Exhibit 4.2
EXECUTION COPY
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Xxxxxx Packaging Company, L.P.
GPC Capital Corp. I,
as Issuers
Xxxxxx Packaging Holdings Company,
as Parent Guarantor
and the Subsidiary Guarantors listed on the Signature Pages hereto
9 7/8% Senior Subordinated Notes due 2014
__________________________
INDENTURE
Dated as of October 7, 2004
__________________________
The Bank of New York,
as Trustee
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TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.....................................................................1
Section 1.02. Other Definitions..............................................................33
Section 1.03. Incorporation by Reference of Trust Indenture Act..............................34
Section 1.04. Rules of Construction..........................................................34
ARTICLE 2
THE NOTES
Section 2.01. Amount of Notes; Issuable in Series............................................35
Section 2.02. Form and Dating................................................................36
Section 2.03. Execution and Authentication...................................................37
Section 2.04. Registrar and Paying Agent.....................................................37
Section 2.05. Paying Agent to Hold Money in Trust............................................38
Section 2.06. Holder Lists...................................................................38
Section 2.07. Transfer and Exchange..........................................................38
Section 2.08. Replacement Notes..............................................................39
Section 2.09. Outstanding Notes..............................................................39
Section 2.10. Temporary Notes................................................................40
Section 2.11. Cancellation...................................................................40
Section 2.12. Defaulted Interest.............................................................40
Section 2.13. CUSIP Numbers, ISINs, etc......................................................41
ARTICLE 3
REDEMPTION
Section 3.01. Optional Redemption............................................................41
Section 3.02. Redemption with Proceeds of Equity Offerings...................................41
Section 3.03. Method and Effect of Redemption................................................42
Section 3.04. Deposit of Redemption Price....................................................43
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes...............................................................43
Section 4.02. Reports and Other Information..................................................44
Section 4.03. Limitation on Incurrence of Indebtedness and Issuance of Preferred Stock.......45
Section 4.04. Limitation on Restricted Payments..............................................49
Section 4.05. Dividend and Other Payment Restrictions Affecting Subsidiaries.................56
Section 4.06. Asset Sales....................................................................57
Section 4.07. Transactions with Affiliates...................................................60
Section 4.08. Change of Control..............................................................63
Section 4.09. Compliance Certificate.........................................................65
Section 4.10. Further Instruments and Acts...................................................65
Section 4.11. Liens..........................................................................65
Section 4.12. Limitation on Other Senior Subordinated Indebtedness...........................65
Section 4.13. Maintenance of Office or Agency................................................66
Section 4.14. Business Activities............................................................66
Section 4.15. Payment for Consent............................................................66
ARTICLE 5
MERGER, CONSOLIDATION OR SALE OF ASSETS
Section 5.01. Consolidation, Merger or Sale of Assets of the Company.........................67
Section 5.02. Consolidation, Merger or Sale of Assets by a Guarantor.........................68
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default..............................................................69
Section 6.02. Acceleration...................................................................71
Section 6.03. Other Remedies.................................................................72
Section 6.04. Waiver of Past Defaults........................................................72
Section 6.05. Control by Majority............................................................72
Section 6.06. Limitation on Suits............................................................72
Section 6.07. Rights of the Holders to Receive Payment.......................................73
Section 6.08. Collection Suit by Trustee.....................................................73
Section 6.09. Trustee May File Proofs of Claim...............................................73
Section 6.10. Priorities.....................................................................73
Section 6.11. Undertaking for Costs..........................................................74
Section 6.12. Waiver of Stay or Extension Laws...............................................74
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee..............................................................74
Section 7.02. Rights of Trustee..............................................................75
Section 7.03. Individual Rights of Trustee...................................................76
Section 7.04. Trustee's Disclaimer...........................................................77
Section 7.05. Notice of Defaults.............................................................77
Section 7.06. Reports by Trustee to the Holders..............................................77
Section 7.07. Compensation and Indemnity.....................................................77
Section 7.08. Replacement of Trustee.........................................................78
Section 7.09. Successor Trustee by Merger....................................................79
Section 7.10. Eligibility; Disqualification..................................................79
Section 7.11. Preferential Collection of Claims Against Issuer...............................79
ARTICLE 8
DISCHARGE OF INDENTURE; DEFEASANCE
Section 8.01. Discharge of Liability on Notes................................................80
Section 8.02. Defeasance.....................................................................80
Section 8.03. Conditions to Defeasance.......................................................81
Section 8.04. Application of Trust Money.....................................................83
Section 8.05. Repayment to Issuers...........................................................83
Section 8.06. Indemnity for Government Obligations...........................................83
Section 8.07. Reinstatement..................................................................83
ARTICLE 9
AMENDMENTS AND WAIVERS
Section 9.01. Without Consent of the Holders.................................................84
Section 9.02. With Consent of the Holders....................................................84
Section 9.03. Compliance with Trust Indenture Act............................................86
Section 9.04. Revocation and Effect of Consents and Waivers..................................86
Section 9.05. Notation on or Exchange of Notes...............................................86
Section 9.06. Trustee to Sign Amendments.....................................................86
Section 9.07. Additional Voting Terms; Calculation of Principal Amount.......................87
ARTICLE 10
SUBORDINATION
Section 10.01. Agreement to Subordinate.......................................................87
Section 10.02. Liquidation, Dissolution, Bankruptcy...........................................87
Section 10.03. Default on Senior Debt.........................................................88
Section 10.04. Acceleration of Payment of Notes...............................................89
Section 10.05. When Distribution Must Be Paid Over............................................89
Section 10.06. Subrogation....................................................................89
Section 10.07. Relative Rights................................................................89
Section 10.08. Subordination May Not Be Impaired by Issuers...................................89
Section 10.09. Rights of Trustee and Paying Agent.............................................89
Section 10.10. Distribution or Notice to Representative.......................................90
Section 10.11. Article 10 Not to Prevent Events of Default or Limit Right to Accelerate.......90
Section 10.12. Trust Monies Not Subordinated..................................................90
Section 10.13. Trustee Entitled to Rely.......................................................90
Section 10.14. Trustee to Effectuate Subordination............................................90
Section 10.15. Trustee Not Fiduciary for Holders of Senior Debt...............................91
Section 10.16. Reliance by Holders of Senior Debt on Subordination Provisions.................91
ARTICLE 11
GUARANTEES
Section 11.01. Guarantees of the Notes........................................................91
Section 11.02. Limitation on Liability........................................................94
Section 11.03. Successors and Assigns.........................................................94
Section 11.04. Execution and Delivery of Guarantee............................................95
Section 11.05. No Waiver......................................................................95
Section 11.06. Modification...................................................................95
Section 11.07. Execution of Supplemental Indenture for Future Guarantors......................95
Section 11.08. Non-impairment.................................................................95
ARTICLE 12
SUBORDINATION OF THE GUARANTEES
Section 12.01. Agreement to Subordinate.......................................................96
Section 12.02. Liquidation, Dissolution, Bankruptcy...........................................96
Section 12.03. Default on Senior Debt.........................................................96
Section 12.05. When Distribution Must Be Paid Over............................................97
Section 12.06. Subrogation....................................................................97
Section 12.07. Relative Rights................................................................97
Section 12.08. Subordination May Not be Impaired by Guarantors................................97
Section 12.09. Rights of Trustee and Paying Agent.............................................98
Section 12.10. Distribution or Notice to Representative.......................................98
Section 12.11. Article 12 Not to Prevent Events of Default or Limit Right to Accelerate.......98
Section 12.12. Trust Monies Not Subordinated..................................................98
Section 12.13. Trustee Entitled to Rely.......................................................98
Section 12.14. Trustee to Effectuate Subordination............................................99
Section 12.15. Trustee Not Fiduciary for Holders of Senior Debt of a Guarantor................99
Section 12.16. Reliance by Holders of Senior Debt of a Guarantor on Subordination Provisions..99
ARTICLE 13
MISCELLANEOUS
Section 13.01. Trust Indenture Act Controls..................................................100
Section 13.02. Notices.......................................................................100
Section 13.03. Communication by the Holders with Other Holders...............................101
Section 13.04. Certificate and Opinion as to Conditions Precedent............................101
Section 13.05. Statements Required in Certificate or Opinion.................................101
Section 13.06. When Notes Disregarded........................................................102
Section 13.07. Rules by Trustee, Paying Agent and Registrar..................................102
Section 13.08. Legal Holidays................................................................102
Section 13.09. Governing Law.................................................................102
Section 13.10. Jurisdiction; Consent to Service of Process...................................102
Section 13.11. No Recourse Against Others....................................................103
Section 13.12. Successors....................................................................103
Section 13.13. Multiple Originals............................................................103
Section 13.14. Table of Contents; Headings...................................................103
Section 13.15. Indenture Controls............................................................103
Section 13.16. Severability..................................................................104
Appendix A - Provisions Relating to Initial Notes, Additional Notes and
Exchange Notes
EXHIBIT INDEX
Exhibit A - Initial Note
Exhibit B - Exchange Note
Exhibit C - Form of Transferee Letter of Representation
Exhibit D - Form of Notation of Guarantee
Exhibit E - Form of Supplemental Indenture
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
------- -------
310(a)(1)........................................................ 7.10
(a)(2)...................................................... 7.10
(a)(3)...................................................... N.A.
(a)(4)...................................................... N.A.
(b)......................................................... 7.08; 7.10
(c)......................................................... N.A.
311(a)........................................................... 7.11
(b)......................................................... 7.11
(c)......................................................... N.A.
312(a)........................................................... 2.06
(b)......................................................... 13.03
(c)......................................................... 13.03
313(a)........................................................... 7.06
(b)(1)...................................................... N.A.
(b)(2)...................................................... 7.06
(c)......................................................... 7.06
(d)......................................................... 4.02; 4.09
314(a)........................................................... 4.02; 4.09
(b)......................................................... N.A.
(c)(1)...................................................... 13.04
(c)(2)...................................................... 13.04
(c)(3)...................................................... N.A.
(d)......................................................... N.A.
(e)......................................................... 13.05
(f)......................................................... 4.10
315(a)........................................................... 7.01
(b)......................................................... 7.05
(c)......................................................... 7.01
(d)......................................................... 7.01
(e)......................................................... 6.11
316(a) (last sentence)........................................... 13.06
(a)(1)(A)................................................... 6.05
(a)(1)(B)................................................... 6.04
(a)(2)...................................................... N.A.
(b)......................................................... 6.07
317(a)(1)........................................................ 6.08
(a)(2)...................................................... 6.09
(b)......................................................... 2.05
318(b)........................................................... 13.01
N.A. Means Not Applicable.
Note: This Cross-Reference Table shall not, for any purposes, be deemed to
be part of this Indenture.
INDENTURE dated as of October 7, 2004 among XXXXXX PACKAGING COMPANY,
L.P., a Delaware limited partnership (the "Company"), GPC CAPITAL CORP. I (the
"Corporate Co-Issuer" and, together with the Company, the "Issuers"), the
Parent Guarantor (as defined herein), the Subsidiary Guarantors (as defined
herein) and The Bank of New York, a New York banking corporation, as trustee.
Each party agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the Holders of (a) $375,000,000 aggregate
principal amount of the Issuers' 9 7/8% Senior Subordinated Notes due 2014
(the "Original Notes") issued on the date hereof, (b) any Additional Notes (as
defined herein) that may be exchanged for Original Notes or otherwise issued
after the date hereof in the form of Exhibit A (all such securities in clauses
(a) and (b) being referred to collectively as the "Initial Notes"), and (c) if
and when issued as provided in the Registration Rights Agreement (as defined
in Appendix A hereto (the "Appendix")) or otherwise registered under the
Securities Act (as defined in the Appendix) and issued, the Issuers' 9 7/8%
Senior Subordinated Notes due 2014 (the "Exchange Notes" and, together with
the Initial Notes, the "Notes") issued in the Registered Exchange Offer (as
defined in the Appendix) in exchange for any Initial Notes or otherwise
registered under the Securities Act and issued in the form of Exhibit B.
Subject to the conditions and compliance with the covenants set forth in this
Indenture, the Issuers may issue an unlimited aggregate principal amount of
Additional Notes.
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions. "Acquired Debt" means, with respect to any
specified Person:
(1) Indebtedness of any other Person existing at the time
such other Person is merged with or into or becomes a Restricted
Subsidiary of such specified Person; and
(2) Indebtedness secured by an existing Lien encumbering any
asset acquired by such specified Person;
but excluding in any event Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into, or becoming a
Restricted Subsidiary of, such specified Person.
"Additional Notes" means 9 7/8% Senior Subordinated Notes due 2014
issued under the terms of this Indenture subsequent to the Issue Date.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled
by" and "under common control with"), as used with respect to any Person,
shall mean the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of such Person, whether
through the ownership of voting securities, by agreement or otherwise.
"Applicable Premium" means with respect to any Note on the redemption
date, the greater of:
(1) 1.0% of the then outstanding principal amount of
such Note; and
(2) the excess of:
(a) the present value at such redemption date of
(i) the redemption price of the Notes at October 15, 2009 as
determined pursuant to Article 3 hereof, plus (ii) all
required interest payments due on the Notes through October
15, 2009 (excluding accrued but unpaid interest), computed
using a discount rate equal to the Treasury Rate as of such
redemption date plus 50 basis points; over
(b) the then outstanding principal amount of the
Notes.
"Asset Sale" means:
(1) the sale, conveyance, transfer or other disposition
(whether in a single transaction or a series of related transactions)
of property or assets of the Company or any Restricted Subsidiary
(each referred to in this definition as a "disposition") or
(2) the issuance or sale of Equity Interests of any
Restricted Subsidiary (whether in a single transaction or a series of
related transactions),
in each case, other than:
(a) a disposition of Cash Equivalents or obsolete or worn
out property or equipment in the ordinary course of business or
inventory (or other assets) held for sale in the ordinary course of
business;
(b) the disposition of all or substantially all of the
assets of the Company in a manner permitted by to Article 5 hereof or
any disposition that constitutes a Change of Control pursuant to this
Indenture;
(c) the making of any Restricted Payment or Permitted
Investment that is permitted to be made, and is made, pursuant to
Section 4.04;
(d) any disposition of assets or issuance or sale of Equity
Interests of any Restricted Subsidiary in any transaction or series
of transactions with an aggregate fair market value of less than
$15.0 million;
(e) any disposition of property or assets or issuance of
securities by a Restricted Subsidiary to the Company or by the
Company or a Restricted Subsidiary to another Restricted Subsidiary;
(f) the lease, assignment or sublease of any real or
personal property in the ordinary course of business;
(g) any sale of Equity Interests in, or Indebtedness or
other securities of, an Unrestricted Subsidiary (with the exception
of Investments in Unrestricted Subsidiaries acquired pursuant to
clause (1) of the definition of "Permitted Investments");
(h) sales of assets received by the Company or any
Restricted Subsidiary upon foreclosures on a Lien;
(i) sales of Securitization Assets and related assets of the
type specified in the definition of "Securitization Financing" to a
Securitization Subsidiary in connection with any Qualified
Securitization Financing;
(j) a transfer of Securitization Assets and related assets
of the type specified in the definition of "Securitization Financing"
(or a fractional undivided interest therein) by a Securitization
Subsidiary in a Qualified Securitization Financing; and
(k) any exchange of assets for assets related to a Permitted
Business of comparable market value, as determined in good faith by
the Company, which in the event of an exchange of assets with a fair
market value in excess of (1) $10.0 million shall be evidenced by a
certificate of a Responsible Officer of the Company, and (2) $20.0
million shall be set forth in a resolution approved in good faith by
at least a majority of the Board of Directors of the Company.
"Authorized Person" of any Person means a Person duly authorized by
the Company to act on behalf of such Person.
"beneficial owner" has the meaning assigned to such term in Rule
13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the
beneficial ownership of any particular "person" (as that term is used in
Section 13(d)(3) of the Exchange Act), such "person" will be deemed to have
beneficial ownership of all securities that such "person" has the right to
acquire by conversion or exercise of other securities, whether such right is
currently exercisable or is exercisable only upon the occurrence of a
subsequent condition. The terms "Beneficially Owns" and "Beneficially Owned"
have a corresponding meaning.
"Board of Directors" means
(a) with respect to a corporation, the board of directors of
the corporation;
(b) with respect to a partnership, the Board of Directors of
the general partner or manager of the partnership; and
(c) with respect to any other Person, the board or committee
of such Person serving a similar function.
"Business Day" means a day other than a Saturday, Sunday or other day
on which banking institutions are authorized or required by law to close in
New York City.
"CapCo I" means GPC Capital Corp. I, a Delaware corporation.
"Capital Stock" means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any
and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock;
(3) in the case of a partnership or limited liability
company, partnership or membership interests (whether general or
limited); and
(4) any other interest or participation that confers on a
Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person.
"Capitalized Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital
lease that would at such time be required to be capitalized and reflected as a
liability on a balance sheet (excluding the footnotes thereto) in accordance
with GAAP.
"Cash Contribution Amount" means the aggregate amount of cash
contributions made to the capital of the Company described in the definition
of "Contribution Indebtedness."
"Cash Equivalents" means:
(1) U.S. dollars, pounds sterling, Euros or, in the case of
any foreign subsidiary, such local currencies held by it from time to
time in the ordinary course of business;
(2) direct obligations of the United States of America or
any member of the European Union or any agency thereof or obligations
guaranteed by the United States of America or any member of the
European Union or any agency thereof, in each case with maturities
not exceeding two years;
(3) certificates of deposit, time deposits and eurodollar
time deposits with maturities of 12 months or less from the date of
acquisition, bankers' acceptances with maturities not exceeding 12
months and overnight bank deposits, in each case, with any lender
party to a Credit Agreement or with any commercial bank having
capital and surplus in excess of $250,000,000;
(4) repurchase obligations for underlying securities of the
types described in clauses (2) and (3) above entered into with any
financial institution meeting the qualifications specified in clause
(3) above;
(5) commercial paper maturing within 12 months after the
date of acquisition and having a rating of at least A-1 from Xxxxx'x
or P-1 from S&P;
(6) securities with maturities of two years or less from the
date of acquisition issued or fully guaranteed by any State,
commonwealth or territory of the United States of America, or by any
political subdivision or taxing authority thereof, and rated at least
A by S&P or A-2 by Xxxxx'x;
(7) investment funds at least 95% of the assets of which
constitute Cash Equivalents of the kinds described in clauses (1)
through (6) of this definition; and
(8) money market funds that (i) comply with the criteria set
forth in Rule 2a-7 under the Investment Company Act of 1940, (ii) are
rated AAA by S&P and Aaa by Xxxxx'x and (iii) have portfolio assets
of at least $500.0 million;
provided that for purposes of determining whether Senior Debt has been paid in
full pursuant to Article 10 hereof, the term "Cash Equivalent" shall not
include obligations of the type referred to in clause (6) or (7) above.
"Change of Control" means the occurrence of any of the following
events:
(1) the sale, lease, transfer or other conveyance, in one or
a series of related transactions, of all or substantially all of the
assets of the Company and its Subsidiaries, taken as a whole, to any
Person other than a Permitted Holder;
(2) either the Parent Guarantor or the Company becomes aware
of (by way of a report or any other filing pursuant to Section 13(d)
of the Exchange Act, proxy, vote, written notice or otherwise) the
acquisition by any Person or group (within the meaning of Section
13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor
provision), including any group acting for the purpose of acquiring,
holding or disposing of securities (within the meaning of Rule
13d-5(b)(1) under the Exchange Act), other than the Permitted
Holders, in a single transaction or in a related series of
transactions, by way of merger, consolidation or other business
combination or purchase of beneficial ownership (within the meaning
of Rule 13d-3 under the Exchange Act, or any successor provision), of
50% or more of the total voting power of the Voting Stock of the
Company or any of its direct or indirect parent corporations; or
(3) (A) prior to the first public offering of common stock
of either the Parent Guarantor or the Company, the first day on which
the Board of Directors of the Parent Guarantor shall cease to consist
of a majority of directors who (i) were members of the Board of
Directors of the Parent Guarantor on the date of this Indenture or
(ii) were either (x) nominated for election by the Board of Directors
of the Parent Guarantor, a majority of whom were directors on the
date of this Indenture or whose election or nomination for election
was previously approved by a majority of such directors, or (y)
designated or appointed by a Permitted Holder (each of the directors
selected pursuant to clauses (A)(i) and (A)(ii), "Continuing
Directors") and (B) after the first public offering of common stock
of either the Parent Guarantor or the Company, (i) if such public
offering is of common stock of the Parent Guarantor, the first day on
which a majority of the members of the Board of Directors of the
Parent Guarantor are not Continuing Directors or (ii) if such public
offering is of the Company's common stock, the first day on which a
majority of the members of the Board of Directors of the Company are
not Continuing Directors.
"Code" means the United States Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder. Section references to the Code are to the Code as in effect on the
date of this Indenture and any subsequent provisions of the Code amendatory
thereof, supplemental thereto or substituted therefor.
"Commission" means the Securities and Exchange Commission.
"Consolidated Depreciation and Amortization Expense" means with
respect to any Person for any period, the total amount of depreciation and
amortization expense, including the amortization of deferred financing fees,
of such Person and its Restricted Subsidiaries for such period on a
consolidated basis and otherwise determined in accordance with GAAP.
"Consolidated Interest Expense" means, with respect to any Person for
any period,
(1) the sum, without duplication, of:
(a) consolidated interest expense of such Person and its
Restricted Subsidiaries for such period to the extent such expense
was deducted in computing Consolidated Net Income (including
amortization of original issue discount or premium, the interest
component of Capitalized Lease Obligations and net payments and
receipts (if any) pursuant to interest rate Hedging Obligations, but
excluding amortization of deferred financing fees, expensing of any
bridge or other financing fees and expenses and any interest expense
on Indebtedness of a third party that is not an Affiliate of the
Parent Guarantor or any of its Subsidiaries and that is attributable
to supply or lease arrangements as a result of consolidation under
FIN 46R or attributable to "take-or-pay" contracts accounted for in a
manner similar to a capital lease under EITF 01-8, in either case so
long as the underlying obligations under any such supply or lease
arrangement or such "take-or-pay" contract are not treated as
Indebtedness as provided in clause (2) of the proviso to the
definition of "Indebtedness"),
(b) consolidated capitalized interest of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued
(including, without limitation, Securitization Fees), and
(c) interest expense with respect to any Indebtedness of any
Person other than the Company or a Restricted Subsidiary that is
guaranteed by the Company or any Restricted Subsidiary or that is
secured by a lien on any assets of the Company or any Restricted
Subsidiary, less
(2) interest income of such Person and its Restricted
Subsidiaries.
"Consolidated Net Income" means, with respect to any Person for any
period, the aggregate of the Net Income of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis, and otherwise
determined in accordance with GAAP; provided, however, that:
(1) any net after-tax extraordinary or non-recurring gains
or losses (less all fees and expenses relating thereto) or income or
expense or charge (including, without limitation, severance,
relocation and other restructuring costs and legal and settlement
expense related to the Constar intellectual property litigation
incurred prior to the date of this Indenture) including, without
limitation, any severance expense including any direct transition
expenses related to the Transactions, and fees, expenses or charges
related to any offering of Equity Interests of such Person, any
Investment, acquisition or Indebtedness permitted to be incurred
hereunder (in each case, whether or not successful), including all
fees, expenses, charges and change of control payments related to the
Transactions, in each case shall be excluded;
(2) the cumulative effect of a change in accounting
principles during such period shall be excluded;
(3) any net after-tax income or loss from discontinued
operations and any net after-tax gain or loss on disposal of
discontinued operations shall be excluded;
(4) any net after-tax gains or losses (less all fees and
expenses or charges relating thereto) attributable to business
dispositions or asset dispositions other than in the ordinary course
of business (as determined in good faith by the Board of Directors of
the Company) shall be excluded;
(5) any net after-tax income or loss (less all fees and
expenses or charges relating thereto) attributable to the early
extinguishment of indebtedness and Hedging Obligations shall be
excluded;
(6) an amount equal to the amount of Tax Distributions to
the Parent Guarantor shall be included as though such amounts had
been paid as income taxes or other expenses directly by such Person;
(7) (a) the Net Income for such period of any Person that is
not a Subsidiary, or that is an Unrestricted Subsidiary, or that is
accounted for by the equity method of accounting, shall be included
only to the extent of the amount of dividends or distributions or
other payments in respect of equity that are actually paid in cash
(or to the extent converted into cash) by the referent Person to the
Company or a Restricted Subsidiary thereof in respect of such period
and (b) the Net Income for such period shall include any dividend,
distribution or other payments in respect of equity paid in cash by
such Person to the Company or a Restricted Subsidiary thereof in
excess of the amounts included in clause (a);
(8) any increase in amortization or depreciation or any
one-time non-cash charges (such as purchased in-process research and
development or capitalized manufacturing profit in inventory)
resulting from purchase accounting or conforming accounting
principles in connection with the Transactions or any acquisition
that is consummated prior to or after the date of this Indenture
shall be excluded;
(9) accruals and reserves that are established within twelve
months after the date of this Indenture and that are so required to
be established as a result of the Transactions in accordance with
GAAP shall be excluded;
(10) any non-cash impairment charges resulting from the
application of Statements of Financial Accounting Standards No. 142
and No. 144 and the amortization of intangibles pursuant to Statement
of Financial Accounting Standards No. 141 shall be excluded;
(11) any non-cash compensation expense realized from grants
of stock appreciation or similar rights, stock options or restricted
stock or other rights to officers, directors and employees of such
Person or any of its Restricted Subsidiaries shall be excluded;
(12) solely for the purpose of determining the amount
available for Restricted Payments under Section 4.04(a)(3)(A), the
Net Income for such period of any Restricted Subsidiary (other than a
Guarantor) shall be excluded if the declaration or payment of
dividends or similar distributions by that Restricted Subsidiary of
its Net Income is not at the date of determination permitted without
any prior governmental approval (which has not been obtained) or,
directly or indirectly, by the operation of the terms of its charter
or any agreement, instrument, judgment, decree, order, statute, rule
or governmental regulation applicable to that Restricted Subsidiary
or its stockholders, unless such restriction with respect to the
payment of dividends or similar distributions has been legally
waived; provided that Consolidated Net Income of such Person shall be
increased by the amount of dividends or distributions or other
payments that are actually paid in cash (or to the extent converted
into cash) by such Person to the Company or another Restricted
Subsidiary thereof in respect of such period, to the extent not
already included therein; and
(13) cost of sales will be reflected on a FIFO basis.
Notwithstanding the foregoing, for the purpose of Section 4.04 only (other
than Section 4.04(a)(3)(D)), there shall be excluded from Consolidated Net
Income any income arising from any sale or other disposition of Restricted
Investments made by the Company and the Restricted Subsidiaries, any
repurchases and redemptions of Restricted Investments by the Company and the
Restricted Subsidiaries, any repayments of loans and advances which constitute
Restricted Investments by the Company and any Restricted Subsidiary, any sale
of the stock of an Unrestricted Subsidiary or any distribution or dividend
from an Unrestricted Subsidiary, in each case only to the extent such amounts
increase the amount of Restricted Payments permitted under Section
4.04(a)(3)(D)
"Contingent Obligations" means, with respect to any Person, any
obligation of such Person guaranteeing any leases, dividends or other
obligations that do not constitute Indebtedness ("primary obligations") of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, any obligation of such Person,
whether or not contingent:
(1) to purchase any such primary obligation or any property
constituting direct or indirect security therefor,
(2) to advance or supply funds
(a) for the purchase or payment of any such primary
obligation or
(b) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of
the primary obligor, or
(3) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation
of the ability of the primary obligor to make payment of such primary
obligation against loss in respect thereof.
"Contribution Indebtedness" means Indebtedness of the Company or any
Guarantor in an aggregate principal amount not greater than twice the
aggregate amount of cash contributions (other than Excluded Contributions)
made to the capital of the Company after the date of this Indenture, provided
that:
(1) if the aggregate principal amount of such Contribution
Indebtedness is greater than the aggregate amount of such cash
contributions to the capital of the Company, the amount in excess
shall be Indebtedness (other than Secured Indebtedness) with a Stated
Maturity later than the Stated Maturity of the Notes, and
(2) such Contribution Indebtedness (a) is incurred within
180 days after the making of such cash contribution and (b) is so
designated as Contribution Indebtedness pursuant to an Officers'
Certificate on the incurrence date thereof.
"Credit Agreements" means the Credit Agreement dated as of October 7,
2004 among the Company, any other borrowers party thereto from time to time,
Deutsche Bank AG Cayman Islands Branch as administrative agent and the lenders
party thereto from time to time, and the Second-Lien Credit Agreement dated
October 7, 2004 among the Company, any other borrowers party thereto from time
to time, Deutsche Bank AG Cayman Islands Branch as administrative agent and
the lenders party thereto from time to time, including any related notes,
guarantees, collateral documents, instruments and agreements executed in
connection therewith, and in each case as amended, restated, supplemented,
modified, renewed, refunded, replaced or refinanced from time to time in one
or more agreements or indentures (in each case with the same or new lenders or
institutional investors), including any agreement or indenture extending the
maturity thereof or otherwise restructuring all or any portion of the
Indebtedness thereunder or increasing the amount loaned or issued thereunder
or altering the maturity thereof.
"Default" means any event which is, or with the passage of time or
the giving of notice or both would be, an Event of Default.
"Designated Non-cash Consideration" means the fair market value of
non-cash consideration received by the Company or one of its Restricted
Subsidiaries in connection with an Asset Sale that is so designated as
Designated Non-cash Consideration pursuant to an Officers' Certificate setting
forth the basis of such valuation, less the amount of cash or Cash Equivalents
received in connection with a subsequent sale of such Designated Non-cash
Consideration.
"Designated Preferred Stock" means Preferred Stock of the Company or
any direct or indirect parent company of the Company (other than Disqualified
Stock) that is issued for cash (other than to the Company or any of its
Subsidiaries or an employee stock ownership plan or trust established by the
Company or any of its Subsidiaries) and is so designated as Designated
Preferred Stock, pursuant to an Officers' Certificate, on the issuance date
thereof, the cash proceeds of which are excluded from the calculation set
forth in Section 4.04(a)(3).
"Designated Senior Debt" means:
(1) any Indebtedness outstanding under the Credit
Agreements; and
(2) any other Senior Debt permitted hereunder the principal
amount of which is $25.0 million or more and that has been designated
by the Company in the instrument evidencing that Senior Debt as
"Designated Senior Debt."
"Disqualified Stock" means, with respect to any Person, any Capital
Stock of such Person which, by its terms (or by the terms of any security into
which it is convertible or for which it is putable or exchangeable), or upon
the happening of any event, matures or is mandatorily redeemable (other than
as a result of a change of control or asset sale), pursuant to a sinking fund
obligation or otherwise, or is redeemable at the option of the holder thereof
(other than as a result of a change of control or asset sale), in whole or in
part, in each case prior to the date 91 days after the earlier of the Final
Maturity Date of the Notes or the date the Notes are no longer outstanding;
provided, however, that if such Capital Stock is issued to any plan for the
benefit of employees of the Parent Guarantor or its Subsidiaries or by any
such plan to such employees, such Capital Stock shall not constitute
Disqualified Stock solely because it may be required to be repurchased by the
Parent Guarantor or its Subsidiaries in order to satisfy applicable statutory
or regulatory obligations.
"EBITDA" means, with respect to any Person for any period, the
Consolidated Net Income of such Person for such period (A) plus, without
duplication, and in each case (other than clauses 3, 12, 13 and 14) to the
extent deducted in calculating Consolidated Net Income for such period:
(1) provision for taxes based on income, profits or capital
of such Person for such period, including, without limitation, state
franchise and similar taxes (such as the Texas franchise tax,
Washington Business and Occupation Tax and Michigan single business
tax) (including any Tax Distribution taken into account in
calculating Consolidated Net Income); plus
(2) Consolidated Interest Expense of such Person for such
period; plus
(3) for periods ending on or prior to September 30, 2005, an
amount representing incremental employee benefit plan costs as a
result of the Transactions, which amount shall be deemed to be equal
to $0.4 million for the fiscal quarter ended September 30, 2004, $0.4
million for the fiscal quarter ended June 30, 2004, $0.4 million for
the fiscal quarter ended March 31, 2004 and $1.3 million for the
fiscal quarter ended December 31, 2003; plus
(4) Consolidated Depreciation and Amortization Expense of
such Person for such period; plus
(5) any reasonable expenses or charges related to any Equity
Offering, Permitted Investment, acquisition, recapitalization or
Indebtedness permitted to be incurred hereunder or to the
Transactions; plus
(6) the amount of any restructuring charges as set forth in
an Officers' Certificate; plus
(7) the minority interest expense consisting of subsidiary
income attributable to minority equity interests of third parties in
any non-Wholly Owned Subsidiary in such period or any prior period,
except to the extent of dividends declared or paid on Equity
Interests held by third parties; plus
(8) the non-cash portion of "straight line" rent expense;
plus
(9) the amount of any expense to the extent a corresponding
amount is received in cash by the Company and its Restricted
Subsidiaries from a Person other than the Company or any Subsidiary
of the Company under any agreement providing for reimbursement of any
such expense, provided such reimbursement payment has not been
included in determining Consolidated Net Income or EBITDA (it being
understood that if the amounts received in cash under any such
agreement in any period exceed the amount of expense in respect of
such period, such excess amounts received may be carried forward and
applied against expense in future periods); plus
(10) the amount of management, consulting, monitoring and
advisory fees and related expenses paid to the Sponsors or any other
Permitted Holder (or any accruals related to such fees and related
expenses) during such period; provided that such amount shall not
exceed $5.0 million in any four quarter period; plus
(11) without duplication, any other non-cash charges
(including any impairment charges and the impact of purchase
accounting, including, but not limited to, the amortization of
inventory step-up) (excluding any such charge that represents an
accrual or reserve for a cash expenditure for a future period); plus
(12) for periods ending on or prior to September 30, 2005,
an amount representing insurance cost savings as a result of the
Transactions, which amount shall be deemed to be $1.225 million for
each of the fiscal quarters ended September 30, 2004, June 30, 2004,
March 31, 2004 and December 31, 2003; plus
(13) for periods ending on or prior to September 30, 2005,
an amount representing incremental cost savings as a result of the
Transactions, which amount shall be deemed to be $8.75 million for
each of the fiscal quarters ended September 30, 2004, June 30, 2004,
March 31, 2004 and December 31, 2003; plus
(14) any net losses resulting from Hedging Obligations
entered into in the ordinary course of business relating to
intercompany loans, to the extent that the notional amount of the
related Hedging Obligation does not exceed the principal amount of
the related intercompany loan,
and (B) less the sum of, without duplication,
(1) non-cash items increasing Consolidated Net Income for
such period (excluding any items which represent the reversal of any
accrual of, or cash reserve for, anticipated cash charges or asset
valuation adjustments made in any prior period),
(2) the minority interest income consisting of subsidiary
losses attributable to the minority equity interests of third parties
in any non-Wholly Owned Subsidiary,
(3) the cash portion of "straight line" rent expense which
exceeds the amount expensed in respect of such rent expense and
(4) any net gains resulting from Hedging Obligations entered
into in the ordinary course of business relating to intercompany
loans, to the extent that the notional amount of the related Hedging
Obligation does not exceed the principal amount of the related
intercompany loan.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Equity Offering" means any public or private sale of common stock or
Preferred Stock of the Company or any or its direct or indirect parent
corporations (excluding Disqualified Stock), other than (i) public offerings
with respect to common stock of the Company or of any direct or indirect
parent corporation of the Company, in each case registered on Form S-8 and
(ii) any such public or private sale that constitutes an Excluded
Contribution.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Exchange Offer Registration Statement" means the registration
statement filed with the SEC in connection with the Registered Exchange Offer.
"Excluded Contribution" means the net cash proceeds, marketable
securities or Qualified Proceeds, in each case received by the Company and its
Restricted Subsidiaries from:
(1) contributions to its common equity capital, and
(2) the sale (other than to a Subsidiary or to any
management equity plan or stock option plan or any other management
or employee benefit plan or agreement of the Company or any
Subsidiary) of Capital Stock (other than Disqualified Stock),
in each case designated as Excluded Contributions pursuant to an Officers'
Certificate on the date such capital contributions are made or the date such
Equity Interests are sold, as the case may be, which are excluded from the
calculation set forth in Section 4.04(a)(3) hereof.
"Existing Indebtedness" means Indebtedness of the Company and its
Subsidiaries (other than Indebtedness under the Credit Agreements) in
existence on the date of this Indenture (including the Notes issued on the
date of this Indenture and any Exchange Notes issued in exchange therefor).
"Fixed Charge Coverage Ratio" means, with respect to any Person for
any period consisting of such Person and its Restricted Subsidiaries' most
recently ended four fiscal quarters for which internal financial statements
are available, the ratio of EBITDA of such Person for such period to the Fixed
Charges of such Person for such period. In the event that the Company or any
Restricted Subsidiary incurs, assumes, guarantees or redeems any Indebtedness
or issues or repays Disqualified Stock or Preferred Stock subsequent to the
commencement of the period for which the Fixed Charge Coverage Ratio is being
calculated but prior to the event for which the calculation of the Fixed
Charge Coverage Ratio is made (the "Calculation Date"), then the Fixed Charge
Coverage Ratio shall be calculated giving pro forma effect to such incurrence,
assumption, guarantee or repayment of Indebtedness, or such issuance or
redemption of Disqualified Stock or Preferred Stock, as if the same had
occurred at the beginning of the applicable four-quarter period. For purposes
of making the computation referred to above, Investments, acquisitions,
dispositions, mergers and consolidations (as determined in accordance with
GAAP) that have been made by the Company or any Restricted Subsidiary during
the four-quarter reference period or subsequent to such reference period and
on or prior to or simultaneously with the Calculation Date shall be calculated
on a pro forma basis assuming that all such Investments, acquisitions,
dispositions, mergers and consolidations (and the change in any associated
fixed charge obligations and the change in EBITDA resulting therefrom) had
occurred on the first day of the four-quarter reference period. If since the
beginning of such period any Person (that subsequently became a Restricted
Subsidiary or was merged with or into the Company or any Restricted Subsidiary
since the beginning of such period) shall have made any Investment,
acquisition (including the Transactions), disposition, merger, consolidation
or discontinued operation that would have required adjustment pursuant to this
definition, then the Fixed Charge Coverage Ratio shall be calculated giving
pro forma effect thereto for such period as if such Investment, acquisition
(including the Transactions), disposition, merger or consolidation had
occurred at the beginning of the applicable four-quarter period. For purposes
of this definition, whenever pro forma effect is to be given to an acquisition
(including the Transactions) or other Investment and the amount of income or
earnings relating thereto, the pro forma calculations shall be determined in
good faith by a responsible financial or accounting Officer of the Company and
shall comply with the requirements of Rule 11-02 of Regulation S-X promulgated
by the Commission, except that such pro forma calculations may include
operating expense reductions for such period resulting from the acquisition
(including the Transactions) which is being given pro forma effect that have
been realized or for which the steps necessary for realization have been taken
or are reasonably expected to be taken within six months following any such
acquisition, including, but not limited to, the execution or termination of
any contracts, the termination of any personnel or the closing (or approval by
the Board of Directors of the Company of any closing) of any facility, as
applicable, provided that, in either case, such adjustments are set forth in
an Officers' Certificate signed by the Company's chief financial officer and
another Officer which states (i) the amount of such adjustment or adjustments,
(ii) that such adjustment or adjustments are based on the reasonable good
faith beliefs of the Officers executing such Officers' Certificate at the time
of such execution and (iii) that any related incurrence of Indebtedness is
permitted pursuant to this Indenture. If any Indebtedness bears a floating
rate of interest and is being given pro forma effect, the interest on such
Indebtedness shall be calculated as if the rate in effect on the Calculation
Date had been the applicable rate for the entire period (taking into account
any Hedging Obligations applicable to such Indebtedness). Interest on a
Capitalized Lease Obligation shall be deemed to accrue at an interest rate
reasonably determined by a responsible financial or accounting Officer of the
Company to be the rate of interest implicit in such Capitalized Lease
Obligation in accordance with GAAP. For purposes of making the computation
referred to above, interest on any Indebtedness under a revolving credit
facility computed on a pro forma basis shall be computed based upon the
average daily balance of such Indebtedness during the applicable period.
