, if any, with respect to, the
Securities.
Section 8.04. REPAYMENT TO COMPANY.
After the Securities have been paid in full, the Trustee and the
Paying Agent shall promptly turn over to the Company any excess money or
securities they hold.
The Trustee and the Paying Agent shall pay to the Company upon
written request any money they hold for the payment of principal, premium,
interest or Liquidated Damages that remains unclaimed for 1 year after the
date upon which such payment shall have become due; provided, however, that
the Company shall have either caused notice of such payment to be mailed to
each Holder entitled thereto no less than 30 days prior to such repayment or
within such period shall have published such notice in a financial newspaper
of widespread circulation published in The City of New York ( including,
without limitation, The Wall Street Journal). After payment to the Company,
Holders entitled to the money must look to the Company for payment as general
creditors unless an applicable abandoned property law designates another
Person, and all liability of the Trustee and such Paying Agent with respect to
such money shall cease.
Section 8.05. INDEMNITY FOR GOVERNMENT OBLIGATIONS.
The Company shall pay and shall indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against deposited U.S.
Government Obligations or the principal and interest received on such U.S.
Government Obligations.
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Section 8.06. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with this Article 8 by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Securities
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article 8 until such time as the Trustee or Paying Agent is permitted to
apply all such money or U.S. Government Obligations in accordance with this
Article 8; provided, however, that, if the Company has made any payment of
principal of, premium, if any, any accrued and unpaid interest on, and
Liquidated Damages, if any, with respect to, any Securities because of the
reinstatement of its Obligations, the Company shall be subrogated to the
Holders' rights to receive such payment from the money or U. S. Government
Obligations the Trustee or Paying Agent holds.
ARTICLE 9
AMENDMENTS
Section 9.01. AMENDMENTS AND SUPPLEMENTS PERMITTED WITHOUT CONSENT OF HOLDERS.
Notwithstanding Section 9.02 of this Indenture, the Company and the
Trustee may amend or supplement this Indenture or the Securities without the
consent of any Holder or any holder of any Senior Indebtedness:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Securities in addition to or in
place of certificated Securities,
(c) to provide for the assumption by a Successor Corporation of the
Company's Obligations to the Holders in the event of a
Disposition pursuant to Article 5;
(d) to comply with SEC's requirements to effect or maintain the
qualification of this Indenture under the TIA; or
(e) to make any change that does not materially adversely affect any
Holder's legal rights under this Indenture.
Upon the Company's request, after receipt by the Trustee of a
resolution of the Board of Directors authorizing the execution of any amended
or supplemental indenture and/or the documents described in Section 9.06, the
Trustee shall join with the Company in the execution of any amended or
supplemental indenture authorized or permitted by the terms of this Indenture
and to make any further appropriate agreements and stipulations that may be
contained in any such amended or supplemental indenture, but the Trustee shall
not be obligated to enter into an amended or supplemental indenture that
affects its own rights, duties or immunities under this Indenture or
otherwise.
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Section 9.02. AMENDMENTS AND SUPPLEMENTS REQUIRING CONSENT OF HOLDERS.
Subject to Section 6.07, the Company and the Trustee may amend or
supplement this Indenture or the Securities with the written consent of the
Holders of at least a majority in principal amount of the then outstanding
Securities (including consents obtained in connection with a tender offer or
exchange offer for the Securities). Subject to Sections 6.04 and 6.07, the
Holders of a majority in principal amount of the Securities then outstanding
(including consents obtained in connection with a tender offer or exchange
offer for the Securities) may also waive any existing Default or Event of
Default (other than a payment Default) and its consequences or compliance in a
particular instance by the Company with any provision of this Indenture or the
Securities.
Upon the Company's request and after receipt by the Trustee of a
resolution of the Board of Directors authorizing the execution of any
supplemental indenture, evidence of the Holders' consent, and the documents
described in Section 9.06, the Trustee shall join with the Company in the
execution of such amended or supplemental indenture unless such amended or
supplemental indenture affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its
discretion, but not be obligated to, enter into such amended or supplemental
indenture.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment or waiver,
but it shall be sufficient if such consent approves the substance thereof.
After an amendment or waiver under this Section becomes effective,
the Company shall mail to each Holder affected thereby a notice briefly
describing the amendment, supplement or waiver. Any failure of the Company to
mail such notice, or any defect therein, shall not, however, in any way impair
or affect the validity of any such amended or supplemental indenture or
waiver. Without the consent of each Holder affected, an amendment, supplement
or waiver under this Section may not:
(1) reduce the principal amount of Securities whose Holders must
consent to an amendment, supplement or waiver;
(2) reduce the rate of or change the time for payment of interest,
including default interest as set forth in Section 4.01, or
Liquidated Damages, if any, on any Security, or alter the
redemption or purchase provisions with respect thereto;
(3) reduce the principal of or change the fixed maturity of any
Security,
(4) make any Security payable in money other than that stated in the
Security;
(5) make any change in Section 6.04 or 6.07 or in this sentence of
this Section 9.02:
(6) make any change in Article 10 that adversely affects any rights
of such Holder; or
(7) waive a default in the payment of the principal of, or premium,
if any, or interest on, and Liquidated Damages, if any, with
respect to, or redemption or purchase
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payment with respect to, any Security (except a rescission of
acceleration of the Securities by the Holders of at least a
majority in aggregate principal amount of the then outstanding
Securities and a waiver of the payment default that resulted from
such acceleration).
Section 9.03. COMPLIANCE WITH TIA.
Every amendment or supplement to this Indenture or the Securities
shall be set forth in an amended supplemental indenture that complies with the
TIA as then in effect.
Section 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder of a Security is a continuing consent by the Holder and
every subsequent holder of a Security or portion of a Security that evidences
the same Indebtedness as the consenting Holder's Security, even if notation of
the consent is not made on any Security. However, any such Holder or
subsequent Holder may revoke the consent as to his or her Security or portion
of a Security if the Trustee receives the notice of revocation before the date
on which the Trustee receives an Officer's Certificate certifying that the
Holders of the requisite principal amount of Securities have consented to the
amendment or waiver,
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the holders of Securities entitled to consent to
any amendment or waiver. If a record date is fixed, then notwithstanding the
provisions of the immediately preceding paragraph, those Persons who were
holders of Securities at such record date (or their duly designated proxies),
and only those Persons, shall be entitled to consent to such amendment or
waiver or to revoke any consent previously given, whether or not such Persons
continue to be holders of Securities after such record date. No consent shall
be valid or effective for more than 90 days after such record date unless
consents from Holders of the principal amount of Securities required hereunder
for such amendment or waiver to be effective shall have also been given and
not revoked within such 90-day period.