Interest on Indebtedness that 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 rate, shall be deemed to have been based upon the rate
actually chosen, or, if none, then based upon such optional rate chosen as the
Company may designate.
"Fixed Charges" means, with respect to any Person for any period, the
sum of, without duplication:
(1) Consolidated Interest Expense of such Person for such
period,
(2) all cash dividends paid, accrued and/or scheduled to be
paid or accrued during such period (excluding items eliminated in
consolidation) on any series of Preferred Stock of such Person, and
(3) all cash dividends paid, accrued and/or scheduled to be
paid or accrued during such period (excluding items eliminated in
consolidation) on any series of Disqualified Stock.
"Flow Through Entity" means an entity that is treated as a
partnership not taxable as a corporation, a grantor trust or a disregarded
entity for United States federal income tax purposes or subject to treatment
on a comparable basis for purposes of state, local or foreign tax law.
"Foreign Subsidiary" means a Restricted Subsidiary not organized or
existing under the laws of the United States of America or any state or
territory thereof and any direct or indirect subsidiary of such Restricted
Subsidiary.
"GAAP" means generally accepted accounting principles in the United
States in effect on the date of this Indenture. For purposes of this
Indenture, the term "consolidated" with respect to any Person means such
Person consolidated with its Restricted Subsidiaries and does not include any
Unrestricted Subsidiary.
"Government Securities" means securities that are:
(1) direct obligations of the United States of America for
the timely payment of which its full faith and credit is pledged; or
(2) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States of
America the timely payment of which is unconditionally guaranteed as
a full faith and credit obligation by the United States of America;
which, in either case, are not callable or redeemable at the option of the
issuers thereof, and shall also include a depository receipt issued by a bank
(as defined in Section 3(a)(2) of the Securities Act), as custodian with
respect to any such Government Securities or a specific payment of principal
of or interest on any such Government Securities held by such custodian for
the account of the holder of such depository receipt; provided that (except as
required by law) such custodian is not authorized to make any deduction from
the amount payable to the holder of such depository receipt from any amount
received by the custodian in respect of the Government Securities or the
specific payment of principal of or interest on the Government Securities
evidenced by such depository receipt.
"guarantee" means a guarantee other than by endorsement of negotiable
instruments for collection in the ordinary course of business, direct or
indirect, in any manner including, without limitation, through letters of
credit or reimbursement agreements in respect thereof, of all or any part of
any Indebtedness or other obligations.
"Guarantee" means any guarantee of the obligations of the Issuers
under this Indenture and the Notes by a Guarantor in accordance with the
provisions of this Indenture. When used as a verb, "Guarantee" shall have a
corresponding meaning.
"Guarantor" means any Person that incurs a Guarantee of the Notes;
provided that upon the release and discharge of such Person from its Guarantee
in accordance with this Indenture, such Person shall cease to be a Guarantor.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under:
(1) currency exchange, interest rate or commodity swap
agreements, currency exchange, interest rate or commodity cap
agreements and currency exchange, interest rate or commodity collar
agreements; and
(2) other agreements or arrangements designed to protect
such Person against fluctuations in currency exchange, interest rates
or commodity prices.
"Holder" means the Person in whose name a Note is registered on the
Registrar's books.
"Indebtedness" means, with respect to any Person:
(a) any indebtedness (including principal and premium) of
such Person, whether or not contingent;
(i) in respect of borrowed money;
(ii) evidenced by bonds, notes, debentures or
similar instruments or letters of credit (or, without double
counting, reimbursement agreements in respect thereof);
(iii) representing the balance deferred and unpaid
of the purchase price of any property (including Capitalized
Lease Obligations), except (A) any such balance that
constitutes a trade payable or similar obligation to a trade
creditor, in each case accrued in the ordinary course of
business and (B) reimbursement obligations in respect of
trade letters of credit obtained in the ordinary course of
business with expiration dates not in excess of 365 days
from the date of issuance (x) to the extent undrawn or (y)
if drawn, to the extent repaid in full within 20 business
days of any such drawing; or
(iv) representing any Hedging Obligations;
if and to the extent that any of the foregoing Indebtedness
(other than letters of credit and Hedging Obligations) would appear
as a liability upon a balance sheet (excluding the footnotes thereto)
of such Person prepared in accordance with GAAP;
(b) Disqualified Stock of such Person;
(c) to the extent not otherwise included, any obligation by
such Person to be liable for, or to pay, as obligor, guarantor or
otherwise, on the Indebtedness of another Person (other than by
endorsement of negotiable instruments for collection in the ordinary
course of business);
(d) to the extent not otherwise included, Indebtedness of
another Person secured by a Lien on any asset owned by such Person
(whether or not such Indebtedness is assumed by such Person); and
(e) to the extent not otherwise included, the amount then
outstanding (i.e., advanced, and received by, and available for use
by, the Issuers or any of its Restricted Subsidiaries) under any
Securitization Financing (as set forth in the books and records of
the Issuers or any Restricted Subsidiary and confirmed by the agent,
trustee or other representative of the institution or group providing
such Securitization Financing);
provided, however, that
(1) Contingent Obligations incurred in the ordinary course
of business and not in respect of borrowed money; and
(2) Indebtedness of a third party that is not an Affiliate
of the Parent Guarantor or any of its Subsidiaries that is
attributable to supply or lease arrangements as a result of
consolidation under FIN 46R or attributable to "take-or-pay"
contracts accounted for in a manner similar to a capital lease under
EITF 01-8, in either case so long as (i) such supply or lease
arrangements or such take-or-pay contracts are entered into in the
ordinary course of business, (ii) the Board of Directors of the
Parent Guarantor has approved any such supply or lease arrangement or
any such take-or-pay contract and (iii) notwithstanding anything to
the contrary contained in the definition of EBITDA, the related
expense under any such supply or lease arrangement or under any such
take-or-pay contract is treated as an operating expense that reduces
EBITDA;
shall be deemed not to constitute Indebtedness.
"Indenture" means this Indenture as amended or supplemented from time
to time.
"Independent Financial Advisor" means an accounting, appraisal or
investment banking firm or consultant to Persons engaged in a Permitted
Business of nationally recognized standing that is, in the good faith judgment
of the Company, qualified to perform the task for which it has been engaged.
"Investment Grade Securities" means:
(1) securities issued by the U.S. government or by any
agency or instrumentality thereof and directly and fully guaranteed
or insured by the U.S. Government (other than Cash Equivalents),
(2) investments in any fund that invests exclusively in
investments of the type described in clause (1) which fund may also
hold immaterial amounts of cash pending investment and/or
distribution, and
(3) corresponding instruments in countries other than the
United States customarily utilized for high quality investments and
in each case with maturities not exceeding two years from the date of
acquisition.
"Investments" means, with respect to any Person, all direct or
indirect investments by such Person in other Persons (including Affiliates) in
the forms of loans (including guarantees or other obligations), advances or
capital contributions (excluding accounts receivable, trade credit, advances
to customers, commission, travel and similar advances to officers and
employees, in each case made in the ordinary course of business), purchases or
other acquisitions for consideration of Indebtedness, Equity Interests or
other securities issued by any other Person and investments that are required
by GAAP to be classified on the balance sheet (excluding the footnotes) of
such Person in the same manner as the other investments included in this
definition to the extent such transactions involve the transfer of cash or
other property. If the Company or any Subsidiary of the Company sells or
otherwise disposes of any Equity Interests of any direct or indirect
Subsidiary of the Company such that, after giving effect to any such sale or
disposition, such Person is no longer a Subsidiary of the Company, the Company
will be deemed to have made an Investment on the date of any such sale or
disposition equal to the fair market value of the Equity Interests of such
Subsidiary not sold or disposed of in an amount determined as provided in
Section 4.04(c).
For purposes of the definition of "Unrestricted Subsidiary" and
Section 4.04:
(1) "Investments" shall include the portion (proportionate
to the Company's equity interest in such Subsidiary) of the fair
market value of the net assets of a Subsidiary of the Company at the
time that such Subsidiary is designated an Unrestricted Subsidiary;
provided, however, that upon a redesignation of such Subsidiary as a
Restricted Subsidiary, the Company shall be deemed to continue to
have a permanent "Investment" in an Unrestricted Subsidiary in an
amount (if positive) equal to:
(a) the Company's "Investment" in such Subsidiary at the
time of such redesignation; less
(b) the portion (proportionate to the Company's equity
interest in such Subsidiary) of the fair market value of the net
assets of such Subsidiary at the time of such redesignation;
(2) any property transferred to or from an Unrestricted
Subsidiary shall be valued at its fair market value at the time of
such transfer, in each case as determined in good faith by the
Company; and
(3) any transfer of Capital Stock that results in an entity
which became a Restricted Subsidiary after the date of this Indenture
and not in connection with the Transactions ceasing to be a
Restricted Subsidiary shall be deemed to be an Investment in an
amount equal to the fair market value (as determined by the Board of
Directors of the Company in good faith as of the date of initial
acquisition) of the Capital Stock of such entity owned by the Company
and the Restricted Subsidiaries immediately after such transfer.
"Issue Date" means the date on which the Original Notes are first
issued.
"Issuers" has the meaning set forth in the preamble to this
Indenture.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, hypothecation, pledge, encumbrance, charge or security interest
in or on such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities (other
than securities representing an interest in a joint venture that is not a
Subsidiary), any purchase option, call or similar right of a third party with
respect to such securities.
"Liquidated Damages" has the meaning given such term in the
Registration Rights Agreement.
"Management Group" means the group consisting of the directors,
executive officers and other management personnel of the Company and the
Parent Guarantor, as the case may be, on the date of this Indenture together
with (1) any new directors whose election by such boards of directors or whose
nomination for election by the shareholders of the Company or the Parent
Guarantor, as the case may be, was approved by a vote of a majority of the
directors of the Company or the Parent Guarantor, as the case may be, then
still in office who were either directors on the date of this Indenture or
whose election or nomination was previously so approved and (2) executive
officers and other management personnel of the Company or the Parent
Guarantor, as the case may be, hired at a time when the directors on the date
of this Indenture together with the directors so approved constituted a
majority of the directors of the Company or the Parent Guarantor, as the case
may be.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Net Income" means, with respect to any Person, the net income (loss)
of such Person, determined in accordance with GAAP and before any reduction in
respect of Preferred Stock dividends or accretion of any Preferred Stock.
"Net Proceeds" means the aggregate cash proceeds received by the
Company or any of its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received in respect of or upon the
sale or other disposition of any Designated Non-cash Consideration received in
any Asset Sale and any cash payments received by way of deferred payment of
principal pursuant to a note or installment receivable or otherwise, but only
as and when received, but excluding the assumption by the acquiring Person of
Indebtedness relating to the disposed assets or other consideration received
in any other non-cash form), net of the direct costs relating to such Asset
Sale and the sale or disposition of such Designated Non-cash Consideration
(including, without limitation, legal, accounting and investment banking fees,
and brokerage and sales commissions), and any relocation expenses Incurred as
a result thereof, taxes paid or payable as a result thereof (after taking into
account any available tax credits or deductions and any tax sharing
arrangements related thereto), amounts required to be applied to the repayment
of principal, premium (if any) and interest on Indebtedness required (other
than pursuant to Section 4.06(b)) to be paid as a result of such transaction,
and any deduction of appropriate amounts to be provided by the Company as a
reserve in accordance with GAAP against any liabilities associated with the
asset disposed of in such transaction and retained by the Company after such
sale or other disposition thereof, including, without limitation, pension and
other post-employment benefit liabilities and liabilities related to
environmental matters or against any indemnification obligations associated
with such transaction.
"Notes" has the meaning set forth in the preamble to this Indenture.
"Obligations" means any principal, interest (including any interest
accruing subsequent to the filing of a petition for bankruptcy at a rate
provided for in the documentation with respect thereof, whether or not such
interest claim is allowed under applicable law), penalties, fees,
indemnifications, reimbursements (including, without limitation, reimbursement
obligations with respect to letters of credit), damages and other liabilities,
and guarantees of payment of such principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities, payable under
the documentation governing any Indebtedness.
"Offering Memorandum" means the offering memorandum relating to the
offering of the Notes dated September 29, 2004.
"Officer" means the Chairman of the Board, the Chief Executive
Officer, the President, any Executive Vice President, Senior Vice President or
Vice President, the Treasurer or the Secretary of the Company.
"Officers' Certificate" means a certificate signed on behalf of the
Company by two Officers of the Company, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Company, that meets the requirements set
forth in this Indenture.
"Opinion of Counsel" means a written opinion from legal counsel. The
counsel may be an employee of or counsel to the Company or the Parent
Guarantor.
"Parent Guarantor" means Xxxxxx Packaging Holdings Company.
"Permitted Business" means the plastic container business and any
services, activities or businesses incidental or directly related or similar
thereto, any line of business engaged in by the Company or any of its
Subsidiaries on the date of this Indenture or any business activity that is a
reasonable extension, development or expansion thereof or ancillary thereto.
"Permitted Debt" has the meaning assigned to it in Section 4.03(b).
"Permitted Holders" means, at any time, each of (i) the Sponsors and
their Affiliates (not including, however, any portfolio companies of any of
the Sponsors), (ii) the Management Group, with respect to not more than 10% of
the total voting power of the Equity Interests of the Parent Guarantor, and
(iii) Xxxxxx Alternative Investment Partners. Any person or group whose
acquisition of beneficial ownership constitutes a Change of Control in respect
of which a Change of Control Offer is made in accordance with the requirements
of this Indenture will thereafter, together with its Affiliates, constitute an
additional Permitted Holder.
"Permitted Investment" means:
(1) any Investment by the Company in any Restricted
Subsidiary or by a Restricted Subsidiary in the Company or another
Restricted Subsidiary;
(2) any Investment in cash and Cash Equivalents or
Investment Grade Securities;
(3) any Investment by the Company or any Restricted
Subsidiary of the Company in a Person that is engaged in a Permitted
Business if as a result of such Investment (A) such Person becomes a
Restricted Subsidiary or (B) such Person, in one transaction or a
series of related transactions, is merged, consolidated or
amalgamated with or into, or transfers or conveys substantially all
of its assets to, or is liquidated into, the Company or a Restricted
Subsidiary;
(4) any Investment in securities or other assets not
constituting cash or Cash Equivalents and received in connection with
an Asset Sale made pursuant to Section 4.06 hereof or any other
disposition of assets not constituting an Asset Sale;
(5) any Investment existing on the date of this Indenture
and Investments made pursuant to binding commitments in effect on the
date of this Indenture;
(6) (A) loans and advances to officers, directors and
employees, not in excess of $20.0 million in the aggregate
outstanding at any one time, and (B) loans and advances of payroll
payments and expenses to officers, directors and employees in each
case incurred in the ordinary course of business;
(7) any Investment acquired by the Company or any Restricted
Subsidiary (A) in exchange for any other Investment or accounts
receivable held by the Company or any such Restricted Subsidiary in
connection with or as a result of a bankruptcy, workout,
reorganization or recapitalization of the issuer of such other
Investment or accounts receivable or (B) as a result of a foreclosure
by the Company or any Restricted Subsidiary with respect to any
secured Investment or other transfer of title with respect to any
secured Investment in default;
(8) Hedging Obligations permitted under clause (8) of the
definition of "Permitted Debt";
(9) any Investment by the Company or a Restricted Subsidiary
in a Permitted Business having an aggregate fair market value, taken
together with all other Investments made pursuant to this clause (9)
that are at that time outstanding (without giving effect to the sale
of an Investment to the extent the proceeds of such sale do not
consist of cash and/or marketable securities), not to exceed 5.0% of
Total Assets (with the fair market value of each Investment being
measured at the time made and without giving effect to subsequent
changes in value); provided, however, that if any Investment pursuant
to this clause (9) is made in any Person that is not a Restricted
Subsidiary of the Company at the date of the making of such
Investment and such Person becomes a Restricted Subsidiary of the
Company after such date, such Investment shall thereafter be deemed
to have been made pursuant to clause (1) above and shall cease to
have been made pursuant to this clause (9) for so long as such Person
continues to be a Restricted Subsidiary;
(10) Investments resulting from the receipt of non-cash
consideration in an Asset Sale received in compliance with Section
4.06 hereof;
(11) Investments the payment for which consists of Equity
Interests of the Company or any of its parent companies (exclusive of
Disqualified Stock);
(12) guarantees (including Guarantees) of Indebtedness
permitted under Section 4.03 hereof and performance guarantees
consistent with past practice;
(13) any transaction to the extent it constitutes an
Investment that is permitted and made in accordance Section 4.07
except transactions described in Sections 4.07(b)(ii), (vi), (vii)
and (xi) hereof;
(14) Investments of a Restricted Subsidiary acquired after
the date of this Indenture or of an entity merged into the Company or
merged into or consolidated with a Restricted Subsidiary in
accordance with Article 5 after the date of this Indenture to the
extent that such Investments were not made in contemplation of or in
connection with such acquisition, merger or consolidation and were in
existence on the date of such acquisition, merger or consolidation;
(15) guarantees by the Company or any Restricted Subsidiary
of operating leases (other than Capitalized Lease Obligations) or of
other obligations that do not constitute Indebtedness, in each case
entered into by any Restricted Subsidiary in the ordinary course of
business;
(16) Investments consisting of licensing or contribution of
intellectual property pursuant to joint marketing arrangements with
other Persons;
(17) Investments consisting of purchases and acquisitions of
inventory, supplies, materials and equipment or purchases of contract
rights or licenses or leases of intellectual property, in each case
in the ordinary course of business;
(18) any Investment in a Securitization Subsidiary or any
Investment by a Securitization Subsidiary in any other Person in
connection with a Qualified Securitization Financing, including
Investments of funds held in accounts permitted or required by the
arrangements governing such Qualified Securitization Financing or any
related Indebtedness; provided, however, that any Investment in a
Securitization Subsidiary is in the form of a Purchase Money Note,
contribution of additional Securitization Assets or an equity
interest; and
(19) additional Investments by the Company or any of its
Restricted Subsidiaries having an aggregate fair market value, taken
together with all other Investments made pursuant to this clause
(19), not to exceed 2.5% of Total Assets at the time of such
Investment (with the fair market value of each Investment being
measured at the time made and without giving effect to subsequent
changes in value).
"Permitted Junior Securities" means unsecured debt of an Issuer or
any successor corporation or equity securities of any direct or indirect
parent entity or any successor corporation, in each case issued pursuant to a
plan of reorganization or readjustment of the Issuer or Issuers, as
applicable, that are subordinated to the payment of all then outstanding
Senior Debt at least to the same extent that the Notes are subordinated to the
payment of all Senior Debt outstanding on the date of this Indenture, provided
that if any Senior Debt of the Company or any Guarantor, as applicable,
outstanding on the date of consummation of any such plan of reorganization or
readjustment is not paid in full in cash on such date, the holders of any such
Senior Debt not so paid in full in cash have consented to the terms of such
plan of reorganization or readjustment.
"Permitted Liens" means the following types of Liens:
(1) deposits of cash or government bonds made in the
ordinary course of business to secure surety or appeal bonds to which
such Person is a party;
(2) Liens in favor of issuers of performance, surety bid,
indemnity, warranty, release, appeal or similar bonds or with respect
to other regulatory requirements or letters of credit or bankers'
acceptances issued, and completion guarantees provided for, in each
case pursuant to the request of and for the account of such Person in
the ordinary course of its business or consistent with past practice;
(3) Liens on property or shares of stock of a Person at the
time such Person becomes a Subsidiary; provided, however, that such
Liens are not created or incurred in connection with, or in
contemplation of, such other Person becoming such a Subsidiary;
provided, further, however, that such Liens may not extend to any
other property owned by the Company or any Restricted Subsidiary;
(4) Liens on property at the time the Company or a
Restricted Subsidiary acquired the property, including any
acquisition by means of a merger or consolidation with or into the
Company or any Restricted Subsidiary; provided, however, that such
Liens are not created or incurred in connection with, or in
contemplation of, such acquisition; provided, further, however, that
such Liens may not extend to any other property owned by the Company
or any Restricted Subsidiary;
(5) Liens securing Indebtedness or other obligations of a
Restricted Subsidiary owing to the Company or another Restricted
Subsidiary permitted to be incurred in accordance with Section 4.03
hereof;
(6) Liens securing Hedging Obligations so long as the
related Indebtedness is permitted to be incurred under this Indenture
and is secured by a Lien on the same property securing such Hedging
Obligation;
(7) Liens on specific items of inventory or other goods and
proceeds of any Person securing such Person's obligations in respect
of bankers' acceptances issued or created for the account of such
Person to facilitate the purchase, shipment or storage of such
inventory or other goods;
(8) Liens in favor of the Company or any Restricted
Subsidiary;
(9) Liens to secure any refinancing, refunding, extension,
renewal or replacement (or successive refinancings, refundings,
extensions, renewals or replacements) as a whole, or in part, of any
Indebtedness secured by any Liens referred to in clauses (3), (4),
(24) and (25) of this definition; provided, however, that (A) such
new Lien shall be limited to all or part of the same property that
secured the original Liens (plus improvements on such property), and
(B) the Indebtedness secured by such Lien at such time is not
increased to any amount greater than the sum of (1) the outstanding
principal amount or, if greater, committed amount of the Indebtedness
described under clauses (3), (4), (24) and (25) at the time the
original Lien became a Permitted Lien under this Indenture and (2) an
amount necessary to pay any fees and expenses, including premiums,
related to such refinancing, refunding, extension, renewal or
replacement;
(10) Liens on Securitization Assets and related assets of
the type specified in the definition of "Securitization Financing"
incurred in connection with any Qualified Securitization Financing;
(11) Liens for taxes, assessments or other governmental
charges or levies not yet delinquent, or which are being contested in
good faith by appropriate proceedings promptly instituted and
diligently conducted or for property taxes on property that the
Company or one of its Subsidiaries has determined to abandon if the
sole recourse for such tax, assessment, charge, levy or claim is to
such property;
(12) Liens securing judgments for the payment of money in an
aggregate amount not in excess of $40.0 million (except to the extent
covered by insurance and the Trustee shall be reasonably satisfied
with the credit of such insurer), unless such judgments shall remain
undischarged for a period of more than 30 consecutive days during
which execution shall not be effectively stayed;
(13) (A) pledges and deposits made in the ordinary course of
business in compliance with the Federal Employers Liability Act or
any other workers' compensation, unemployment insurance and other
social security laws or regulations and deposits securing liability
to insurance carriers under insurance or self-insurance arrangements
in respect of such obligations and (B) pledges and deposits securing
liability for reimbursement or indemnification obligations of
(including obligations in respect of letters of credit or bank
guarantees for the benefit of) insurance carriers providing property,
casualty or liability insurance to the Parent Guarantor, the Company
or any Restricted Subsidiary;
(14) landlord's, carriers', warehousemen's, mechanics',
materialmen's, repairmen's, construction or other like Liens arising
in the ordinary course of business and securing obligations that are
not overdue by more than 30 days or that are being contested in good
faith by appropriate proceedings and in respect of which, if
applicable, the Company or any Restricted Subsidiary shall have set
aside on its books reserves in accordance with GAAP;
(15) zoning restrictions, easements, trackage rights, leases
(other than Capitalized Lease Obligations), licenses, special
assessments, rights-of-way, restrictions on use of real property and
other similar encumbrances incurred in the ordinary course of
business that, in the aggregate, do not interfere in any material
respect with the ordinary conduct of the business of the Company or
any Restricted Subsidiary;
(16) Liens that are contractual rights of set-off (A)
relating to the establishment of depository relations with banks not
given in connection with the issuance of Indebtedness, (B) relating
to pooled deposit or sweep accounts of the Company or any Restricted
Subsidiary to permit satisfaction of overdraft or similar obligations
incurred in the ordinary course of business of the Company and the
Restricted Subsidiaries or (C) relating to purchase orders and other
agreements entered into with customers of the Company or any
Restricted Subsidiary in the ordinary course of business;
(17) Liens arising solely by virtue of any statutory or
common law provision relating to banker's liens, rights of set-off or
similar rights;
(18) Liens securing obligations in respect of trade-related
letters of credit permitted pursuant to Section 4.03 hereof and
covering the goods (or the documents of title in respect of such
goods) financed by such letters of credit and the proceeds and
products thereof;
(19) any interest or title of a lessor under any lease or
sublease entered into by the Company or any Restricted Subsidiary in
the ordinary course of business;
(20) licenses of intellectual property granted in a manner
consistent with past practice;
(21) 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;
(22) Liens solely on any xxxx xxxxxxx money deposits made by
the Company or any of the Restricted Subsidiaries in connection with
any letter of intent or purchase agreement permitted hereunder;
(23) other Liens securing Indebtedness for borrowed money
with respect to property or assets of the Company or a Restricted
Subsidiary with an aggregate fair market value (valued at the time of
creation thereof) of not more than $50.0 million at any time;
(24) Liens securing Capitalized Lease Obligations permitted
to be incurred under Section 4.03 hereof and Indebtedness permitted
to Section 4.03(b)(iii); provided, however, that such Liens securing
Capitalized Lease Obligations or Indebtedness incurred under Section
4.03(b)(iii) may not extend to property owned by the Company or any
Restricted Subsidiary other than the property being leased or
acquired pursuant to such Section;
(25) Liens (other than Liens securing the Credit Agreements)
existing on the date of this Indenture; and
(26) Liens securing Obligations under the Credit Agreements;
provided that the principal amount of Indebtedness secured by such
Liens pursuant to this clause (26) does not exceed $2,200 million.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
limited liability company or government or other entity.
"Preferred Stock" means any Equity Interest with preferential rights
of payment of dividends upon liquidation, dissolution or winding up.
"Presumed Tax Rate" means the highest effective marginal statutory
combined U.S. federal, state and local income tax rate prescribed for an
individual residing in New York City (taking into account (i) the
deductibility of state and local income taxes for U.S. federal income tax
purposes, assuming the limitation of Section 68(a)(2) of the Code applies and
taking into account any impact of the Code, and (ii) the character (long-term
or short-term capital gain, dividend income or other ordinary income) of the
applicable income).
"Purchase Money Note" means a promissory note of a Securitization
Subsidiary evidencing a line of credit, which may be irrevocable, from the
Parent Guarantor or any Subsidiary of the Parent Guarantor to a Securitization
Subsidiary in connection with a Qualified Securitization Financing, which note
is intended to finance that portion of the purchase price that is not paid in
cash or a contribution of equity and which (a) shall be repaid from cash
available to the Securitization Subsidiary, other than (i) amounts required to
be established as reserves, (ii) amounts paid to investors in respect of
interest, (iii) principal and other amounts owing to such investors and (iv)
amounts paid in connection with the purchase of newly generated receivables
and (b) may be subordinated to the payments described in clause (a).
"Qualified Proceeds" means assets that are used or useful in, or
Capital Stock of any Person engaged in, a Permitted Business; provided that
the fair market value of any such assets or Capital Stock shall be determined
by the Board of Directors in good faith, except that in the event the value of
any such assets or Capital Stock exceeds $30.0 million or more, the fair
market value shall be determined by an Independent Financial Advisor.
"Qualified Securitization Financing" means any Securitization
Financing of a Securitization Subsidiary that meets the following conditions:
(i) the Board of Directors shall have determined in good
faith that such Qualified Securitization Financing (including
financing terms, covenants, termination events and other provisions)
is in the aggregate economically fair and reasonable to the Company
and the Securitization Subsidiary;
(ii) all sales of Securitization Assets and related assets
to the Securitization Subsidiary are made at fair market value (as
determined in good faith by the Company); and
(iii) the financing terms, covenants, termination events and
other provisions thereof shall be market terms (as determined in good
faith by the Company) and may include Standard Securitization
Undertakings.
The grant of a security interest in any Securitization Assets of the Company
or any of its Restricted Subsidiaries (other than a Securitization Subsidiary)
to secure Indebtedness under the Credit Agreements and any Refinancing
Indebtedness with respect thereto shall not be deemed a Qualified
Securitization Financing.
"Recapitalization Agreement" means the Agreement and Plan of
Recapitalization, Redemption and Repurchase, dated as of December 18, 1997 by
and among the Company, BMP/Xxxxxx Holdings Corporation and the other parties
thereto.
"Representative" means the trustee, agent or representative (if any)
for an issue of Senior Debt; provided that if, and for so long as, any Senior
Debt lacks such a representative, then the Representative for such Senior Debt
shall at all times constitute the holders of a majority in outstanding
principal amount of such Senior Debt.
"Responsible Officer" of any Person means any executive officer or
financial officer of such Person and any other officer or similar official
thereof responsible for the administration of the obligations of such Person
in respect of this Indenture.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Subsidiary" means, at any time, any direct or indirect
Subsidiary of the Company that is not then an Unrestricted Subsidiary;
provided, however, that upon the occurrence of an Unrestricted Subsidiary
ceasing to be an Unrestricted Subsidiary, such Subsidiary shall be included in
the definition of Restricted Subsidiary.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Securitization Assets" means any accounts receivable, inventory,
royalty or revenue streams from sales of inventory subject to a Qualified
Securitization Financing.
"Securitization Fees" means reasonable distributions or payments made
directly or by means of discounts with respect to any participation interest
issued or sold in connection with, and other fees paid to a Person that is not
a Securitization Subsidiary in connection with any Qualified Securitization
Financing.
"Securitization Financing" means any transaction or series of
transactions that may be entered into by the Company or any of its
Subsidiaries pursuant to which the Company or any of its Subsidiaries may
sell, convey or otherwise transfer to (a) a Securitization Subsidiary (in the
case of a transfer by the Company or any of its Subsidiaries) and (b) any
other Person (in the case of a transfer by a Securitization Subsidiary), or
may grant a security interest in, any Securitization Assets (whether now
existing or arising in the future) of the Company or any of its Subsidiaries,
and any assets related thereto including, without limitation, all collateral
securing such Securitization Assets, all contracts and all guarantees or other
obligations in respect of such Securitization Assets, proceeds of such
Securitization Assets and other assets which are customarily transferred or in
respect of which security interests are customarily granted in connection with
asset securitization transactions involving Securitization Assets and any
Hedging Obligations entered into by the Company or any such Subsidiary in
connection with such Securitization Assets.
"Securitization Repurchase Obligation" means any obligation of a
seller of Securitization Assets in a Qualified Securitization Financing to
repurchase Securitization Assets arising as a result of a breach of a
representation, warranty or covenant or otherwise, including as a result of a
receivable or portion thereof becoming subject to any asserted defense,
dispute, off-set or counterclaim of any kind as a result of any action taken
by, any failure to take action by or any other event relating to the seller.
"Securitization Subsidiary" means a Wholly Owned Subsidiary of the
Company (or another Person formed for the purposes of engaging in a Qualified
Securitization Financing in which the Company or any Subsidiary of the Company
makes an Investment and to which the Parent Guarantor or any Subsidiary of the
Company transfers Securitization Assets and related assets) which engages in
no activities other than in connection with the financing of Securitization
Assets of the Company or its Subsidiaries, all proceeds thereof and all rights
(contractual and other), collateral and other assets relating thereto, and any
business or activities incidental or related to such business, and which is
designated by the Board of Directors of the Company or such other Person (as
provided below) as a Securitization Subsidiary and (a) no portion of the
Indebtedness or any other obligations (contingent or otherwise) of which (i)
is guaranteed by the Company or any other Subsidiary of the Company (excluding
guarantees of obligations (other than the principal of, and interest on,
Indebtedness) pursuant to Standard Securitization Undertakings), (ii) is
recourse to or obligates the Parent Guarantor or any other Subsidiary of the
Company in any way other than pursuant to Standard Securitization Undertakings
or (iii) subjects any property or asset of the Company or any other Subsidiary
of the Company, directly or indirectly, contingently or otherwise, to the
satisfaction thereof, other than pursuant to Standard Securitization
Undertakings, (b) with which neither the Company nor any other Subsidiary of
the Company has any material contract, agreement, arrangement or understanding
other than on terms which the Company reasonably believes to be no less
favorable to the Company or such Subsidiary than those that might be obtained
at the time from Persons that are not Affiliates of the Parent Guarantor and
(c) to which neither the Company nor any other Subsidiary of the Company has
any obligation to maintain or preserve such entity's financial condition or
cause such entity to achieve certain levels of operating results. Any such
designation by the Board of Directors of the Company or such other Person
shall be evidenced to the Trustee by filing with the Trustee a certified copy
of the resolution of the Board of Directors of the Company or such other
Person giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the foregoing conditions.
"Senior Debt" means the principal of, premium, if any, and interest
(including any interest accruing subsequent to the filing of a petition of
bankruptcy at the rate provided for in the documentation with respect thereto,
whether or not such interest is an allowed claim under applicable law) on any
Indebtedness and any Securitization Repurchase Obligation of any Issuer (or of
any Guarantor), whether outstanding on the date of this Indenture or
thereafter created, incurred or assumed, unless, in the case of any particular
obligation, the instrument creating or evidencing the same or pursuant to
which the same is outstanding expressly provides that such obligation shall
not be senior in right of payment to the Notes. Without limiting the
generality of the foregoing, "Senior Debt" shall also include the principal
of, premium, if any, interest (including any interest accruing subsequent to
the filing of a petition of bankruptcy at the rate provided for in the
documentation with respect thereto, whether or not such interest is an allowed
claim under applicable law) on, and all other amounts owing in respect of
(including guarantees of the foregoing obligations):
(1) all monetary obligations of every nature of any Issuers
or any Guarantor under, or with respect to, the Credit Agreements and
the Senior Notes, including, without limitation, obligations to pay
principal, premium and interest, reimbursement obligations under
letters of credit, fees, expenses and indemnities (and guarantees
thereof); and
(2) all Hedging Obligations (and guarantees thereof);
in each case whether outstanding on the date of this Indenture or thereafter
incurred.
Notwithstanding the foregoing, "Senior Debt" shall not include:
(1) any Indebtedness of the Company or any
Guarantor to the Company or a Restricted Subsidiary (other
than any Securitization Repurchase Obligation);
(2) Indebtedness to, or guaranteed on behalf of,
any director, officer or employee of the Company or any
Subsidiary of the Company (including, without limitation,
amounts owed for compensation);
(3) Indebtedness to trade creditors and other
amounts incurred in connection with obtaining goods,
materials or services (including guarantees thereof or
instruments evidencing such liabilities); provided that
obligations incurred pursuant to the Credit Agreements shall
not be excluded pursuant to this clause (3);
(4) Indebtedness represented by Capital Stock;
(5) any liability for federal, state, local or
other taxes owed or owing by the Company or any Guarantor;
(6) that portion of any Indebtedness incurred in
violation of Section 4.03 hereof (but, as to any such
obligation, no such violation shall be deemed to exist for
purposes of this clause (6) if the holder(s) of such
obligation or their representative shall have received an
officer's certificate (and/or a representation or warranty)
from an Issuer or a Guarantor, as applicable, to the effect
that the incurrence of such Indebtedness does not (or, in
the case of revolving credit indebtedness, that the
incurrence of the entire committed amount thereof at the
date on which the initial borrowing thereunder is made would
not) violate such Section 4.03);
(7) Indebtedness which, when incurred and without
respect to any election under Section 1111(b) of Xxxxx 00,
Xxxxxx Xxxxxx Code, is without recourse to the respective
Issuers or Guarantor, as applicable; and
(8) any Indebtedness which is, by its express
terms, subordinated in right of payment to any other
Indebtedness of the Company (it being understood and agreed
that the lien priorities and other agreements in the
intercreditor agreement entered into on the Issue Date with
respect to the Credit Agreements then in effect (or any
similar such agreement entered into in the future) does not
give rise to subordination in right of payment as such term
is used above).
"Senior Notes" means the Issuers' 8 1/2% Senior Notes due 2012.
"Senior Notes Indenture" means that certain agreement dated October
7, 2004, among the Issuers, the Guarantors and the Bank of New York, as
trustee, as amended from time to time.
"Significant Subsidiary" means any Restricted Subsidiary that would
be a "significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation
S-X, promulgated pursuant to the Securities Act, as such Regulation is in
effect on the date hereof.
"Specified Financings" means the financings included in the
Transactions.
"Sponsors" means Blackstone Capital Partners III L.P., Blackstone
Offshore Capital Partners L.P. and their Affiliates.
"Standard Securitization Undertakings" means representations,
warranties, covenants and indemnities entered into by the Company or any
Subsidiary of the Company which the Company has determined in good faith to be
customary in a Securitization Financing, including, without limitation, those
relating to the servicing of the assets of a Securitization Subsidiary, it
being understood that any Securitization Repurchase Obligation shall be deemed
to be a Standard Securitization Undertaking.
"Stated Maturity" means, with respect to any installment of interest
or principal on any series of Indebtedness, the day on which the payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and will not include any contingent obligations
to repay, redeem or repurchase any such interest or principal prior to the
date originally scheduled for the payment thereof.
"Subordinated Indebtedness" means (a) with respect to the Company,
any Indebtedness of the Company that is by its terms subordinated in right of
payment to the Notes and (b) with respect to any Guarantor of the Notes, any
Indebtedness of such Guarantor that is by its terms subordinated in right of
payment to its Guarantee of the Notes.
"Subsidiary" means, with respect to any specified Person:
(1) any corporation, association or other business entity,
of which more than 50% of the total voting power of shares of Capital
Stock entitled (without regard to the occurrence of any contingency)
to vote in the election of directors, managers or trustees thereof is
at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person (or a
combination thereof); and
(2) any partnership, joint venture, limited liability
company or similar entity of which (x) more than 50% of the capital
accounts, distribution rights, total equity and voting interests or
general or limited partnership interests, as applicable, are owned or
controlled, directly or indirectly, by such Person or one or more of
the other Subsidiaries of that Person or a combination thereof
whether in the form of membership, general, special or limited
partnership or otherwise and (y) such Person or any Restricted
Subsidiary of such Person is a controlling general partner or
otherwise controls such entity.
"Tax Distributions" means any distributions described in Section
4.04(b)(ix).
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa
77bbbb) as in effect on the Issue Date.
"Total Assets" means the total consolidated assets of the Company and
its Restricted Subsidiaries, as shown on the most recent balance sheet of the
Company.
"Transactions" means the transactions contemplated by (i) the
acquisition of O-I Plastic, (ii) the Credit Agreements, (iii) the offering of
the Notes and the Senior Notes and (iv) the refinancing of the existing
Indebtedness of the Company.
"Treasury Rate" means, as of the redemption date, the yield to
maturity as of the redemption date of United States Treasury securities with a
constant maturity (as compiled and published in the most recent Federal
Reserve Statistical Release H.15(519) that has become publicly available at
least two business days prior to such redemption date (or, if such Statistical
Release is no longer published, any publicly available source of similar
market data)) most nearly equal to the period from the redemption date to
October 15, 2009; provided, however, that if the period from the redemption
date to October 15, 2009 is less than one year, the weekly average yield on
actually traded United States Treasury securities adjusted to a constant
maturity of one year will be used.