After an amendment or waiver becomes effective it shall bind every
Holder, unless it is of the type described in any of clauses (1) through (6)
of Section 9.02. In such case, the amendment or waiver shall bind each Holder
who has consented to it and every subsequent holder of a Security that
evidences the same debt as the consenting Holder's Security.
Section 9.05. NOTATION ON OR EXCHANGE OF SECURITIES.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Security thereafter authenticated. The Company in
exchange for all Securities may Issue and the Trustee shall authenticate new
Securities that reflect the amendment, supplement or waiver.
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 PROTECTED.
The Trustee shall sign any amendment or supplemental indenture
authorized pursuant to this Article 9 if the amendment does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. If it
does, the Trustee may, but need not, sign it. In signing such amendment or
supplemental indenture, the Trustee shall be entitled to receive and, subject
to Section 7.01, shall be fully protected in relying upon, an Officers'
Certificate and Opinion of Counsel as conclusive evidence that such amendment
or supplemental indenture is authorized or permitted by this Indenture, that
it is not inconsistent herewith, and that it will be valid and binding upon
the Company in accordance with its terms. The Company may not sign an
amendment or supplemental indenture until the Board of Directors approves it.
Section 9.07. AMENDMENTS AND SUPPLEMENTS REQUIRING CONSENT OF HOLDERS OF
SENIOR INDEBTEDNESS.
No amendment or modification to Article 10, this Section 9.07 or
Section 11.15 may be made to this Indenture without the consent of holders of
at least a majority of the outstanding principal amount of each class of
Designated Senior Indebtedness that would be adversely affected by such
amendment or modification (the Securities, Senior Indebtedness Issued under
the Credit Agreement or the New Credit Agreement, and any other Designated
Senior Indebtedness shall each be a separate class); provided, however, that
if some but not all classes of Designated Senior Indebtedness consent to any
such amendment or modification, such amendment or modification shall be
effective with respect to each consenting class.
ARTICLE 10
SUBORDINATION
Section 10.01. AGREEMENT TO SUBORDINATE.
The Company agrees, and each Holder by accepting a Security agrees,
any provision of this Indenture or Securities to the contrary notwithstanding,
that all Obligations owned under and in respect of the Securities are
subordinated in right of payment, to the extent and in the manner provided in
this Article, to the prior payment in full in cash of all Obligations owed
under and in respect of all Senior Indebtedness, and that the subordination is
for the benefit of all holders of all Senior Indebtedness, whether outstanding
on the date of original Issuance of the Securities or immediately thereafter.
For this Article 10, a distribution may consist of cash, securities
or other property, by set-off or otherwise.
Section 10.02. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
(a) Upon any payment or distribution of assets of any kind or character,
whether in cash, property or securities, to creditors in any Insolvency or
Liquidation Proceeding with respect to the Company, no payment or distribution
shall be made on the account of the Securities until all amounts due or to
become due under or with respect to any Senior Indebtedness (including any
Post-Petition Interest) shall first be
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paid in cash in full. Upon any such Insolvency or Liquidation Proceedings any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, to which the Holders or the Trustee
would be entitled except for the provisions hereof shall be paid by the
Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent
or other Person making such payment or distribution, or by the Holders or by
the Trustee if received by them, directly to the holders of Senior
Indebtedness (pro rata to such holders on the basis of the amounts of Senior
Indebtedness such holders hold) or their Representative or Representatives, as
their interests may appear, for application to the payment of Senior
Indebtedness remaining unpaid until all such Senior Indebtedness has been paid
in full in cash, after giving effect to any concurrent payment, distribution
or provision therefor to or for the holders of Senior Indebtedness.
(b) A Disposition or the liquidation or dissolution of the Company following a
Disposition to another Person upon the terms and conditions provided in
Article 5 shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section if such Disposition complies
with the Conditions stated in Article 5.
Section 10.03. DEFAULT ON SENIOR INDEBTEDNESS.
(a) Upon and during the continuation of any default in the payment of
principal of, or premium, if any, or interest on, any Senior
Indebtedness, or any Obligation owing under or in respect of Senior
Indebtedness, or if any event of default (other than a payment
default) with respect to any Senior Indebtedness shall have occurred
and be continuing and shall have resulted in such Senior Indebtedness
becoming or being declared due and payable prior to the date on which
it would otherwise have become due and payable, or
(b) if any event of default other than as described in Section 10.03(a)
with respect to any Designated Senior Indebtedness shall have
occurred and be continuing permitting the holders of such Designated
Senior Indebtedness (or their Representative) to declare such
Designated Senior Indebtedness due and payable prior to the date on
which it would otherwise have become due and payable,
then no Payment shall be made by or on behalf of the Company on account of the
Securities in case of:
(i) any payment or nonpayment event of default specified in
10.03(a) unless and until such event of default shall have been
cured or waived in writing in accordance with the instruments
governing such Senior Indebtedness or such acceleration shall
have been rescinded or annulled, or
(ii) any nonpayment event of default specified in 10.03(b), during
the period (a "Payment Blockage Period") commencing on the date
the Company and the Trustee receive written notice (a "Payment
Notice") of such event of default (which notice shall be
binding on the Trustee and the Holders as to the occurrence of
such an event of default from any holders of Designated Senior
Indebtedness or a Representative of such holders) and ending on
the earliest of:
(A) 179 days after such date,
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(B) the date, if any, on which such Designated Senior
Indebtedness to which such default relates is paid in
full or such default is cured or waived in writing in
accordance with the instruments governing such Designated
Senior Indebtedness by the holders of such Designated
Senior Indebtedness, and
(C) the date on which the Trustee receives written notice
from the holders of Designated Senior Indebtedness (or a
Representative of such holders) that commenced the
Payment Blockage Period gives written notice that the
Payment Blockage Period has been terminated.
During any consecutive 360-day period, the aggregate of all Payment Blockage
Periods shall not exceed 179 days and there shall be a period of at least 181
consecutive days in each consecutive 360-day period when no Payment Blockage
Period is in effect. For all purposes of this Section 10.03, no event of
default that existed or was continuing with respect to the Senior Indebtedness
with respect to which notice commencing a Payment Blockage Period was given on
the date such Payment Blockage Period commenced shall be, or be made, the
basis for the commencement of any subsequent Payment Blockage Period unless
such event of default is cured or waived for a period of not less than 90
consecutive days.
Section 10.04. ACCELERATION OF SECURITIES.
If payment of the Securities is accelerated because of an Event of
Default, the Company shall promptly notify the Credit Agent and each holder of
Senior Indebtedness of the acceleration.
Section 10.05. WHEN DISTRIBUTION MUST BE PAID OVER.
If the Company shall make any payment to the Trustee on account of
the principal of, or premium, if any, or interest on, and Liquidated Damages,
if any, with respect to, the Securities, or any other Obligation in respect of
the Securities, or the Holders shall receive from any source any payment on
account of the principal of, or premium, if any, or interest on, and
Liquidated Damages, if any, with respect to, the Securities or any Obligation
in respect of the Securities, at a time when such payment is prohibited by
this Article 10, the Trustee or such Holders shall hold such payment in trust
for the benefit of, and shall be paid forthwith over and delivered to, the
holders of Senior Indebtedness (pro rata as to each of such holders on the
basis of the respective amounts of Senior Indebtedness they hold) or their
Representative or the trustee under the indenture or other agreement (if any)
pursuant to which this Article 10, Senior Indebtedness may have been Issued,
as their respective interests may appear, for application to the payment of
all Senior Indebtedness remaining unpaid to the extent necessary to pay all
Senior Indebtedness in full in cash in accordance with its terms, after giving
effect to any concurrent payment or distribution to or for the holders of
Senior Indebtedness.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform only such obligations on its part as are specifically
set forth in this Article 10, and no implied covenants or obligations with
respect to the holders of Senior Indebtedness shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness, and shall not be liable
to any such holders if the Trustee shall pay over or distribute to or on
behalf of Holders or the Company or any other Person money or assets to which
any holders of Senior
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Indebtedness shall be entitled by virtue of this Article 10, except if such
payment is made at a time when a Trust Officer has knowledge that the terms of
this Article 10 prohibit such payment.
Section 10.06. NOTICE.
Neither the Trustee nor the Paying Agent shall at any time be charged
with the knowledge of the existence of any facts that would prohibit the
making of any payment to or by the Trustee or Paying Agent under this Article
10, unless and until the Trustee or Paying Agent shall have received written
notice thereof from the Company or one or more holders of Senior Indebtedness
or a Representative of any holders of Senior Indebtedness; and, prior to the
receipt of any such written notice, the Trustee or Paying Agent shall be
entitled to assume conclusively that no such facts exist. The Trustee shall be
entitled to rely on the delivery to it of written notice by a Person
representing itself to be a holder of Senior Indebtedness (or a Representative
thereof) to establish that such notice has been given.
The Company shall promptly notify the Trustee and the Paying Agent in
writing of any facts it knows that would cause a payment of principal of, or
premium, if any, or interest on, and Liquidated Damages, if any, with respect
to, the Securities or any other Obligation in respect of the Securities to
violate this Article 10, but failure to give such notice shall not affect the
subordination of the Securities to the Senior Indebtedness provided in this
Article 10 or the rights of holders of Senior Indebtedness under this Article
10.
Section 10.07. SUBROGATION.
After all Senior Indebtedness is paid in full in cash and until the
Securities are paid in full, Holders shall be subrogated (equally and ratably
with all other Indebtedness pari passu with the Securities) to the rights of
holders of Senior Indebtedness to receive distributions applicable to Senior
Indebtedness to the extent that distributions otherwise payable to the Holders
have been applied to the payment of Senior Indebtedness. A distribution made
under this Article 10 to holders of Senior Indebtedness that otherwise would
have been made to Holders is not, as between the Company and Holders, a
payment by the Company on the Senior Indebtedness.
Section 10.08. RELATIVE RIGHTS.
This Article 10 defines the relative rights of Holders and holders of
Senior Indebtedness. Nothing in this Indenture shall:
(1) impair, as between the Company and Holders, the Company's
Obligations, which are absolute and unconditional, to pay
principal of, and premium, if any, and interest on, and
Liquidated Damages, if any, with respect to, the Securities
in accordance with their terms;
(2) affect the relative rights of Holders and the Company's
creditors other than their rights in relation to holders of
Senior Indebtedness; or
(3) prevent the Trustee or any Holder from exercising its
available remedies upon a Default or Event of Default,
subject to the rights of holders and owners of
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Senior Indebtedness to receive distributions and payments
otherwise payable to Holders.
Nothing contained in this Article 10 or elsewhere in this Indenture
or in any Security is intended to or shall impair, as between the Company and
the Holders, the obligations of the Company, which are absolute and
unconditional to pay to the Holders the principal of, and premium, if any, and
interest on, the Securities as and when the same shall become due and payable
in accordance with their terms, or is intended to or shall affect the relative
rights of the Holders and creditors of the Company other than the holders of
the Senior Indebtedness, nor shall anything herein or therein prevent the
Trustee or any Holder from exercising all remedies otherwise permitted by
applicable law upon Default under this Indenture, subject to the rights, if
any, under this Article 10 of the holders of such Senior Indebtedness.
The failure to make a payment on account of principal of, interest
on, or Liquidated Damages, if any, with respect to the Securities by reason of
any provision of this Article 10 shall not be construed as preventing the
occurrence of an Event of Default under Section 6.01.
Section 10.09. THE COMPANY AND HOLDERS MAY NOT IMPAIR SUBORDINATION.
(a) No right of any holder of Senior Indebtedness to enforce the subordination
as herein provided shall at any time in any way be prejudiced or impaired by
any act or failure to act on the Company's part or by any noncompliance by the
Company with the terms, provisions and covenants of this Indenture or the
Securities or any other agreement regardless of any knowledge thereof with
which any such holder may have or be otherwise charged.