"Trust Officer" means:
(1) any officer within the corporate trust department of the
Trustee, including any vice president, assistant vice president,
assistant treasurer, trust officer or any other officer of the
Trustee who customarily performs functions similar to those performed
by the Persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of such
person's knowledge of and familiarity with the particular subject,
and
(2) who shall have direct responsibility for the
administration of this Indenture.
"Trustee" means, initially, The Bank of New York, a New York banking
corporation, in its capacity as Trustee hereunder, and its successors in such
capacity.
"Uniform Commercial Code" means the New York Uniform Commercial Code
as in effect from time to time.
"Unrestricted Subsidiary" means:
(i) any Subsidiary of the Company that at the time of
determination is an Unrestricted Subsidiary (as designated by the
Board of Directors of the Company, as provided below); and
(ii) any Subsidiary of an Unrestricted Subsidiary.
The Board of Directors of the Company may designate any Subsidiary of the
Company (including any existing Subsidiary and any newly acquired or newly
formed Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary or
any of its Subsidiaries owns any Equity Interests or Indebtedness of, or owns
or holds any Lien on, any property of, the Company or any Subsidiary of the
Company (other than any Subsidiary of the Subsidiary to be so designated),
provided that (a) any Unrestricted Subsidiary must be an entity of which
shares of the Capital Stock or other equity interests (including partnership
interests) entitled to cast at least a majority of the votes that may be cast
by all shares or equity interests having ordinary voting power for the
election of directors or other governing body are owned, directly or
indirectly, by the Company, (b) such designation complies with Section 4.04
hereof and (c) each of (x) the Subsidiary to be so designated and (y) its
Subsidiaries has not at the time of designation, and does not thereafter,
create, incur, issue, assume, guarantee or otherwise become directly or
indirectly liable with respect to any Indebtedness pursuant to which the
lender has recourse to any of the assets of the Company or any Restricted
Subsidiary. The Board of Directors may designate any Unrestricted Subsidiary
to be a Restricted Subsidiary; provided that, immediately after giving effect
to such designation, no Default or Event of Default shall have occurred and be
continuing and either (A) the Fixed Charge Coverage Ratio would be at least
2.00 to 1.00 or (B) the Fixed Charge Coverage Ratio would be greater than
immediately prior to such designation, in each case on a pro forma basis
taking into account such designation. Any such designation by the Board of
Directors shall be notified by the Company to the Trustee by promptly filing
with the Trustee a copy of the board resolution giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the foregoing provisions.
"Voting Stock" of any Person as of any date means the Capital Stock
of such Person that is at the time entitled to vote in the election of the
Board of Directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing:
(1) the sum of the products obtained by multiplying (a) the
amount of each then remaining installment, sinking fund, serial
maturity or other required payments of principal, including payment
at final maturity, in respect of the Indebtedness, by (b) the number
of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment; by
(2) the then outstanding principal amount of such
Indebtedness.
"Wholly Owned Restricted Subsidiary" is any Wholly Owned Subsidiary
that is a Restricted Subsidiary.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such
Person, 100% of the outstanding Capital Stock or other ownership interests of
which (other than directors' qualifying shares or nominee or other similar
shares required pursuant to applicable law) shall at the time be owned by such
Person or by one or more Wholly Owned Subsidiaries of such Person or by such
Person and one or more Wholly Owned Subsidiaries of such Person.
Section 1.02. Other Definitions.
Defined
Term in Section
---- ----------
"Affiliate Transaction"........................................... 4.07
"Appendix"........................................................ Preamble
"Asset Sale Offer................................................. 4.06(b)
"Bankruptcy Law".................................................. 6.01
"Change of Control Payment"....................................... 4.08(a)
"Change of Control Offer"......................................... 4.08(b)
"Clearstream"..................................................... Appendix A
"Custodian"....................................................... 6.01
"Definitive Notes"................................................ Appendix A
"Depository"...................................................... Appendix A
"Euroclear"....................................................... Appendix A
"Event of Default"................................................ 6.01
"Excess Proceeds"................................................. 4.06(b)
"Exchange Notes".................................................. Preamble
"Global Securities Legend"........................................ Appendix A
"Guaranteed Obligations".......................................... 11.01(d)
"IAI"............................................................. Appendix A
"incorporated provision".......................................... 13.01
"incur"........................................................... 4.03(a)
"Initial Notes"................................................... Preamble
"Initial Purchasers".............................................. Appendix A
"Offer Period".................................................... 4.06(d)
"Original Notes".................................................. Preamble
"Paying Agent".................................................... 2.04
"Payment Blockage Notice"......................................... 10.03
"Payment Blockage Period"......................................... 10.03
"protected purchaser"............................................. 2.08
"Purchase Agreement".............................................. Appendix A
"QIB"............................................................. Appendix A
"Refundity Capital Stock"......................................... 4.04(b)
"Registration Rights Agreement"................................... Appendix A
"Registered Exchange Offer"....................................... Appendix A
"Registrar"....................................................... 2.04
"Regulation S".................................................... Appendix A
"Regulation S Securities"......................................... Appendix A
"Restricted Payment".............................................. 4.04(a)
"Restricted Period"............................................... Appendix A
"Restricted Securities Legend".................................... Appendix A
"Retired Capital Stock"........................................... 4.04(b)
"Rule 501"........................................................ Appendix A
"Rule 144A"....................................................... Appendix A
"Rule 144A Notes"................................................. Appendix A
"Securities Custodian"............................................ Appendix A
"Shelf Registration Statement".................................... Appendix A
"Subordinated Note Payments"...................................... 10.02
"Successor Company"............................................... 5.01(a)
"Successor Guarantor"............................................. 5.02
"Transfer Restricted Notes"....................................... Appendix A
"Unrestricted Definitive Note".................................... Appendix A
Section 1.03. Incorporation by Reference of Trust Indenture Act. This
Indenture incorporates by reference certain provisions of the TIA. The
following TIA terms have the following meanings:"Commission" means the SEC.
"indenture securities" means the Notes and the Guarantees.
"obligor" on the indenture securities means the Issuers, the
Guarantors and any other obligor on the Notes.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule have
the meanings assigned to them by such definitions.
Section 1.04. Rules of Construction. Unless the context otherwise
requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(c) "or" is not exclusive;
(d) "including" means including without limitation;
(e) words in the singular include the plural and words in
the plural include the singular;
(f) unsecured Indebtedness shall not be deemed to be
subordinate or junior to Secured Indebtedness merely by virtue of its
nature as unsecured Indebtedness;
(g) the principal amount of any non-interest bearing or
other discount security at any date shall be the principal amount
thereof that would be shown on a balance sheet of the Issuers dated
such date prepared in accordance with GAAP;
(h) the principal amount of any Preferred Stock shall be (i)
the maximum liquidation value of such Preferred Stock or (ii) the
maximum mandatory redemption or mandatory repurchase price with
respect to such Preferred Stock, whichever is greater;
(i) unless otherwise specified herein, all accounting terms
used herein shall be interpreted, all accounting determinations
hereunder shall be made, and all financial statements required to be
delivered hereunder shall be prepared in accordance with GAAP;
(j) "$" and "U.S. Dollars" each refer to United States
dollars, or such other money of the United States of America that at
the time of payment is legal tender for payment of public and private
debts; and
(k) whenever in this Indenture there is mentioned, in any
context, principal, interest or any other amount payable under or
with respect to any Notes, such mention shall be deemed to include
mention of the payment of Liquidated Damages, to the extent that, in
such context, Liquidated Damages are, were, or would be payable in
respect thereof.
ARTICLE 2
THE NOTES
Section 2.01. Amount of Notes; Issuable in Series. The aggregate
principal amount of Original Notes which may be authenticated and delivered
under this Indenture on the Issue Date is $375,000,000. The Notes may be
issued in one or more series. All Notes of any one series shall be
substantially identical except as to denomination.The Issuers may from time to
time after the Issue Date issue Additional Notes under this Indenture in an
unlimited principal amount, so long as (i) the incurrence of the Indebtedness
represented by such Additional Notes is at such time permitted by Section 4.03
and (ii) such Additional Notes are issued in compliance with the other
applicable provisions of this Indenture. With respect to any Additional Notes
issued after the Issue Date (except for Notes authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Notes
pursuant to Sections 2.07, 2.08, 2.09, 2.10, 3.03(c), 4.06(f), 4.08(c) or the
Appendix), there shall be (a) established in or pursuant to a resolution of
the Board of Directors and (b) (i) set forth or determined in the manner
provided in an Officers' Certificate or (ii) established in one or more
indentures supplemental hereto, prior to the issuance of such Additional
Notes:
(1) whether such Additional Notes shall be issued as part of
a new or existing series of Notes and the title of such Additional
Notes (which shall distinguish the Additional Notes of the series
from Notes of any other series);
(2) the aggregate principal amount of such Additional Notes
which may be authenticated and delivered under this Indenture,
(3) the issue price and issuance date of such Additional
Notes, including the date from which interest on such Additional
Notes shall accrue;
(4) if applicable, that such Additional Notes shall be
issuable in whole or in part in the form of one or more Global Notes
and, in such case, the respective depositaries for such Global Notes,
the form of any legend or legends which shall be borne by such Global
Notes in addition to or in lieu of those set forth in Exhibit A or B
hereto and any circumstances in addition to or in lieu of those set
forth in Section 2.2 of the Appendix in which any such Global Notes
may be exchanged in whole or in part for Additional Notes registered,
or any transfer of such Global Notes in whole or in part may be
registered, in the name or names of Persons other than the depositary
for such Global Notes or a nominee thereof; and
(5) if applicable, that such Additional Notes that are not
Transfer Restricted Notes shall not be issued in the form of Initial
Notes as set forth in Exhibit A, but shall be issued in the form of
Exchange Notes as set forth in Exhibit B.
If any of the terms of any Additional Notes are established by action
taken pursuant to a resolution of the Board of Directors, a copy of an
appropriate record of such action shall be certified by the Secretary or any
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Officers' Certificate or the indenture supplemental hereto
setting forth the terms of the Additional Notes.
Section 2.02. Form and Dating. Provisions relating to the Initial
Notes and the Exchange Notes are set forth in the Appendix, which is hereby
incorporated in and expressly made a part of this Indenture. The (i) Initial
Notes and the Trustee's certificate of authentication and (ii) any Additional
Notes (if issued as Transfer Restricted Notes) and the Trustee's certificate
of authentication shall each be substantially in the form of Exhibit A hereto,
which is hereby incorporated in and expressly made a part of this Indenture.
The (i) Exchange Notes and the Trustee's certificate of authentication and
(ii) any Additional Notes issued other than as Transfer Restricted Notes and
the Trustee's certificate of authentication shall each be substantially in the
form of Exhibit B hereto, which is hereby incorporated in and expressly made a
part of this Indenture. The Notes may have notations, legends or endorsements
required by law, stock exchange rule, agreements to which the Issuers or any
Guarantor is subject, if any, or usage (provided that any such notation,
legend or endorsement is in a form acceptable to the Issuer). Each Note shall
be dated the date of its authentication. The Notes shall be issuable only in
registered form without interest coupons and only in denominations of $1,000
and integral multiples of $1,000 in excess thereof.
Section 2.03. Execution and Authentication. The Trustee shall
authenticate and make available for delivery upon a written order of the
Issuers signed by one Officer (a) Original Notes for original issue on the
date hereof in an aggregate principal amount of $375,000,000, (b) subject to
the terms of this Indenture, Additional Notes in an aggregate principal amount
to be determined at the time of issuance and specified therein and (c) the
Exchange Notes for issue in a Registered Exchange Offer pursuant to the
Registration Rights Agreement for a like principal amount of Initial Notes
exchanged pursuant thereto or otherwise pursuant to an effective registration
statement under the Securities Act. Such order shall specify the amount of the
Notes to be authenticated, the date on which the original issue of Notes is to
be authenticated and whether the Notes are to be Initial Notes or Exchange
Notes. Notwithstanding anything to the contrary in this Indenture or the
Appendix, any issuance of Additional Notes after the Issue Date shall be in a
principal amount of at least $1,000 and integral multiples of $1,000 in excess
thereof, whether such Additional Notes are of the same or a different series
than the Original Xxxxx.Xxx Officer shall sign the Notes for the Issuers by
manual or facsimile signature.
If an Officer whose signature is on a Note no longer holds that
office at the time the Trustee authenticates the Note, the Note shall be valid
nevertheless.
A Note shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Note. The
signature shall be conclusive evidence that the Note has been authenticated
under this Indenture.
The Trustee may appoint one or more authenticating agents reasonably
acceptable to the Issuers to authenticate the Notes. Any such appointment
shall be evidenced by an instrument signed by a Trust Officer, a copy of which
shall be furnished to the Issuers. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Notes 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 any Registrar, Paying Agent or agent for service of notices and
demands.
The Trustee is hereby authorized to enter into a letter of
representations with the Depository in the form provided by the Issuers and to
act in accordance with such letter.
Section 2.04. Registrar and Paying Agent. i) The Issuers shall
maintain (i) an office or agency where Notes may be presented for registration
of transfer or for exchange (the "Registrar") and (ii) an office or agency in
the Borough of Manhattan, the City of New York, the State of New York, where
Notes may be presented for payment (the "Paying Agent"). The Registrar shall
keep a register of the Notes and of their transfer and exchange. The Issuers
may have one or more co-registrars and one or more additional paying agents.
The term "Registrar" includes any co-registrars. The Company initially
appoints the Trustee as (i) Registrar and Paying Agent in connection with the
Notes and (ii) the Securities Custodian with respect to the Global Notes.(a)
The Issuers shall enter into an appropriate agency agreement with any
Registrar or Paying Agent not a party to this Indenture, which shall
incorporate the terms of the TIA. The agreement shall implement the provisions
of this Indenture that relate to such agent. The Issuers shall notify the
Trustee of the name and address of any such agent. If the Issuers fail to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall
be entitled to appropriate compensation therefor pursuant to Section 7.07. The
Company or any of its Subsidiaries may act as Paying Agent or Registrar.
(b) The Issuers may remove any Registrar or Paying Agent upon written
notice to such Registrar or Paying Agent and to the Trustee; provided,
however, that no such removal shall become effective until (i) if applicable,
acceptance of an appointment by a successor as evidenced by an appropriate
agreement entered into by the Company and such successor Registrar or Paying
Agent, as the case may be, and delivered to the Trustee or (ii) notification
to the Trustee that the Trustee shall serve as Registrar or Paying Agent until
the appointment of a successor in accordance with clause (i) above. The
Registrar or Paying Agent may resign at any time upon written notice to the
Company and the Trustee; provided, however, that the Trustee may resign as
Paying Agent or Registrar only if the Trustee also resigns as Trustee in
accordance with Section 7.08.
Section 2.05. Paying Agent to Hold Money in Trust. Prior to each due
date of the principal of and interest on any Note, the Company shall deposit
with each Paying Agent (or if the Company or a Subsidiary is acting as Paying
Agent, segregate and hold in trust for the benefit of the Persons entitled
thereto) a sum sufficient to pay such principal and interest when so becoming
due. The Company shall require each Paying Agent (other than the Trustee) to
agree in writing that a Paying Agent shall hold in trust for the benefit of
Holders or the Trustee all money held by a Paying Agent for the payment of
principal of and interest on the Notes, and shall notify the Trustee of any
default by the Company in making any such payment. If the Company or a
Subsidiary of the Company acts as Paying Agent, it shall segregate the money
held by it as Paying Agent and hold it in trust for the benefit of the Persons
entitled thereto. The Company at any time may require a Paying Agent to pay
all money held by it to the Trustee and to account for any funds disbursed by
such Paying Agent. Upon complying with this Section, a Paying Agent shall have
no further liability for the money delivered to the Trustee.
Section 2.06. Holder Lists. The Trustee shall preserve in as current
a form as is reasonably practicable the most recent list available to it of
the names and addresses of Holders. If the Trustee is not the Registrar, the
Company shall furnish, or cause the Registrar to furnish, to the Trustee, in
writing at least five Business Days before each interest payment date and at
such other times as the Trustee may request in writing, a list in such form
and as of such date as the Trustee may reasonably require of the names and
addresses of Holders.
Section 2.07. Transfer and Exchange. The Notes shall be issued in
registered form and shall be transferable only upon the surrender of a Note
for registration of transfer and in compliance with the Appendix. When a Note
is presented to the Registrar with a request to register a transfer, the
Registrar shall register the transfer as requested if its requirements
therefor are met. When Notes are presented to the Registrar with a request to
exchange them for an equal principal amount of Notes of other denominations,
the Registrar shall make the exchange as requested if the same requirements
are met. To permit registration of transfers and exchanges, the Issuers shall
execute and the Trustee shall authenticate Notes at the Registrar's request.
The Issuers may require payment of a sum sufficient to pay all taxes,
assessments or other governmental charges in connection with any transfer or
exchange pursuant to this Section. The Issuers shall not be required to make,
and the Registrar need not register, transfers or exchanges of Notes selected
for redemption (except, in the case of Notes to be redeemed in part, the
portion thereof not to be redeemed) or of any Notes for a period of 15 days
before a selection of Notes to be redeemed.Prior to the due presentation for
registration of transfer of any Notes, the Issuers, the Guarantors, the
Trustee, each Paying Agent and the Registrar may deem and treat the Person in
whose name a Note is registered as the absolute owner of such Note for the
purpose of receiving payment of principal of and interest, if any, on such
Note and for all other purposes whatsoever, whether or not such Note is
overdue, and none of the Issuers, any Guarantor, the Trustee, a Paying Agent
or the Registrar shall be affected by notice to the contrary.
Any Holder of a beneficial interest in a Global Note shall, by
acceptance of such beneficial interest, agree that transfers of beneficial
interests in such Global Note may be effected only through a book-entry system
maintained by (a) the Holder of such Global Note (or its agent) or (b) any
Holder of a beneficial interest in such Global Note, and that ownership of a
beneficial interest in such Global Note shall be required to be reflected in a
book entry.
All Notes issued upon any transfer or exchange pursuant to the terms
of this Indenture shall evidence the same debt and shall be entitled to the
same benefits under this Indenture as the Notes surrendered upon such transfer
or exchange.
Section 2.08. Replacement Notes. If a mutilated Note is surrendered
to the Registrar or if the Holder of a Note claims that the Note has been
lost, destroyed or wrongfully taken, the Issuers shall issue and the Trustee
shall authenticate a replacement Note if the requirements of Section 8-405 of
the Uniform Commercial Code are met, such that the Holder (a) satisfies the
Company or the Trustee within a reasonable time after such Holder has notice
of such loss, destruction or wrongful taking and the Registrar does not
register a transfer prior to receiving such notification, (b) makes such
request to the Company or the Trustee prior to the Note being acquired by a
protected purchaser as defined in Section 8-303 of the Uniform Commercial Code
(a "protected purchaser") and (c) satisfies any other reasonable requirements
of the Trustee. If required by the Trustee or the Company, such Holder shall
furnish an indemnity bond sufficient in the judgment of the Trustee to protect
the Company, the Trustee, a Paying Agent and the Registrar from any loss that
any of them may suffer if a Note is replaced. The Company and the Trustee may
charge the Holder for their expenses in replacing a Note (including without
limitation, attorneys' fees and disbursements in replacing such Note). In the
event any such mutilated, lost, destroyed or wrongfully taken Note has become
or is about to become due and payable, the Issuers in their discretion may pay
such Note instead of issuing a new Note in replacement thereof. Every
replacement Note is an additional obligation of the Issuers.
The provisions of this Section 2.08 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, lost, destroyed or wrongfully taken
Notes.
Section 2.09. Outstanding Notes. ii) Notes outstanding at any time
are all Notes that have been authenticated by the Trustee except for:
(1) Notes cancelled by the Trustee or delivered to it for
cancellation;
(2) any Note which has been replaced pursuant to Section
2.08 unless and until the Trustee and the Company receive proof
satisfactory to them that the replaced Note is held by a protected
purchaser; and
(3) on or after the maturity date or any redemption date or
date for purchase of the Notes pursuant to an Offer to Purchase,
those Notes payable or to be redeemed or purchased on that date for
which the Trustee (or Paying Agent, other than the Company or an
Affiliate of the Company) holds money sufficient to pay all amounts
then due.
(b) A Note does not cease to be outstanding because the Issuers or
one of their Affiliates holds the Note, provided that in determining whether
the Holders of the requisite principal amount of the outstanding Notes have
given or taken any request, demand, authorization, direction, notice, consent,
waiver or other action hereunder, Notes owned by the Issuers or any Affiliate
of the Issuers will be disregarded and deemed not to be outstanding, (it being
understood that in determining whether the Trustee is protected in relying
upon any such request, demand, authorization, direction, notice, consent,
waiver or other action, only Notes which the Trustee knows to be so owned will
be so disregarded).
(c) If a Paying Agent segregates and holds in trust, in accordance
with this Indenture, on a redemption date or maturity date, money sufficient
to pay all principal and interest payable on that date with respect to the
Notes (or portions thereof) to be redeemed or maturing, as the case may be,
and no Paying Agent is prohibited from paying such money to the Holders on
that date pursuant to the terms of this Indenture, then on and after that date
such Notes (or portions thereof) will cease to be outstanding and interest on
them ceases to accrue.
Section 2.10. Temporary Notes. In the event that Definitive Notes are
to be issued under the terms of this Indenture, until such Definitive Notes
are ready for delivery, the Issuers may prepare and the Trustee shall
authenticate temporary Notes. Temporary Notes shall be substantially in the
form of Definitive Notes but may have variations that the Issuers consider
appropriate for temporary Notes. Without unreasonable delay, the Issuers shall
prepare and the Trustee shall authenticate Definitive Notes and make them
available for delivery in exchange for temporary Notes upon surrender of such
temporary Notes at the office or agency of the Issuer, without charge to the
Holder. Until such exchange, temporary Notes shall be entitled to the same
rights, benefits and privileges as Definitive Notes.
Section 2.11. Cancellation. The Issuers at any time may deliver Notes
to the Trustee for cancellation. The Registrar and each Paying Agent shall
forward to the Trustee any Notes surrendered to them for registration of
transfer, exchange or payment. The Trustee and no one else shall cancel all
Notes surrendered for registration of transfer, exchange, payment or
cancellation and shall dispose of canceled Notes in accordance with its
customary procedures or deliver canceled Notes to the Issuers pursuant to
written direction by an Officer. The Issuers may not issue new Notes to
replace Notes they have redeemed, paid or delivered to the Trustee for
cancellation. The Trustee shall not authenticate Notes in place of canceled
Notes other than pursuant to the terms of this Indenture.
Section 2.12. Defaulted Interest. If the Issuers default in a payment
of interest on the Dollar Notes, the Issuers shall pay the defaulted interest
then borne by the Notes (plus interest on such defaulted interest to the
extent lawful), in any lawful manner. The Issuers may pay the defaulted
interest to the Persons who are Holders on a subsequent special record date.
The Issuers shall fix or cause to be fixed any such special record date and
payment date to the reasonable satisfaction of the Trustee and shall promptly
mail or cause to be mailed to each affected Holder a notice that states the
special record date, the payment date and the amount of defaulted interest to
be paid.
Section 2.13. CUSIP Numbers, ISINs, etc. The Issuers in issuing the
Notes may use CUSIP numbers, ISINs and "Common Code" numbers (if then
generally in use) and, if so, the Trustee shall use CUSIP numbers, ISINs and
"Common Code" numbers in notices of redemption as a convenience to Holders;
provided, however, that any such notice may state that no representation is
made as to the correctness of such numbers, either as printed on the Notes or
as contained in any notice of a redemption that reliance may be placed only on
the other identification numbers printed on the Notes and that any such
redemption shall not be affected by any defect in or omission of such numbers.
The Issuers shall advise the Trustee of any change in the CUSIP numbers, ISINs
and "Common Code" numbers.
ARTICLE 3
REDEMPTION
Section 3.01. Optional Redemption. iii) The Notes may be redeemed, in
whole or in part, at any time prior to October 15, 2009, at the option of the
Issuers upon not less than 30 nor more than 60 days' prior notice mailed by
first-class mail to each Holder's registered address, at a redemption price
equal to 100% of the principal amount of the Notes to be redeemed plus the
Applicable Premium as of, and accrued and unpaid interest and Liquidated
Damages, if any, to, the applicable redemption date (subject to the right of
Holders of record on the record date to receive interest due on the relevant
interest payment date).(a) On or after October 15, 2009, the Issuers may
redeem all or a part of the Notes upon not less than 30 nor more than 60 days'
notice, at the applicable redemption price (expressed as percentages of
principal amount) set forth below plus accrued and unpaid interest and
Liquidated Damages, if any, on the Notes to be redeemed, if any, to the
applicable redemption date, if redeemed during the twelve-month period
beginning on October 15 of the years indicated below:
YEAR PERCENTAGE
---- ----------
2009...................................... 104.938%
2010...................................... 103.292%
2011...................................... 101.646%
2012 and thereafter....................... 100.000%
Section 3.02. Redemption with Proceeds of Equity Offerings. At any
time and from time to time on or prior to October 15, 2007, the Issuers may,
on any one or more occasions, redeem up to 40% of the aggregate principal
amount of the Notes issued under this Indenture at a redemption price of
109.875% of the principal amount of the Notes with the net cash proceeds
received by the Issuers of any Equity Offerings and, in each case, plus
accrued and unpaid interest and Liquidated Damages, if any, to the redemption
date, provided that:
(i) at least 60% of the aggregate principal amount of Notes
issued under this Indenture remains outstanding immediately after the
occurrence of such redemption (excluding Notes held by the Company
and its Subsidiaries); and
(ii) the redemption occurs within 120 days of the date of
the closing of such Equity Offering.
Section 3.03. Method and Effect of Redemption. iv) If the Issuers
elect to redeem Notes, they must notify the Trustee of the redemption date,
the principal amount of Notes to be redeemed and the redemption price by
delivering an Officers' Certificate and an Opinion of Counsel, to the effect
that such redemption shall comply with the conditions set forth in this
Article 3, 40 to 60 days before the redemption date (unless a shorter period
is satisfactory to the Trustee). The Trustee shall select the Notes to be
redeemed in compliance with the principal national securities exchange, if
any, on which the Notes are listed, or if such Notes are not so listed, on a
pro rata basis, by lot or by any other method the Trustee in its sole
discretion deems fair and appropriate, in denominations of $1,000 principal
amount or an integral multiple of $1,000 in excess thereof. The Trustee shall
notify the Issuers promptly of the Notes or portions of Notes to be called for
redemption. Any such notice may be cancelled at any time prior to notice of
such redemption being mailed to any Holder and shall thereby be void and of no
effect.(a) Notice of redemption must be sent by the Issuers or at the Issuers'
request, by the Trustee in the name and at the expense of the Issuer, to
Holders whose Notes are to be redeemed at least 30 but not more than 60 days
before the redemption date, except that redemption notices may be mailed more
than 60 days prior to a redemption date if the notice is issued in connection
with Section 8.01 or Section 8.02 of this Indenture. The notice of redemption
will identify the Notes to be redeemed and will include or state the
following:
(i) the redemption date;
(ii) the redemption price including the portion thereof
representing any accrued interest or Liquidated Damages, if any;
(iii) the names and addresses of the Paying Agents where
Notes are to be surrendered;
(iv) notes called for redemption must be surrendered to a
Paying Agent in order to collect the redemption price and any accrued
interest or Liquidated Damages;
(v) on the redemption date the redemption price will become
due and payable on Notes called for redemption and interest on Notes
called for redemption will cease to accrue on and after the
redemption date;
(vi) if fewer than all the outstanding Notes are to be
redeemed, the certificate numbers and principal amounts of the
particular Notes to be redeemed, the aggregate principal amount of
Notes to be redeemed and the aggregate principal amount of Notes to
be outstanding after such partial redemption;
(vii) if any Note is to be redeemed in part only, the
portion of the principal amount of that Note that is to be redeemed;
(viii) if any Note is to be redeemed in part, on and after
the redemption date, upon surrender of such Note, new Notes equal in
principal amount to the unredeemed part will be issued;
(ix) the CUSIP number, ISIN and/or "Common Code" number, if
any, printed on the Notes being redeemed; and
(x) that no representation is made as to the correctness or
accuracy of the CUSIP number or CINS number, or "common number"
listed in such notice or printed on the Notes and that the Holder
should rely only on the other identification numbers printed on the
Notes.
(b) Once notice of redemption pursuant to this Section 3.03 is mailed
to the Holders, Notes called for redemption become due and payable on the
redemption date and at the redemption price stated in the notice. Upon
surrender to any Paying Agent, the Issuers shall redeem such Notes at the
redemption price. Commencing on the redemption date, Notes redeemed will cease
to accrue interest; provided, however, that if the redemption date is after a
regular record date and on or prior to the interest payment date, the accrued
interest and Liquidated Damages, if any, shall be payable to the Holder of the
redeemed Notes registered on the relevant record date. Failure to give notice
or any defect in the notice to any Holder shall not affect the validity of the
notice to any other Holder. Upon surrender of any Note redeemed in part, the
holder will receive a new note equal in principal amount to the unredeemed
portion of the surrendered Note.
Section 3.04. Deposit of Redemption Price. Prior to 10:00 a.m., New
York City time, on the redemption date, the Issuers shall deposit with the
Paying Agent (or, if the Company or a Subsidiary is a Paying Agent, shall
segregate and hold in trust) money sufficient to pay the redemption price of
and accrued interest on all Notes or portions thereof to be redeemed on that
date other than Notes or portions of Notes called for redemption that have
been delivered by the Issuers to the Trustee for cancellation. On and after
the redemption date, interest shall cease to accrue on Notes or portions
thereof called for redemption so long as the Issuers has deposited with the
Paying Agent funds sufficient to pay the principal of, plus accrued and unpaid
interest on, the Notes to be redeemed, unless a Paying Agent is prohibited
from making such payment pursuant to the terms of this Indenture.
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes. v) The Issuers agree to pay the
principal of and interest on the Notes on the dates and in the manner provided
in the Notes and this Indenture. Not later than 9:00 A.M. (New York City time)
on the due date of any principal of or interest on any Notes, or any
redemption or purchase price of the Notes, the Issuers will deposit with the
Trustee (or Paying Agent) money in immediately available funds sufficient to
pay such amounts, provided that if the Issuers are acting as Paying Agent,
they will, on or before each due date, segregate and hold in a separate trust
fund for the benefit of the Holders a sum of money sufficient to pay such
amounts until paid to such Holders or otherwise disposed of as provided in the
Indenture. In each case the Issuers will promptly notify the Trustee of their
compliance with this paragraph. (a) An installment of principal or interest
will be considered paid on the date due if the Trustee (or Paying Agent, other
than the Issuers) holds on that date money designated for and sufficient to
pay the installment. If the Issuers act as Paying Agent, an installment of
principal or interest will be considered paid on the due date only if paid to
the Holders.
The Issuers shall pay interest on overdue principal at the rate
specified therefor in the Notes, and they shall pay interest on overdue
installments of interest at the same rate borne by the Notes to the extent
lawful.
Section 4.02. Reports and Other Information. Notwithstanding that the
Issuers may not be subject to the reporting requirements of Section 13 or
15(d) of the Exchange Act, or otherwise report on an annual and quarterly
basis on forms provided for such annual and quarterly reporting pursuant to
rules and regulations promulgated by the SEC, the Company shall (x) file with
the SEC and (y) provide the Trustee and Holders with copies thereof, without
cost to each Holder, the following information:
(a) within 90 days after the end of each fiscal year (or
such shorter period as may be required by the SEC), annual reports on
Form 10-K (or any successor or comparable form) containing the
information required to be contained therein (or required in such
successor or comparable form), and
(b) within 45 days after the end of each of the first three
fiscal quarters of each fiscal year (or such shorter period as may be
required by the SEC) commencing with the fiscal quarter ending
September 30, 2004, reports on Form 10-Q (or any successor or
comparable form);
provided, however, that the Company shall not be so obligated to file such
reports with the SEC if the SEC does not permit such filing, in which event
the Company shall make available such information to prospective purchasers of
Notes, in addition to providing such information to the Trustee and the
Holders, in each case within 15 days after the time the Issuers would be
required to file such information with the SEC if it were subject to Section
13 or 15(d) of the Exchange Act.
So long as:
(i) the Parent Guarantor is a Guarantor (there being no
obligation of the Parent Guarantor to do so), holds no material
assets other than cash, Cash Equivalents and the Capital Stock of the
Company (and performs the related incidental activities associated
with such ownership),
(ii) the Parent Guarantor complies with the requirements of
Rule 3-10 of Regulation S-X promulgated by the Commission (or any
successor provision), and
(iii) the rules and regulations of the SEC permit the
Company and the Parent Guarantor to report at the Parent Guarantor's
level on a consolidated basis,
the reports, information and other documents required to be filed and
furnished to Holders of the Notes pursuant to this Section 4.02 may, at the
option of the Company, be filed by and be those of the Parent Guarantor rather
than the Company.
The Company shall also furnish to Holders, securities analysts and
prospective investors upon request the information required to be delivered
pursuant to Rule 144 and Rule 144A(d)(4) under the Securities Act (it being
acknowledged and agreed that, prior to the first date on which information is
required to be provided under this Section 4.02, the information contained in
the Offering Memorandum is sufficient for this purpose).
Notwithstanding the foregoing, the requirements described in this
Section 4.02 shall be deemed satisfied prior to the commencement of the
Registered Exchange Offer pursuant to the Registration Rights Agreement or the
effectiveness of the Shelf Registration Statement contemplated thereby by the
filing with the SEC of the Exchange Offer Registration Statement and/or Shelf
Registration Statement, and any amendments thereto, with such financial
information that satisfies Regulation S-X of the Securities Act.
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Issuers'
compliance with any of their covenants hereunder (as to which the Trustee is
entitled to rely exclusively (subject to Article 7 hereof) on Officers'
Certificates).
Section 4.03. Limitation on Incurrence of Indebtedness and Issuance
of Preferred Stock. vi) The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, issue,
assume, guarantee or otherwise become directly or indirectly liable,
contingently or otherwise (collectively, "incur"), with respect to any
Indebtedness (including Acquired Debt), and the Company will not permit any of
its Restricted Subsidiaries to issue any shares of Preferred Stock; provided,
however, that the Company and any Restricted Subsidiary may incur Indebtedness
(including Acquired Debt) and any Restricted Subsidiary may issue Preferred
Stock if the Fixed Charge Coverage Ratio for the Company's most recently ended
four full fiscal quarters for which internal financial statements are
available immediately preceding the date on which such additional Indebtedness
is incurred or such Preferred Stock is issued would have been at least 2.00 to
1.00, determined on a pro forma basis (including a pro forma application of
the net proceeds therefrom), as if the additional Indebtedness had been
incurred or the Preferred Stock had been issued, as the case may be, and the
application of proceeds therefrom had occurred at the beginning of such
four-quarter period.