(b) Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Indebtedness, or any of them, may, at any time and from time
to time, without the consent of or notice to the Holders, without incurring
any liabilities to any Holder and without impairing or releasing the
subordination and other benefits provided in this Indenture or the Holder's
obligations to the holders of Senior Indebtedness, even if any Holder's right
of reimbursement or subrogation or other right or remedy is affected, impaired
or extinguished thereby, do any one or more of the following:
(i) change the manner, place or terms of payment or change or
extend the time of payment of, or renew, exchange, amend,
increase or alter, the terms of any Senior Indebtedness, any
security therefor or guarantee thereof or any liability of any
obligor thereon (including any guarantor) to such holder, or
any liability Issued in respect thereof or otherwise amend,
renew, exchange, extend, modify, increase or supplement in any
manner any Senior Indebtedness or any instrument evidencing or
guaranteeing or securing the same or any agreement under which
Senior Indebtedness is outstanding;
(ii) sell, exchange, release, surrender, realize upon, enforce or
otherwise deal with in any manner and in any order any property
pledged, mortgaged or otherwise securing Senior Indebtedness or
any liability of any obligor thereon, to such holder, or any
liability Issued in respect thereof;
(iii) settle or compromise any Senior Indebtedness or any other
liability of any obligor of the Senior Indebtedness to such
holder or any security therefor or any liability Issued in
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respect thereof and apply any sums by whomsoever paid and
however realized to any liability (including, without
limitation, Senior Indebtedness) in any manner or order; and
(iv) fail to take or to record or otherwise perfect, for any reason
or for no reason, any lien or security interest securing Senior
Indebtedness by whomsoever granted, exercise or delay in or
refrain from exercising any right or remedy against any obligor
or any guarantor or any other Person, elect any remedy and
otherwise deal freely with any obligor and any security for the
Senior Indebtedness or any liability of any obligor to such
holder or any liability Issued in respect thereof.
(c) Each Holder by accepting a Security agrees not to compromise, release,
forgive or otherwise discharge the Obligations of the Company with respect to
his or her Security unless holders of a majority of the outstanding amount of
each class of Senior Indebtedness (as described in Section 9.07) consent to
such compromise, release, forgiveness or other discharge.
Section 10.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to holders of
Senior Indebtedness, the distribution may be made and the notice given to
their Representative, if any.
If any payment or distribution of the Company's assets is required to
be made to holders of Senior Indebtedness pursuant to this Article 10, the
Trustee and the Holders shall be entitled to rely upon any order or decree of
any court of competent jurisdiction, or upon any certificate of a
Representative of Senior Indebtedness or a Custodian, in ascertaining the
holders of Senior Indebtedness entitled to participate in any such payment or
distribution, the amount payable to be paid or distributed filed to holders of
Senior Indebtedness and all other facts pertinent thereto or to this Article
10.
Section 10.11. RIGHTS OF TRUSTEE AND PAYING AGENT.
The Trustee or Paying Agent may continue to make payments on the
Securities unless at least three Business Days prior to any payment date it
has received written notice of facts that would cause a payment of principal
of, or premium, if any, or interest on, or Liquidated Damages, if any, with
respect to, the Securities to violate this Article. Only the Company, a
Representative of Senior Indebtedness, or a holder of Senior Indebtedness that
has no Representative may give such notice.
To the extent permitted by the TIA, the Trustee in its individual or
any other capacity may hold Indebtedness (including Senior Indebtedness) with
the same rights it would have if it were not Trustee.
Any Agent may do the same with like rights.
Section 10.12. AUTHORIZATION TO EFFECT SUBORDINATION.
Each Holder of a Security by its acceptance thereof authorizes and
directs the Trustee on its behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in this Article 10,
and appoints the Trustee his attorney-in-fact for any and all such purposes,
(including, without limitation, the timely filing of a claim for the unpaid
balance of the Security such Holder holds in the form required in any
Insolvency or Liquidation Proceeding and causing such claim to be approved).
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If a proper claim or proof of debt in the form required in such
proceeding is not filed by or on behalf of all Holders prior to 30 days before
the expiration of the time to file such claims or proofs, then the holders or a
Representative of any Senior Indebtedness are hereby authorized, and shall have
the right (without any duty), to file an appropriate claim for and on behalf of
such Holders.
Section 10.13. PAYMENT.
A payment on account of or with respect to any Security shall
include, without limitation, any direct or indirect payment of principal,
premium, interest or Liquidated Damages, if any, with respect to or in
connection with any optional redemption or purchase provisions, any direct or
indirect payment payable by reason of any other Indebtedness or Obligation
being subordinated to the Securities, and any direct or indirect payment or
recovery on any Claim as a Holder relating to or arising out of this Indenture
or any Security, or the Issuance of any Security, or the transactions
contemplated by this Indenture or referred to herein.
ARTICLE 11
MISCELLANEOUS
Section 11.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies, or conflicts
with the duties imposed by operation of Section 318(c) of the TIA, the imposed
duties shall control.
Section 11.02. NOTICES.
Any notice or communication by the Company or the Trustee to the
other is duly given if in writing and delivered in person, mailed by
registered or certified mail, postage prepaid, return receipt requested or
delivered by telecopier or overnight air courier guaranteeing next day
delivery to the other's address:
If to the Company:
Jordan Industries, Inc.
ArborLake Centre
0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
If to the Trustee:
First Trust National Association
000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Department
Telecopier No.: (000)-000-0000
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The Company or the Trustee by notice to the other may designate
additional or different addresses or subsequent notices or communications.
All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given at the time delivered by hand, if
personally delivered; the date receipt is acknowledged, if mailed by
registered or certified mail; when answered back, if telecopied; and the next
Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by
first-class mail to his or her address shown on the register kept by the
Registrar. Failure to mail a notice or communication to a Holder or any defect
in it shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
Section 11.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Holders may communicate pursuant to section 312(b) of the TIA with
other Holders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and any other Person shall
have the protection of section 312(c) of the TIA. . Section 11.04. CERTIFICATE
AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate (which shall include the statements
set forth in Section 11.05) stating that, in the opinion of
the signers, all conditions precedent and covenants, if any,
provided for in this Indenture relating to the proposed
action have been complied with; and
(b) an Opinion of Counsel (which shall include the statements
set forth in Section 11.05) stating that, in the opinion of
such counsel, all such conditions precedent provided for in
this Indenture relating to the proposed action have been
complied with.
Section 11.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to section 314(a)(4) of the TIA) shall include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
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(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has made
such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in such Person's opinion, such
condition or covenant has been complied with.
Section 11.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting
of Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
Section 11.07. LEGAL HOLIDAYS.
If a payment date is a Legal Holiday at a place of payment, payment
may be made at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
Section 11.08. NO RECOURSE AGAINST OTHERS.
No director. officer, employee or stockholder of the Company shall
have any liability for any Obligations of the Company under the Securities or
this Indenture or for any Claim based on, in respect of or by reason of such
Obligations or the creation if any such Obligation. Each Holder by accepting a
Security waives and releases all such liability, and such waiver and release
is part of the consideration for the Issuance of the Securities.
Section 11.09. COUNTERPARTS.
This Indenture may be executed in any number of counterparts and by
the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
Section 11.10. VALUABLE PROVISIONS.
The Company initially appoints the Trustee as Paying Agent, Registrar
and authenticating agent.
The first compliance certificate to be delivered by the Company to
the Trustee pursuant to Section 4.03 shall be for the fiscal year ending on
December 31, 1997.
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Section 11.11. GOVERNING LAW.
The internal laws of the State of New York shall govern this
Indenture and the Securities, without regard to the conflict of laws
provisions thereof.
Section 11.12. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan
or debt agreement of the Company or any of its Subsidiaries, and no other
indenture, loan or debt agreement may be used to interpret this Indenture.
Section 11.13. SUCCESSORS.
All agreements of the Company in this Indenture and the Securities
shall bind its successor. All agreements of the Trustee in this Indenture
shall bind its successor.
Section 11.14. SEVERABILITY.
If any provision in this Indenture or 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.
Section 11.15. THIRD PARTY BENEFICIARIES.
Holders of Senior Indebtedness are third party beneficiaries of, and
any of them (or their Representative) shall have the right to enforce the
provisions of this Indenture that benefit such holders.
Section 11.16. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table, and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
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Dated as of Xxxxx 0, 0000 XXXXXX INDUSTRIES, INC.
By:
--------------------------------
Name:
Title:
Attest:
--------------------------------
[SEAL]
Dated as of April 2, 1997 FIRST TRUST NATIONAL ASSOCIATION,
as Trustee
By:
--------------------------------
Name:
Title:
Attest:
--------------------------------
[SEAL]
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EXHIBIT A
(Face of Security)
11 3/4% SERIES [A/B] SENIOR SUBORDINATED DISCOUNT
DEBENTURE DUE 2009
$___________
Cusip No. ____________
JORDAN INDUSTRIES, INC.
promises to pay to _____________________________________________________________
or registered assigns,
the principal sum of ________________________________ Dollars on April 1, 2009
Interest Payment Dates: October 1 and April 1
Record Dates: September 15 and March 15
Dated:
Authenticated:
||
FIRST TRUST NATIONAL ASSOCIATION, JORDAN INDUSTRIES, INC.
as Trustee
By: By:
-------------------------------- --------------------------------
Authorized Signature
OR
By:
--------------------------------
as Authenticating Agent
A - 1
By:
--------------------------------
Authorized Signature (SEAL)
This is one of the Securities referenced in the within-mentioned indenture.
||
A - 2
[Unless and until it is exchanged in whole or in part for Securities in
definitive form, this Security may not be transferred except as a whole by the
Depository 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. The Depository Trust Company shall act as the Depository until a
successor shall be appointed by the Company and the Registrar. Unless this
certificate is presented by an authorized representative of The Depository
Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) ("XXX"), to the issuer or
its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other name
as may be requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or such other entity as may be requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY Person IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]1
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX
XXX XXXXXX XXXXXX SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), AND
THE SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY
IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION
FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY
RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED HEREBY
AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY MAY BE
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a) INSIDE THE
UNITED STATES TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER
THE SECURITIES ACT, OR (c) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON
AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS), (2) TO THE COMPANY
OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH
CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE
HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE
RESTRICTIONS SET FORTH IN (A) ABOVE.
Additional provisions of this Security are set forth on the other
side of this Security.
--------------
1. This paragraph should be included only if the Security is issued in Global
form.
A - 3
(Back of Security)
11 3/4% SERIES [A/B] SENIOR SUBORDINATED
DISCOUNT DEBENTURE DUE 2009
1. INTEREST. Jordan Industries, Inc. (the "Company") promises to pay
interest on the principal amount of the Securities at the rate and in the
manner specified below. The Company will pay Liquidated Damages pursuant to
Section 5 of the Registration Rights Agreement referred to below. Interest
will not accrue on the Securities prior to April 1, 2002. Thereafter, interest
on the Securities will accrue at 11 3/4% per annum and will be payable
semiannually in cash on October 1 and April 1 of each year, or if any such day
is not a Business Day on the next succeeding Business Day (each an "Interest
Payment Date"). Interest on the Securities will accrue from the most recent
date on which interest has been paid or, if no interest has been paid, from
April 1, 2002; provided that the first Interest Payment Date shall be October
1, 2002. The Company shall pay interest on overdue principal and premium, if
any, from time to time on demand at the rate of 2% per annum in excess of the
interest rate then in effect and shall pay interest on overdue installments of
interest (without regard to any applicable grace periods) from time to time on
demand at the same rate to the extent lawful. Interest will be computed on the
basis of a 360- day year of twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Securities
(except defaulted interest) to the Persons who are registered holders of
Securities at the close of business on the record date for the next interest
Payment Date even if such Securities are canceled after such record date and
on or before such Interest Payment Date. Holders must surrender Securities to
a Paying Agent to collect principal payments on such Securities. The Company
will pay principal, premium, if any, and interest and Liquidated Damages, if
any, in money of the United States that at the time of payment is legal tender
for payment of public and private debts. However, the Company may pay
principal, premium, if any, and interest and Liquidated Damages, if any, by
check payable in such money, and any such check may be mailed to a Holder's
registered address. provided that payment by wire transfer of immediately
available funds will be required with respect to principal, premium, if any,
interest and Liquidated Damages, if any, on all Global Securities.