(a) The limitations set forth in Section 4.03(a) shall not prohibit
the incurrence of any of the following (collectively, "Permitted Debt"):
(i) Indebtedness under the Credit Agreements together with
the incurrence of the guarantees thereunder and the issuance and
creation of letters of credit and bankers' acceptances thereunder
(with letters of credit and bankers' acceptances being deemed to have
a principal amount equal to the face amount thereof), up to an
aggregate principal amount of $2,200 million outstanding at any one
time less the amount of all mandatory principal payments of term
loans and permanent reductions in the revolving credit portion of the
Credit Agreements actually made by the borrower thereunder with Net
Proceeds from Asset Sales;
(ii) Existing Indebtedness (other than Indebtedness
described in clause (i));
(iii) Indebtedness (including Capitalized Lease Obligations)
incurred or issued by the Company or any Restricted Subsidiary to
finance the purchase, lease or improvement of property (real or
personal) or equipment that is used or useful in a Permitted Business
(whether through the direct purchase of assets or the Capital Stock
of any Person owning such assets) in an aggregate principal amount
that, when aggregated with the principal amount of all other
Indebtedness then outstanding and incurred pursuant to this clause
(iii), does not exceed 7.5% of Total Assets;
(iv) Indebtedness incurred by the Company or any Restricted
Subsidiary constituting reimbursement obligations with respect to
letters of credit issued in the ordinary course of business,
including without limitation letters of credit in respect of workers'
compensation claims, health, disability or other employee benefits or
property, casualty or liability insurance or self-insurance or other
Indebtedness with respect to reimbursement-type obligations regarding
workers' compensation claims;
(v) Indebtedness arising from agreements of the Company or a
Restricted Subsidiary providing for indemnification, adjustment of
purchase price or similar obligations, in each case, incurred or
assumed in connection with the disposition of any business, assets or
a Subsidiary, other than guarantees of Indebtedness incurred by any
Person acquiring all or any portion of such business, assets or a
Subsidiary for the purpose of financing such acquisition; provided,
however, that (A) such Indebtedness is not reflected on the balance
sheet (other than by application of FIN 45 as a result of an
amendment to an obligation in existence on the Issue Date) of the
Company or any Restricted Subsidiary (contingent obligations referred
to in a footnote to financial statements and not otherwise reflected
on the balance sheet will not be deemed to be reflected on such
balance sheet for purposes of this clause (A)) and (B) the maximum
assumable liability in respect of all such Indebtedness shall at no
time exceed the gross proceeds including non-cash proceeds (the fair
market value of such non-cash proceeds being measured at the time
received and without giving effect to any subsequent changes in
value) actually received by the Company and any Restricted
Subsidiaries in connection with such disposition;
(vi) Indebtedness of the Company owed to and held by any
Restricted Subsidiary or Indebtedness of a Restricted Subsidiary owed
to and held by the Company or any Restricted Subsidiary; provided,
however, that (A) any subsequent issuance or transfer of any Capital
Stock or any other event that results in any such Restricted
Subsidiary ceasing to be a Restricted Subsidiary or any subsequent
transfer of any such Indebtedness (except to the Company or a
Restricted Subsidiary) shall be deemed, in each case, to constitute
the incurrence of such Indebtedness by the issuer thereof and (B) if
the Company or any Guarantor is the obligor on such Indebtedness
owing to a Restricted Subsidiary that is not a Guarantor, such
Indebtedness is expressly subordinated to the prior payment in full
in cash of all obligations of the Company with respect to the Notes
or of such Guarantor with respect to its Guarantee;
(vii) shares of Preferred Stock of a Restricted Subsidiary
issued to the Company or a Restricted Subsidiary; provided that any
subsequent issuance or transfer of any Capital Stock or any other
event which results in any such Restricted Subsidiary ceasing to be a
Restricted Subsidiary or any other subsequent transfer of any such
shares of Preferred Stock (except to the Company or a Restricted
Subsidiary) shall be deemed in each case to be an issuance of such
shares of Preferred Stock;
(viii) Hedging Obligations of the Company or any Restricted
Subsidiary (excluding Hedging Obligations entered into for
speculative purposes);
(ix) obligations in respect of performance, bid, appeal and
surety bonds and performance and completion guarantees provided by
the Company or any Restricted Subsidiary or obligations in respect of
letters of credit related thereto, in each case in the ordinary
course of business or consistent with past practice;
(x) Indebtedness of the Company or any Restricted Subsidiary
or Preferred Stock of any Restricted Subsidiary not otherwise
permitted hereunder in an aggregate principal amount or liquidation
preference which, when aggregated with the principal amount and
liquidation preference of all other Indebtedness and Preferred Stock
then outstanding and incurred pursuant to this clause (x), does not
at any one time outstanding exceed $150.0 million (it being
understood that any Indebtedness or Preferred Stock incurred pursuant
to this clause (x) shall cease to be deemed incurred or outstanding
for purposes of this clause (x) but shall be deemed incurred for the
purposes of the first paragraph of this covenant from and after the
first date on which the Company or such Restricted Subsidiary could
have incurred such Indebtedness or Preferred Stock under the first
paragraph of this covenant without reliance on this clause (x));
(xi) any guarantee by the Company or a Guarantor of Indebtedness or other
obligations of any Restricted Subsidiary so long as the incurrence of
such Indebtedness incurred by such Restricted Subsidiary is permitted
under the terms of this Indenture;
(xii) the incurrence by the Company or any Restricted
Subsidiary of Indebtedness or Preferred Stock that serves to refund
or refinance any Indebtedness incurred as permitted under Section
4.03(a) and clause (ii) above, this clause (xii) and clause (xiii)
below or any Indebtedness issued to so refund or refinance such
Indebtedness including additional Indebtedness incurred to pay
premiums and fees in connection therewith (the "Refinancing
Indebtedness") prior to its respective maturity; provided, however,
that such Refinancing Indebtedness (A) has a Weighted Average Life to
Maturity at the time such Refinancing Indebtedness is incurred which
is not less than the remaining Weighted Average Life to Maturity of
the Indebtedness being refunded or refinanced, (B) to the extent such
Refinancing Indebtedness refinances Indebtedness subordinated to or
pari passu with the Notes or a Guarantee thereof, such Refinancing
Indebtedness is subordinated to or pari passu with the Notes or a
Guarantee thereof at least to the same extent as the Indebtedness
being refinanced or refunded, (C) shall not include (x) Indebtedness
or Preferred Stock of a Subsidiary that is not a Guarantor that
refinances Indebtedness or Preferred Stock of the Company or a
Guarantor or (y) Indebtedness or Preferred Stock of the Company or a
Restricted Subsidiary that refinances Indebtedness or Preferred Stock
of an Unrestricted Subsidiary, (D) shall not be in a principal amount
in excess of the principal amount of, premium, if any, accrued
interest on, and related fees and expenses of, the Indebtedness being
refunded or refinanced and (E) shall not have a stated maturity date
prior to the Stated Maturity of the Indebtedness being refunded or
refinanced; and provided, further, that subclauses (A) and (E) of
this clause (xii) will not apply to any refunding or refinancing of
any Senior Debt;
(xiii) Indebtedness or Preferred Stock of Persons that are
acquired by the Company or any Restricted Subsidiary or merged into
the Company or a Restricted Subsidiary in accordance with the terms
of this Indenture; provided that such Indebtedness or Preferred Stock
is not incurred in connection with or in contemplation of such
acquisition or merger; and provided, further, that after giving
effect to such acquisition or merger, either (A) the Company or such
Restricted Subsidiary would be permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Fixed Charge Coverage Ratio
test set forth in Section 4.03(a) or (B) the Fixed Charge Coverage
Ratio would be greater than immediately prior to such acquisition;
(xiv) Indebtedness arising from the honoring by a bank or
financial institution of a check, draft or similar instrument drawn
against insufficient funds in the ordinary course of business,
provided that such Indebtedness, other than credit or purchase cards,
is extinguished within five business days of its incurrence;
(xv) Indebtedness of the Company or any Restricted
Subsidiary of the Company supported by a letter of credit issued
pursuant to a Credit Agreement in a principal amount not in excess of
the stated amount of such letter of credit;
(xvi) Contribution Indebtedness;
(xvii) Indebtedness consisting of the financing of insurance
premiums;
(xviii) (a) if the Company could incur $1.00 of additional
Indebtedness pursuant to Section 4.03(a) after giving effect to such
borrowing, Indebtedness of Foreign Subsidiaries not otherwise
permitted hereunder or (b) if the Company could not incur $1.00 of
additional Indebtedness pursuant to Section 4.03(a) after giving
effect to such borrowing, Indebtedness of Foreign Subsidiaries of the
Company incurred for working capital purposes, provided, however,
that the aggregate principal amount of Indebtedness incurred under
this clause (xviii) which, when aggregated with the principal amount
of all other Indebtedness then outstanding and incurred pursuant to
this clause (xviii), does not exceed $75.0 million;
(xix) Indebtedness incurred on behalf of or representing
Guarantees of Indebtedness of joint ventures not in excess of $25.0
million at any time outstanding;
(xx) Indebtedness incurred by a Securitization Subsidiary in
a Qualified Securitization Financing that is not recourse to the
Company or any Restricted Subsidiary of the Company other than a
Securitization Subsidiary (except for Standard Securitization
Undertakings); and
(xxi) all premium (if any), interest (including
post-petition interest), fees, expenses, charges and additional or
contingent interest on obligations described in paragraphs (i)
through (xviii) above.
(b) For purposes of determining compliance with this Section 4.03, in
the event that an item of proposed Indebtedness meets the criteria of more
than one of the categories of Permitted Debt described in clauses (i) through
(xxi) above, or is entitled to be incurred pursuant to Section 4.03(a), the
Company will be permitted to classify and later reclassify such item of
Indebtedness in any manner that complies with this Section 4.03, and such item
of Indebtedness will be treated as having been incurred pursuant to only one
of such categories. Accrual of interest, the accretion of accreted value and
the payment of interest in the form of additional Indebtedness will not be
deemed to be an incurrence of Indebtedness for purposes of this Section 4.03.
Indebtedness under the Credit Agreements outstanding on the date on which
Notes are first issued and authenticated under this Indenture will be deemed
to have been incurred on such date in reliance on the exception provided by
Section 4.03(b)(i). The maximum amount of Indebtedness that the Company and
its Restricted Subsidiaries may incur pursuant to this Section 4.03 shall not
be deemed to be exceeded, with respect to any outstanding Indebtedness, solely
as a result of fluctuations in the exchange rate of currencies.
Section 4.04. Limitation on Restricted Payments. vii) The Company
shall not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly:
(i) declare or pay any dividend or make any other payment or
distribution on account of the Company's or any of its Restricted
Subsidiaries' Equity Interests, including any dividend or
distribution payable in connection with any merger or consolidation
(other than (A) dividends or distributions by the Company payable in
Equity Interests (other than Disqualified Stock) of the Company or
(B) dividends or distributions by a Restricted Subsidiary to the
Company or any other Restricted Subsidiary so long as, in the case of
any dividend or distribution payable on or in respect of any class or
series of securities issued by a Restricted Subsidiary other than a
Wholly Owned Subsidiary, the Company or a Restricted Subsidiary
receives at least its pro rata share of such dividend or distribution
in accordance with its Equity Interests in such class or series of
securities);
(ii) purchase, redeem or otherwise acquire or retire for
value any Equity Interests of the Company or any direct or indirect
parent corporation of the Company, including in connection with any
merger or consolidation involving the Company;
(iii) make any principal payment on, or redeem, repurchase,
defease or otherwise acquire or retire for value, in each case prior
to any scheduled repayment, scheduled sinking fund payment or
scheduled maturity, any Indebtedness subordinated or junior in right
of payment to the applicable series of Notes (other than (x)
Indebtedness permitted under Section 4.03 (b) (ii), (vi) or (vii) or
(y) the purchase, repurchase or other acquisition of Indebtedness
subordinated or junior in right of payment to the Notes, as the case
may be, purchased in anticipation of satisfying a sinking fund
obligation, principal installment or final maturity, in each case due
within one year of the date of purchase, repurchase or acquisition);
or
(iv) make any Restricted Investment
(all such payments and other actions set forth in clauses (i) through (iv)
above being collectively referred to as "Restricted Payments"), unless, at the
time of and after giving effect to such Restricted Payment:
(1) no Default or Event of Default shall have occurred and
be continuing or would occur as a consequence of such Restricted
Payment;
(2) the Company would, at the time of such Restricted
Payment and after giving pro forma effect thereto as if such
Restricted Payment had been made at the beginning of the applicable
four-quarter period, have been permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Fixed Charge Coverage Ratio
test set forth in Section 4.03(a); and
(3) such Restricted Payment, together with the aggregate
amount of all other Restricted Payments made by the Company and the
Restricted Subsidiaries after the date of this Indenture (excluding
Restricted Payments permitted by clauses (ii), (iii), (iv), (vi),
(viii), (ix), (x), (xi), (xii), (xiv) and (xv) of Section 4.04(b)),
is less than the sum, without duplication, of:
(A) 50% of the Consolidated Net Income of the
Company for the period (taken as one accounting period) from
the beginning of the first fiscal quarter commencing after
the date of this Indenture, to the end of the Company's most
recently ended fiscal quarter for which internal financial
statements are available at the time of such Restricted
Payment (or, in the case such Consolidated Net Income for
such period is a deficit, minus 100% of such deficit), plus
(B) 100% of the aggregate net cash proceeds and the
fair market value, as determined in good faith by the Board
of Directors of the Company, of property and marketable
securities received by the Company since immediately after
the date of this Indenture from the issue or sale of (x)
Equity Interests of the Company (including Retired Capital
Stock (as defined below)) (other than (i) Excluded
Contributions, (ii) Designated Preferred Stock, (iii) cash
proceeds and marketable securities received from the sale of
Equity Interests to members of management, directors or
consultants of the Company or any direct or indirect parent
corporation of the Company and the Subsidiaries to the
extent such amounts have been applied to Restricted Payments
made in accordance with Section 4.04(b)(iv) and (iv)
Refunding Capital Stock (as defined below) and, to the
extent actually contributed to the Company, Equity Interests
of the Company's direct or indirect parent entities) and (y)
debt securities of the Company that have been converted into
such Equity Interests of the Company (other than Refunding
Capital Stock or Equity Interests or convertible debt
securities of the Company sold to a Restricted Subsidiary or
the Company, as the case may be, and other than Disqualified
Stock or debt securities that have been converted into
Disqualified Stock), plus
(C) 100% of the aggregate amount of cash and the
fair market value, as determined in good faith by the Board
of Directors of the Company, of property and marketable
securities contributed to the capital of the Company
following the date of the Indenture (other than (i) Excluded
Contributions, (ii) the Cash Contribution Amount, (iii)
contributions by a Restricted Subsidiary and (iv) Refunding
Capital Stock), plus
(D) 100% of the aggregate amount received in cash
and the fair market value, as determined in good faith by
the Board of Directors of the Company, of property and
marketable securities received by means of (I) the sale or
other disposition (other than to the Company or a Restricted
Subsidiary) of Restricted Investments made by the Company or
its Restricted Subsidiaries and repurchases and redemptions
of such Restricted Investments from the Company or its
Restricted Subsidiaries and repayments of loans or advances
which constitute Restricted Investments by the Company or
its Restricted Subsidiaries or (II) the sale (other than to
the Company or a Restricted Subsidiary) of the Capital Stock
of an Unrestricted Subsidiary or a distribution from an
Unrestricted Subsidiary (other than in each case to the
extent the Investment in such Unrestricted Subsidiary was
made by a Restricted Subsidiary pursuant to clause (v) or
(xiii) of Section 4.04(b) or to the extent such Investment
constituted a Permitted Investment) or a dividend from an
Unrestricted Subsidiary, in each case not to exceed in the
aggregate amount treated as a Restricted Investment, plus
(E) in the case of the redesignation of an
Unrestricted Subsidiary as a Restricted Subsidiary or the
merger or consolidation of an Unrestricted Subsidiary into
the Company or a Restricted Subsidiary or the transfer of
assets of an Unrestricted Subsidiary to the Company or a
Restricted Subsidiary, the fair market value of the
Investment in such Unrestricted Subsidiary, as determined by
the Board of Directors of the Company in good faith at the
time of the redesignation of such Unrestricted Subsidiary as
a Restricted Subsidiary or at the time of such merger,
consolidation or transfer of assets (other than an
Unrestricted Subsidiary to the extent the Investment in such
Unrestricted Subsidiary was made by a Restricted Subsidiary
pursuant to clause (v) or (xiii) of Section 4.04(b) or to
the extent such Investment constituted a Permitted
Investment).
(b) The provisions of Section 4.04(a) shall not prohibit:
(i) the payment of any dividend within 60 days after the
date of declaration thereof, if at the date of declaration such
payment would have complied with the provisions of this Indenture;
(ii) (A) the redemption, repurchase, retirement or other
acquisition of any Equity Interests of the Company or any direct or
indirect parent corporation ("Retired Capital Stock") or Indebtedness
subordinated to the Notes in exchange for or out of the proceeds of
the substantially concurrent sale (other than to a Restricted
Subsidiary or the Company) of Equity Interests of the Company or
contributions to the equity capital of the Company (in each case,
other than Disqualified Stock) ("Refunding Capital Stock") and (B)
the declaration and payment of accrued dividends on the Retired
Capital Stock out of the proceeds of the substantially concurrent
sale (other than to a Restricted Subsidiary or the Company) of
Refunding Capital Stock;
(iii) the redemption, repurchase or other acquisition or
retirement of Indebtedness subordinated to the Notes or a Guarantee
thereof made by exchange for, or out of the proceeds of the
substantially concurrent sale of, new Indebtedness of the borrower
thereof, which is incurred in compliance with Section 4.03 so long as
(A) the principal amount of such new Indebtedness
does not exceed the principal amount of the Indebtedness
subordinated to the Notes or a Guarantee thereof being so
redeemed, repurchased, acquired or retired for value plus
the amount of any reasonable premium required to be paid
under the terms of the instrument governing the Indebtedness
subordinated to the Notes or a Guarantee thereof being so
redeemed, repurchased, acquired or retired,
(B) such new Indebtedness is subordinated to the
Notes or any such applicable Guarantee at least to the same
extent as such Indebtedness subordinated to such Notes
and/or Guarantee so purchased, exchanged, redeemed,
repurchased, acquired or retired for value,
(C) such new Indebtedness has a final scheduled
maturity date equal to or later than the final scheduled
maturity date of the Indebtedness subordinated to the Notes
or a Guarantee thereof being so redeemed, repurchased,
acquired or retired and
(D) such new Indebtedness has a Weighted Average
Life to Maturity equal to or greater than the remaining
Weighted Average Life to Maturity of the Indebtedness
subordinated to the Notes or a Guarantee thereof being so
redeemed, repurchased, acquired or retired;
(iv) a Restricted Payment to pay for the repurchase,
retirement or other acquisition or retirement for value of common
Equity Interests of the Company or any of its direct or indirect
parent entities held by any future, present or former employee,
director or consultant of the Company, any of its Subsidiaries or (to
the extent such person renders services to the businesses of the
Company and its Subsidiaries) the Company's direct or indirect parent
entities, pursuant to any management equity plan or stock option plan
or any other management or employee benefit plan or agreement or
arrangement; provided, however, that the aggregate amount of all such
Restricted Payments made under this clause (iv) does not exceed in
any calendar year $10.0 million (with unused amounts in any calendar
year being carried over to the next two succeeding calendar years);
and provided, further, that such amount in any calendar year may be
increased by an amount not to exceed:
(A) the cash proceeds from the sale of Equity
Interests of the Company and, to the extent contributed to
the Company, Equity Interests of any of its direct or
indirect parent entities, in each case to members of
management, directors or consultants of the Company, any of
its Subsidiaries or (to the extent such person renders
services to the businesses of the Company and its
Subsidiaries) the Company's direct or indirect parent
entities, that occurs after the date of this Indenture, plus
(B) the amount of any cash bonuses otherwise
payable by the Company or to its members of management,
directors or consultants of the Company or any of its
Subsidiaries or (to the extent such person renders services
to the businesses of the Company and its Subsidiaries) the
Company's direct or indirect parent entities, in connection
with the Transactions that are foregone in return for the
receipt of Equity Interests of the Company or any direct or
indirect parent entity of the Company pursuant to a deferred
compensation plan of such entity, plus
(C) the cash proceeds of key man life insurance
policies received by the Company or its Restricted
Subsidiaries, or by any direct or indirect parent entity to
the extent contributed to the Company, after the date of
this Indenture; less
(D) the amount of any Restricted Payments
previously made pursuant to clauses (A), (B) and (C) of this
clause (iv),
(provided that the Company may elect to apply all or any portion of
this aggregate increase contemplated by clauses (A), (B) and (C)
above in any calendar year);
(v) Investments in Unrestricted Subsidiaries having an
aggregate fair market value, taken together with all other
Investments made pursuant to this clause (v) that are at the time
outstanding, without giving effect to the sale of an Unrestricted
Subsidiary to the extent the proceeds of such sale do not consist of
cash and/or marketable securities, not to exceed $50.0 million at the
time of such Investment (with the fair market value of each
Investment being measured at the time made and without giving effect
to subsequent changes in value);
(vi) repurchases of Equity Interests deemed to occur upon
exercise of stock options or warrants if such Equity Interests
represent a portion of the exercise price of such options or
warrants;
(vii) the payment of dividends on the Company's common stock
(or the payment of dividends to any direct or indirect parent entity
to fund a payment of dividends on such entity's common stock)
following the first public offering of the Company's common stock or
the common stock of any of its direct or indirect parent entities
after the date of this Indenture, of up to 6.0% per annum of the net
proceeds received by or contributed to the Company in any public
offering, other than public offerings with respect to the Company's
or its parent's common stock registered on Form S-8 and other than
any public sale constituting an Excluded Contribution;
(viii) Investments that are made with Excluded
Contributions;
(ix) the declaration and payment of dividends to, or the
making of loans to, the Parent Guarantor in amounts required for it
to pay:
(A) (i) overhead, tax liabilities of the Parent
Guarantor (including any distribution necessary to allow the
Parent Guarantor to make a Tax Distribution in accordance
with clause (B) below), legal, accounting and other
professional fees and expenses, (ii) fees and expenses
related to any equity offering, investment or acquisition
permitted hereunder (whether or not successful) and (iii)
other fees and expenses in connection with the maintenance
of its existence and its ownership of the Company; and
(B) (i) with respect to each tax year (or portion
thereof) that the Parent Guarantor qualifies as a Flow
Through Entity, a distribution by the Parent Guarantor to
the holders of the Equity Interests of the Parent Guarantor
of an amount equal to the product of (x) the amount of
aggregate net taxable income allocated by the Parent
Guarantor to the direct or indirect holders of the Equity
Interests of the Parent Guarantor for such period and (y)
the Presumed Tax Rate for such period and (ii) with respect
to any tax year (or portion thereof) that the Parent
Guarantor does not qualify as a Flow Through Entity, the
payment of dividends or other distributions to any direct or
indirect holders of Equity Interests of the Parent Guarantor
in amounts required for such holder to pay federal, state or
local income taxes (as the case may be) imposed directly on
such holder to the extent such income taxes are attributable
to the income of the Company and its Restricted
Subsidiaries; provided, however, that in each case the
amount of such payments in respect of any tax year does not
exceed the amount that the Company and its Restricted
Subsidiaries would have been required to pay in respect of
federal, state or local taxes (as the case may be) in
respect of such year if the Parent Guarantor and its
Subsidiaries paid such taxes directly as a stand-alone
taxpayer (or stand-alone group);
(x) Distributions or payments of Securitization Fees;
(xi) cash dividends or other distributions on the Company's
or any Restricted Subsidiary's Capital Stock used to, or the making
of loans, the proceeds of which will be used to, fund the payment of
fees and expenses incurred in connection with the Transactions or
owed to Affiliates, in each case to the extent permitted by Section
4.07;
(xii) declaration and payment of dividends to holders of any
class or series of Disqualified Stock of the Company or any
Restricted Subsidiary issued in accordance with Section 4.03 to the
extent such dividends are included in the definition of Fixed
Charges;
(xiii) other Restricted Payments in an aggregate amount not
to exceed $50.0 million;
(xiv) the declaration and payment of dividends or
distributions to holders of any class or series of Designated
Preferred Stock issued after the date of this Indenture and the
declaration and payment of dividends to any direct or indirect parent
company of the Company, the proceeds of which will be used to fund
the payment of dividends to holders of any class or series of
Designated Preferred Stock of any direct or indirect parent company
of the Company issued after the date of this Indenture; provided,
however, that for the most recently ended four full fiscal quarters
for which internal financial statements are available immediately
preceding the date of issuance of such Designated Preferred Stock,
after giving effect to such issuance on the first day of such period
(and the payment of dividends or distributions) on a pro forma basis,
the Company would have had a Fixed Charge Coverage Ratio of at least
2.00 to 1.00;
(xv) the distribution, as a dividend or otherwise, of shares
of Capital Stock of, or Indebtedness owed to the Company or a
Restricted Subsidiary of the Company by, Unrestricted Subsidiaries;
and
(xvi) the repurchase, redemption or other acquisition or
retirement for value of any Subordinated Indebtedness pursuant to
Sections 4.06 and 4.08; provided that all Notes duly tendered by the
Holders in connection with the related Change of Control Offer or
Asset Sale Offer, as applicable, have been repurchased, redeemed or
acquired for value;
provided, however, that at the time of, and after giving effect to, any
Restricted Payment permitted under clauses (ii) (with respect to the payment
of dividends on Refunding Capital Stock pursuant to clause (B) thereof), (v),
(vii), (xi), (xiii), (xiv), (xv) and (xvi) of this Section 4.04(b), no Default
or Event of Default shall have occurred and be continuing or would occur as a
consequence thereof.
The amount of all Restricted Payments (other than cash) will be the
fair market value on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued by the Company or such
Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair
market value of any assets or securities that are required to be valued by
this covenant will be determined in good faith by the Board of Directors of
the Company.
(c) The Company will not permit any Unrestricted Subsidiary to become
a Restricted Subsidiary except pursuant to the second to last sentence of the
definition of "Unrestricted Subsidiary". For purposes of designating any
Restricted Subsidiary as an Unrestricted Subsidiary, all outstanding
investments by the Company and the Restricted Subsidiaries (except to the
extent repaid) in the Subsidiary so designated will be deemed to be Restricted
Payments in an amount determined as set forth in the second paragraph of the
definition of "Investments". Such designation will be permitted only if a
Restricted Payment in such amount would be permitted at such time under this
covenant or the definition of Permitted Investments and if such Subsidiary
otherwise meets the definition of an Unrestricted Subsidiary. Unrestricted
Subsidiaries will not be subject to any of the restrictive covenants under
this Indenture or the Notes.
Section 4.05. Dividend and Other Payment Restrictions Affecting
Subsidiaries. The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or permit to exist or become
effective any consensual encumbrance or restriction on the ability of any such
Restricted Subsidiary to:
(a) pay dividends or make any other distributions on its
Capital Stock to the Company or any of its Restricted Subsidiaries,
or with respect to any other interest or participation in, or
measured by, its profits, or pay any Indebtedness owed to the Company
or any of its Restricted Subsidiaries;
(b) make loans or advances to the Company or any of its
Restricted Subsidiaries; or
(c) sell, lease or transfer any of its properties or assets
to the Company or any of its Restricted Subsidiaries;
However, the preceding restrictions shall not apply to encumbrances or
restrictions existing under or by reason of:
(1) contractual encumbrances or restrictions (x) in effect
on the date of this Indenture, including, without limitation,
pursuant to the Senior Notes Indenture, this Indenture, Existing
Indebtedness or the Credit Agreements and related documentation or
(y) entered into thereafter so long as not materially more
restrictive than those described in the preceding clause (x);
(2) purchase money obligations for property acquired in the
ordinary course of business that impose restrictions of the nature
discussed in clause (c) above on the property so acquired;
(3) applicable law or any applicable rule, regulation or
order;
(4) any agreement or other instrument of a Person acquired
by the Company or any Restricted Subsidiary in existence at the time
of such acquisition (but not created in contemplation thereof), which
encumbrance or restriction is not applicable to any Person, or the
properties or assets of any Person, other than the Person, or the
property or assets of the Person, so acquired;
(5) contracts for the sale of assets, including, without
limitation, customary restrictions with respect to a Subsidiary
pursuant to an agreement that has been entered into for the sale or
disposition of all or substantially all of the Capital Stock or
assets of such Subsidiary;
(6) secured Indebtedness otherwise permitted to be incurred
pursuant to Sections 4.03 and 4.11 that limits the right of the
debtor to dispose of the assets securing such Indebtedness;
(7) restrictions on cash or other deposits or net worth
imposed by customers under contracts entered into in the ordinary
course of business;
(8) other Indebtedness of Restricted Subsidiaries (i) that
are Guarantors which Indebtedness is permitted to be incurred
pursuant to an agreement entered into subsequent to the date of this
Indenture in accordance with Section 4.03 or (ii) that are Foreign
Subsidiaries which Indebtedness is incurred subsequent to the date of
this Indenture pursuant to clause (3), (10) or (18) of Section
4.03(b);
(9) customary provisions in joint venture agreements and
other similar agreements entered into in the ordinary course of
business;
(10) customary provisions contained in leases or licenses of
intellectual property and other similar agreements entered into in
the ordinary course of business;
(11) customary provisions restricting subletting or
assignment of any lease governing a leasehold interest;
(12) customary provisions restricting assignment of any
agreement entered into in the ordinary course of business;
(13) any encumbrances or restrictions of the type referred
to in clauses (a), (b) and (c) above imposed by any amendments,
modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings of the contracts,
instruments or obligations referred to in clauses (1) and (4) above,
provided that such amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings are,
in the good faith judgment of the Company's Board of Directors, no
more restrictive with respect to such dividend and other payment
restrictions than those contained in the dividend or other payment
restrictions prior to such amendment, modification, restatement,
renewal, increase, supplement, refunding, replacement or refinancing;
(14) any encumbrance or restriction of a Securitization
Subsidiary effected in connection with a Qualified Securitization
Financing; provided, however, that such restrictions apply only to
such Securitization Subsidiary; or
(15) any encumbrances and restrictions that are no more
restrictive, in the aggregate, than those in effect of the date of
this Indenture.
Section 4.06. Asset Sales. viii) The Company will not, and will not
permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or such Restricted Subsidiary, as the case
may be) receives consideration at the time of the Asset Sale at least
equal to the fair market value of the assets or Equity Interests
issued or sold or otherwise disposed of; and
(2) at least 75% of the consideration received in the Asset
Sale by the Company or such Restricted Subsidiary is in the form of
cash or Cash Equivalents.
The amount of:
(i) any liabilities (as shown on the Company's or such
Restricted Subsidiary's most recent balance sheet or in the notes
thereto) of the Company or any Restricted Subsidiary (other than
liabilities that are by their terms subordinated to the Notes) that
are assumed by the transferee of any such assets and for which the
Company and all Restricted Subsidiaries have been validly released by
all creditors in writing,
(ii) any securities received by the Company or such
Restricted Subsidiary from such transferee that are converted by the
Company or such Restricted Subsidiary into cash (to the extent of the
cash received) within 180 days following the receipt thereof, and
(iii) any Designated Non-cash Consideration received by the
Company or any of its Restricted Subsidiaries in such Asset Sale
having an aggregate fair market value (as determined in good faith by
the Company), taken together with all other Designated Non-cash
Consideration received pursuant to this clause (iii) that is at that
time outstanding, not to exceed the greater of (x) $100.0 million and
(y) 3.0% of Total Assets at the time of the receipt of such
Designated Non-cash Consideration (with the fair market value of each
item of Designated Non-cash Consideration being measured at the time
received without giving effect to subsequent changes in value),
shall be deemed to be cash solely for the purposes of this Section 4.06(a)(2).
(b) Within 365 days after the receipt of any Net Proceeds from an
Asset Sale, the Company may apply those Net Proceeds at its option to:
(i) permanently reduce Obligations under (x) Senior Debt of
an Issuer or a Guarantor or (y) Indebtedness that ranks pari passu
with the Notes or a Guarantee (provided that if the Company or a
Guarantor shall so reduce Obligations under such Indebtedness, the
Issuers will equally and ratably reduce Obligations under the Notes
by making an offer (in accordance with the procedures set forth below
for an Asset Sale Offer) to all Holders of the Notes to purchase at a
purchase price equal to 100% of the principal amount thereof, plus
accrued and unpaid interest and Liquidated Damages, if any, the pro
rata principal amount of Notes) or Indebtedness of a Restricted
Subsidiary that is not a Guarantor, in each case other than
Indebtedness owed to the Company or an Affiliate of the Company
(provided that in the case of any reduction of any revolving
obligations, the Company or such Restricted Subsidiary shall effect a
corresponding reduction of commitments with respect thereto);
(ii) make an investment in (A) any one or more businesses;
provided that such investment in any business is in the form of the
acquisition of Capital Stock and results in the Company or a
Restricted Subsidiary owning an amount of the Capital Stock of such
business such that it constitutes a Restricted Subsidiary, (B)
capital expenditures or (C) other assets, in each of (A), (B) and
(C), used or useful in a Permitted Business; and/or
(iii) make an investment in or expenditures for (A) any one
or more businesses; provided that such investment in any business is
in the form of the acquisition of Capital Stock and it results in the
Company or a Restricted Subsidiary owning an amount of the Capital
Stock of such business such that it constitutes a Restricted
Subsidiary, (B) properties or (C) assets that, in each of (A), (B)
and (C), replace the businesses, properties and assets that are the
subject of such Asset Sale;
provided that the 365-day period provided above to apply any portion of Net
Proceeds in accordance with clause (ii) or (iii) above shall be extended by an
additional 180 days if by not later than the 365th day after receipt of such
Net Proceeds the Company or a Restricted Subsidiary, as applicable, has
entered into a bona fide binding commitment with a Person other than an
Affiliate of the Company to make an investment of the type referred to in
either such clause in the amount of such Net Proceeds.
When the aggregate amount of Net Proceeds not applied or invested in
accordance with the preceding paragraph ("Excess Proceeds") exceeds $20.0
million, the Issuers will make an Asset Sale Offer to all Holders of the Notes
(an "Asset Sale Offer") to purchase on a pro rata basis the maximum principal
amount of Notes that may be purchased out of the Excess Proceeds. The offer
price in any Asset Sale Offer will be equal to 100% of principal amount plus
accrued and unpaid interest and Liquidated Damages, if any, to the date of
purchase, and will be payable in cash. The Issuers shall commence an Asset
Sale Offer with respect to Excess Proceeds within ten Business Days after the
date that Excess Proceeds exceed $20 million by mailing the notice required
pursuant to the terms of Section 4.06(f), with a copy to the Trustee.
Pending the final application of any Net Proceeds, the Company or
such Restricted Subsidiary may temporarily reduce revolving credit borrowings
or otherwise invest the Net Proceeds in any manner that is not prohibited by
this Indenture.
If any Excess Proceeds remain after consummation of an Asset Sale
Offer, the Company may use those Excess Proceeds for any purpose not otherwise
prohibited by this Indenture. If the aggregate principal amount of Notes
tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the
Trustee will select the Notes to be purchased on a pro rata basis. Upon
completion of each Asset Sale Offer, the amount of Excess Proceeds will be
reset at zero.
(c) The Issuers shall comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations
thereunder to the extent those laws and regulations are applicable in
connection with each repurchase of the Notes pursuant to an Asset Sale Offer.
To the extent that the provisions of any securities laws or regulations
conflict with the Asset Sale provisions of this Indenture, the Issuers shall
comply with the applicable securities laws and regulations and will not be
deemed to have breached its obligations under the Asset Sale provisions of
this Indenture by virtue of such conflict.
(d) Not later than the date upon which written notice of an Asset
Sale Offer is delivered to the Trustee as provided above, the Issuers shall
deliver to the Trustee an Officers' Certificate as to (i) the amount of the
Excess Proceeds, (ii) the allocation of the Net Proceeds from the Asset Sales
pursuant to which such Asset Sale Offer is being made and (iii) the compliance
of such allocation with the provisions of Section 4.06(b). On such date, the
Issuers shall also irrevocably deposit with the Trustee or with a Paying Agent
(or, if the Company or a Wholly Owned Subsidiary is acting as a Paying Agent,
such Paying Agent shall segregate and hold in trust) an amount equal to the
Excess Proceeds to be invested in Cash Equivalents, as directed in writing by
the Issuer, and to be held for payment in accordance with the provisions of
this Section 4.06. Upon the expiration of the period for which the Asset Sale
Offer remains open (the "Offer Period"), the Issuers shall deliver to the
Trustee for cancellation the Notes or portions thereof that have been properly
tendered to and are to be accepted by the Issuers. The Trustee (or a Paying
Agent, if not the Trustee) shall, on the date of purchase, mail or deliver
payment to each tendering Holder in the amount of the purchase price. In the
event that the Excess Proceeds delivered by the Issuers to the Trustee is
greater than the purchase price of the Notes tendered, the Trustee shall
deliver the excess to the Issuers immediately after the expiration of the
Offer Period for application in accordance with Section 4.06.
(e) Holders electing to have a Note purchased shall be required to
surrender the Note, with an appropriate form duly completed, to the Issuers at
the address specified in the notice at least three Business Days prior to the
purchase date. Holders shall be entitled to withdraw their election if the
Trustee or the Issuers receive not later than one Business Day prior to the
Purchase Date, a facsimile transmission or letter setting forth the name of
the Holder, the principal amount of the Note which was delivered by the Holder
for purchase and a statement that such Holder is withdrawing his election to
have such Note purchased. If at the end of the Offer Period more Notes are
tendered pursuant to an Asset Sale Offer than the Issuers are required to
purchase, selection of such Notes for purchase shall be made by the Trustee in
compliance with the requirements of the principal national securities
exchange, if any, on which such Notes are listed, or if such Notes are not so
listed, on a pro rata basis, by lot or by such other method as the Trustee
shall deem fair and appropriate (and in such manner as complies with
applicable legal requirements); provided that no Notes of $1,000 or less shall
be purchased in part.
(f) Notices of an Asset Sale Offer shall be mailed by first class
mail, postage prepaid, at least 30 but not more than 60 days before the
purchase date to each Holder of Notes at such Holder's registered address. If
any Note is to be purchased in part only, any notice of purchase that relates
to such Note shall state the portion of the principal amount thereof that is
to be purchased.
(g) A new Note in principal amount equal to the unpurchased portion
of any Note purchased in part shall be issued in the name of the Holder
thereof upon cancellation of the original Note. On and after the purchase
date, unless the Issuers default in payment of the purchase price, interest
shall cease to accrue on Notes or portions thereof purchased.
Section 4.07. Transactions with Affiliates. ix) The Company will not,
and will not permit any of its Restricted Subsidiaries to, make any payment
to, or sell, lease, transfer or otherwise dispose of any of its properties or
assets to, or purchase any property or assets from, or enter into or make or
amend any transaction, contract, agreement, understanding, loan, advance or
guarantee with, or for the benefit of, any Affiliate (each, an "Affiliate
Transaction") involving aggregate consideration in excess of $5.0 million,
unless:
(i) the Affiliate Transaction is on terms that are not
materially less favorable, taken as a whole, to the Company or the
relevant Restricted Subsidiary than those that would have been
obtained in a comparable transaction by the Company or such
Restricted Subsidiary with an unrelated Person on an arm's-length
basis; and
(ii) the Company delivers to the Trustee, with respect to
any Affiliate Transaction or series of related Affiliate Transactions
involving aggregate consideration in excess of $25.0 million, a
resolution of the Board of Directors set forth in an Officers'
Certificate certifying that such Affiliate Transaction complies with
this covenant and that such Affiliate Transaction has been approved
by a majority of the disinterested members, if any, of the Board of
Directors.
(b) The provisions of Section 4.07(a) shall not apply to the
following:
(i) transactions between or among the Company and/or any
Restricted Subsidiary or any entity that becomes a Restricted
Subsidiary as a result of such transaction;
(ii) Restricted Payments and Permitted Investments (other
than pursuant to clause (13) of the definition thereof) permitted by
Section 4.04;
(iii) the payment to Sponsors or any other Permitted Holder
of annual management, consulting, monitoring and advisory fees in an
aggregate amount in any fiscal year not in excess of $5.0 million,
plus reasonable out-of-pocket costs and expenses in connection
therewith and unpaid amounts accrued for prior periods (but after the
date of this Indenture), and the execution of any management or
monitoring agreement subject to the same limitations;
(iv) the payment of reasonable and customary fees paid to,
and indemnities provided on behalf of, officers, directors, employees
or consultants of the Company, any Restricted Subsidiary or (to the
extent such person renders services to the businesses of the Company
and its Subsidiaries) any of the Company's direct or indirect parent
entities;
(v) payments by the Company or any Restricted Subsidiary to
the Sponsors and any of their Affiliates made for any financial
advisory, financing, underwriting or placement services or in respect
of other investment banking activities, including, without
limitation, in connection with acquisitions or divestitures, which
payments are approved by a majority of the members of the Board of
Directors of the Company in good faith;
(vi) transactions in which the Company or any Restricted
Subsidiary delivers to the Trustee a letter from an Independent
Financial Advisor stating that such transaction is fair to the
Company or such Restricted Subsidiary from a financial point of view;
(vii) payments or loans (or cancellations of loans) to
employees or consultants of the Company, any Restricted Subsidiary or
(to the extent such person renders services to the businesses of the
Company and its Subsidiaries) any of the Company's direct or indirect
parent entities, which are approved by a majority of the Board of
Directors of the Company in good faith and which are otherwise
permitted under this Indenture;
(viii) payments made or performance under any agreement as
in effect on the date of this Indenture (including, without
limitation, each of the agreements entered into in connection with
the Transactions) or any amendment thereto (so long as any such
amendment is not less advantageous to the Holders of the Notes in any
material respect than the original agreement as in effect on the date
of this Indenture);
(ix) the existence of, or the performance by the Company or
any of its Restricted Subsidiaries of its obligations under the terms
of, the Recapitalization Agreement (including any registration rights
agreement or purchase agreements related thereto to which it is party
and any similar agreement that it may enter into thereafter);
provided, however, that the existence of, or the performance by the
Company or any of its Restricted Subsidiaries of its obligations
under any future amendment to the Recapitalization Agreement or under
any similar agreement shall only be permitted by this clause (ix) to
the extent that the terms of any such amendment or new agreement are
not otherwise disadvantageous to Holders of Notes in any material
respect;
(x) the Transactions and the payment of all fees and
expenses related to the Transactions, including any fees to the
Sponsors;
(xi) transactions with customers, clients, suppliers, or
purchasers or sellers of goods or services, in each case in the
ordinary course of business and otherwise in compliance with the
terms of this Indenture that are fair to the Company or the
Restricted Subsidiaries, in the reasonable determination of the
members of the Board of Directors of the Company or the senior
management thereof, or are on terms at least as favorable as might
reasonably have been obtained at such time from an unaffiliated
party;
(xii) if otherwise permitted hereunder, the issuance of
Equity Interests (other than Disqualified Stock) of the Parent
Guarantor to any Permitted Holder or of the Company to the Parent
Guarantor or to any Permitted Holder;
(xiii) any transaction effected as part of a Qualified
Securitization Financing;
(xiv) any employment agreements entered into by the Company
or any of the Restricted Subsidiaries in the ordinary course of
business;
(xv) transactions with joint ventures for the purchase or
sale of materials, equipment and services entered into in the
ordinary course of business and in a manner consistent with past
practice; and
(xvi) any issuance of securities, or other payments, awards
or grants in cash, securities or otherwise pursuant to, or the
funding of, employment arrangements, stock options and stock
ownership plans approved by the Board of Directors of the Company.