3. PAYING AGENT AND REGISTRAR. First Trust National Association (the
"Trustee") will initially act as the Paying Agent and Registrar. The Company
may appoint additional paying agents or co-registrars, and change the Paying
Agent, any additional paying agent, the Registrar or any co-registrar without
prior notice to any Holder. The Company or any of its Subsidiaries may act in
any such capacity.
4. INDENTURE. The Company issued the Securities under an Indenture,
dated as of April 2, 1997, (the "Indenture"), between the Company and the
Trustee. The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of
1939 (15 U.S. Code xx.xx. 77aaa-77bbbb) as in effect on the date of the
original issuance of the Securities (the "Trust Indenture Act"). The
Securities are subject to, and qualified by, all such terms, certain of which
are summarized herein, and Holders are referred to the Indenture and the Trust
Indenture Act for a statement of such terms (all capitalized terms not defined
herein shall have the meanings assigned them in the Indenture). The Securities
are unsecured general obligations of the Company limited to $133,075,293 in
aggregate principal amount.
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5. OPTIONAL REDEMPTION. (a) Except as described in paragraph 5(b)
below the Securities may not be redeemed at the option of the Company prior to
April I , 2002. During the twelve (12) month period beginning April 1, of the
years indicated below, the Securities will be redeemable at the option of the
Company, in whole or in part, at the redemption prices (expressed as
percentages of the principal amount of the Securities on the date of
redemption) set forth below, plus any accrued and unpaid interest to the date
of redemption:
Year Percentage
2002..................................... 105.87500%
2003..................................... 102.93750%
2004 and thereafter...................... 100.00000%
6. MANDATORY REDEMPTION. Subject to the Company's obligation to make
an offer to purchase Securities under certain circumstances pursuant to
Section 4.13 and 4.14 of the Indenture (as described in paragraph 7 below),
the Company is not required to make any mandatory redemption, purchase or
sinking fund payments with respect to the Securities.
7. MANDATORY OFFERS TO PURCHASER SECURITIES. (a) Following the
occurrence of a Change of Control (the "Change of Control Trigger Date"), the
Company will be required to offer (a "Change of Control Offer") to purchase
all outstanding Securities at a purchase price equal to 101% of the Accreted
Value of such Securities, plus any accrued and unpaid interest from April 1,
2002 to the purchase date if such purchase occurs after April 1, 2002;
provided, however, that if any outstanding Senior Indebtedness is required or
entitled pursuant to its terms to be redeemed or purchased by the Company upon
a Change of Control, the Change of Control Trigger Date shall be the first
date on which all such Senior Indebtedness that elects, or is required to be,
redeemed or purchased as a result of the Change of Control has been redeemed
or purchased.
(b) If the Company or any Restricted Subsidiary consummates one or
more Asset Sales and does not use all of the Net Proceeds from such Asset
Sales as provided in the Indenture, the Company will be required, under
certain circumstances, to utilize the Excess Proceeds from such Asset Sales to
offer (an "Asset Sale Offer") to purchase Securities at a purchase price equal
to 100% of the Accreted Value of the Securities, plus any accrued and unpaid
interest from April 1, 2002 to the purchase date if such purchase occurs after
April 1, 2002. If the Excess Proceeds are insufficient to purchase all
Securities tendered pursuant to any Asset Sale Offer, the Trustee shall select
the Securities to be purchased in accordance with the terms of the Indenture.
(c) Holders may tender all or, subject to paragraph 8 below, any
portion of their Securities in a Change of Control Offer or Asset Sale Offer
(collectively, an "Offer") by completing the form below entitled "OPTION OF
HOLDER TO ELECT PURCHASE."
(d) The Company will comply with Rule 14e-1 under the Securities
Exchange Act of 1934, as amended, and any other securities laws and
regulations to the extent applicable to any Offer.
8. NOTICE OF REDEMPTION OR PURCHASE. Notice of an optional redemption
or an Offer will be mailed to each Holder at its registered address at least 30
days but not more than 60 days before the date of redemption or purchase.
Securities may be redeemed or purchased in part, but only in principal
A - 1
amount of at least $1,000 unless all Securities held by a Holder are to be
redeemed or purchased. On or after any date on which Securities are redeemed
or purchased, interest ceases to accrue on the Securities or portions thereof
called for redemption or accepted for purchase on such date.
9. SUBORDINATION. The Securities are subordinated in right of
payment, to the extent and in the manner provided in the Indenture, to the
prior payment in full of all Senior Indebtedness. In the event of an
Insolvency or Liquidation Proceeding or upon the maturity of any Senior
Indebtedness, whether by lapse of time, acceleration or otherwise, the holders
of Senior Indebtedness must be paid in full in cash before any payment of
principal of, or premium, if any, or interest (including any Post-Petition
Interest) on, the Securities. The Company agrees, and each Holder by accepting
a Security consents and agrees, to the subordination provided in the Indenture
and authorizes the Trustee to give it effect.
10. DENOMINATIONS, TRANSFER, EXCHANGE. The Securities are in
registered form without. The transfer of Securities may be registered and
Securities may be exchanged as provided in the Indenture. Holders seeking to
transfer or exchange their Securities may be required, among other things, to
furnish appropriate endorsements and transfer documents and to pay any taxes
and fees required by law or permitted by the Indenture. The Registrar need not
exchange or register the transfer of any Security or portion of a Security
selected for redemption or tendered pursuant to an Offer. Also, it need not
exchange or register the transfer of any Securities for a period of 15
Business Days before a selection of Securities to be redeemed or between a
record date and the next succeeding Interest Payment Date.
11. PERSONS DEEMED OWNERS. The registered holder of a Security may be
treated as its owner for all purposes.
12. AMENDMENTS AND WAIVERS. Subject to certain exceptions, the
Indenture or the Securities may be amended with the consent of the Holders of
at least a majority in principal amount of the then outstanding Securities,
and any existing Default (except a payment Default) may be waived with the
consent of the Holders of a majority in principal amount of the then
outstanding Securities. Without the consent of any Holder, the Indenture or
the Securities may be amended to: cure any ambiguity, defect or inconsistency,
provide for uncertificated Securities in addition to or in place of
certificated Securities: provide for the assumption by another corporation of
the Company's obligations to Holders in the event of a merger or consolidation
of the Company in which the Company is not the surviving corporation or a sale
of substantially all of the Company's assets to such other corporation; comply
with the SEC's requirements to effect or maintain the qualification of the
Indenture under the Trust Indenture Act; or, make any change that does not
materially adversely affect any Holder's rights under the Indenture. Certain
provisions of the Indenture cannot be amended without the consent of holders
of Senior Indebtedness.
13. DEFAULTS AND REMEDIES. Events of Default include: default for 30
days in payment of interest on the Securities; default in payment of principal
of or premium, if any, on the Securities; failure by the Company for 30 days
after notice to it to comply with any of its other agreements or covenants in,
or provisions of, the Indenture or the Securities; certain defaults under and
acceleration prior to maturity, or failure to pay at maturity, of certain
other Indebtedness; certain final judgments that remain undischarged; and,
certain events of bankruptcy or insolvency involving the Company or any
Restricted Subsidiary that is a Significant Subsidiary. If an Event of Default
occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the Securities may declare all the Securities to be
immediately due and payable in an amount equal to the Accreted Value of such
Securities, plus any
A - 2
accrued and unpaid interest; provided, however, that in the case of an Event
of Default arising from certain events of bankruptcy or insolvency, the
Accreted Value of, and any accrued and unpaid interest on, the Securities
becomes due and payable immediately without further action or notice, provided
further that if any Indebtedness is outstanding under the Credit Agreement or
the New Credit Agreement, upon a declaration of acceleration of the
Securities, the Accreted Value of, and any accrued and unpaid interest on, the
Securities shall not be payable until the earlier of (1) the day which is five
Business Days after notice of acceleration is given to the Company and the
Credit Agent, or (2) the date of acceleration of the Indebtedness under the
Credit Agreement or the New Credit Agreement, as the case may be. Subject to
certain exceptions, Holders of a majority in principal amount of the then
outstanding Securities may direct the Trustee in its exercise of any trust or
power, provided that the Trustee will be under no obligation to exercise any
of its rights or powers under the Indenture at the request of Holders unless
such Holders have offered to the Trustee security and indemnity satisfactory
to it. Holders may not enforce the Indenture or the Securities except as
provided in the Indenture. The Trustee may withhold from Holders notice of any
continuing default (except a payment Default) if it determines that
withholding notice is in their interests. The Company must furnish an annual
compliance certificate to the Trustee.
14. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or any Affiliate, and may otherwise deal with the
Company or any Affiliate, as if it were not Trustee.
15. NO RECOURSE AGAINST OTHERS. No director, officer, employee or
stockholder of the Company shall have any liability for any Obligations of the
Company under the Securities or the Indenture or for any claim based on, in
respect of, or by reason of, such Obligations or the creation of any such
Obligation. Each Holder by accepting a Security waives and releases all such
liability, and such waiver and release is part of the consideration for the
issuance of the Securities.
16. SUCCESSOR SUBSTITUTED. Upon the consolidation or merger by the
Company with or into another corporation, or upon the sale, conveyance, lease
or other disposition of all or substantially all of its assets to another
corporation, in accordance with the Indenture, the corporation surviving any
such merger or consolidation (if not the Company) or the corporation to which
such assets were sold or transferred to shall succeed to, and be substituted
for, and may exercise every right and power of the Company under the Indenture
with the same effect as if such surviving or other corporation had been named
as the Company in the Indenture.
17. GOVERNING LAW. This Security shall be governed by and construed in
accordance with the internal laws of the State of New York.
18. AUTHENTICATION. This Security shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.
19. ABBREVIATIONS. Customary abbreviations may be used in the name of
a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U G M A (= Uniform Gifts
to Minors Act).
20. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the
A - 3
Securities and have directed the Trustee to use CUSIP numbers in notices of
redemption as a convenience to Holders. No representation is made as to the
accuracy of such numbers either as printed on the Securities or as contained
in any notice of redemption and reliance may be placed only on the other
identification numbers printed on the securities.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture, which has in it the text of this
Security in larger type. Request may be made to:
Jordan Industries, Inc.
0000 Xxxx Xxxx Xxxx
XxxxxXxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Secretary
A - 4
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign
and transfer this Security to:
-----------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
----------------------------------------
----------------------------------------
----------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ______________________________________________________
__________________________________ as agent to transfer this Security on the
books of the Company. The agent may substitute another to act for him.
Date: _________________________ Your Signature:________________________
(Sign exactly as your
name appears on the other
side of this Security)
Signature Guarantee:
__________________________________
A - 5
OPTION OF HOLDER TO ELECT PURCHASE
If you elect to have this Security purchased by the Company pursuant
to Section 4.13 of the Indenture, check the box: [ ]
If you elect to have this Security purchased by the company pursuant
to Section 4.14 of the Indenture, check the box: [ ]
If you elect to have only part of this Security purchased by the
Company pursuant to Section 4.13 or 4.14 of the Indenture, state the amount
(principal amount of at least $1,000 only):
$
----------------------------
Date: Your Signature:
------------------------ -------------------------
(Sign exactly as your
name appears on the other
side of the Security)
Signature Guarantee:
-----------------------------
A - 6
SCHEDULE OF EXCHANGES OF DEFINITIVE SECURITIES2
The following exchanges of a part of this Global Security for
Definitive Securities have been made:
Principal Amount of this Signature of
Amount of decrease in Amount of increase in Global Security authorized officer of
Principal Amount of Principal Amount of following such decrease Trustee or
Date of Exchange this Global Security this Global Security (or increase) Security Custodian
---------------- -------------------- -------------------- ------------- ------------------
---------
2.This should be included only if the Senior Note is issued in global form.
A - 7
EXHIBIT B
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF Securities
-----------------, -------
Re: 11 3/4% Series [A/B] Senior Subordinated Discount Debentures due 2009 of
Jordan Industries, Inc.