Section 4.08. Change of Control. x) Upon a Change of Control, each
holder of Notes will have the right to require the Issuers to repurchase all
or any part (equal to $1,000 or an integral multiple of $1,000 in excess
thereof) of that Holder's Notes pursuant to a Change of Control Offer in
accordance with the terms contemplated in this Section 4.08. In the Change of
Control Offer, the Issuers shall offer to Purchase such Notes at a purchase
price in cash equal to 101% of the aggregate principal amount of Notes
repurchased plus accrued and unpaid interest and Liquidated Damages, if any,
on the Notes repurchased, to the date of purchase (subject to the right of
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date) (the "Change of Control Payment"). Prior to
complying with any of the terms of this Section 4.08 but in any event within
90 days following a Change of Control, to the extent required to permit the
Issuers to comply with this Section 4.08, the Issuers shall either (i) repay
all outstanding Senior Debt or (ii) obtain the requisite consents, if any,
under all agreements governing outstanding Senior Debt. The Issuers will
publicly announce the results of the Change of Control Offer on or as soon as
practicable after the Change of Control Payment Date.
The Issuers shall first comply with the covenant in Section 4.08(a)
before they shall be required to either repurchase the Note or send the notice
provision pursuant to 4.08(b). Failure to comply with Section 4.08(a) and any
failure to send the notice pursuant to 4.08(b) as a result of the prohibition
in Section 4.08(a) may (with notice and lapse of time) constitute an Event of
Default described in Section 6.01(c), but shall not constitute an Event of
Default described in Section 6.01(a).
(a) Within 30 days following any Change of Control, except to the
extent that the Issuers have exercised their right to redeem the Notes in
accordance with Article 3 of this Indenture, the Issuers shall mail a notice
(a "Change of Control Offer") to each Holder with a copy to the Trustee
stating:
(i) that a Change of Control has occurred and that such
Holder has the right to require the Issuers to purchase all or a
portion of such Holder's Notes at a purchase price in cash equal to
101% of the principal amount thereof, plus accrued and unpaid
interest to the date of purchase (subject to the right of Holders of
record on the relevant record date to receive the interest due on the
relevant payment date);
(ii) the circumstances and relevant facts and financial
information regarding such Change of Control;
(iii) the purchase date (the "Change of Control Purchase
Date") (which shall be no earlier than 30 days nor later than 60 days
from the date such notice is mailed); and
(iv) the instructions determined by the Issuers consistent
with this Section, that a Holder must follow in order to have its
Notes purchased.
(b) Holders electing to have a Note purchased shall be required to
surrender the Note, with an appropriate form duly completed, to the Issuers at
the address specified in the notice at least three Business Days prior to the
Change of Control Purchase Date. The Holders shall be entitled to withdraw
their election if the Trustee or the Issuers receive not later than one
Business Day prior to the Change of Control Purchase Date a facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Note which was delivered for purchase by the Holder and a
statement that such Holder is withdrawing his election to have such Note
purchased. Holders whose Notes are purchased only in part shall be issued new
Notes equal in principal amount to the unpurchased portion of the Notes
surrendered.
(c) On the Change of Control Purchase Date, the Issuers shall, to the
extent lawful:
(i) accept for payment all Notes or portions of Notes
properly tendered pursuant to the Change of Control Offer;
(ii) deposit with the paying agent an amount equal to the
Change of Control Payment in respect of all Notes or portions of
Notes properly tendered; and
(iii) deliver or cause to be delivered to the Trustee the
Notes properly accepted together with an Officers' Certificate
stating the aggregate principal amount of Notes or portions of Notes
being purchased by the Issuers.
(d) On the Change of Control Purchase Date all Notes purchased by the
Issuers under this Section shall be delivered to the Trustee for cancellation,
and the Issuers shall pay the Change of Control Payment to the Holders
entitled thereto. The paying agent will promptly mail to each Holder of Notes
properly tendered the Change of Control Payment for such Notes, and the
Trustee will promptly authenticate and mail (or cause to be transferred by
book-entry) to each holder a new Note equal in principal amount to any
unpurchased portion of the Notes surrendered, if any; provided that each new
Note will be in a principal amount of $1,000 or an integral multiple of $1,000
in excess thereof.
(e) Notwithstanding the foregoing provisions of this Section, the
Issuers shall not be required to make a Change of Control Offer upon a Change
of Control if a third party makes the Change of Control Offer in the manner,
at the times and otherwise in compliance with the requirements set forth in
Section 4.08(b) applicable to a Change of Control Offer made by the Issuers
and purchases all Notes validly tendered and not withdrawn under such Change
of Control Offer.
(f) At the time the Issuers deliver Notes to the Trustee which are to
be accepted for purchase, the Issuers shall also deliver an Officers'
Certificate stating that such Notes are to be accepted by the Issuers pursuant
to and in accordance with the terms of this Section 4.08. A Note shall be
deemed to have been accepted for purchase at the time the Trustee, directly or
through an agent, mails or delivers payment therefor to the surrendering
Holder.
(g) Prior to any Change of Control Offer, the Issuers shall deliver
to the Trustee an Officers' Certificate stating that all conditions precedent
contained herein to the right of the Issuers to make such offer have been
complied with.
(h) The Issuers shall comply with the requirements of Section 14e-1
of the Exchange Act and any other securities laws or regulations in connection
with the repurchase of Notes pursuant to this Section to the extent those laws
and regulations are applicable in connection with the repurchase of the Notes
as a result of a Change of Control. To the extent that the provisions of any
securities laws or regulations conflict with provisions of this Section, the
Issuers shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations under this Section by
virtue thereof.
Section 4.09. 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 in the course of the performance by the
signers of their duties as Officers of the Company they would normally have
knowledge of any Default and whether or not the signers know of any Default
that occurred during such period. If they do, the certificate shall describe
the Default, its status and what action the Company taking or propose to take
with respect thereto. The Issuers also shall comply with Section 314(a)(4) of
the TIA.
Section 4.10. Further Instruments and Acts. Upon request of the
Trustee, the Issuers shall execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
Section 4.11. Liens. (a) The Company will not, and will not permit
any Restricted Subsidiary to, directly or indirectly, create, incur, assume or
suffer to exist any Lien that secures obligations under any Indebtedness on
any asset or property of the Company or any Restricted Subsidiary that is a
Guarantor, or any income or profits therefrom, or assign or convey any right
to receive income therefrom, unless:
(i) in the case of Liens securing Indebtedness subordinated
to the Notes or any Guarantee, the Notes and any applicable
Guarantees are secured by a Lien on such property, assets or proceeds
that is senior in priority to such Liens; or
(ii) in all other cases, the Notes or the applicable
Guarantee or Guarantees are equally and ratably secured.
(b) Section 4.11(a) shall not apply to:
(iii) Liens securing the Notes and the related Guarantees,
Liens securing Senior Debt of the Company or any Guarantor and any
related guarantees of such Senior Debt; and
(iv) Permitted Liens.
Section 4.12. Limitation on Other Senior Subordinated Indebtedness.
The Company will not, and will not permit any Restricted Subsidiary that is a
Guarantor to, directly or indirectly, incur any Indebtedness that is or
purports to be by its terms (or by the terms of any agreement governing such
Indebtedness) contractually subordinated or contractually junior in right of
payment to any Senior Debt (including Acquired Debt) (it being understood and
agreed that the lien priorities and other agreements in the intercreditor
agreement entered into on the Issue Date with respect to the Credit Agreements
then in effect (or any similar such agreement entered into in the future) does
not give rise to subordination in right of payment as such term is used above)
of the Company or such Restricted Subsidiary, as the case may be, unless such
Indebtedness is either:
(i) pari passu in right of payment with the Notes or such
Guarantor's Guarantee (as applicable); or
(ii) subordinate in right of payment to the Notes or such
Guarantor's Guarantee (as applicable).
Indebtedness that is unsecured or secured by a junior lien shall not
be deemed to be subordinate or junior to secured indebtedness merely because
it is unsecured or secured by a junior lien.
Section 4.13. Maintenance of Office or Agency. xi) The Issuers shall
maintain in the Borough of Manhattan, the City of New York, an office or
agency (which may be an office of the Trustee or an affiliate of the Trustee
or Registrar) where Notes may be surrendered for registration of transfer or
for exchange and where notices and demands to or upon the Issuers in respect
of the Notes and this Indenture may be served. The Issuers shall give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Issuers shall fail to maintain
any such required office or agency or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and demands may
be made or served at the corporate trust office of the Trustee as set forth in
Section 13.02.
(a) The Issuers may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Issuers of their obligation to maintain an office or agency in the
Borough of Manhattan, the City of New York, for such purposes. The Issuers
shall give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or
agency.
(b) The Issuers hereby designate the corporate trust office of the
Trustee or its Agent, in the Borough of Manhattan, the City of New York, as
such office or agency of the Issuers in accordance with Section 2.04.
Section 4.14. Business Activities. The Company shall not, and shall
not permit any Restricted Subsidiary (other than a Securitization Subsidiary)
to, engage in any business other than Permitted Businesses, except to such
extent as would not be material to the Company and its Subsidiaries taken as a
whole.
Section 4.15. Payment for Consent. The Company will not, and will not
permit any of its Subsidiaries to, directly or indirectly, pay or cause to be
paid any consideration to or for the benefit of any holder of Notes for or as
an inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture or the Notes unless such consideration is offered
to be paid and is paid to all holders of the Notes that consent, waive or
agree to amend in the time frame set forth in the solicitation documents
relating to such consent, waiver or agreement.
ARTICLE 5
MERGER, CONSOLIDATION OR SALE OF ASSETS
Section 5.01. Consolidation, Merger or Sale of Assets of the Company.
xii) The Company may not, directly or indirectly (x) consolidate or merge with
or into or wind up into another Person (whether or not the Company is the
surviving corporation) or (y) sell, assign, transfer, convey or otherwise
dispose of all or substantially all of its properties or assets, in one or
more related transactions, to another Person, unless, in each case:
(i) either:
(A) the Company is the surviving corporation; or
(B) the Person formed by or surviving any such
consolidation or merger (if other than the Company) or to
which such sale, assignment, transfer, conveyance or other
disposition has been made is a partnership, limited
liability company or corporation organized or existing under
the laws of the jurisdiction of organization of the Company
or the United States, any state of the United States, the
District of Columbia or any territory thereof (the Company
or such Person, as the case may be, hereinafter referred to
as the "Successor Company");
(ii) the Successor Company (if other than the Company)
expressly assumes all the obligations of the Company under the Notes,
the Indenture and the Registration Rights Agreement pursuant to
agreements reasonably satisfactory to the Trustee;
(iii) immediately after such transaction no Default or Event
of Default exists;
(iv) after giving pro forma effect thereto and any related
financing transactions as if the same had occurred at the beginning
of the applicable four-quarter period, either
(A) the Successor Company (if other than the
Company), would have been permitted to incur at least $1.00
of additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio test set forth in Section 4.03(a) determined
on a pro forma basis (including pro forma application of the
net proceeds therefrom), as if such transaction had occurred
at the beginning of such four-quarter period; or
(B) the Fixed Charge Coverage Ratio for the
Successor Company and its Restricted Subsidiaries would be
greater than such ratio for the Company and its Restricted
Subsidiaries immediately prior to such transaction;
(v) each Guarantor, unless it is the other party to the
transactions described above, in which case clause (ii) shall apply,
shall have confirmed in writing that its Guarantee shall apply to
such Person's obligations under the Notes, this Indenture and the
Registration Rights Agreement; and
(vi) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger or transfer and such amendment or
supplement (if any) comply with this Indenture.
The Successor Company shall succeed to, and be substituted for, the
Company under this Indenture and the Notes. Notwithstanding the foregoing
clauses (iii) and (iv) of this Section 5.01, (a) any Restricted Subsidiary may
consolidate with, merge into or transfer all or part of its properties and
assets to the Company or to another Restricted Subsidiary and (b) the Company
may merge with an Affiliate incorporated solely for the purpose of
incorporating or reincorporating the Company in a (or another) state of the
United States, so long as the amount of Indebtedness of the Company and its
Restricted Subsidiaries is not increased thereby.
Section 5.02. Consolidation, Merger or Sale of Assets by a Guarantor.
xiii) Subject to the provisions of Section 11.02(b) (which govern the release
of a Senior Subordinated Guarantee upon the sale, transfer or disposition of a
Restricted Subsidiary of the Company that is a Guarantor), no Guarantor (other
than the Parent Guarantor) shall, and the Company shall not permit any
Guarantor to, consolidate or merge with or into or wind up into (whether or
not such Guarantor is the surviving corporation), or sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all of its
properties or assets in one or more related transactions to any Person (other
than any such sale, assignment, transfer, lease, conveyance or disposition in
connection with the Transactions described in the Offering Memorandum) unless:
(i) such Guarantor is the surviving Person or the Person
formed by or surviving any such consolidation or merger (if other
than such Guarantor) or to which such sale, assignment, transfer,
lease, conveyance or other disposition will have been made is a
partnership, limited liability company or corporation organized or
existing under the laws of the United States, any state thereof, the
District of Columbia or any territory thereof (such Guarantor or such
Person, as the case may be, being herein called the "Successor
Guarantor");
(ii) the Successor Guarantor (if other than such Guarantor)
expressly assumes all the obligations of such Guarantor under this
Indenture pursuant to supplemental indentures or other documents or
instruments in form reasonably satisfactory to the Trustee;
(iii) immediately after such transaction no Default or Event
of Default shall exist; and
(iv) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger or transfer and such amendment or
supplement (if any) comply with this Indenture.
The Successor Guarantor will succeed to, and be substituted for, such
Guarantor under this Indenture and the Registration Rights Agreement.
Notwithstanding the foregoing, (a) a Guarantor may merge with an Affiliate
incorporated solely for the purpose of incorporating or reincorporating such
Guarantor in another state of the United States, the District of Columbia or
any territory thereof, so long as the amount of Indebtedness of the Guarantor
is not increased thereby, and (b) any Guarantor may merge into or transfer all
or part of its properties and assets to the Company or another Guarantor.
Notwithstanding anything to the contrary herein, except as expressly
permitted under this Indenture, no Guarantor shall be permitted to consolidate
with, merge into or transfer all or part of its properties and assets to the
Parent Guarantor.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default. An "Event of Default" occurs if:
(a) the Issuers default in payment when due and payable,
upon redemption, acceleration or otherwise, of principal of, or
premium, if any, on the Notes, whether or not prohibited by Article
10 of this Indenture,
(b) the Issuers default in the payment when due of interest
or Liquidated Damages, if any, on or with respect to the Notes and
such default continues for a period of 30 days, and, whether or not
such payment shall be prohibited by Article 10,
(c) an Issuer or a Guarantor defaults in the performance of,
or breaches any covenant, warranty or other agreement contained in
this Indenture (other than a default in the performance or breach of
a covenant, warranty or agreement which is specifically dealt with in
clauses (a) or (b) above) and such default or breach continues for a
period of 60 days after the notice specified below,
(d) the Company or a Restricted Subsidiary defaults under
any mortgage, indenture or instrument under which there is issued or
by which there is 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
(other than Indebtedness owed to the Company or a Restricted
Subsidiary), whether such Indebtedness or guarantee now exists or is
created after the date of this Indenture, if (A) such default either
(1) results from the failure to pay any such Indebtedness at its
stated final maturity (after giving effect to any applicable grace
periods) or (2) relates to an obligation other than the obligation to
pay principal of any such Indebtedness at its stated final maturity
and results in the holder or holders of such Indebtedness causing
such Indebtedness to become due prior to its stated 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 at stated final maturity (after giving
effect to any applicable grace periods), or the maturity of which has
been so accelerated, aggregate $35.0 million or more at any one time
outstanding,
(e) the Company or any Significant Subsidiary fails to pay
final judgments (other than any judgments covered by insurance
policies issued by reputable and creditworthy insurance companies)
aggregating in excess of $35.0 million, which final judgments remain
unpaid, undischarged and unstayed for a period of more than 60 days
after such judgment becomes final, and an enforcement proceeding has
been commenced by any creditor upon such judgment or decree which is
not promptly stayed,
(f) the Company or any Significant Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief
against it in an involuntary case;
(iii) consents to the appointment of a Custodian of
it or for any substantial part of its property; or
(iv) makes a general assignment for the benefit of
its creditors or takes any comparable action under any
foreign laws relating to insolvency;
(g) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(i) is for relief against the Company or any
Significant Subsidiary in an involuntary case;
(ii) appoints a Custodian of the Company or any
Significant Subsidiary or for any substantial part of its
property;
(iii) orders the winding up or liquidation of the
Company or any Significant Subsidiary; or
(iv) or any similar relief is granted under any
foreign laws and the order or decree remains unstayed and in
effect for 60 days; or
(h) any Guarantee of a Significant Subsidiary fails to be in
full force and effect (except as contemplated by the terms thereof)
or any Guarantor denies or disaffirms its obligations under its
Guarantee and such Default continues for 10 days.
The foregoing shall constitute Events of Default whatever the reason
for any such Event of Default and whether it is voluntary or involuntary or is
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body.
The term "Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any
similar Federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator, custodian or similar
official under any Bankruptcy Law.
Section 6.02. Acceleration. If an Event of Default (other than an
Event of Default specified in clauses (f) and (g) of Section 6.01 with respect
to the Company) shall occur and be continuing, the Trustee or the holders of
at least 25% in principal amount of outstanding Notes may declare the
principal of and accrued interest on such Notes to be due and payable by
notice in writing to the Company and the Trustee specifying the respective
Event of Default and that it is a "notice of acceleration" (the "Acceleration
Notice"), and the same shall (i) become immediately due and payable or (ii) if
there are any amounts outstanding under a Credit Agreement, become immediately
due and payable upon the first to occur of an acceleration under a Credit
Agreement or 5 business days after the receipt by the Company and the
Representative under a Credit Agreement of such Acceleration Notice but only
if such Event of Default is then continuing. Notwithstanding the foregoing, if
an Event of Default specified in clauses (f) and (g) above with respect to the
Company occurs and is continuing, then all unpaid principal of, and premium,
if any, and accrued and unpaid interest on all of the outstanding Notes shall
ipso facto become and be immediately due and payable without any declaration
or other act on the part of the Trustee or any holder of the Notes. The
Holders of a majority in principal amount of the Notes outstanding by notice
to the Trustee may rescind an acceleration and its consequences if:
(i) the rescission would not conflict with any judgment or
decree;
(ii) all existing Events of Default have been cured or
waived except nonpayment of principal or interest that has become due
solely because of acceleration;
(iii) to the extent the payment of such interest is lawful,
interest on overdue installments of interest and overdue principal,
which has become due otherwise than by such declaration of
acceleration, has been paid;
(iv) if the Company has paid the Trustee its reasonable
compensation and reimbursed the Trustee for its expenses,
disbursements and advances; and
(v) in the event of the cure or waiver of an Event of
Default of the type described in clauses (f) and (g) of Section 6.01,
the Trustee shall have received an Officers' Certificate and an
opinion of counsel that such Event of Default has been cured or
waived.
No such rescission shall affect any subsequent Default or impair any right
consequent thereto.
The Holders of a majority in principal amount of the Notes may waive
any existing Default or Event of Default under this Indenture, and its
consequences, except a default in the payment of the principal of or interest
on the Notes.
In the event of any Event of Default specified in Section 6.01(d),
such Event of Default and all consequences thereof (excluding, however, any
resulting payment default) shall be annulled, waived and rescinded,
automatically and without any action by the Trustee or the Holders of the
Notes, if within 20 days after such Event of Default arose the Company
delivers an Officers' Certificate to the Trustee stating that (x) the
Indebtedness or guarantee that is the basis for such Event of Default has been
discharged or (y) the holders thereof have rescinded or waived the
acceleration, notice or action (as the case may be) giving rise to such Event
of Default or (z) the default that is the basis for such Event of Default has
been cured, it being understood that in no event shall an acceleration of the
principal amount of the Notes as described above be annulled, waived or
rescinded upon the happening of any such events.
Section 6.03. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy at law or in equity to
collect the payment of principal of or interest on the Notes or to enforce the
performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
Section 6.04. Waiver of Past Defaults. Provided the Notes are not
then due and payable by reason of a declaration of acceleration, the Holders
of a majority in principal amount of the Notes outstanding by notice to the
Trustee may waive an existing Default and its consequences except (a) a
Default in the payment of the principal of or interest on a Note, (b) a
Default arising from the failure to redeem or purchase any Note when required
pursuant to the terms of this Indenture or (c) a Default in respect of a
provision that under Section 9.02 cannot be amended without the consent of
each Holder affected. When a Default is waived, it is deemed cured and the
Issuer, the Trustee and the Holders will be restored to their former positions
and rights under this Indenture, but no such waiver shall extend to any
subsequent or other Default or impair any consequent right.
Section 6.05. Control by Majority. The Holders of a majority in
principal amount of the Notes outstanding may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
of exercising any trust or power conferred on the Trustee. However, the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture or, subject to Section 7.01, that the Trustee determines is unduly
prejudicial to the rights of any other Holder or that would involve the
Trustee in personal liability; provided, however, that the Trustee may take
any other action deemed proper by the Trustee that is not inconsistent with
such direction. Prior to taking any action under this Indenture, the Trustee
shall be entitled to indemnification satisfactory to it in its sole discretion
against all losses and expenses caused by taking or not taking such action.
Section 6.06. Limitation on Suits. xiv) Except to enforce the right
to receive payment of principal, premium (if any) or interest when due, no
Holder may pursue any remedy with respect to this Indenture or the Notes
unless:
(i) the Holder gives to the Trustee written notice stating
that an Event of Default is continuing;
(ii) the Holders of at least 25% in principal amount of the
Notes make a written request to the Trustee to pursue the remedy;
(iii) such Holder or Holders offer to the Trustee reasonable
security or indemnity satisfactory to it 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 security or
indemnity; and
(v) the Holders of a majority in principal amount of the
Notes outstanding do not give the Trustee a direction inconsistent
with the request during such 60-day period.
(b) A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over another Holder.
Section 6.07. Rights of the Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of principal of and interest on the Notes held by such
Holder, on or after the respective due dates expressed or provided for in the
Notes, or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent
of such Holder.
Section 6.08. Collection Suit by Trustee. If an Event of Default
specified in Section 6.01(a) or (b) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against
the Issuers or any other obligor on the Notes for the whole amount then due
and owing (together with interest on overdue principal and (to the extent
lawful) on any unpaid interest at the rate provided for in the Notes) and the
amounts provided for in Section 7.07.
Section 6.09. Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
reasonable compensation, expenses disbursements and advances of the Trustee
(including counsel, accountants, experts or such other professionals as the
Trustee deems necessary, advisable or appropriate)) and the Holders allowed in
any judicial proceedings relative to the Company or any Guarantor, their
creditors or their property, shall be entitled to participate as a member,
voting or otherwise, of any official committee of creditors appointed in such
matters and, unless prohibited by law or applicable regulations, may vote on
behalf of the Holders in any election of a trustee in bankruptcy or other
Person performing similar functions, and any Custodian in any such judicial
proceeding is hereby authorized by each Holder to make payments to the Trustee
and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and its counsel, and any other amounts due the Trustee
under Section 7.07.
Section 6.10. Priorities. If the Trustee collects any money or
property pursuant to this Article 6, it shall pay out the money or property in
the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to holders of Senior Debt of the Issuers to the
extent required by Article 10 and to holders of Senior Debt of the
Guarantors to the extent required by Article 12;
THIRD: to the Holders for amounts due and unpaid on the
Notes for principal, premium, if any, and interest, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Notes for principal and interest, respectively; and
FOURTH: to the Issuers.
The Trustee may fix a record date and payment date for any payment to
the Holders pursuant to this Section. At least 15 days before such record
date, the Trustee shall mail to each Holder and the Issuers a notice that
states the record date, the payment date and amount to be paid.
Section 6.11. Undertaking for Costs. In any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, a court in its discretion
may require the filing by any party litigant in the suit of an undertaking to
pay the costs of the suit, and the court in its discretion may assess
reasonable costs, including reasonable attorneys' fees and expenses, against
any party litigant in the suit, having due regard to the merits and good faith
of the claims or defenses made by the party litigant. This Section 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 Notes.
Section 6.12. Waiver of Stay or Extension Laws. Neither the Issuers
nor any Guarantor (to the extent it may lawfully do so) shall at any time
insist upon, or plead, or in any manner whatsoever claim or take the benefit
or advantage of, any stay or extension law wherever enacted, now or at any
time hereafter in force, which may affect the covenants or the performance of
this Indenture; and the Issuers and each Guarantor (to the extent that it may
lawfully do so) hereby expressly waive all benefit or advantage of any such
law, and shall not hinder, delay or impede the execution of any power herein
granted to the Trustee, but shall suffer and permit the execution of every
such power as though no such law had been enacted.
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee. xv) If an Event of Default has
occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in
their exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(a) Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture. However, in the case of certificates or opinions
required by any provision hereof to be provided to it, the Trustee
shall examine the certificates and opinions to determine whether or
not they conform to the requirements of this Indenture.
(b) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph
(b) of this Section;
(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;
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05; and
(iv) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur financial
liability in the performance of any of its duties hereunder or in the
exercise of any of its rights or powers.
(c) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(d) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Issuer.
(e) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(f) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section and to the provisions of the TIA.
Section 7.02. Rights of Trustee. xvi) The Trustee may conclusively
rely on any document believed by it to be genuine and to have been signed or
presented by the proper person. The Trustee need not investigate any fact or
matter stated in the document.
(a) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
the Officers' Certificate or Opinion of Counsel.
(b) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(c) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights
or powers; provided, however, that the Trustee's conduct does not constitute
willful misconduct or negligence.
(d) The Trustee may consult with counsel of its own selection and the
advice or opinion of counsel with respect to legal matters relating to this
Indenture and the Notes shall be full and complete authorization and
protection from liability in respect of any action taken, omitted or suffered
by it hereunder in good faith and in accordance with the advice or opinion of
such counsel.
(e) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, debenture,
note or other paper or document unless requested in writing to do so by the
Holders of not less than a majority in principal amount of the Notes at the
time outstanding, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit, and, if
the Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Issuer,
personally or by agent or attorney, at the expense of the Issuers and shall
incur no liability of any kind by reason of such inquiry or investigation.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee security or indemnity satisfactory to the Trustee
against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction.
(g) The rights, privileges, protections, immunities and benefits
given to the Trustee, including its right to be indemnified, are extended to,
and shall be enforceable by, the Trustee in each of its capacities hereunder,
and each agent, custodian and other Person employed to act hereunder.
(h) In no event shall the Trustee be responsible or liable for
special, indirect, or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss or profit) irrespective of whether the
Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action.
Section 7.03. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Notes and
may otherwise deal with the Issuers or their Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent or Registrar may do the
same with like rights. However, the Trustee must comply with 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, any Guarantee or the Notes, it shall not be accountable for
the Issuers' use of the proceeds from the Notes, and it shall not be
responsible for any statement of the Issuers or any Guarantor in this
Indenture or in any document issued in connection with the sale of the Notes
or in the Notes other than the Trustee's certificate of authentication. The
Trustee shall not be charged with knowledge of any Default or Event of Default
under Sections 6.01(c), (d), (e) or (h) or of the identity of any Significant
Subsidiary unless either (a) a Trust Officer shall have actual knowledge
thereof or (b) the Trustee shall have received notice thereof in accordance
with Section 13.02 hereof from the Issuer, any Guarantor or any Holder.
Section 7.05. Notice of Defaults. If a Default occurs and is
continuing and if it is actually known to the Trustee, the Trustee shall mail
to each Holder notice of the Default within the earlier of 90 days after it
occurs or 30 days after it is actually known to a Trust Officer or written
notice of it is received by the Trustee. Except in the case of a Default in
the payment of principal of, premium (if any) or interest on any Note, 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
interests of the Holders.
Section 7.06. Reports by Trustee to the Holders. As promptly as
practicable after each May 15 beginning with the May 15 following the date of
this Indenture, and in any event prior to September 30 in each year, the
Trustee shall mail to each Holder a brief report dated as of such September 30
that complies with Section 313(a) of the TIA if and to the extent required
thereby. The Trustee shall also comply with Section 313(b) of the TIA.
A copy of each report at the time of its mailing to the Holders shall
be filed with the SEC and each stock exchange (if any) on which the Notes are
listed. The Issuers agree to notify promptly the Trustee whenever the Notes
become listed on any stock exchange and of any delisting thereof.
Section 7.07. Compensation and Indemnity. The Issuers shall pay to
the Trustee from time to time reasonable compensation for its services, as
agreed upon from time to time in writing. The Trustee's compensation shall not
be limited by any law on compensation of a trustee of an express trust. The
Issuers shall reimburse the Trustee upon request for all reasonable
out-of-pocket expenses incurred or made by it, including costs of collection,
in addition to the compensation for its services. Such expenses shall include
the reasonable compensation and expenses, disbursements and advances of the
Trustee's agents, counsel, accountants and experts. The Issuers and each
Guarantor, jointly and severally shall indemnify the Trustee against any and
all loss, liability, claim, damage or expense (including reasonable attorneys'
fees and expenses) incurred by or in connection with the acceptance or
administration of this trust and the performance of its duties hereunder,
including the costs and expenses of enforcing this Indenture or Guarantee
against the Issuers or a Guarantor (including this Section 7.07) and defending
itself against or investigating any claim (whether asserted by the Issuer, any
Guarantor, any Holder or any other Person). The Trustee shall notify the
Issuers of any claim for which it may seek indemnity promptly upon obtaining
actual knowledge thereof; provided, however, that any failure so to notify the
Issuers shall not relieve the Issuers or any Guarantor of its indemnity
obligations hereunder. The Issuers shall defend the claim and the indemnified
party shall provide reasonable cooperation at the Issuers' expense in the
defense. Such indemnified parties may have separate counsel and the Issuers
and the Guarantors, as applicable shall pay the fees and expenses of such
counsel; provided, however, that the Issuers shall not be required to pay such
fees and expenses if it assumes such indemnified parties' defense and, in such
indemnified parties' reasonable judgment, there is no conflict of interest
between the Issuers and the Guarantors, as applicable, and such parties in
connection with such defense. The Issuers need not reimburse any expense or
indemnify against any loss, liability or expense incurred by an indemnified
party through such party's own willful misconduct, negligence or bad faith.
To secure the Issuers' and the Guarantors' payment obligations in
this Section, the Trustee shall have a Lien prior to the Notes on all money or
property held or collected by the Trustee other than money or property held in
trust to pay principal of and interest on particular Notes.
The Issuers' and the Guarantors' payment obligations pursuant to this
Section shall survive the satisfaction or discharge of this Indenture, any
rejection or termination of this Indenture under any bankruptcy law or the
resignation or removal of the Trustee. Without prejudice to any other rights
available to the Trustee under applicable law, when the Trustee incurs
expenses after the occurrence of a Default specified in Section 6.01(f) or (g)
with respect to the Issuer, the expenses are intended to constitute expenses
of administration under the Bankruptcy Law.
Section 7.08. Replacement of Trustee. xvii) The Trustee may resign at
any time by so notifying the Issuer. The Holders of a majority in principal
amount of the Notes outstanding may remove the Trustee by so notifying the
Trustee and may appoint a successor Trustee. The Issuers shall remove the
Trustee if:
(i) the Trustee fails to comply with Section 7.10;
(ii) the Trustee is adjudged bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the
Trustee or its property; or
(iv) the Trustee otherwise becomes incapable of acting.
(b) If the Trustee resigns, is removed by the Issuers or by the
Holders of a majority in principal amount of the Notes outstanding and such
Holders do not reasonably promptly appoint a successor Trustee, or if a
vacancy exists in the office of Trustee for any reason (the Trustee in such
event being referred to herein as the retiring Trustee), the Issuers shall
promptly appoint a successor Trustee.
(c) A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuer. 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
succession to the Holders. The retiring Trustee shall, upon payment of its
charges hereunder, promptly transfer all property held by it as Trustee to the
successor Trustee, subject to the Lien provided for in Section 7.07.
(d) If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee or the
Holders of 10% in principal amount of the Notes may petition at the expense of
the Issuers any court of competent jurisdiction for the appointment of a
successor Trustee.
(e) If the Trustee fails to comply with Section 7.10, unless the
Trustee's duty to resign is stayed as provided in Section 310(b) of the TIA,
any Holder who has been a bona fide holder of a Note for at least six months
may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
(f) Notwithstanding the replacement of the Trustee pursuant to this
Section, the Issuers' obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
Section 7.09. Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts created
by this Indenture any of the Notes shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Trustee may authenticate such Notes either
in the name of any predecessor hereunder or in the name of the successor to
the Trustee; and in all such cases such certificates shall have the full force
which it is anywhere in the Notes or in this Indenture provided that the
certificate of the Trustee shall have.
Section 7.10. Eligibility; Disqualification. The Trustee shall at all
times satisfy the requirements of Section 310(a) of the TIA. The Trustee shall
have a combined capital and surplus of at least $100,000,000 as set forth in
its most recent published annual report of condition. The Trustee shall comply
with Section 310(b) of the TIA, subject to its right to apply for a stay of
its duty to resign under the penultimate paragraph of Section 310(b) of the
TIA; provided, however, that there shall be excluded from the operation of
Section 310(b)(1) of the TIA any series of securities issued under this
Indenture and any indenture or indentures under which other securities or
certificates of interest or participation in other securities of the Issuers
are outstanding if the requirements for such exclusion set forth in Section
310(b)(1) of the TIA are met.
Section 7.11. Preferential Collection of Claims Against Issuer. The
Trustee shall comply with Section 311(a) of the TIA, excluding any creditor
relationship listed in Section 311(b) of the TIA. A Trustee who has resigned
or been removed shall be subject to Section 311(a) of the TIA to the extent
indicated.
ARTICLE 8
DISCHARGE OF INDENTURE; DEFEASANCE
Section 8.01. Discharge of Liability on Notes. This Indenture shall
be discharged and shall cease to be of further effect (except as to surviving
rights of registration of transfer or exchange of Notes, as expressly provided
for in this Indenture) as to all outstanding Notes:
(a) when either:
(i) all the Notes theretofore authenticated and
delivered (other than Notes pursuant to Section 2.08 which
have been replaced or paid and Notes for whose payment money
has theretofore been deposited in trust or segregated and
held in trust by the Issuers and thereafter repaid to the
Issuers or discharged from such trust) have been delivered
to the Trustee for cancellation; or
(ii) all of the Notes (a) have become due and
payable, (b) will become due and payable at their stated
maturity within one year or (c) if redeemable at the option
of the Issuer, are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name,
and at the expense of, the Issuer, and the Issuers have
irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust solely for the benefit of
the holders cash in U.S. dollars, non-callable Government
Securities, or a combination of cash in U.S. dollars and
non-callable Government Securities in amounts as will be
sufficient without consideration of any reinvestment of
interest, to pay and discharge the entire Indebtedness on
the Notes not delivered to the Trustee for cancellation for
principal, premium and Liquidated Damages, if any, and
accrued interest to the date of maturity or redemption;
(b) the Issuers and/or the Guarantors have paid or caused to
be paid all sums payable by them under this Indenture;
(c) the Issuers have delivered irrevocable instructions to
the Trustee to apply the deposited money toward the payment of the
Notes at maturity or the redemption date, as the case may be; and
(d) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel stating that all conditions
precedent under this Indenture relating to the satisfaction and
discharge of this Indenture have been complied with.
Section 8.02. Defeasance. xviii) The Issuers may, at their option and
at any time, elect to have all of their obligations discharged with respect to
the outstanding Notes issued under the Indenture ("Legal Defeasance") except
for:
(i) the rights of Holders of outstanding Notes issued
thereunder to receive payments in respect of the principal of, or
interest or premium and Liquidated Damages, if any, on such Notes
when such payments are due from the trust referred to below;
(ii) the Issuers' obligations with respect to the Notes
issued thereunder concerning issuing temporary Notes, registration of
Notes, mutilated, destroyed, lost or stolen Notes and the maintenance
of an office or agency for payment and money for security payments
held in trust;
(iii) the rights, powers, trusts, duties and immunities of
the Trustee, and the Issuers' obligations in connection therewith;
and
(iv) this Section 8.02(a).
(b) The Issuers may, at their option and at any time, elect to have
their obligations released with respect to Sections 4.02, 4.03, 4.04, 4.05,
4.06, 4.07, 4.08, 4.09, 4.11, 4.12, 4.13 and the operation of Article 5 and
Sections 6.01(c), 6.01(d), 6.01(e), 6.01(f) (with respect to Significant
Subsidiaries of the Company only), 6.01(g) (with respect to Significant
Subsidiaries of the Company only) and 6.01(h) of this Indenture ("Covenant
Defeasance") and thereafter any omission to comply with those covenants will
not constitute a Default or Event of Default with respect to the Notes. The
Issuers may exercise their Legal Defeasance option notwithstanding their prior
exercise of their Covenant Defeasance option. In the event the Issuers
terminate all of their obligations under the Notes and this Indenture (with
respect to the Notes) by exercising their Legal Defeasance option or their
Covenant Defeasance option, the obligations of each Guarantor under its
Guarantee of the Notes shall be terminated simultaneously with the termination
of such obligations.
If the Issuers exercise their Legal Defeasance option, payment of the
Notes so defeased may not be accelerated because of an Event of Default. If
the Issuers exercise their Covenant Defeasance option, payment of the Notes so
defeased may not be accelerated because of an Event of Default specified in
Sections 6.01(c), 6.01(d), 6.01(e), 6.01(f) (with respect to Significant
Subsidiaries of the Company only) and 6.01(g) (with respect to Significant
Subsidiaries of the Company only) or because of the failure of the Issuers to
comply with Section 5.01.
Upon satisfaction of the conditions set forth herein and upon request
of the Issuers, the Trustee shall acknowledge in writing the discharge of
those obligations that the Issuers terminate.
(c) Notwithstanding clauses (a) and (b) above, the Issuers'
obligations in Sections 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 7.07, 7.08 and in
this Article 8 shall survive until the Notes have been paid in full.
Thereafter, the Issuers' obligations in Sections 7.07, 8.06 and 8.07 shall
survive such satisfaction and discharge.
Section 8.03. Conditions to Defeasance. xix) The Issuers may exercise
their Legal Defeasance option or their Covenant Defeasance option only if:
(i) the Issuers have irrevocably deposited with the Trustee,
in trust, for the benefit of the holders of the Notes issued
thereunder, cash in U.S. dollars, non-callable Government Securities,
or a combination of cash in U.S. dollars and non-callable Government
Securities, in amounts as will be sufficient, in the opinion of a
nationally recognized firm of independent public accountants, to pay
the principal of, or interest and premium and Liquidated Damages, if
any, on the outstanding Notes issued thereunder on the stated
maturity or on the redemption date, as the case may be, and the
Issuers must specify whether the Notes are being defeased to maturity
or to a particular redemption date;
(ii) in the case of Legal Defeasance, the Issuers have
delivered to the Trustee an opinion of counsel reasonably acceptable
to the Trustee confirming that (a) the Issuers have received from, or
there has been published by, the Internal Revenue Service a ruling or
(b) since the date of this Indenture, there has been a change in the
applicable federal income tax law, in either case to the effect that,
and based thereon such opinion of counsel will confirm that, the
Holders of the respective outstanding Notes will not recognize
income, gain or loss for federal income tax purposes as a result of
such Legal Defeasance and will be subject to federal income tax on
the same amounts, in the same manner and at the same times as would
have been the case if such Legal Defeasance had not occurred;
(iii) in the case of Covenant Defeasance, the Issuers have
delivered to the Trustee an Opinion of Counsel reasonably acceptable
to the Trustee confirming that the Holders of the respective
outstanding Notes will not recognize income, gain or loss for federal
income tax purposes as a result of such Covenant Defeasance and will
be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
Covenant Defeasance had not occurred;
(iv) no Default or Event of Default has occurred and is
continuing on the date of such deposit (other than a Default or Event
of Default resulting from the borrowing of funds to be applied to
such deposit and the granting of Liens in connection therewith) or
insofar as Events of Default (other than Events of Default resulting
from the borrowing of funds to be applied to such deposit and the
granting of Liens in connection therewith) resulting from the
borrowing of funds or insolvency events are concerned, at any time in
the period ending on the 91st day after the date of deposit;
(v) such Legal Defeasance or Covenant Defeasance will not
result in a breach or violation of, or constitute a default under any
material agreement or instrument, including, without limitation, the
Credit Agreements (other than this Indenture) to which the Company or
any of its Restricted Subsidiaries is a party or by which the Company
or any of its Restricted Subsidiaries is bound;
(vi) the Issuers must deliver to the Trustee an Officers'
Certificate stating that the deposit was not made by the Issuers with
the intent of preferring the holders of Notes over the other
creditors of the Issuers with the intent of defeating, hindering,
delaying or defrauding creditors of the Issuers or others; and
(vii) the Issuers must deliver to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent relating to the Legal Defeasance or the Covenant
Defeasance as contemplated by this Article 8 have been complied with.