This Certificate relates to $_____ principal amount of Securities held
in * ________ book-entry or *_______ definitive form by ________________ (the
"Transferor").
The Transferor*:
[ ] has requested the Trustee by written order to deliver in exchange
for its beneficial interest in the Global Security held by the Depository a
Security or Securities in definitive, registered form equal to its beneficial
interest in such Global Security (or the portion thereof indicated above); or
[ ] has requested the Trustee by written order to exchange or register
the transfer of a Security or 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 that the
transfer of this Security does not require registration under the Securities
Act (as defined below) because:*
[ ] Such Security is being acquired for the Transferor's own account
without transfer (in satisfaction of Section 2.06(a)(ii)(A) or Section
2.06(d)(i)(A) of the Indenture).
[ ] Such Security is being transferred (i) to a "qualified
institutional buyer" (as defined in Rule 144A under the Securities Act of 1933,
as amended (the "Securities Act")), in reliance on Rule 144A or (ii) pursuant
to an exemption from registration in accordance with Rule 904 under the
Securities Act (and in the case of clause (ii), based on an opinion of counsel
if the Company so requests and together with a certification in substantially
the form of Exhibit D to the Indenture).
[ ] Such Security is being transferred (i) in accordance with Rule 144
under the Securities Act (and based on an opinion of counsel if the Company so
requests) or (ii) pursuant to an effective registration statement under the
Securities Act.
[ ] Such Security is being transferred to an institutional accredited
investor within the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act pursuant to a private placement exemption from the registration
requirements of the Securities Act (and based on an opinion of counsel if the
Company so requests together with a certification in substantially the form of
Exhibit C to the Indenture).
---------------
B-1
* Check applicable box.
B-2
[ ] Such Security is being transferred in reliance on and in
compliance with another exemption from the registration requirements of the
Securities Act (and based on an opinion of counsel if the Company so requests).
----------------------------------
[INSERT NAME OF TRANSFEROR]
By:
-------------------------------
Name:
Title:
Address:
--------------
*Check applicable box.
B-3
EXHIBIT C
FORM OF CERTIFICATE TO BE DELIVERED BY
INSTITUTIONAL ACCREDITED INVESTORS
---------------, -----
___________________, as Registrar
Attention: Corporate Trust Department
Ladies and Gentlemen:
In connection with our proposed purchase of certain 11 3/4% Series
[A/B] Senior Subordinated Discount Debentures due 2009 (the "Securities") of
Jordan Industries, Inc., a Delaware corporation (the "Company"), we represent
that:
(i) we are an "accredited investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) under the Securities Act (an "Institutional
Accredited Investor"), or an entity in which all of the equity owners are
Institutional Accredited Investors;
(ii) any purchase of Securities will be for our own account or for
the account of one or more other Institutional Accredited Investors as to
which we exercise sole investment discretion;
(iii) we have such knowledge and experience in financial and
business matters that we are capable of evaluating the merits and risks
of purchasing Securities and we and any accounts for which we are acting
are able to bear the economic risks of our or their investment;
(iv) we are not acquiring Securities with a view to any distribution
thereof in a transaction that would violate the Securities Act or the
securities laws of any State of the United States or any other applicable
jurisdiction; provided that the disposition of our property and the
property of any accounts for which we are acting as fiduciary shall
remain at all times within our control; and
(v) we acknowledge that we have had access to such financial and
other information, and have been afforded the opportunity to ask such
questions of representatives of the Company and receive answers thereto,
as we deem necessary in connection with our decision to purchase
Securities.
We understand that the Securities have not been registered under
the Securities Act, and we agree, on our own behalf and on behalf of each
account for which we acquire any Securities, that such Securities may be
offered, resold, pledged or otherwise transferred only (i) to a person whom we
reasonably believe to be a qualified institutional buyer (as defined in Rule
144A under the Securities Act) in a transaction meeting the requirements of
Rule 144A, in a transaction meeting the requirements of Rule 144 under the
Securities Act, outside the United States in a transaction meeting the
requirements of Rule 904 under the Securities Act or in accordance with
another exemption from the registration requirements of the Securities Act
(and based upon an opinion of counsel if the Company so requests), (ii) to the
Company or (iii) pursuant to an effective registration statement, and, in each
case, in accordance with any applicable securities laws of any State of the
United States or any other applicable jurisdiction. We understand that the
registrar will not be required to accept for registration of transfer any
Securities,
C-1
except upon presentation of evidence satisfactory to the Company that the
foregoing restrictions on transfer have been complied with. We further
understand that the Securities purchased by us will be in the form of
definitive physical certificates and that such certificates will bear a legend
reflecting the substance of this paragraph. We further agree to provide to any
person acquiring any of the Securities from us a notice advising such person
that resales of the Securities are restricted as stated herein.
We acknowledge that you, the Company and others will rely upon our
confirmations, acknowledgments and agreements set forth herein, and we agree
to notify you promptly in writing if any of our representations or warranties
herein ceases to be accurate and complete.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT
OF LAWS PROVISIONS THEREOF.
Very truly yours,
-----------------------------------
[Name of Transferor]
By:
--------------------------------
Name:
Title:
Address:
C-2
EXHIBIT D
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION
WITH TRANSFERS PURSUANT TO REGULATION S
-----------------, ------
______________________, as Registrar
Attention: Corporate Trust Department
Ladies and Gentlemen:
In connection with our proposed sale of certain 11 3/4% Series [A/B]
Securities due 2009 (the "Securities") Jordan Industries, Inc., a Delaware
corporation (the "Company"), we represent that:
(i) the offer of the Securities was not made to a person in the United
States;
(ii) at the time the buy order 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;
(iii) no directed selling efforts have been made by us in the United
States in contravention of the requirements of Rule 903(b) or Rule 904(b)
of Regulation S, as applicable; and
(iv) the transaction is not part of a plan or scheme to evade the
registration requirements of the U.S. Securities Act of 1933.
You and the Company are entitled to rely upon this letter and you are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate have
the meanings set forth in Regulation S.
Very truly yours,
-----------------------------------
[Name of Transferor]
By:
--------------------------------
Name:
Title:
Address:
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TABLE OF CONTENTS
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