(b) Before or after a deposit, the Issuers may make arrangements
satisfactory to the Trustee for the redemption of such Notes at a future date
in accordance with Article 3.
Section 8.04. Application of Trust Money. The Trustee shall hold in
trust money or Government Obligations (including proceeds thereof) deposited
with it pursuant to this Article 8. It shall apply the deposited money and the
money from Government Obligations through each Paying Agent and in accordance
with this Indenture to the payment of principal of and interest on the Notes
so discharged or defeased. Money and securities so held in trust are not
subject to Article 10 or 12.
Section 8.05. Repayment to Issuers. Each of the Trustee and each
Paying Agent shall promptly turn over to the Issuers upon request any money or
Government Obligations held by it as provided in this Article which, in the
written opinion of nationally recognized firm of independent public
accountants delivered to the Trustee (which delivery shall only be required if
Government Obligations have been so deposited), are in excess of the amount
thereof which would then be required to be deposited to effect an equivalent
discharge or defeasance in accordance with this Article.
Subject to any applicable abandoned property law, the Trustee and
each Paying Agent shall pay to the Issuers upon written request any money held
by them for the payment of principal or interest that remains unclaimed for
two years, and, thereafter, Holders entitled to the money must look to the
Issuers for payment as general creditors, and the Trustee and each Paying
Agent shall have no further liability with respect to such monies.
Section 8.06. Indemnity for Government Obligations. The Issuers shall
pay and shall indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against deposited Government Obligations or the
principal and interest received on such Government Obligations.
Section 8.07. Reinstatement. If the Trustee or any Paying Agent is
unable to apply any money or 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 Issuers' obligations under this
Indenture and the Notes so discharged or defeased shall be revived and
reinstated as though no deposit had occurred pursuant to this Article 8 until
such time as the Trustee or any Paying Agent is permitted to apply all such
money or Government Obligations in accordance with this Article 8; provided,
however, that, if the Issuers have made any payment of principal of or
interest on, any such Notes because of the reinstatement of their obligations,
the Issuers shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money or Government Obligations held by the
Trustee or any Paying Agent.
ARTICLE 9
AMENDMENTS AND WAIVERS
Section 9.01. Without Consent of the Holders. xx) The Issuers and the
Trustee may amend or supplement this Indenture or the Notes without notice to
or consent of any Holder:
(i) to cure any ambiguity, defect or inconsistency;
(ii) to provide for uncertificated Notes in addition to or
in place of certificated Notes; provided, however, that the
uncertificated Notes are issued in registered form for purposes of
Section 163(f) of the code or in a manner such that the
uncertificated Notes are described in Section 163(f)(2)(B);
(iii) to provide for the assumption of the Company's
obligations to holders of Notes in the case of a merger or
consolidation or sale of all or substantially all of the Company's
assets pursuant to Article 5 hereof;
(iv) to add any Guarantee of the Notes or to release the
Parent Guarantee or any other Guarantee;
(v) to add to the covenants of the Issuers for the benefit
of the Holders or to surrender any right or power herein conferred
upon the Issuers;
(vi) to comply with any requirement of the SEC in order to
effect or maintain the qualification of this Indenture under the TIA;
(vii) to make any change that would provide additional
rights or benefits to the Holders of Notes or that does not adversely
affect the legal rights under this Indenture of any Holder; or
(viii) to provide for the issuance of the Exchange Notes or
the Additional Notes, which shall have terms substantially identical
in all material respects to the Initial Notes, and which shall be
treated, together with any outstanding Initial Notes, as a single
issue of securities.
(b) No amendment under this Section 9.01 may make any change that
adversely affects the rights under Article 10 or Article 12 of any holder of
Senior Debt of the Issuers or a Guarantor then outstanding unless the holders
of such Senior Debt (or any group or Representative thereof authorized to give
a consent) consent to such change.
After an amendment under this Section 9.01 becomes effective, the
Issuers shall mail to the Holders a notice briefly describing such amendment.
The failure to give such notice to all Holders, or any defect therein, shall
not impair or affect the validity of an amendment under this Section 9.01.
Section 9.02. With Consent of the Holders. The Indenture or the Notes
issued thereunder may be amended or supplemented with the consent of the
holders of at least a majority in principal amount of the Notes then
outstanding issued under the Indenture (including, without limitation,
consents obtained in connection with a purchase of, or tender offer or
exchange offer for, Notes), and any existing default or compliance with any
provision of the Indenture or the Notes issued thereunder may be waived with
the consent of the holders of a majority in principal amount of the then
outstanding Notes issued under the Indenture (including, without limitation,
consents obtained in connection with a purchase of, or tender offer or
exchange offer for, Notes). However, without the consent of each Holder of an
outstanding Note affected, an amendment or waiver may not (with respect to any
Notes held by a non-consenting member):
(i) reduce the principal amount of Notes whose holders must
consent to an amendment, supplement or waiver;
(ii) reduce the principal of or change the fixed maturity of
any Note or alter the provisions with respect to the redemption of
the Notes (other than pursuant to Sections 4.06 or 4.08 hereof);
(iii) reduce the rate of or change the time for payment of
interest on any Note issued hereunder;
(iv) waive a Default or Event of Default in the payment of
principal of, or interest or premium, or Liquidated Damages, if any,
on the Notes (except a rescission of acceleration of the Notes by the
holders of at least a majority in aggregate principal amount of the
Notes and a waiver of the payment default that resulted from such
acceleration);
(v) make any Note payable in money other than that stated in
the Notes;
(vi) make any change to Section 6.04 or 6.07;
(vii) waive a redemption payment with respect to any Note
issued hereunder (other than payment required by Sections 4.06 or
4.08 hereof);
(viii) modify the subsidiary Guarantees in any manner
adverse to the holders of such Notes;
(ix) modify or change any provision of this Indenture or the
related definitions affecting ranking or the subordination of the
Notes in a manner that materially adversely affects the Holders; or
(x) make any change to this Section 9.02.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
An amendment under this Section 9.02 may not make any change that
adversely affects the rights under Article 10 or Article 12 of any holder of
Senior Debt then outstanding unless the holders of such Senior Debt (or any
group or Representative thereof authorized to give a consent) consent to such
change.
After an amendment under this Section 9.02 becomes effective, the
Issuers shall mail to the Holders a notice briefly describing such amendment.
The failure to give such notice to all Holders, or any defect therein, shall
not impair or affect the validity of an amendment under this Section 9.02.
Section 9.03. Compliance with Trust Indenture Act. From the date on
which this Indenture is qualified under the TIA, every amendment, waiver or
supplement to this Indenture or the Notes shall comply with the TIA as then in
effect.
Section 9.04. Revocation and Effect of Consents and Waivers. xxi) A
consent to an amendment or a waiver by a Holder of a Note shall bind the
Holder and every subsequent Holder of that Note or portion of the Note that
evidences the same debt as the consenting Holder's Note, even if notation of
the consent or waiver is not made on the Note. However, any such Holder or
subsequent Holder may revoke the consent or waiver as to such Holder's Note or
portion of the Note if the Trustee receives the notice of revocation before
the date on which the Trustee receives an Officers' Certificate from the
Issuers certifying that the requisite principal amount of Notes have
consented. After an amendment or waiver becomes effective, it shall bind every
Holder. An amendment or waiver becomes effective upon the (i) receipt by the
Issuers or the Trustee of consents by the Holders of the requisite principal
amount of securities, (ii) satisfaction of conditions to effectiveness as set
forth in this Indenture and any indenture supplemental hereto containing such
amendment or waiver and (iii) execution of such amendment or waiver (or
supplemental indenture) by the Issuers and the Trustee.
(a) The Issuers may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to give their consent or
take any other action described above or required or permitted to be taken
pursuant to this Indenture. If a record date is fixed, then notwithstanding
the immediately preceding paragraph, those Persons who were Holders at such
record date (or their duly designated proxies), and only those Persons, shall
be entitled to give such consent or to revoke any consent previously given or
to take any such action, whether or not such Persons continue to be Holders
after such record date. No such consent shall be valid or effective for more
than 120 days after such record date.
Section 9.05. Notation on or Exchange of Notes. If an amendment,
supplement or waiver changes the terms of a Note, the Issuers may require the
Holder of the Note to deliver it to the Trustee. The Trustee may place an
appropriate notation on the Note regarding the changed terms and return it to
the Holder. Alternatively, if the Issuers or the Trustee so determines, the
Issuers in exchange for the Note shall issue and the Trustee shall
authenticate a new Note that reflects the changed terms. Failure to make the
appropriate notation or to issue a new Note shall not affect the validity of
such amendment, supplement or waiver.
Section 9.06. Trustee to Sign Amendments. The Trustee shall sign any
amendment, supplement or waiver 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 is not required to
sign it. In signing such amendment, the Trustee shall be entitled to receive
indemnity reasonably satisfactory to it and shall be provided with, and
(subject to Section 7.01) shall be fully protected in relying upon, an
Officers' Certificate and an Opinion of Counsel stating that such amendment,
supplement or waiver is authorized or permitted by this Indenture and that
such amendment, supplement or waiver is the legal, valid and binding
obligation of the Issuers and the Guarantors, enforceable against them in
accordance with its terms, subject to customary exceptions, and complies with
the provisions hereof (including Section 9.03).
Section 9.07. Additional Voting Terms; Calculation of Principal
Amount. Except as provided in the proviso to the first sentence of Section
9.02, all Notes issued under this Indenture shall vote and consent together on
all matters (as to which any of such Notes may vote) as one class and no
series of Notes will have the right to vote or consent as a separate class on
any matter. Determinations as to whether Holders of the requisite aggregate
principal amount of Notes have concurred in any direction, waiver or consent
shall be made in accordance with this Article 9.
ARTICLE 10
SUBORDINATION
Section 10.01. Agreement to Subordinate. The Issuers agree, and each
Holder by accepting a Note agrees, that the Indebtedness evidenced by the
Notes is subordinated in right of payment, to the extent and in the manner
provided in this Article 10, to the prior payment in full of all existing and
future Senior Debt of the Issuers and that the subordination is for the
benefit of and enforceable by the holders of such Senior Debt. All provisions
in this Article 10 shall be subject to Section 10.12.
Section 10.02. Liquidation, Dissolution, Bankruptcy. The payment of
principal, interest and premium and Liquidated Damages, if any, on the Notes
will be subordinated to the prior payment in full of all Senior Debt of the
Issuers, including Senior Debt incurred after the date of this Indenture.
Payments by the Issuers of Principal, interest, premium, Liquidated Damages,
if any, and other amounts on, or with respect to, the Notes (including without
limitation payments to purchase, redeem or retire same) are referred to herein
as "Subordinated Note Payments." Upon any payment or distribution of the
assets of an Issuer to creditors upon a total or partial liquidation or a
total or partial dissolution of an Issuer or in a bankruptcy, reorganization,
insolvency, receivership or similar proceeding relating to such Issuer or its
property, holders of Senior Debt will be entitled to receive payment in full
in cash of all Obligations due in respect of Senior Debt (including interest
after the commencement of any bankruptcy proceeding at the rate specified in
the applicable Senior Debt, whether or not such interest is an allowed or
allowable claim under applicable law) before the holders of Notes will be
entitled to receive any Subordinated Note Payments (other than Permitted
Junior Securities) with respect to the Notes, in the event of any distribution
to creditors of the Issuers:
(a) in a liquidation or dissolution of an Issuer;
(b) in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to an Issuer or its
property;
(c) in an assignment for the benefit of creditors; or
(d) in any marshaling of an Issuer's assets and liabilities.
Section 10.03. Default on Senior Debt. xxii) The Issuers shall not
make any Subordinated Note Payments in respect of the Notes if:
(1) a payment default on Senior Debt occurs and is
continuing; or
(2) any other default occurs and is continuing on any series
of Designated Senior Debt that permits holders of that series of
Designated Senior Debt to accelerate its maturity and the Trustee
receives a notice of such default (a "Payment Blockage Notice") from
the holders of any Designated Senior Debt or their Representatives.
(b) Subordinated Note Payments may and will be resumed:
(1) in the case of a payment default, upon the date on which
such default is cured or waived; and
(2) in the case of a nonpayment default, upon the earliest
of (i) the date on which such nonpayment default is cured or waived
(so long as no other event of default exists), (ii) 179 days after
the date on which the Payment Blockage Notice is received or (iii)
the date on which Trustee receives notice from a Representative for
the respective issue of Designated Senior Debt rescinding such
Payment Blockage Notice, unless the maturity of any Designated Senior
Debt has been accelerated.
(c) No new Payment Blockage Notice may be delivered unless and until
360 days have elapsed since the delivery of the immediately prior Payment
Blockage Notice.
No nonpayment default that existed or was continuing on the date of delivery
of any Payment Blockage Notice to the Trustee will be, or be made, the basis
for a subsequent Payment Blockage Notice unless such default has been cured or
waived for a period of not less than 90 days (it being acknowledged that any
subsequent action, or any breach of any financial covenants for a period
commencing after the date of delivery of such initial Payment Blockage Notice
that in either case would give rise to a default pursuant to any provisions
under which a default previously existed or was continuing shall constitute a
new default for this purpose).
(d) If the Trustee or any holder of the Notes receives a Subordinated
Note Payment when the payment is prohibited by these subordination provisions
the Trustee or the holder, as the case may be, will hold such Subordinated
Note Payment in trust for the benefit of the holders of Senior Debt. Upon the
proper written request of the holders of Senior Debt, the Trustee or the
holder, as the case may be, will deliver the Subordinated Note Payment in
trust to the holders of Senior Debt or their proper Representative.
(e) The Company shall promptly notify holders of Senior Debt if
payment of the Notes is accelerated because of an Event of default; provided
that the failure to give notice shall have no effect whatsoever on the
subordination provisions described herein.
Section 10.04. Acceleration of Payment of Notes. If payment of the
Notes is accelerated because of an Event of Default, the Company or the
Trustee (provided, that the Trustee shall have received written notice from
the Issuer, on which notice the Trustee shall be entitled to conclusively
rely) shall promptly notify the holders of the Designated Senior Debt of the
Issuers (or their Representative) of the acceleration.
Section 10.05. When Distribution Must Be Paid Over. If a distribution
is made to the Holders that because of this Article 10 should not have been
made to them, the Holders who receive the distribution shall hold it in trust
for holders of Senior Debt of the Issuers and pay it over to them as their
interests may appear.
Section 10.06. Subrogation. After all Senior Debt of the Issuers is
paid in full and until the Notes are paid in full in cash, the Holders shall
be subrogated to the rights of holders of such Senior Debt to receive
distributions applicable to Senior Debt of the Issuers. A distribution made
under this Article 10 to holders of such Senior Debt which otherwise would
have been made to the Holders is not, as between the Issuers and the Holders,
a payment by the Issuers on such Senior Debt.
Section 10.07. Relative Rights. This Article 10 defines the relative
rights of the Holders and holders of Senior Debt of the Issuers. Nothing in
this Indenture shall:
(a) impair, as between the Issuers and the Holders, the
obligation of the Issuers, which is absolute and unconditional, to
pay principal of and interest on the Notes in accordance with their
terms; or
(b) prevent the Trustee or any Holder from exercising its
available remedies upon a Default, subject to the rights of holders
of Senior Debt of the Issuers to receive distributions otherwise
payable to the Holders.
Section 10.08. Subordination May Not Be Impaired by Issuers. No right
of any holder of Senior Debt of the Issuers to enforce the subordination of
the Indebtedness evidenced by the Notes shall be impaired by any act or
failure to act by the Issuers or by their failure to comply with this
Indenture.
Section 10.09. Rights of Trustee and Paying Agent. Notwithstanding
Section 10.03, the Trustee or any Paying Agent may continue to make payments
on the Notes and shall not be charged with knowledge of the existence of facts
that would prohibit the making of any such payments unless, not less than two
Business Days prior to the date of such payment, a Trust Officer of the
Trustee receives notice satisfactory to it that payments may not be made under
this Article 10. The Issuers, the Registrar, any Paying Agent, a
Representative or a holder of Senior Debt of the Issuers may give the notice.
The Trustee in its individual or any other capacity may hold Senior
Debt of the Issuers with the same rights it would have if it were not Trustee.
The Registrar and any Paying Agent may do the same with like rights. The
Trustee shall be entitled to all the rights set forth in this Article 10 with
respect to any Senior Debt of the Issuers which may at any time be held by it,
to the same extent as any other holder of such Senior Debt; and nothing in
Article 7 shall deprive the Trustee of any of its rights as such holder.
Nothing in this Article 10 shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 7.07 or any other Section of this
Indenture.
Section 10.10. Distribution or Notice to Representative. Whenever a
distribution is to be made or a notice given to holders of Senior Debt of the
Issuers, the distribution may be made and the notice given to their
Representative (if any).
Section 10.11. Article 10 Not to Prevent Events of Default or Limit
Right to Accelerate. The failure to make a payment pursuant to the Notes by
reason of any provision in this Article 10 shall not be construed as
preventing the occurrence of a Default. Nothing in this Article 10 shall have
any effect on the right of the Holders or the Trustee to accelerate the
maturity of the Notes.
Section 10.12. Trust Monies Not Subordinated. Notwithstanding
anything contained herein to the contrary, payments from money or the proceeds
of Government Obligations held in trust under Article 8 by the Trustee and
deposited at a time when the applicable conditions specified in Section 8.03
are satisfied and when permitted by the subordination provisions of this
Article 10 for the payment of principal of and interest on the Notes shall not
be subordinated to the prior payment of any Senior Debt of the Issuers or
subject to the restrictions set forth in this Article 10, and none of the
Holders shall be obligated to pay over any such amount to the Issuers or any
holder of Senior Debt of the Issuers or any other creditor of the Issuers.
Section 10.13. Trustee Entitled to Rely. Upon any payment or
distribution pursuant to this Article 10, the Trustee and the Holders shall be
entitled to rely (a) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section
10.02 are pending, (b) upon a certificate of the liquidating trustee or agent
or other Person making such payment or distribution to the Trustee or to the
Holders or (c) upon the Representatives for the holders of Senior Debt of the
Issuers for the purpose of ascertaining the Persons entitled to participate in
such payment or distribution, the holders of such Senior Debt and other
Indebtedness of the Issuers, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto
or to this Article 10. In the event that the Trustee determines, in good
faith, that evidence is required with respect to the right of any Person as a
holder of Senior Debt of the Issuers to participate in any payment or
distribution pursuant to this Article 10, the Trustee may request such Person
to furnish evidence to the reasonable satisfaction of the Trustee as to the
amount of such Senior Debt held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and other
facts pertinent to the rights of such Person under this Article 10, and, if
such evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to
receive such payment. The provisions of Sections 7.01 and 7.02 shall be
applicable to all actions or omissions of actions by the Trustee pursuant to
this Article 10.
Section 10.14. Trustee to Effectuate Subordination. Each Holder by
accepting a Note authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to acknowledge or effectuate the
subordination between the Holders and the holders of Senior Debt of the
Issuers as provided in this Article 10 and appoints the Trustee as
attorney-in-fact for any and all such purposes.
Section 10.15. Trustee Not Fiduciary for Holders of Senior Debt. The
Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior
Debt of the Issuers and shall not be liable to any such holders if it shall
mistakenly pay over or distribute to the Holders or the Issuers or any other
Person money or assets to which any holders of Senior Debt of the Issuers
shall be entitled by virtue of this Article 10 or otherwise.
Section 10.16. Reliance by Holders of Senior Debt on Subordination
Provisions. Each Holder by accepting a Note acknowledges and agrees that the
foregoing subordination provisions are, and are intended to be, an inducement
and a consideration to each holder of any Senior Debt of the Issuers, whether
such Senior Debt was created or acquired before or after the issuance of the
Notes, to acquire and continue to hold, or to continue to hold, such Senior
Debt and such holder of such Senior Debt shall be deemed conclusively to have
relied on such subordination provisions in acquiring and continuing to hold,
or in continuing to hold, such Senior Debt.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Debt of the Issuers may, at any time and from
time to time, without the consent of or notice to the Trustee or the Holders,
without incurring responsibility to the Trustee or the Holders and without
impairing or releasing the subordination provided in this Article 10 or the
obligations hereunder of the Holders to the holders of the Senior Debt of the
Issuers, do any one or more of the following: (i) change the manner, place or
terms of payment or extend the time of payment of, or renew or alter, Senior
Debt of the Issuers, or otherwise amend or supplement in any manner Senior
Debt of the Issuers, or any instrument evidencing the same or any agreement
under which Senior Debt of the Issuers is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Debt of the Issuers; (iii) release any Person liable in any
manner for the payment or collection of Senior Debt of the Issuers; and (iv)
exercise or refrain from exercising any rights against the Issuers and any
other Person.
ARTICLE 11
GUARANTEES
Section 11.01. Guarantees of the Notes. xxiii) The obligations of the
Issuers pursuant to the Notes, including any repurchase obligation resulting
from a Change of Control, are hereby unconditionally guaranteed, jointly and
severally, on an unsecured, subordinated basis, by the Parent Guarantor and
each Wholly Owned Restricted Subsidiary (other than a Foreign Subsidiary) of
the Company that guarantees the Company's obligations under a Credit Agreement
(a "Senior Obligation Guarantor"). Notwithstanding the foregoing, if at any
time any Restricted Subsidiary (other than a Foreign Subsidiary) that is a
Senior Obligation Guarantor but is not, pursuant to the immediately preceding
sentence, required to be a Guarantor (a "Non-Wholly Owned Senior Obligation
Guarantor") constitutes, either alone or together with all other Non-Wholly
Owned Senior Obligation Guarantors at such time (considered for this purpose
as a single subsidiary and determined on a combined or consolidated basis, as
applicable), a Significant Subsidiary of the Company, then the Company shall
within 20 days cause one or more Non-Wholly Owned Senior Obligation Guarantors
to become Guarantors in accordance with the provisions of this section such
that, after giving effect to all such additional Guarantors, no Non-Wholly
Owned Senior Obligation Guarantor that is not a Guarantor, either alone or
together with all other Non-Wholly Owned Senior Obligation Guarantors that are
not Guarantors at such time (considered for this purpose as a single
subsidiary and determined as provided above), shall constitute a Significant
Subsidiary of the Company.
(a) Upon the occurrence of the Guarantee by any Restricted Subsidiary
of the obligations of the Company under a Credit Agreement that is, pursuant
to the first paragraph of this section, required thereby to provide a Note
Guarantee, the Company will cause each such Restricted Subsidiary (other than
a Securitization Subsidiary) to execute a Note Guarantee or Guarantee
Supplement, satisfactory in form and substance to the Trustee (and with such
documentation relating thereto as the Trustee may require, including, without
limitation, opinions of counsel as to the enforceability of such guarantee),
pursuant to which such Restricted Subsidiary will become a Guarantor;
provided, however, that the guarantee provided by any Guarantor in respect of
a Credit Agreement shall be senior to its Note Guarantee pursuant to
subordination provisions substantially as contained in Article 12 hereof.
(b) Each Guarantor hereby jointly and severally, irrevocably and
unconditionally guarantees, as a primary obligor and not merely as a surety,
to each Holder and to the Trustee and its successors and assigns (i) the full
and punctual payment when due, whether at Stated Maturity, by acceleration, by
redemption or otherwise, of all obligations of the Issuers under this
Indenture (including obligations to the Trustee) and the Notes, whether for
payment of principal of, premium, if any, or interest on in respect of the
Notes and all other monetary obligations of the Issuers under this Indenture
and the Notes and (ii) the full and punctual performance within applicable
grace periods of all other obligations of the Issuers whether for fees,
expenses, indemnification or otherwise under this Indenture and the Notes (all
the foregoing being hereinafter collectively called the "Guaranteed
Obligations"). Each Guarantor further agrees that the Guaranteed Obligations
may be extended or renewed, in whole or in part, without notice or further
assent from each such Guarantor, and that each such Guarantor shall remain
bound under this Article 11 notwithstanding any extension or renewal of any
Guaranteed Obligation.
(c) Each Guarantor waives presentation to, demand of payment from and
protest to the Issuers of any of the Guaranteed Obligations and also waives
notice of protest for nonpayment. Each Guarantor waives notice of any default
under the Notes or the Guaranteed Obligations. The obligations of each
Guarantor hereunder shall not be affected by (i) the failure of any Holder or
the Trustee to assert any claim or demand or to enforce any right or remedy
against the Issuers or any other Person under this Indenture, the Notes or any
other agreement or otherwise; (ii) any extension or renewal of this Indenture,
the Notes or any other agreement; (iii) any rescission, waiver, amendment or
modification of any of the terms or provisions of this Indenture, the Notes or
any other agreement; (iv) the release of any security held by any Holder or
the Trustee for the Guaranteed Obligations or any Guarantor; (v) the failure
of any Holder or Trustee to exercise any right or remedy against any other
guarantor of the Guaranteed Obligations; or (vi) any change in the ownership
of such Guarantor, except as provided in Section 11.02(b).
(d) Each Guarantor hereby waives any right to which it may be
entitled to have its obligations hereunder divided among the Guarantors, if
applicable, such that such Guarantor's obligations would be less than the full
amount claimed. Each Guarantor hereby waives any right to which it may be
entitled to have the assets of the Issuers first be used and depleted as
payment of the Issuers' or such Guarantor's obligations hereunder prior to any
amounts being claimed from or paid by such Guarantor hereunder. Each Guarantor
hereby waives any right to which it may be entitled to require that the
Issuers be sued prior to an action being initiated against such Guarantor.
(e) Each Guarantor further agrees that its Guarantee herein
constitutes a guarantee of payment, performance and compliance when due (and
not a guarantee of collection) and waives any right to require that any resort
be had by any Holder or the Trustee to any security held for payment of the
Guaranteed Obligations.
(f) The Guarantee of each Guarantor is, to the extent and in the
manner set forth in Article 12, subordinated and subject in right of payment
to the prior payment in full of the principal of and premium, if any, and
interest on all Senior Debt of the relevant Guarantor and is made subject to
such provisions of this Indenture.
(g) Except as expressly set forth in Sections 8.01(b), 11.02 and
11.07, the obligations of each Guarantor hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason, including any
claim of waiver, release, surrender, alteration or compromise, and shall not
be subject to any defense of setoff, counterclaim, recoupment or termination
whatsoever or by reason of the invalidity, illegality or unenforceability of
the Guaranteed Obligations or otherwise. Without limiting the generality of
the foregoing, the obligations of each Guarantor herein shall not be
discharged or impaired or otherwise affected by the failure of any Holder or
the Trustee to assert any claim or demand or to enforce any remedy under this
Indenture, the Notes or any other agreement, by any waiver or modification of
any thereof, by any default, failure or delay, willful or otherwise, in the
performance of the obligations, or by any other act or thing or omission or
delay to do any other act or thing which may or might in any manner or to any
extent vary the risk of any Guarantor or would otherwise operate as a
discharge of any Guarantor as a matter of law or equity.
(h) In furtherance of the foregoing and not in limitation of any
other right which any Holder or the Trustee has at law or in equity against
any Guarantor by virtue hereof, upon the failure of the Issuers to pay the
principal of or interest on any Guaranteed Obligation when and as the same
shall become due, whether at maturity, by acceleration, by redemption or
otherwise, or to perform or comply with any other Guaranteed Obligation, each
Guarantor hereby promises to and shall, upon receipt of written demand by the
Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the
Trustee an amount equal to the sum of (i) the unpaid principal amount of such
Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed
Obligations (but only to the extent not prohibited by applicable law) and
(iii) all other monetary obligations of the Issuers to the Holders and the
Trustee.
(i) Each Guarantor agrees that it shall not be entitled to any right
of subrogation in relation to the Holders in respect of any Guaranteed
Obligations guaranteed hereby until payment in full of all Guaranteed
Obligations and all obligations to which the Guaranteed Obligations are
subordinated as provided in Article 12. Each Guarantor further agrees that, as
between it, on the one hand, and the Holders and the Trustee, on the other
hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may be
accelerated as provided in Article 6 for the purposes of any Guarantee herein,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the Guaranteed Obligations guaranteed hereby, and
(ii) in the event of any declaration of acceleration of such Guaranteed
Obligations as provided in Article 6, such Guaranteed Obligations (whether or
not due and payable) shall forthwith become due and payable by such Guarantor
for the purposes of this Section 11.01.
(j) Each Guarantor also agrees to pay any and all costs and expenses
(including reasonable attorneys' fees and expenses) incurred by the Trustee or
any Holder in enforcing any rights under this Section 11.01.
(k) Upon request of the Trustee, each Guarantor shall execute and
deliver such further instruments and do such further acts as may be reasonably
necessary or proper to carry out more effectively the purpose of this
Indenture.
Section 11.02. Limitation on Liability. xxiv) Any term or provision
of this Indenture to the contrary notwithstanding, the maximum aggregate
amount of the Guaranteed Obligations guaranteed hereunder by any Guarantor
shall not exceed the maximum amount (after giving effect to all guarantees by
it of Senior Debt) that can be hereby guaranteed without rendering this
Indenture or the Guarantees, as they relate to such Guarantor, subject to
avoidance under applicable fraudulent conveyance provisions of the United
States Bankruptcy Code or other comparable provision of applicable law.
(a) A Guarantor shall be automatically and unconditionally released
and discharged from all of its obligations under its Guarantee of the
Guaranteed Obligations under this Article 11 if:
(i) in the case of Guarantor that is a Restricted
Subsidiary:
(A) all its assets or Capital Stock is sold or
transferred, in each case in a transaction in compliance
with Section 4.06 hereof;
(B) the Guarantor merges with or into, or
consolidates with or amalgamates with, or transfers all or
substantially all its assets to, another Person in
compliance with Article 5 hereof; or
(C) such Guarantor is designated an Unrestricted
Subsidiary in accordance with the terms of this Indenture;
(ii) such Guarantor has delivered to the Trustee a
certificate of a Responsible Officer and an Opinion of Counsel, each
stating that all conditions precedent herein provided for relating to
such transaction have been complied with; and
(iii) such Guarantor is released from its guarantee (if any)
of the Credit Agreements.
Section 11.03. Successors and Assigns. This Article 11 shall be
binding upon each Guarantor and its successors and assigns and shall inure to
the benefit of the successors and assigns of the Trustee and the Holders and,
in the event of any transfer or assignment of rights by any Holder or the
Trustee, the rights and privileges conferred upon that party in this Indenture
and in the Notes shall automatically extend to and be vested in such
transferee or assignee, all subject to the terms and conditions of this
Indenture.
Section 11.04. Execution and Delivery of Guarantee. To evidence its
Guarantee set forth in Section 11.01, each Guarantor hereby agrees that a
notation of such Guarantee substantially in the form included in Exhibit D
shall be endorsed by an Officer of such Guarantor on each Note authenticated
and delivered by the Trustee and that this Indenture shall be executed on
behalf of such Guarantor by an Officer.
If an Officer whose signature is on this Indenture or on the
Guarantee no longer holds that office at the time the Trustee authenticates
the Note on which a Guarantee is endorsed, the Guarantee shall be valid
nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantee set forth in
this Indenture on behalf of the Guarantors.Section 11.05. No Waiver. Neither a
failure nor a delay on the part of either the Trustee or the Holders in
exercising any right, power or privilege under this Article 11 shall operate
as a waiver thereof, nor shall a single or partial exercise thereof preclude
any other or further exercise of any right, power or privilege. The rights,
remedies and benefits of the Trustee and the Holders herein expressly
specified are cumulative and not exclusive of any other rights, remedies or
benefits which either may have under this Article 11 at law, in equity, by
statute or otherwise.
Section 11.06. Modification. No modification, amendment or waiver of
any provision of this Article 11, nor the consent to any departure by any
Guarantor therefrom, shall in any event be effective unless the same shall be
in writing and signed by the Trustee, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
No notice to or demand on any Guarantor in any case shall entitle such
Guarantor to any other or further notice or demand in the same, similar or
other circumstances.
Section 11.07. Execution of Supplemental Indenture for Future
Guarantors. xxv) Each Subsidiary and other Person which is required to become
a Guarantor pursuant to this Article 11 shall promptly execute and deliver to
the Trustee a supplemental indenture in the form of Exhibit E hereto pursuant
to which such Subsidiary or other Person shall become a Guarantor under this
Article 11 and shall guarantee the Guaranteed Obligations. Concurrently with
the execution and delivery of such supplemental indenture, the Company shall
deliver to the Trustee an Opinion of Counsel and an Officers' Certificate to
the effect that such supplemental indenture has been duly authorized, executed
and delivered by such Subsidiary or other Person and that, subject to the
application of bankruptcy, insolvency, moratorium, fraudulent conveyance or
transfer and other similar laws relating to creditors' rights generally and to
the principles of equity, whether considered in a proceeding at law or in
equity, the Guarantee of such Guarantor is a legal, valid and binding
obligation of such Guarantor, enforceable against such Guarantor in accordance
with its terms and/or to such other matters as the Trustee may reasonably
request.
Section 11.08. Non-impairment. The failure to endorse a notation of
Guarantee on any Note shall not affect or impair the validity thereof.
ARTICLE 12
SUBORDINATION OF THE GUARANTEES
Section 12.01. Agreement to Subordinate. Each Guarantor agrees, and
each Holder by accepting a Note agrees, that the obligations of a Guarantor
hereunder and under any Guarantee are subordinated in right of payment, to the
extent and in the manner provided in this Article 12, to the prior payment in
full of all existing and future Senior Debt of such Guarantor and that the
subordination is for the benefit of and enforceable by the holders of such
Senior Debt of such Guarantor. The obligations hereunder with respect to a
Guarantor shall in all respects rank senior in right of payment to all
existing and future Subordinated Indebtedness of such Guarantor; and only
Indebtedness of such Guarantor that is Senior Debt of such Guarantor shall
rank senior to the obligations of such Guarantor in accordance with the
provisions set forth herein. For purposes of this Article 12, the Indebtedness
evidenced by the Notes shall be deemed to include any Liquidated Damages
payable pursuant to the provisions set forth in the Notes and the Registration
Rights Agreement. All provisions of this Article 12 shall be subject to
Section 12.12.
Section 12.02. Liquidation, Dissolution, BankruptcyThe payment of
principal, interest and premium and Liquidated Damages, if any, on the Notes
(whether directly or pursuant to any Guarantee) will be subordinated to the
prior payment in full of all Senior Debt of the Guarantors, including Senior
Debt incurred after the date of this Indenture. Payments by any Guarantor of
Principal, interest, premium, Liquidated Damages, if any, and other amounts
with respect to the Notes (including without limitation, payments to purchase,
redeem or retire same) or any Guarantee are referred to herein as
"Subordinated Guarantee Payments." Upon any payment or distribution of the
assets of a Guarantor to creditors upon a total or partial liquidation or a
total or partial dissolution of a Guarantor or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to
such Guarantor or its property, holders of Senior Debt of such Guarantor will
be entitled to receive payment in full in cash of all Obligations due in
respect of such Senior Debt (including interest after the commencement of any
bankruptcy proceeding at the rate specified in the applicable Senior Debt,
whether or not such interest is an allowed or allowable claim under applicable
law) before the holders of Notes will be entitled to receive any Subordinated
Guarantee Payments (other than Permitted Junior Securities) from such
Guarantor, in the event of any distribution to creditors of the Guarantors:
(a) in a liquidation or dissolution of a Guarantor;
(b) in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to a Guarantor or its
property;
(c) in an assignment for the benefit of creditors; or
(d) in any marshaling of a Guarantor's assets and
liabilities.
Section 12.03. Default on Senior Debt (a) The Guarantors may not make
any Subordinated Guarantee Payments if:
(1) payment default on Senior Debt occurs and is continuing,
or
(2) any other default occurs and is continuing on any series
of Designated Senior Debt that permits holders of that series of
Designated Senior Debt to accelerate its maturity and the Trustee
receives a Payment Blockage Notice of such default under Section
10.03.
(b) Subordinated Guarantee Payments may and will be resumed:
(1) In the case of a payment default, upon the date on which
such default is cured or waived; and
(2) In the case of a nonpayment default, upon the earliest
of (i) the date on which such nonpayment default is cured or waived
(so long as no other event of default exists), (ii) 179 days after
the date on which the Payment Blockage Notice is received or (iii)
the date on which the Trustee receives notice from a Representative
for the respective issue of Designated Senior Debt rescinding such
Payment Blockage Notice, unless the maturity of any Designated Senior
Debt has been accelerated.
(c) If the Trustee or any holder of the Notes receives a Subordinated
Guarantee Payment when the payment is prohibited by these subordination
provisions the Trustee or the holder, as the case may be, will hold such
Subordinated Guarantee Payment in trust for the benefit of the holders of
Senior Debt. Upon the written request of the holders of Senior Debt, the
Trustee or the holder, as the case may be, will deliver the Subordinated
Guarantee Payment in trust to the holders of Senior Debt or their proper
Representative.
Section 12.05. When Distribution Must Be Paid Over. If a distribution
is made to the Holders that because of this Article 12 should not have been
made to them, the Holders who receive the distribution shall hold it in trust
for holders of Senior Debt of the Guarantors and pay it over to them as their
interests may appear.
Section 12.06. SubrogationAfter all Senior Debt of the Guarantors has
been paid in full and until the Notes are paid in full in cash, the Holders
shall be subrogated to the rights of holders of such Senior Debt to receive
distributions applicable to Senior Debt of the Guarantors. A distribution made
to the Holders is not, as between the Guarantors and the Holders, a payment by
the Guarantors on such Senior Debt.
Section 12.07. Relative Rights. This Article 12 defines the relative
rights of the Holders and holders of Senior Debt of the Guarantors. Nothing in
this Indenture shall:
(a) impair, as between the Guarantors and the Holders, the
obligation of the Guarantors, which is absolute and unconditional, to
pay amounts guaranteed in accordance with the terms of the
Guarantees; or
(b) prevent the Trustee or any Holder from exercising its
available remedies upon a Default, subject to the rights of holders
of Senior Debt of the Guarantors to receive distributions otherwise
payable to the Holders.
Section 12.08. Subordination May Not be Impaired by Guarantors. No
right of any holder of Senior Debt of the Guarantors to enforce the
subordination of the Indebtedness evidenced by the Notes or pursuant to the
Guarantees shall be impaired by any act or failure to act by the Guarantors or
by their failure to comply with this Indenture
Section 12.09. Rights of Trustee and Paying Agent. Notwithstanding
Section 12.03, the Trustee or any Paying Agent may continue to make payments
on the Notes and shall not be charged with knowledge of the existence of facts
that would prohibit the making of any such payments unless, not less than two
Business Days prior to the date of such payment, a Trust Officer of the
Trustee receives notice satisfactory to it that payments may not be made under
Article 10 or this Article 12. The Issuers, a Guarantor, the Registrar, any
Paying Agent, a Representative or a holder of Senior Debt of the Issuers or
any Guarantor may give the notice.
The Trustee in its individual or any other capacity may hold Senior
Debt of the Issuers and/or Guarantors with the same rights it would have if it
were not Trustee. The Registrar and any Paying Agent may do the same with like
rights. The Trustee shall be entitled to all the rights set forth in this
Article 12 with respect to any Senior Debt of the Guarantors which may at any
time be held by it, to the same extent as any other holder of such Senior
Debt; and nothing in Article 7 shall deprive the Trustee of any of its rights
as such holder. Nothing in this Article 12 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 7.07 or any other
Section of this Indenture.
Section 12.10. Distribution or Notice to Representative. Whenever a
distribution is to be made or a notice given to holders of Senior Debt of the
Guarantors, the distribution may be made and the notice given to their
Representative (if any).
Section 12.11. Article 12 Not to Prevent Events of Default or Limit
Right to Accelerate. The failure to make a payment pursuant to the Notes or
any Guarantee by reason of any provision in this Article 12 shall not be
construed as preventing the occurrence of a Default. Nothing in this Article
12 shall have any effect on the right of the Holders or the Trustee to
accelerate the maturity of the Notes.
Section 12.12. Trust Monies Not Subordinated. Notwithstanding
anything contained herein to the contrary, payments from money or the proceeds
of Government Obligations held in trust under Article 8 by the Trustee and
deposited at a time when the applicable conditions specified in Section 8.03
are satisfied and when permitted by the subordination provisions of Article 10
and this Article 12 for the payment of principal of and interest on the Notes
and/or on the Guarantees shall not be subordinated to the prior payment of any
Senior Debt of the Guarantors or subject to the restrictions set forth in this
Article 12, and none of the Holders shall be obligated to pay over any such
amount to the Guarantors or any holder of Senior Debt of the Guarantors or any
other creditor of the Guarantors.
Section 12.13. Trustee Entitled to Rely. Upon any payment or
distribution pursuant to this Article 12, the Trustee and the Holders shall be
entitled to rely (a) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section
12.02 are pending, (b) upon a certificate of the liquidating trustee or agent
or other Person making such payment or distribution to the Trustee or to the
Holders or (c) upon the Representatives for the holders of Senior Debt of the
Guarantors for the purpose of ascertaining the Persons entitled to participate
in such payment or distribution, the holders of such Senior Debt and other
Indebtedness of the Guarantors, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article 12. In the event that the Trustee determines, in
good faith, that evidence is required with respect to the right of any Person
as a holder of Senior Debt of the Guarantors to participate in any payment or
distribution pursuant to this Article 12, the Trustee may request such Person
to furnish evidence to the reasonable satisfaction of the Trustee as to the
amount of such Senior Debt held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and other
facts pertinent to the rights of such Person under this Article 12, and, if
such evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to
receive such payment. The provisions of Sections 7.01 and 7.02 shall be
applicable to all actions or omissions of actions by the Trustee pursuant to
this Article 12.
Section 12.14. Trustee to Effectuate Subordination. Each Holder by
accepting a Note authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to acknowledge or effectuate the
subordination between the Holders and the holders of Senior Debt of the
Guarantors as provided in this Article 12 and appoints the Trustee as
attorney-in-fact for any and all such purposes.
Section 12.15. Trustee Not Fiduciary for Holders of Senior Debt of a
Guarantor. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt of the Guarantors and shall not be liable to any such
holders if it shall mistakenly pay over or distribute to the Holders or the
Guarantors or any other Person money or assets to which any holders of Senior
Debt of the Guarantors shall be entitled by virtue of this Article 12 or
otherwise.
Section 12.16. Reliance by Holders of Senior Debt of a Guarantor on
Subordination Provisions. Each Holder by accepting a Note acknowledges and
agrees that the foregoing subordination provisions are, and are intended to
be, an inducement and a consideration to each holder of any Senior Debt of the
Guarantors, whether such Senior Debt was created or acquired before or after
the issuance of the Notes, to acquire and continue to hold, or to continue to
hold, such Senior Debt and such holder of such Senior Debt shall be deemed
conclusively to have relied on such subordination provisions in acquiring and
continuing to hold, or in continuing to hold, such Senior Debt.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Debt of the Guarantors may, at any time and
from time to time, without the consent of or notice to the Trustee or the
Holders, without incurring responsibility to the Trustee or the Holders and
without impairing or releasing the subordination provided in this Article 12
or the obligations hereunder of the Holders to the holders of the Senior Debt
of the Guarantors, do any one or more of the following: (i) change the manner,
place or terms of payment or extend the time of payment of, or renew or alter,
Senior Debt of the Guarantors, or otherwise amend or supplement in any manner
Senior Debt of the Guarantors, or any instrument evidencing the same or any
agreement under which Senior Debt of the Guarantors is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Debt of the Guarantors; (iii) release any Person
liable in any manner for the payment or collection of Senior Debt of the
Guarantors; and (iv) exercise or refrain from exercising any rights against
the Guarantors and any other Person.
ARTICLE 13
MISCELLANEOUS
Section 13.01. Trust Indenture Act Controls. If and to the extent
that any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by, or with another provision (an "incorporated provision")
included in this Indenture by operation of, Sections 310 to 318 of the TIA,
inclusive, such imposed duties or incorporated provision shall control.
Section 13.02. Notices. xxvi) Any notice or communication required or
permitted hereunder shall be in writing and delivered in person, via facsimile
or mailed by first-class mail addressed as follows:
if to the Issuers or a Guarantor:
c/o Graham Packaging Holdings Company
0000 Xxxxxxxx Xxxxxx Xxxx
Xxxx, Xxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxx, Chief Financial Officer
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
4 Times Square, 00-000
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx X. Xxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
and a copy to:
The Blackstone Group
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
if to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx - Xxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Attn: Corporate Trust Department
Fax: (000) 000-0000
The Issuers or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
(a) Any notice or communication mailed to a Holder shall be mailed,
first class mail, to the Holder at the Holder's address as it appears on the
registration books of the Registrar and shall be sufficiently given if so
mailed within the time prescribed.
(b) 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, it is
duly given, whether or not the addressee receives it, except that notices to
the Trustee are effective only if received.
Section 13.03. Communication by the Holders with Other Holders. The
Holders may communicate pursuant to Section 312(b) of the TIA with other
Holders with respect to their rights under this Indenture or the Notes. The
Issuers, the Trustee, the Registrar and other Persons shall have the
protection of Section 312(c) of the TIA.
Section 13.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuers to the Trustee to take or
refrain from taking any action under this Indenture, the Issuers shall furnish
to the Trustee at the request of the Trustee:
(a) an Officers' Certificate in form reasonably satisfactory
to the Trustee stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with; and
(b) an Opinion of Counsel in form reasonably satisfactory to
the Trustee stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
Section 13.05. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture (other than pursuant to Section 4.09) shall
include:
(a) a statement that the individual making such certificate
or opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such individual, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with;
provided, however, that with respect to matters of fact an Opinion of
Counsel may rely on an Officers' Certificate or certificates of
public officials.
Section 13.06. When Notes Disregarded. In determining whether the
Holders of the required principal amount of Notes have concurred in any
direction, waiver or consent, Notes owned by the Issuers, any Guarantor or by
any Person directly or indirectly controlling or controlled by or under direct
or indirect common control with the Issuers or any Guarantor shall be
disregarded and deemed not to be outstanding, except that, for the purpose of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes which the Trustee knows are so owned
shall be so disregarded. Subject to the foregoing, only Notes outstanding at
the time shall be considered in any such determination.
Section 13.07. Rules by Trustee, Paying Agent and Registrar. The
Trustee may make reasonable rules for action by or a meeting of the Holders.
The Registrar and a Paying Agent may make reasonable rules for their
functions.
Section 13.08. Legal Holidays. If a payment date is not a Business
Day, payment shall be made on the next succeeding day that is a Business Day,
and no interest shall accrue on any amount that would have been otherwise
payable on such payment date if it were a Business Day for the intervening
period. If a regular record date is not a Business Day, the record date shall
not be affected.
Section 13.09. Governing Law. THIS INDENTURE AND THE NOTES SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK. The provisions of Article 86 to 94-8 of the Luxembourg law on commercial
companies, as amended, are excluded.
Section 13.10. Jurisdiction; Consent to Service of Process. xxvii)
Each of the Issuers and the Guarantors hereby irrevocably and unconditionally
submits, for itself and its property, to the general jurisdiction of the New
York State courts, sitting in the Borough of Manhattan, the City of New York,
or the federal courts of the United States of America for the Southern
District of New York, and any appellate court from any thereof, in any action
or proceeding arising out of or relating to this Indenture or the Notes, or
for recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of
any such action or proceeding may be heard and determined in such New York
State or, to the extent permitted by law, in such federal court. Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Indenture
shall affect any right that any Holder may otherwise have to bring any action
or proceeding relating to this Indenture or the Notes against the Issuers or
any Guarantor or their properties in the courts of any jurisdiction.
(a) Each of the Issuers and the Guarantors hereby irrevocably and
unconditionally waives, and agrees not to plea or claim, to the fullest extent
it may legally and effectively do so, any objection which it may now or
hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Indenture or the Notes in any New York
State or federal court. Each of the parties hereto hereby irrevocably waives,
to the fullest extent permitted by law, the defense of an inconvenient forum
to the maintenance of such action or proceeding in any such court.
(b) Each of the Issuers and the Guarantors hereby irrevocably and
unconditionally appoints CT Corporation System with an office on the date
hereof at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and its successors
hereunder (the "Process Agent"), as its agent to receive on behalf of each of
the Issuers and any Guarantor and its property of all writs, claims, process,
and summonses in any action or proceeding brought against it in the State of
New York. Such service may be made by mailing or delivering a copy of such
process to the Issuers or any Guarantor, as the case may be, in care of the
Process Agent at the address specified above for the Process Agent, and each
of the Issuers and the Guarantors hereby irrevocably authorizes and directs
the Process Agent to accept such service on its behalf. Failure by the Process
Agent to give notice to the Issuers or any Guarantor, as applicable, or
failure of the Issuers or any Guarantor, as applicable, to receive notice of
such service of process shall not impair or affect the validity of such
service on the Process Agent, the Issuers or any Guarantor, or of any judgment
based thereon. Each of the Issuers and the Guarantors covenants and agrees
that it shall take any and all reasonable action, including the execution and
filing of any and all documents, that may be necessary to continue the
designation of the Process Agent above in full force and effect, and to cause
the Process Agent to act as such. Each of the Issuers and the Guarantors
further covenants and agrees to maintain at all times an agent with offices in
New York City to act as its Process Agent. Nothing herein shall in any way be
deemed to limit the ability to serve any such writs, process or summonses in
any other manner permitted by applicable law.
Section 13.11. No Recourse Against Others. No director, officer,
employee, incorporator or holder of any equity interests in the Issuers or of
any Guarantor or any direct or indirect parent, as such, shall have any
liability for any obligations of the Issuers or the Guarantors under the Notes
or this Indenture or for any claim based on, in respect of, or by any reason
of, such obligations or their creation. Each Holder of Notes by accepting a
Note waives and releases all such liability.
Section 13.12. Successors. All agreements of the Issuers and the
Guarantors in this Indenture and the Notes shall bind their successors. All
agreements of the Trustee in this Indenture shall bind its successors.
Section 13.13. Multiple Originals. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement. One signed copy is enough to prove
this Indenture.
Section 13.14. Table of Contents; Headings. The table of contents,
cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not
intended to be considered a part hereof and shall not modify or restrict any
of the terms or provisions hereof.
Section 13.15. Indenture Controls. If and to the extent that any
provision of the Notes limits, qualifies or conflicts with a provision of this
Indenture, such provision of this Indenture shall control.
Section 13.16. Severability. In case any provision in this Indenture
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby and such provision shall be ineffective only to the extent of
such invalidity, illegality or unenforceability.
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
GPC CAPITAL CORP. I
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President, Secretary and
Assistant Treasurer
XXXXXX PACKAGING COMPANY, L.P.
By: GPC Opco GP, LLC,
its general partner
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Chief Financial Officer,
Treasurer and Secretary
XXXXXX PACKAGING HOLDINGS COMPANY
By: BCP/Xxxxxx Holdings LLC,
its general partner
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
GPC SUB GP LLC
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President, Finance and
Administration, Treasurer
and Secretary
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
XXXXXX PACKAGING LATIN AMERICA, LLC
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President, Finance and
Administration, Treasurer
and Secretary
XXXXXX PACKAGING POLAND, L.P.
By: GPC Sub GP LLC,
its general partner
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President, Finance and
Administration, Treasurer
and Secretary
XXXXXX RECYCLING COMPANY, L.P.
By: GPC Sub GP LLC,
its general partner
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President, Finance and
Administration, Treasurer
and Secretary
XXXXXX PACKAGING FRANCE PARTNERS
By: Xxxxxx Packaging Company, L.P.,
its partner
By: GPC Opco GP LLC,
its general partner
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Chief Financial Officer,
Treasurer and Secretary
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
XXXXXX PACKAGING WEST JORDAN, LLC
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Chief Financial Officer,
Treasurer and Secretary
XXXXXX PACKAGING ACQUISITION CORP
XXXXX-XXXXXXXX PLASTIC PRODUCTS INC.
CONTINENTAL PET TECHNOLOGIES, INC.
OI REGIOPLAST STS INC.
OI VENEZUELA PLASTIC PRODUCTS INC.
XXXXXX U.S.A., INC.
COMERC U.S.A., INC.
CONTROLLERS U.S.A., INC.
TECHNOLOGICAL SPECIALTIES INC.
TECHNOLOGICAL SPECIALTIES INC.
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Secretary
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
THE BANK OF NEW YORK, as Trustee
By: /s/ Xxxxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Vice President
APPENDIX A
PROVISIONS RELATING TO INITIAL SECURITIES,
ADDITIONAL SECURITIES AND EXCHANGE SECURITIES
1. Definitions.
1.1 Definitions.
For the purposes of this Appendix A the following terms shall have
the meanings indicated below:
"Clearstream" means Clearstream Banking, societe anonyme, or any
successor securities clearing agency.
"Definitive Note" means a certificated Initial Note or Exchange Note
(bearing the Restricted Securities Legend if the transfer of such Note is
restricted by applicable law) that does not include the Global Securities
Legend.
"Depository" means The Depository Trust Company, its nominees and
their respective successors.
"Euroclear" means the Euroclear Clearance System or any successor
securities clearing agency.
"Global Notes Legend" means the legend set forth under that caption
in the applicable Exhibit to this Indenture.
"IAI" means an institutional "accredited investor" as described in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
"Initial Purchasers" means Citigroup Global Markets Inc., Deutsche
Bank Securities Inc., Xxxxxxx, Sachs & Co. and Xxxxxx Brothers Inc. and such
other initial purchasers party to the Purchase Agreement entered into in
connection with the offer and sale of the Notes.
"Purchase Agreement" means (a) the Purchase Agreement dated September
29, 2004 among the Issuers, the Guarantors and the Initial Purchasers and (b)
any other similar Purchase Agreement relating to Additional Notes.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"Registered Exchange Offer" means the offer by the Issuers, pursuant
to the Registration Rights Agreement, to certain Holders of Initial Notes, to
issue and deliver to such Holders, in exchange for their Initial Notes, a like
aggregate principal amount of Exchange Notes registered under the Securities
Act.
"Registration Default Damages" has the meaning set forth in the
Registration Rights Agreement.
"Registration Rights Agreement" means (a) the Registration Rights
Agreement dated as of October 7, 2004 among the Issuer, the Guarantors and the
Initial Purchasers relating to the Notes and (b) any other similar
Registration Rights Agreement relating to Additional Notes.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Securities" means all Initial Notes offered and sold
outside the United States in reliance on Regulation S.
"Restricted Notes Legend" means the legends set forth in Sections
2.2(f)(i) and 2.2(f)(ii) herein.
"Restricted Period", with respect to any Notes, means the period of
40 consecutive days beginning on and including the later of (a) the day on
which such Notes are first offered to persons other than distributors (as
defined in Regulation S under the Securities Act) in reliance on Regulation S,
notice of which day shall be promptly given by the Issuers to the Trustee, and
(b) the Issue Date, and with respect to any Additional Notes that are Transfer
Restricted Notes, it means the comparable period of 40 consecutive days.
"Rule 501" means Rule 501(a)(1), (2), (3) or (7) under the
Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Notes" means all Initial Notes offered and sold to QIBs in
reliance on Rule 144A.
"Securities Custodian" means the custodian with respect to a Global
Note (as appointed by the Depository) or any successor person thereto, who
shall initially be the Trustee.
"Shelf Registration Statement" means a registration statement filed
by the Issuers in connection with the offer and sale of Initial Notes pursuant
to the Registration Rights Agreement.
"Transfer Restricted Notes" means Definitive Notes and any other
Notes that bear or are required to bear or are subject to the Restricted
Securities Legend.
"Unrestricted Definitive Note" means Definitive Notes and any other
Notes that are not required to bear, or are not subject to, the Restricted
Securities Legend.
2. The Notes.
2.1 Form and Dating; Global Notes. (a) The Initial Notes issued on
the date hereof will be (i) offered and sold by the Issuers pursuant to the
Purchase Agreement and (ii) resold, initially only to (1) QIBs in reliance on
Rule 144A and (2) Persons other than U.S. Persons (as defined in Regulation S)
in reliance on Regulation S. Such Initial Notes may thereafter be transferred
to, among others, QIBs, purchasers in reliance on Regulation S and, except as
set forth below, IAIs in accordance with Rule 501. Additional Notes offered
after the date hereof may be offered and sold by the Issuers from time to time
pursuant to one or more Purchase Agreements in accordance with applicable law.
(b) Global Notes. (i) Rule 144A Notes initially shall be represented
by one or more Notes in definitive, fully registered, global form without
interest coupons (collectively, the "Restricted Global Notes"). Regulation S
Notes initially shall be represented by one or more Notes in definitive, fully
registered, global form without interest coupons (collectively, the
"Regulation S Global Notes"). The term "Global Notes" means the Restricted
Global Notes and the Regulation S Global Notes. The Global Notes shall bear
the Global Note Legend. The Global Notes initially shall (i) be registered in
the name of the Depository or the nominee of such Depository, in each case for
credit to an account of an Agent Member, (ii) be delivered to the Trustee as
custodian for such Depository and (iii) bear the Restricted Notes Legend.
Members of, or direct or indirect participants in, the Depository,
Euroclear or Clearstream ("Agent Members") shall have no rights under this
Indenture with respect to any Global Note held on their behalf by the
Depository, or the Trustee as its custodian, or under the Global Notes. The
Depository may be treated by the Issuers, the Trustee and any agent of the
Issuers or the Trustee as the absolute owner of the Global Notes for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Issuers, the Trustee or any agent of the Issuers or the Trustee
from giving effect to any written certification, proxy or other authorization
furnished by the Depository or impair, as between the Depository, Euroclear or
Clearstream, as the case may be, and their respective Agent Members, the
operation of customary practices governing the exercise of the rights of a
Holder of any Note.
(ii) Transfers of Global Notes shall be limited to transfer
in whole, but not in part, to the Depository, its successors or their
respective nominees. Interests of beneficial owners in the Global
Notes may be transferred or exchanged for Definitive Notes only in
accordance with the applicable rules and procedures of the
Depository, Euroclear or Clearstream, as the case may be, and the
provisions of Section 2.2. In addition, a Global Note shall be
exchangeable for Definitive Notes if (i) the Depository (x) notifies
the Issuers that it is unwilling or unable to continue as depository
for such Global Note and the Issuers thereupon fails to appoint a
successor depository or (y) has ceased to be a clearing agency
registered under the Exchange Act or (ii) there shall have occurred
and be continuing an Event of Default with respect to such Global
Note. In all cases, Definitive Notes delivered in exchange for any
Global Note or beneficial interests therein shall be registered in
the names, and issued in any approved denominations, requested by or
on behalf of the Depository in accordance with its customary
procedures.
(iii) In connection with the transfer of a Global Note as an
entirety to beneficial owners pursuant to subsection (i) of this
Section 2.1(b), such Global Note shall be deemed to be surrendered to
the Trustee for cancellation, and the Issuers shall execute, and the
Trustee shall authenticate and make available for delivery, to each
beneficial owner identified by the Depository in writing in exchange
for its beneficial interest in such Global Note, an equal aggregate
principal amount of Definitive Notes of authorized denominations.
(iv) Any Transfer Restricted Security delivered in exchange
for an interest in a Global Note pursuant to Section 2.2 shall,
except as otherwise provided in Section 2.2, bear the Restricted
Notes Legend.
(v) Notwithstanding the foregoing, through the Restricted
Period, a beneficial interest in a Regulation S Global Note may be
held only through Euroclear or Clearstream unless delivery is made in
accordance with the applicable provisions of Section 2.2.
(vi) The Holder of any Global Note may grant proxies and
otherwise authorize any Person, including Agent Members and Persons
that may hold interests through Agent Members, to take any action
which a Holder is entitled to take under this Indenture or the Notes.
2.2 Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may not be
transferred as a whole except as set forth in Section 2.1(b). Global Notes
will not be exchanged by the Issuers for Definitive Notes except under the
circumstances described in Section 2.1(b)(ii). Global Notes also may be
exchanged or replaced, in whole or in part, as provided in Sections 2.08 and
2.10 of this Indenture. Beneficial interests in a Global Note may be
transferred and exchanged as provided in Section 2.2(b) or 2.2(g).
(b) Transfer and Exchange of Beneficial Interests in Global Notes.
The transfer and exchange of beneficial interests in the Global Notes shall be
effected through the Depository, in accordance with the provisions of this
Indenture and the applicable rules and procedures of the Depository.
Beneficial interests in Restricted Global Notes shall be subject to
restrictions on transfer comparable to those set forth herein to the extent
required by the Securities Act. Transfers and exchanges of beneficial
interests in the Global Notes also shall require compliance with either
subparagraph (i) or (ii) below, as applicable, as well as one or more of the
other following subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Global
Note. Beneficial interests in any Restricted Global Note may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Note in accordance
with the transfer restrictions set forth in the Restricted Notes
Legend; provided, however, that prior to the expiration of the
Restricted Period, transfers of beneficial interests in a Regulation
S Global Note may not be made to a U.S. Person or for the account or
benefit of a U.S. Person (other than an Initial Purchaser). No
written orders or instructions shall be required to be delivered to
the Registrar to effect the transfers described in this Section
2.2(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial
Interests in Global Notes. In connection with all transfers and
exchanges of beneficial interests in any Global Note that is not
subject to Section 2.2(b)(i), the transferor of such beneficial
interest must deliver to the Registrar (1) a written order from an
Agent Member given to the Depository in accordance with the
applicable rules and procedures of the Depository directing the
Depository to credit or cause to be credited a beneficial interest in
another Global Note in an amount equal to the beneficial interest to
be transferred or exchanged and (2) instructions given in accordance
with the applicable rules and procedures of the Depository containing
information regarding the Agent Member account to be credited with
such increase. Upon satisfaction of all of the requirements for
transfer or exchange of beneficial interests in Global Notes
contained in this Indenture and the Notes or otherwise applicable
under the Securities Act, the Trustee shall adjust the principal
amount of the relevant Global Note pursuant to Section 2.2(g).
(iii) Transfer of Beneficial Interests to Another Restricted
Global Note. A beneficial interest in a Transfer Restricted Global
Note may be transferred to a Person who takes delivery thereof in the
form of a beneficial interest in another Transfer Restricted Global
Note if the transfer complies with the requirements of Section
2.2(b)(ii) above and the Registrar receives a certificate from the
transferor in the form attached to the applicable Note.
(iv) Transfer and Exchange of Beneficial Interests in a
Transfer Restricted Global Note for Beneficial Interests in an
Unrestricted Global Note. A beneficial interest in a Transfer
Restricted Global Note may be exchanged by any holder thereof for a
beneficial interest in an Unrestricted Global Note or transferred to
a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note if the exchange or transfer
complies with the requirements of Section 2.2(b)(ii) above and the
Registrar receives the following:
(A) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a beneficial interest in an Unrestricted Global
Note, a certificate from such holder in the form attached to
the applicable Note; or
(B) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the
form of a beneficial interest in an Unrestricted Global
Note, a certificate from such holder in the form attached to
the applicable Note,
and, in each such case, if the Registrar so
requests or if the applicable rules and procedures of the
Depository, Euroclear or Clearstream, as applicable, so
require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act and that
the restrictions on transfer contained herein and in the
Restricted Notes Legend are no longer required in order to
maintain compliance with the Securities Act. If any such
transfer or exchange is effected pursuant to this
subparagraph (iv) at a time when an Unrestricted Global Note
has not yet been issued, the Issuers shall issue and, upon
receipt of an written order of the Issuers in the form of an
Officers' Certificate in accordance with Section 2.01, the
Trustee shall authenticate one or more Unrestricted Global
Securities in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests
transferred or exchanged pursuant to this subparagraph (iv).
(v) Transfer and Exchange of Beneficial Interests in an
Unrestricted Global Note for Beneficial Interests in a Restricted
Global Note. Beneficial interests in an Unrestricted Global Note
cannot be exchanged for, or transferred to Persons who take delivery
thereof in the form of, a beneficial interest in a Restricted Global
Note.
(c) Transfer and Exchange of Beneficial Interests in Global Notes for
Definitive Notes. A beneficial interest in a Global Note may not be exchanged
for a Definitive Note except under the circumstances described in Section
2.1(b)(ii). A beneficial interest in a Global Note may not be transferred to a
Person who takes delivery thereof in the form of a Definitive Note except
under the circumstances described in Section 2.1(b)(ii).
(d) Transfer and Exchange of Definitive Notes for Beneficial
Interests in Global Notes. Definitive Notes shall be transferred or exchanged
only for beneficial interests in Global Notes. Transfers and exchanges of
beneficial interests in the Global Notes also shall require compliance with
either subparagraph (i), (ii) or (ii) below, as applicable:
(i) Transfer Restricted Notes to Beneficial Interests in
Restricted Global Notes. If any Holder of a Transfer Restricted
Security proposes to exchange such Transfer Restricted Security for a
beneficial interest in a Restricted Global Note or to transfer such
Transfer Restricted Security to a Person who takes delivery thereof
in the form of a beneficial interest in a Restricted Global Note,
then, upon receipt by the Registrar of the following documentation:
(A) if the Holder of such Transfer Restricted
Security proposes to exchange such Transfer Restricted
Security for a beneficial interest in a Restricted Global
Note, a certificate from such Holder in the form attached to
the applicable Note;
(B) if such Transfer Restricted Security is being
transferred to a Qualified Institutional Buyer in accordance
with Rule 144A under the Securities Act, a certificate from
such Holder in the form attached to the applicable Note;
(C) if such Transfer Restricted Security is being
transferred to a Non-U.S. Person in an offshore transaction
in accordance with Rule 903 or Rule 904 under the Securities
Act, a certificate from such Holder in the form attached to
the applicable Note;
(D) if such Transfer Restricted Security is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule
144 under the Securities Act, a certificate from such Holder
in the form attached to the applicable Note;
(E) if such Transfer Restricted Security is being
transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration requirements
of the Securities Act other than those listed in
subparagraphs (B) through (D) above, a certificate from such
Holder in the form attached to the applicable Note,
including the certifications, certificates and Opinion of
Counsel, if applicable; or
(F) if such Transfer Restricted Security is being
transferred to the Issuers or a Subsidiary thereof, a
certificate from such Holder in the form attached to the
applicable Note;
the Trustee shall cancel the Transfer Restricted Security, and
increase or cause to be increased the aggregate principal amount of
the appropriate Restricted Global Note.
(ii) Transfer Restricted Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of a Transfer Restricted Security
may exchange such Transfer Restricted Definitive Note for a
beneficial interest in an Unrestricted Global Note or transfer such
Transfer Restricted Security to a Person who takes delivery thereof
in the form of a beneficial interest in an Unrestricted Global Note
only if the Registrar receives the following:
(A) if the Holder of such Transfer Restricted
Security proposes to exchange such Transfer Restricted
Security for a beneficial interest in an Unrestricted Global
Note, a certificate from such Holder in the form attached to
the applicable Note; or
(B) if the Holder of such Transfer Restricted Notes
proposes to transfer such Transfer Restricted Security to a
Person who shall take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note, a
certificate from such Holder in the form attached to the
applicable Note,
and, in each such case, if the Registrar so requests or if the
applicable rules and procedures of the Depository, Euroclear or
Clearstream, as applicable, so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such
exchange or transfer is in compliance with the Securities Act and
that the restrictions on transfer contained herein and in the
Restricted Notes Legend are no longer required in order to maintain
compliance with the Securities Act. Upon satisfaction of the
conditions of this subparagraph (ii), the Trustee shall cancel the
Transfer Restricted Notes and increase or cause to be increased the
aggregate principal amount of the Unrestricted Global Note. If any
such transfer or exchange is effected pursuant to this subparagraph
(ii) at a time when an Unrestricted Global Note has not yet been
issued, the Issuers shall issue and, upon receipt of an written order
of the Issuers in the form of an Officers' Certificate, the Trustee
shall authenticate one or more Unrestricted Global Notes in an
aggregate principal amount equal to the aggregate principal amount of
Transfer Restricted Notes transferred or exchanged pursuant to this
subparagraph (ii).
(iii) Unrestricted Definitive Notes to Beneficial Interests
in Unrestricted Global Notes. A Holder of an Unrestricted Definitive
Note may exchange such Unrestricted Definitive Note for a beneficial
interest in an Unrestricted Global Note or transfer such Unrestricted
Definitive Note to a Person who takes delivery thereof in the form of
a beneficial interest in an Unrestricted Global Note at any time.
Upon receipt of a request for such an exchange or transfer, the
Trustee shall cancel the applicable Unrestricted Definitive Note and
increase or cause to be increased the aggregate principal amount of
one of the Unrestricted Global Notes. If any such transfer or
exchange is effected pursuant to this subparagraph (iii) at a time
when an Unrestricted Global Note has not yet been issued, the Issuers
shall issue and, upon receipt of an written order of the Issuers in
the form of an Officers' Certificate, the Trustee shall authenticate
one or more Unrestricted Global Notes in an aggregate principal
amount equal to the aggregate principal amount of Unrestricted
Definitive Notes transferred or exchanged pursuant to this
subparagraph (iii).
(iv) Unrestricted Definitive Notes to Beneficial Interests
in Restricted Global Securities. An Unrestricted Definitive Note
cannot be exchanged for, or transferred to a Person who takes
delivery thereof in the form of, a beneficial interest in a
Restricted Global Note.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes.
Upon request by a Holder of Definitive Notes and such Holder's compliance with
the provisions of this Section 2.2(e), the Registrar shall register the
transfer or exchange of Definitive Notes. Prior to such registration of
transfer or exchange, the requesting Holder shall present or surrender to the
Registrar the Definitive Notes duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the Registrar duly executed by
such Holder or by its attorney, duly authorized in writing. In addition, the
requesting Holder shall provide any additional certifications, documents and
information, as applicable, required pursuant to the following provisions of
this Section 2.2(e).
(i) Transfer Restricted Notes to Transfer Restricted Notes.
A Transfer Restricted Security may be transferred to and registered
in the name of a Person who takes delivery thereof in the form of a
Transfer Restricted Security if the Registrar receives the following:
(A) if the transfer will be made pursuant to Rule
144A under the Securities Act, then the transferor must
deliver a certificate in the form attached to the applicable
Note;
(B) if the transfer will be made pursuant to Rule
903 or Rule 904 under the Securities Act, then the
transferor must deliver a certificate in the form attached
to the applicable Note;
(C) if the transfer will be made pursuant to an
exemption from the registration requirements of the
Securities Act in accordance with Rule 144 under the
Securities Act, a certificate in the form attached to the
applicable Note;
(D) if the transfer will be made to an IAI in
reliance on an exemption from the registration requirements
of the Securities Act other than those listed in
subparagraphs (A) through (D) above, a certificate in the
form attached to the applicable Note; and
(E) if such transfer will be made to the Issuers or
a Subsidiary thereof, a certificate in the form attached to
the applicable Note.
(ii) Transfer Restricted Notes to Unrestricted Definitive
Notes. Any Transfer Restricted Security may be exchanged by the
Holder thereof for an Unrestricted Definitive Note or transferred to
a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note if the Registrar receives the following:
(1) if the Holder of such Transfer Restricted
Security proposes to exchange such Transfer Restricted
Security for an Unrestricted Definitive Note, a certificate
from such Holder in the form attached to the applicable
Note; or
(2) if the Holder of such Transfer Restricted
Security proposes to transfer such Notes to a Person who
shall take delivery thereof in the form of an Unrestricted
Definitive Note, a certificate from such Holder in the form
attached to the applicable Note,
and, in each such case, if the Registrar so requests, an Opinion of
Counsel in form reasonably acceptable to the Issuers to the effect
that such exchange or transfer is in compliance with the Securities
Act and that the restrictions on transfer contained herein and in the
Restricted Notes Legend are no longer required in order to maintain
compliance with the Securities Act.
(iii) Unrestricted Definitive Notes to Unrestricted
Definitive Notes. A Holder of an Unrestricted Definitive Note may
transfer such Unrestricted Definitive Notes to a Person who takes
delivery thereof in the form of an Unrestricted Definitive Note at
any time. Upon receipt of a request to register such a transfer, the
Registrar shall register the Unrestricted Definitive Notes pursuant
to the instructions from the Holder thereof.
(iv) Unrestricted Definitive Notes to Transfer Restricted
Notes. An Unrestricted Definitive Note cannot be exchanged for, or
transferred to a Person who takes delivery thereof in the form of, a
Transfer Restricted Security.
At such time as all beneficial interests in a particular Global Note
have been exchanged for Definitive Notes or a particular Global Note has been
redeemed, repurchased or canceled in whole and not in part, each such Global
Note 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 Note is exchanged for or transferred to a
Person who will take delivery thereof in the form of a beneficial interest in
another Global Note or for Definitive Notes, the principal amount of Notes
represented by such Global Note shall be reduced accordingly and an
endorsement shall be made on such Global Note by the Trustee or by the
Depository at the direction of the Trustee to reflect such reduction; and if
the beneficial interest is being exchanged for or transferred to a Person who
will take delivery thereof in the form of a beneficial interest in another
Global Note, such other Global Note shall be increased accordingly and an
endorsement shall be made on such Global Note by the Trustee or by the
Depository at the direction of the Trustee to reflect such increase.
(f) Legend.
(i) Except as permitted by the following paragraphs (iii),
(iv) or (v), each Note certificate evidencing the Global Notes and
the Definitive Notes (and all Notes issued in exchange therefor or in
substitution thereof) shall bear a legend in substantially the
following form (each defined term in the legend being defined as such
for purposes of the legend only):
"THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE NEXT SENTENCE.
BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE
HOLDER:
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), OR (B) IT
IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE
WITH REGULATION S UNDER THE SECURITIES ACT;
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS
SECURITY EXCEPT (A) TO THE ISSUER OR ANY OF ITS SUBSIDIARIES, (B) TO
A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR 904 OF REGULATION S UNDER THE
SECURITIES ACT, (D) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144 UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT) THAT, PRIOR TO SUCH TRANSFER,
FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF THIS
SECURITY (THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF
SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF
SECURITIES LESS THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO
THE ISSUER, IF THE ISSUER SO REQUESTS, THAT SUCH TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT, (F) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
(AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE ISSUER), OR
(G) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION; AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY
OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES"
HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE
SECURITIES ACT. THE INDENTURE GOVERNING THIS SECURITY CONTAINS A
PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF
THIS SECURITY IN VIOLATION OF THE FOREGOING."
Each Definitive Note shall bear the following additional legend:
"IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO
THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER
INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM
THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS."
(ii) Upon any sale or transfer of a Transfer Restricted
Security that is a Definitive Note, the Registrar shall permit the
Holder thereof to exchange such Transfer Restricted Security for a
Definitive Note that does not bear the legends set forth above and
rescind any restriction on the transfer of such Transfer Restricted
Security if the Holder certifies in writing to the Registrar that its
request for such exchange was made in reliance on Rule 144 (such
certification to be in the form set forth on the reverse of the
Initial Note).
(iii) After a transfer of any Initial Notes during the
period of the effectiveness of a Shelf Registration Statement with
respect to such Initial Notes, all requirements pertaining to the
Restricted Notes Legend on such Initial Notes shall cease to apply
and the requirements that any such Initial Notes be issued in global
form shall continue to apply.
(iv) Upon the consummation of a Registered Exchange Offer
with respect to the Initial Notes pursuant to which Holders of such
Initial Notes are offered Exchange Notes in exchange for their
Initial Notes, all requirements pertaining to Initial Notes that
Initial Notes be issued in global form shall continue to apply, and
Exchange Notes in global form without the Restricted Notes Legend
shall be available to Holders that exchange such Initial Notes in
such Registered Exchange Offer.
(v) Upon a sale or transfer after the expiration of the
Restricted Period of any Initial Note acquired pursuant to Regulation
S, all requirements that such Initial Note bear the Restricted Notes
Legend shall cease to apply and the requirements requiring any such
Initial Note be issued in global form shall continue to apply.
(vi) Any Additional Notes sold in a registered offering
shall not be required to bear the Restricted Notes Legend.
(g) Cancellation or Adjustment of Global Note. At such time as all
beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note shall be returned to
or retained and canceled by the Trustee in accordance with Section 2.11 of
this Indenture. At any time prior to such cancellation, if any beneficial
interest in a Global Note is exchanged for or transferred to a Person who will
take delivery thereof in the form of a beneficial interest in another Global
Note or for Definitive Notes, the principal amount of Notes represented by
such Global Note shall be reduced accordingly and an endorsement shall be made
on such Global Note by the Trustee or by the Depository at the direction of
the Trustee to reflect such reduction; and if the beneficial interest is being
exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Note, such other Global Note
shall be increased accordingly and an endorsement shall be made on such Global
Note by the Trustee or by the Depository at the direction of the Trustee to
reflect such increase.
(h) Obligations with Respect to Transfers and Exchanges of Notes.
(i) To permit registrations of transfers and exchanges, the
Issuers shall execute and the Trustee shall authenticate, Definitive
Notes and Global Notes at the Registrar's request.
(ii) No service charge shall be made for any registration of
transfer or exchange, but the Issuers may require payment of a sum
sufficient to cover any transfer tax, assessments, or similar
governmental charge payable in connection therewith (other than any
such transfer taxes, assessments or similar governmental charge
payable upon exchanges pursuant to Sections 3.03(c), 4.06, 4.08 and
9.05 of this Indenture).
(iii) Prior to the due presentation for registration of
transfer of any Note, the Issuers, the Trustee, a Paying Agent or the
Registrar may deem and treat the person in whose name a Note is
registered as the absolute owner of such Note for the purpose of
receiving payment of principal of and interest on such Note and for
all other purposes whatsoever, whether or not such Note is overdue,
and none of the Issuers, the Trustee, a Paying Agent or the Registrar
shall be affected by notice to the contrary.
(iv) All Notes issued upon any transfer or exchange pursuant
to the terms of this Indenture shall evidence the same debt and shall
be entitled to the same benefits under this Indenture as the Notes
surrendered upon such transfer or exchange.
(i) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or obligation
to any beneficial owner of a Global Note, a member of, or a
participant in the Depository or any other Person with respect to the
accuracy of the records of the Depository or its nominee or of any
participant or member thereof, with respect to any ownership interest
in the Notes or with respect to the delivery to any participant,
member, beneficial owner or other Person (other than the Depository)
of any notice (including any notice of redemption or repurchase) or
the payment of any amount, under or with respect to such Notes. All
notices and communications to be given to the Holders and all
payments to be made to the Holders under the Notes shall be given or
made only to the registered Holders (which shall be the Depository or
its nominee in the case of a Global Note). The rights of beneficial
owners in any Global Note shall be exercised only through the
Depository subject to the applicable rules and procedures of the
Depository. The Trustee may rely and shall be fully protected in
relying upon information furnished by the Depository with respect to
its members, participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to
monitor, determine or inquire as to compliance with any restrictions
on transfer imposed under this Indenture or under applicable law with
respect to any transfer of any interest in any Note (including any
transfers between or among Depository participants, members or
beneficial owners in any Global Note) other than to require delivery
of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required
by, the terms of this Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements
hereof.
EXHIBIT A
[FORM OF FACE OF INITIAL NOTE]
[Global Notes Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Restricted Notes Legend]
THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE NEXT SENTENCE.
BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE
HOLDER:
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), OR (B) IT
IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE
WITH REGULATION S UNDER THE SECURITIES ACT;
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS
SECURITY EXCEPT (A) TO THE ISSUER OR ANY OF ITS SUBSIDIARIES, (B) TO
A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR 904 OF REGULATION S UNDER THE
SECURITIES ACT, (D) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144 UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT) THAT, PRIOR TO SUCH TRANSFER,
FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF THIS
SECURITY (THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF
SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF
SECURITIES LESS THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO
THE ISSUER, IF THE ISSUER SO REQUESTS, THAT SUCH TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT, (F) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
(AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE ISSUER), OR
(G) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION; AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY
OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES"
HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE
SECURITIES ACT. THE INDENTURE GOVERNING THIS SECURITY CONTAINS A
PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF
THIS SECURITY IN VIOLATION OF THE FOREGOING.
Each Definitive Note shall bear the following additional legend:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH
TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES
WITH THE FOREGOING RESTRICTIONS.
[FORM OF INITIAL NOTE]
No. $__________
9 7/8% Senior Subordinated Note due 2014
CUSIP No. [144A: 00000XXX0]/[REG S: X0000XXX0]
ISIN No. [144A: US38470RAB78]/[REG S: USU3823CAA72]
XXXXXX PACKAGING COMPANY, L.P., a Delaware limited partnership, and
GPC CAPITAL CORP. I, a Delaware corporation, promise to pay to [ ], or
registered assigns, the principal sum [of Dollars] [listed on the
Schedule of Increases or Decreases in Global Security attached hereto](1) on
, 2014.
Interest Payment Dates: April 15 and October 15.
Record Dates: April 1 and October 1.
Additional provisions of this Note are set forth on the other side of
this Note.
IN WITNESS WHEREOF, the parties have caused this instrument to be
duly executed.
XXXXXX PACKAGING COMPANY, L.P.
By: GPC OPCO GP LLP
By:
------------------------------------
Name:
Title:
GPC CAPITAL CORP. I
By:
------------------------------------
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATION OF
AUTHENTICATION
THE BANK OF NEW YORK,
as Trustee, certifies that this is
one of the Notes referred to in the
Indenture
By:
----------------------------------
Authorized Signatory
Title:
_________________________
*/ If the Note is to be issued in global form, add the Global Notes
Legend and the attachment from Exhibit A captioned "TO BE ATTACHED TO
GLOBAL SECURITIES - SCHEDULE OF INCREASES OR DECREASES IN GLOBAL
SECURITY".
[FORM OF REVERSE SIDE OF INITIAL NOTE]
9 7/8% Senior Subordinated Note due 2014
1. Interest
(a) XXXXXX PACKAGING COMPANY, L.P., a Delaware limited partnership
(the "Company"), and GPC CAPITAL CORP. I (together with their respective
successors and assigns under the Indenture hereinafter referred to, being
herein called the "Issuers") promise to pay interest on the principal amount
of this Note at the rate per annum shown above. The Issuers shall pay interest
semiannually on April 15 and October 15 of each year, commencing April 15,
2005. Interest on the Notes shall accrue from the most recent date to which
interest has been paid or duly provided for or, if no interest has been paid
or duly provided for, from October 7, 2004 until the principal hereof is due.
Interest shall be computed on the basis of a 360-day year of twelve 30-day
months. The Issuers shall pay interest on overdue principal at the rate borne
by the Notes, and they shall pay interest on overdue installments of interest
at the same rate to the extent lawful.
(b) Registration Rights Agreement. The Holder of this Note is
entitled to the benefits of a Registration Rights Agreement, dated as of
October 7, 2004, among the Issuers, the Guarantors and the Initial Purchasers
named therein.
2. Method of Payment
The Issuers shall pay interest on the Notes (except defaulted
interest) to the Persons who are registered Holders at the close of business
on the April 1 or October 1 next preceding the interest payment date even if
Notes are canceled after the record date and on or before the interest payment
date (whether or not a Business Day). Holders must surrender the Notes to a
Paying Agent to collect principal payments. The Issuers shall pay principal,
premium, if any, and interest in money of the United States of America that at
the time of payment is legal tender for payment of public and private debts.
Payments in respect of the Notes represented by a Global Note (including
principal, premium, if any, and interest) shall be made by wire transfer of
immediately available funds to the accounts specified by The Depository Trust
Company, an Issuer or any successor depositary. The Issuers will make all
payments in respect of a certificated Note (including principal, premium, if
any, and interest), at the office of each Paying Agent, except that, at the
option of the Issuers, payment of interest may be made by mailing a check to
the registered address of each Holder thereof; provided, however, that
payments on the Notes may also be made, in the case of a Holder of at least
$1,000,000 aggregate principal amount of the Notes, by wire transfer to a U.S.
dollar account maintained by the payee with a bank in the United States if
such Holder elects payment by wire transfer by giving written notice to the
Trustee or a Paying Agent to such effect designating such account no later
than 30 days immediately preceding the relevant due date for payment (or such
other date as the Trustee may accept in its discretion).
3. Paying Agent and Registrar
Initially, The Bank of New York, a New York banking corporation (the
"Trustee"), will act as Paying Agent and Registrar. The Issuers may appoint
and change any Paying Agent or Registrar without notice. The Issuers may act
as Paying Agent or Registrar.
4. Indenture
The Issuers issued the Notes under an Indenture dated as of October
7, 2004 (the "Indenture"), among the Issuer, the Guarantors and the Trustee.
The terms of the Notes include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939 as in
effect on the date of the Indenture (the "TIA"). Terms defined in the
Indenture and not defined herein have the meanings ascribed thereto in the
Indenture. The Notes are subject to all terms and provisions of the Indenture,
and the Holders (as defined in the Indenture) are referred to the Indenture
and the TIA for a statement of such terms and provisions.
The Notes are senior subordinated unsecured obligations of the
Issuers. This Note is one of the Initial Notes referred to in the Indenture.
The Notes include the Initial Notes and any Exchange Notes issued in exchange
for Initial Notes pursuant to the Indenture. The Indenture imposes certain
limitations on the ability of the Company's Restricted Subsidiaries to, among
other things, make certain Investments and other Restricted Payments, pay
dividends and other distributions, incur Indebtedness, enter into consensual
restrictions upon the payment of certain dividends and distributions by such
Restricted Subsidiaries, issue or sell shares of capital stock of such
Restricted Subsidiaries, enter into or permit certain transactions with
Affiliates, create or incur Liens and make asset sales. The Indenture also
imposes limitations on the ability of the Issuers and each Guarantor to
consolidate or merge with or into any other Person or convey, transfer or
lease all or substantially all of its property.
To guarantee the due and punctual payment of the principal and
interest on the Notes and all other amounts payable by the Issuers under the
Indenture and the Notes when and as the same shall be due and payable, whether
at maturity, by acceleration or otherwise, according to the terms of the Notes
and the Indenture, the Guarantors (as described in the Indenture) have,
jointly and severally, unconditionally guaranteed the Guaranteed Obligations
on a senior subordinated basis pursuant to the terms of the Indenture.
5. Redemption and Repurchase
This Note is subject to optional redemption and may be the subject of
an Offer to Purchase, as further described in the Indenture.
6. Sinking Fund
The Notes are not subject to any sinking fund.
7. Subordination
The Notes and Guarantees are subordinated to Senior Debt, as defined
in the Indenture. To the extent provided in the Indenture, Senior Debt must be
paid before the Notes and Guarantees may be paid. Each of the Issuers and the
Guarantors agree, and each Holder by accepting a Note agrees, to the
subordination provisions contained in the Indenture and authorizes the Trustee
to give it effect and appoints the Trustee as attorney-in-fact for such
purpose.
8. Denominations; Transfer; Exchange
The Notes are in registered form, without coupons, in denominations
of $1,000 and whole multiples of $1,000 in excess thereof. A Holder shall
register the transfer of or exchange of Notes in accordance with the
Indenture. Upon any registration of transfer or exchange, the Registrar and
the Trustee may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes required by law or
permitted by the Indenture. The Registrar need not register the transfer of or
exchange any Notes selected for redemption (except, in the case of a Note to
be redeemed in part, the portion of the Notes not to be redeemed) or to
transfer or exchange any Notes for a period of 15 days prior to a selection of
Notes to be redeemed.
9. Persons Deemed Owners
The registered Holder of this Note shall be treated as the owner of
it for all purposes.
10. Unclaimed Money
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee and a Paying Agent shall pay the money back to the
Issuers at their written request unless an abandoned property law designates
another Person. After any such payment, the Holders entitled to the money must
look to the Issuers for payment as general creditors and the Trustee and a
Paying Agent shall have no further liability with respect to such monies.
11. Discharge and Defeasance
Subject to certain conditions, the Issuers at any time may terminate
some of or all of their obligations under the Notes and the Indenture if the
Issuers deposit with the Trustee money or Government Securities for the
payment of principal of, and interest on the Notes to redemption, or maturity,
as the case may be.
12. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, the
Indenture and the Notes may be amended, or default may be waived, with the
consent of the Holders of a majority in principal amount of the outstanding
Notes. Without notice to or the consent of any Holder, the Issuers and the
Trustee may amend or supplement the Indenture or the Notes to, among other
things, cure any ambiguity, defect or inconsistency.
13. Defaults and Remedies
If an Event of Default occurs (other than an Event of Default
relating to certain events of bankruptcy, insolvency or reorganization of the
Issuers) and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the outstanding Notes, in each case, by notice to the
Issuers, may declare the principal of, premium, if any, and accrued but unpaid
interest on all the Notes to be due and payable. If an Event of Default
relating to certain events of bankruptcy, insolvency or reorganization of the
Issuers occurs, the principal of, premium, if any, and interest on all the
Notes shall become immediately due and payable without any declaration or
other act on the part of the Trustee or any Holders. Under certain
circumstances, the Holders of a majority in principal amount of the
outstanding Notes may rescind any such acceleration with respect to the Notes
and its consequences.
14. Trustee Dealings with the Issuer
Subject to certain limitations imposed by the TIA, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner
or pledgee of Notes and may otherwise deal with and collect obligations owed
to it by the Issuers or its Affiliates and may otherwise deal with the Issuers
or its Affiliates with the same rights it would have if it were not Trustee.
15. No Recourse Against Others
No director, officer, employee, incorporator or holder of any equity
interests in the Issuers or of any Guarantor or any direct or indirect parent,
as such, shall have any liability for any obligations of the Issuers or the
Guarantors under the Notes or this Indenture or for any claim based on, in
respect of, or by any reason of, such obligations or their creation. Each
Holder of Notes by accepting a Note waives and releases all such liability.
16. Authentication
This Note shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Note.
17. 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 rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
18. Governing Law
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.
19. CUSIP Numbers, ISINs and Common Codes
The Issuers have caused CUSIP numbers and ISINs to be printed on the
Notes and has directed the Trustee to use CUSIP numbers and ISINs in notices
of redemption as a convenience to the Holders. No representation is made as to
the accuracy of such numbers either as printed on the Notes or as contained in
any notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.
The Issuers will furnish to any Holder of Notes upon written request
and without charge to the Holder a copy of the Indenture which has in it the
text of this Note.
ASSIGNMENT FORM
To assign this Note, fill in the form below: I or we assign and transfer this
Note to:
_______________________________________________________________________________
(Print or type assignee's name, address and zip code)
_______________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on the books
of the Issuers. The agent may substitute another to act for him.
_______________________________________________________________________________
Date: _______________ Your Signature:________________________
(Sign exactly as your name
appears on the other side
of this Note)
Signature Guarantee:
Date:________________________ ________________________________
Signature must be guaranteed by a Signature of Signature Guarantee
participant in a recognized
signature guaranty medallion
program or other signature
guarantor program reasonably
acceptable to the Trustee
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR
REGISTRATION OF TRANSFER RESTRICTED NOTES
This certificate relates to $_________ principal amount of Notes held
in (check applicable space) ____ book-entry or _____ definitive form by the
undersigned.
The undersigned (check one box below):
|_| has requested the Trustee by written order to deliver in
exchange for its beneficial interest in the Global Note held
by the Depository a Note or Notes in definitive, registered
form of authorized denominations and an aggregate principal
amount equal to its beneficial interest in such Global Note
(or the portion thereof indicated above);
|_| has requested the Trustee by written order to exchange or
register the transfer of a Note or Notes.
In connection with any transfer of any of the Notes evidenced by this
certificate occurring prior to the expiration of the period referred to in
Rule 144(k) under the Securities Act, the undersigned confirms that such Notes
are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1) |_| to the Issuers; or
(2) |_| to the Registrar for registration in the name of the
Holder, without transfer; or
(3) |_| pursuant to an effective registration statement under
the Securities Act of 1933; or
(4) |_| inside the United States to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities
Act of 1933) that purchases for its own account or for
the account of a qualified institutional buyer to whom
notice is given that such transfer is being made in
reliance on Rule 144A, in each case pursuant to and in
compliance with Rule 144A under the Securities Act of
1933; or
(5) |_| outside the United States in an offshore transaction
within the meaning of Regulation S under the
Securities Act in compliance with Rule 904 under the
Securities Act of 1933 and such Security shall be held
immediately after the transfer through Euroclear or
Clearstream until the expiration of the Restricted
Period (as defined in the Indenture); or
(6) |_| to an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act of 1933) that has furnished to the
Trustee a signed letter containing certain
representations and agreements; or
(7) |_| pursuant to another available exemption from
registration provided by Rule 144 under the Securities
Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to
register any of the Notes evidenced by this certificate in the name of any
Person other than the registered Holder thereof; provided, however, that if
box (5), (6) or (7) is checked, the Trustee may require, prior to registering
any such transfer of the Notes, such legal opinions, certifications and other
information as the Issuers have reasonably requested to confirm that such
transfer is being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act of 1933.
Date:______________________ ________________________________
Your Signature
Signature Guarantee:
Date:_____________________________ ________________________________
Signature must be guaranteed by a Signature of Signature Guarantee
participant in a recognized signature
guaranty medallion program or other
signature guarantor program reasonably
acceptable to the Trustee
_______________________________________________________________________________
TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
of 1933, and is aware that the sale to it is being made in reliance on Rule
144A and acknowledges that it has received such information regarding the
Issuers as the undersigned has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in
order to claim the exemption from registration provided by Rule 144A.
Date: _______________ _________________________________
NOTICE: To be executed by an
executive officer
[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The initial principal amount of this Global Note is $_________. The
following increases or decreases in this Global Note have been made:
Amount of decrease Amount of increase Principal amount of
in Principal Amount in Principal Amount this Global Note Signature of authorized
Date of of this Global of this Global following such decrease signatory of Trustee or
Exchange Note Note or increase Notes Custodian
--------- -------------------- ------------------- ------------------------ -----------------------
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuers
pursuant to Section 4.06 (Asset Sale) or Section 4.08 (Change of Control) of
the Indenture, check the box:
Asset Sale |_| Change of Control |_|
If you want to elect to have only part of this Note purchased by the
Issuers pursuant to Section 4.06 (Asset Sale) or Section 4.08 (Change of
Control) of the Indenture, state the amount ($1000 or an integral multiple of
$1000 in excess thereof):
$
Dated: ______________________ Your Signature:_________________________
(Sign exactly as your name
appears on the other side
of this Note)
Signature Guarantee: _______________________________________________________
Signature must be guaranteed by a participant in a
recognized signature guaranty medallion program or other
signature guarantor program reasonably acceptable to the
Trustee
EXHIBIT B
[FORM OF FACE OF EXCHANGE NOTE]
[Global Notes Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
No. $__________
9 7/8 % Senior Subordinated Note due 2014
CUSIP No. ______
ISIN No. ______
XXXXXX PACKAGING COMPANY, L.P., a Delaware limited partnership (the
"Company"), and GPC CAPITAL CORP. I., a Delaware corporation, promise to pay
to [ ], or registered assigns, the principal sum [of Dollars] [listed on
the Schedule of Increases or Decreases in the Global Note attached hereto](2)
on , 2014.
Interest Payment Dates: April 15 and October 15.
Record Dates: April 1 and October 1.
Additional provisions of this Note are set forth on the other side of
this Note.
IN WITNESS WHEREOF, the parties have caused this instrument to be
duly executed.
XXXXXX PACKAGING COMPANY, L.P.
By: GPC OPCO GP LLP
By:
----------------------------------
Name:
Title:
GPC CAPITAL CORP. I
By:
-----------------------------------
Name:
Title:
Dated:
--------------------
2 Use the Schedule of Increases and Decreases language if Security is in
Global Form.
TRUSTEE'S CERTIFICATION OF
AUTHENTICATION
THE BANK OF NEW YORK,
as Trustee, certifies that this is
one of the Notes referred to in the
Indenture
By:
-----------------------------------
Authorized Signatory
Title:
_________________________
*/ If the Note is to be issued in global form, add the Global Notes
Legend and the attachment from Exhibit A captioned "TO BE ATTACHED TO
GLOBAL SECURITIES - SCHEDULE OF INCREASES OR DECREASES IN GLOBAL
SECURITY".
[FORM OF REVERSE SIDE OF EXCHANGE NOTE]
9 7/8 % Senior Subordinated Note due 2014
1. Interest
XXXXXX PACKAGING COMPANY, L.P., a Delaware limited partnership (the
"Company"), and GPC CAPITAL CORP. I (together with their successors and
assigns under the Indenture hereinafter referred to, being herein called the
"Issuers"), promise to pay interest on the principal amount of this Note at
the rate per annum shown above. The Issuers shall pay interest semiannually on
April 15 and October 15 of each year, commencing April 15, 2005. Interest on
the Notes shall accrue from the most recent date to which interest has been
paid or duly provided for or, if no interest has been paid or duly provided
for, from October 7, 2004 until the principal hereof is due. Interest shall be
computed on the basis of a 360-day year of twelve 30-day months. The Issuers
shall pay interest on overdue principal at the rate borne by the Notes, and
they shall pay interest on overdue installments of interest at the same rate
to the extent lawful.
2. Method of Payment
The Issuers shall pay interest on the Notes (except defaulted
interest) to the Persons who are registered Holders at the close of business
on the April 1 or October 1 next preceding the interest payment date even if
the Notes are canceled after the record date and on or before the interest
payment date (whether or not a Business Day). The Holders must surrender the
Notes to a Paying Agent to collect principal payments. The Issuers shall pay
principal, premium, if any, and interest in money of the United States of
America that at the time of payment is legal tender for payment of public and
private debts. Payments in respect of the Notes represented by a Global Note
(including principal, premium and interest) shall be made by wire transfer of
immediately available funds to the accounts specified by The Depository Trust
Company, the Issuers or any successor depositary. The Issuers will make all
payments in respect of a certificated Note (including principal, premium, if
any, and interest), at the office of a Paying Agent, except that, at the
option of the Issuers, payment of interest may be made by mailing a check to
the registered address of each Holder thereof; provided, however, that
payments on the Notes may also be made, in the case of a Holder of at least
$1,000,000 aggregate principal amount of Notes, by wire transfer to a U.S.
dollar account maintained by the payee with a bank in the United States if
such Holder elects payment by wire transfer by giving written notice to the
Trustee or a Paying Agent to such effect designating such account no later
than 30 days immediately preceding the relevant due date for payment (or such
other date as the Trustee may accept in its discretion).
3. Paying Agent and Registrar
Initially, The Bank of New York, a New York banking corporation (the
"Trustee"), will act as Paying Agent and Registrar. The Issuers may appoint
and change any Paying Agent or Registrar without notice. The Issuers or any of
their domestically incorporated Wholly Owned Subsidiaries may act as Paying
Agent or Registrar.
4. Indenture
The Issuers issued the Notes under an Indenture dated as of October
7, 2004 (the "Indenture"), among the Issuers, the Guarantors and the Trustee.
The terms of the Notes include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939 as in
effect on the date of the Indenture (the "TIA"). Terms defined in the
Indenture and not defined herein have the meanings ascribed thereto in the
Indenture. The Notes are subject to all terms and provisions of the Indenture,
and the Holders (as defined in the Indenture) are referred to the Indenture
and the TIA for a statement of such terms and provisions.
The Notes are senior subordinated unsecured obligations of the
Issuers. This Note is one of the Exchange Notes referred to in the Indenture.
The Notes include the Initial Notes, the Additional Notes and any Exchange
Notes issued in exchange for the Initial Notes pursuant to the Indenture. The
Initial Notes and Exchange Notes are treated as a single class of securities
under the Indenture. The Indenture imposes certain limitations on the ability
of the Company's Restricted Subsidiaries to, among other things, make certain
Investments and other Restricted Payments, pay dividends and other
distributions, incur Indebtedness, enter into consensual restrictions upon the
payment of certain dividends and distributions by such Restricted
Subsidiaries, issue or sell shares of capital stock of such Restricted
Subsidiaries, enter into or permit certain transactions with Affiliates,
create or incur Liens and make Asset Sales. The Indenture also imposes
limitations on the ability of the Issuers and each Guarantor to consolidate or
merge with or into any other Person or convey, transfer or lease all or
substantially all of its property.
To guarantee the due and punctual payment of the principal and
interest, if any, on the Notes and all other amounts payable by the Issuers
under the Indenture and the Notes when and as the same shall be due and
payable, whether at maturity, by acceleration or otherwise, according to the
terms of the Notes and the Indenture, the Guarantors have, jointly and
severally, unconditionally guaranteed the Guaranteed Obligations on a senior
subordinated basis pursuant to the terms of the Indenture.
5. Optional Redemption
This Note is subject to optional redemption, and may be the subject
of an Offer to Purchase, as further described in the Indenture.
6. Sinking Fund
The Notes are not subject to any sinking fund.
7. Subordination
The Notes and Guarantees are subordinated to Senior Debt, as defined
in the Indenture. To the extent provided in the Indenture, Senior Debt must be
paid before the Notes and Guarantees may be paid. Each of the Issuers and the
Guarantors agrees, and each Holder by accepting a Dollar Note agrees, to the
subordination provisions contained in the Indenture and authorizes the Trustee
to give it effect and appoints the Trustee as attorney-in-fact for such
purpose.
8. Denominations; Transfer; Exchange
The Notes are in registered form, without coupons, in denominations
of $1,000 and whole multiples of $1,000 in excess thereof. A Holder shall
register the transfer of or exchange of the Notes in accordance with the
Indenture. Upon any registration of transfer of or exchange, the Registrar and
the Trustee may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes required by law or
permitted by the Indenture. The Registrar need not register the transfer of or
exchange any Notes selected for redemption (except, in the case of a Note to
be redeemed in part, the portion of the Note not to be redeemed) or to
transfer or exchange any Notes for a period of 15 days prior to a selection of
Notes to be redeemed.
9. Persons Deemed Owners
The registered Holder of this Note shall be treated as the owner of
it for all purposes.
10. Unclaimed Money
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee and a Paying Agent shall pay the money back to the
Issuers at its written request unless an abandoned property law designates
another Person. After any such payment, the Holders entitled to the money must
look to the Issuers for payment as general creditors and the Trustee and a
Paying Agent shall have no further liability with respect to such monies.
11. Discharge and Defeasance
Subject to certain conditions, the Issuers at any time may terminate
some of or all their obligations under the Notes and the Indenture if the
Issuers deposit with the Trustee money or U.S. Government Obligations for the
payment of principal and interest on the Notes to redemption, or maturity, as
the case may be.
12. Amendment, Waiver
Subject to certain exceptions, the Indenture and the Notes may be
amended, or default may be waived, with the consent of the Holders of a
majority in principal amount of the outstanding Notes. Without notice to or
the consent of any Holder, the Issuers and the Trustee may amend or supplement
the Indenture or the Notes to, among other things, cure any ambiguity, defect
or inconsistency.
13. Defaults and Remedies
If an Event of Default occurs (other than an Event of Default
relating to certain events of bankruptcy, insolvency or reorganization of the
Issuers) and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the outstanding Notes, in each case, by notice to the
Issuers, may declare the principal of, premium, if any, and accrued but unpaid
interest on all the Notes to be due and payable. If an Event of Default
relating to certain events of bankruptcy, insolvency or reorganization of the
Issuers occurs, the principal of, premium, if any, and interest on all the
Notes shall become immediately due and payable without any declaration or
other act on the part of the Trustee or any Holders. Under certain
circumstances, the Holders of a majority in principal amount of the
outstanding Notes may rescind any such acceleration with respect to the Notes
and its consequences.
14. Trustee Dealings with the Issuers
Subject to certain limitations imposed by the TIA, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner
or pledgee of Notes and may otherwise deal with and collect obligations owed
to it by the Issuers or their Affiliates and may otherwise deal with the
Issuers or their Affiliates with the same rights it would have if it were not
Trustee.
15. No Recourse Against Others
No director, officer, employee, incorporator or holder of any equity
interests in the Issuers or of any Guarantor or any direct or indirect parent,
as such, shall have any liability for any obligations of the Issuers or the
Guarantors under the Notes or this Indenture or for any claim based on, in
respect of, or by any reason of, such obligations or their creation. Each
Holder of Notes by accepting a Note waives and releases all such liability.
16. Authentication
This Note shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Note.
17. 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 rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
18. Governing Law
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.
19. CUSIP Numbers, ISINs and Common Codes
The Issuers have caused CUSIP numbers and ISINs to be printed on the
Notes and has directed the Trustee to use CUSIP numbers and ISINs in notices
of redemption as a convenience to the Holders. No representation is made as to
the accuracy of such numbers either as printed on the Notes or as contained in
any notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.
The Issuers will furnish to any Holder of Notes upon written request
and without charge to the Holder a copy of the Indenture which has in it the
text of this Note.
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
_______________________________________________________________________________
(Print or type assignee's name, address and zip code)
_______________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on the
books of the Issuers. The agent may substitute another to act for him.
_______________________________________________________________________________
Dated: ______________________ Your Signature:_________________________
(Sign exactly as your name
appears on the other side
of this Note)
Signature Guarantee:
Date: __________________________ ________________________________
Signature must be guaranteed by a Signature of Signature Guarantee
participant in a recognized signature
guaranty medallion program or other
signature guarantor program reasonably
acceptable to the Trustee
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuers
pursuant to Section 4.06 (Asset Sale) or Section 4.08 (Change of Control) of
the Indenture, check the box:
Asset Sale |_| Change of Control |_|
If you want to elect to have only part of this Note purchased by the
Issuers pursuant to Section 4.06 (Asset Sale) or Section 4.08 (Change of
Control) of the Indenture, state the amount ($1,000 or an integral multiple of
$1,000 in excess thereof):
$
Dated: ______________________ Your Signature:_________________________
(Sign exactly as your name
appears on the other side
of this Note)
Signature Guarantee: _______________________________________________________
Signature must be guaranteed by a participant in a
recognized signature guaranty medallion program or other
signature guarantor program reasonably acceptable to the
Trustee
[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The initial principal amount of this Global Note is $_______________.
The following increases or decreases in this Global Note have been made:
Amount of decrease Amount of increase Principal amount of
in Principal Amount in Principal Amount this Global Note Signature of authorized
Date of of this Global of this Global following such decrease signatory of Trustee or
Exchange Note Note or increase Notes Custodian
--------- ------------------- ------------------- ------------------------ -----------------------
EXHIBIT C
Form of
Transferee Letter of Representation
Xxxxxx Packaging Company, L.P.
GPC Capital Corp. I
Issuers
x/x Xxx Xxxx xx Xxx Xxxx
Corporate Trust Department
000 Xxxxxxx Xxxxxx, Xx. 00X
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This certificate is delivered to request a transfer of $[ ] principal
amount of the 9 7/8% Senior Subordinated Notes due 2014 (the "Notes") of
Xxxxxx Packaging Company, L.P. and GPC Capital Corp. I (the "Issuers").
Upon transfer, the Notes would be registered in the name of the new
beneficial owner as follows:
Name:
Address:
Taxpayer ID Number:
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended (the
"Securities Act)), purchasing for our own account or for the account of such
an institutional "accredited investor" at least $250,000 principal amount of
the Notes, and we are acquiring the Notes not with a view to, or for offer or
sale in connection with, any distribution in violation of the Securities Act
or any applicable security law of any State in 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 will remain at
all times within our or their control. We have such knowledge and experience
in financial and business matters as to be capable of evaluating the merits
and risks of our investment in the Notes, and we invest in or purchase
securities similar to the Notes in the normal course of our business. We, and
any accounts for which we are acting, are each able to bear the economic risk
of our or its investment.
2. We understand that the Notes have not been registered under the
Securities Act and, unless so registered, may not be sold except as permitted
in the following sentence. We agree on our own behalf, the Issuers' behalf and
on behalf of any investor account for which we are purchasing Notes to offer,
sell or otherwise transfer such Notes prior to the date that is two years
after the later of the date of original issue and the last date on which the
Issuers or any affiliate of the Issuers was the owner of such Notes (or any
predecessor thereto) (the "Resale Restriction Termination Date") only (a) to
the Issuer, (b) pursuant to a registration statement that has been declared
effective under the Securities Act, (c) in a transaction complying with the
requirements of Rule 144A under the Securities Act ("Rule 144A"), to a person
we reasonably believe is a qualified institutional buyer under Rule 144A (a
"QIB") that is purchasing for its own account or for the account of a QIB and
to whom notice is given that the transfer is being made in reliance on Rule
144A, (d) pursuant to offers and sales that occur outside the United States
within the meaning of Regulation S under the Securities Act, (e) to an
institutional "accredited investor" within the meaning of Rule 501(a)(1), (2),
(3) or (7) under the Securities Act that is purchasing for its own account or
for the account of such an institutional "accredited investor," in each case
in a minimum principal amount of Notes of $250,000, or (f) pursuant to any
other available exemption from the registration requirements of the Securities
Act, subject in each of the foregoing cases to any requirement of law that the
disposition of our property or the property of such investor account or
accounts be at all times within our or their control and in compliance with
any applicable state securities laws. The foregoing restrictions on resale
will not apply subsequent to the Resale Restriction Termination Date. If any
resale or other transfer of the Notes is proposed to be made pursuant to
clause (c) or (d) above prior to the Resale Restriction Termination Date, the
transferor shall deliver to the Trustee a written certificate in the form
provided in the Note, to the effect that the transfer is being made in
accordance with Regulation S or Rule 144A, as the case may be. If any resale
or other transfer of the Notes is proposed to be made pursuant to clause (e)
above prior to the Resale Restriction Termination Date, the transferor shall
deliver a letter from the transferee substantially in the form of this letter
to the Issuers and the Trustee, which shall provide, among other things, that
the transferee is an institutional "accredited investor" within the meaning of
Rule 501(a)(1), (2), (3) or (7) under the Securities Act and that it is
acquiring such Notes for investment purposes and not for distribution in
violation of the Securities Act. If any resale or other transfer of the Notes
is proposed to be made pursuant to clause (e) or (f) above prior to the Resale
Restriction Termination Date, the transferor shall deliver to the Trustee
certificates Each purchaser acknowledges that the Issuers and the Trustee
reserve the right prior to the offer, sale or other transfer prior to the
Resale Restriction Termination Date of the Notes pursuant to clause (d), (e)
or (f) above to require the delivery of an opinion of counsel, certifications
or other information satisfactory to the Issuers and the Trustee in order to
determine that the proposed transfer is being made in compliance with the
Securities Act and applicable law. Not representation is made as to the
availability of any Rule 144A exemption from the registration requirements of
the Securities Act.
Dated:
TRANSFEREE:
By:
------------------------------
EXHIBIT D
Form of Notation of Guarantee
For value received, each Guarantor (which term includes any successor
Person under the Indenture) has, jointly and severally, unconditionally
guaranteed, to the extent set forth in the Indenture and subject to the
provisions in the Indenture dated as of October 7, 2004 (the "Indenture")
among Xxxxxx Packaging Company, L.P., GPC Capital Corp. I, the Guarantors
listed on the signature pages thereto and The Bank of New York, as trustee
(the "Trustee"), (a) the due and punctual payment of the principal of, premium
and interest on the Notes (as defined in the Indenture), whether at maturity,
by acceleration, redemption or otherwise, the due and punctual payment of
interest on overdue principal and premium, and, to the extent permitted by
law, interest, and the due and punctual performance of all other obligations
of the Issuers to the Holders or the Trustee all in accordance with the terms
of the Indenture and (b) in case of any extension of time of payment or
renewal of any Notes or any of such other obligations, that the same will be
promptly paid in full when due or performed in accordance with the terms of
the extension or renewal, whether at stated maturity, by acceleration or
otherwise. The obligations of the Guarantors to the Holders of Notes and to
the Trustee pursuant to the Guarantee and the Indenture are expressly set
forth in Article 11 of the Indenture and reference is hereby made to the
Indenture for the precise terms of the Guarantee. Each Holder of a Note, by
accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee, on behalf of such Holder, to take such
action as may be necessary or appropriate to effectuate the subordination as
provided in the Indenture and (c) appoints the Trustee attorney-in-fact of
such Holder for such purpose; provided, however, that the Indebtedness
evidenced by this Note Guarantee shall cease to be so subordinated and subject
in right of payment upon any defeasance of this Note in accordance with the
provisions of the Indenture.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
GPC CAPITAL CORP. I
By:
-----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President, Secretary and
Assistant Treasurer
XXXXXX PACKAGING COMPANY, L.P.
By: GPC Opco GP, LLC,
its general partner
By:
----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Chief Financial Officer,
Treasurer and Secretary
XXXXXX PACKAGING HOLDINGS COMPANY
By: BCP/Xxxxxx Holdings LLC,
its general partner
By:
----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
GPC OPCO GP LLC
By:
----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Chief Financial Officer,
Treasurer and Secretary
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
XXXXXX PACKAGING LATIN AMERICA, LLC
By:
-----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President, Finance and
Administration, Treasurer
and Secretary
XXXXXX PACKAGING POLAND, L.P.
By: GPC Sub GP LLC,
its general partner
By:
-----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President, Finance and
Administration, Treasurer
and Secretary
XXXXXX RECYCLING COMPANY, L.P.
By: GPC Sub GP LLC,
its general partner
By:
-----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President, Finance and
Administration, Treasurer
and Secretary
XXXXXX PACKAGING FRANCE PARTNERS
By: Xxxxxx Packaging Company, L.P.,
its partner
By: GPC Opco GP LLC,
its general partner
By:
-----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Chief Financial Officer,
Treasurer and Secretary
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
XXXXXX PACKAGING WEST JORDAN, LLC
By:
-----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Chief Financial Officer,
Treasurer and Secretary
XXXXXX PACKAGING ACQUISITION CORP
XXXXX-XXXXXXXX PLASTIC PRODUCTS INC.
CONTINENTAL PET TECHNOLOGIES, INC.
OI REGIOPLAST STS INC.
OI VENEZUELA PLASTIC PRODUCTS INC.
XXXXXX U.S.A., INC.
COMERC U.S.A., INC.
CONTROLLERS U.S.A., INC.
TECHNOLOGICAL SPECIALTIES INC.
By:
-----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Secretary
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
EXHIBIT E
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture") dated as of [
], among [GUARANTOR] (the "New Guarantor") (or its successor), a Delaware
limited partnership (the "Company"), GPC Capital Corp. I (the "Corporate
Co-Issuer" and, together with the Company, the "Issuers"), the guarantors
listed on the signature pages hereto and THE BANK OF NEW YORK, a New York
banking corporation, as trustee under the indenture referred to below (the
"Trustee").
RECITALS
WHEREAS the Issuer, the Guarantor and the Trustee have heretofore
executed an Indenture (as amended, supplemented or otherwise modified, the
"Indenture") dated as of October 7, 2004, providing for the issuance of the
Issuers' 9 7/8% Senior Subordinated Notes due 2014 (the "Notes"), initially in
the aggregate principal amount of $375,000,000;
WHEREAS Section 11.02 of the Indenture provides that under certain
circumstances the Issuers are required to cause the New Guarantor to execute
and deliver to the Trustee a supplemental indenture pursuant to which the New
Guarantor shall unconditionally guarantee all the Issuers' obligations under
the Notes pursuant to a Senior Subordinated Guarantee on the terms and
conditions set forth herein; and
WHEREAS pursuant to 9.01 of the Indenture, the Trustee, the Issuers
and the existing Guarantors are authorized to execute and deliver this
Supplemental Indenture;
NOW THEREFORE, in consideration of the foregoing and mutual covenants
herein contained and intending to be legally bound, the New Guarantor, the
Issuer, and the Trustee mutually covenant and agree for the equal and ratable
benefit of the holders of the Notes as follows:
1. Defined Terms. As used in this Supplemental Indenture, terms
defined in the Indenture or in the preamble or recital hereto are used herein
as therein defined, except that the term "Holders" in this Guarantee shall
refer to the term "Holders" as defined in the Indenture and the Trustee acting
on behalf of and for the benefit of such Holders. The words "herein," "hereof"
and hereby and other words of similar import used in this Supplemental
Indenture refer to this Supplemental Indenture as a whole and not to any
particular section hereof.
2. Agreement to Guarantee. The New Guarantor hereby agrees, jointly
and severally with all existing Guarantors (if any), to unconditionally
guarantee the Issuers' obligations under the Notes on the terms and subject to
the conditions set forth in Articles 11 and 12 of the Indenture and to be
bound by all other applicable provisions of the Indenture and the Notes and to
perform all of the obligations and agreements of a Guarantor under the
Indenture.
3. Notices. All notices or other communications to the New Guarantor
shall be given as provided in 13.02 of the Indenture.
4. Ratification of Indenture; Supplemental Indentures Part of
Indenture. Except as expressly amended hereby, the Indenture is in all
respects ratified and confirmed and all the terms, conditions and provisions
thereof shall remain in full force and effect. This Supplemental Indenture
shall form a part of the Indenture for all purposes, and every holder of Notes
heretofore or hereafter authenticated and delivered shall be bound hereby.
5. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
6. Trustee Makes No Representation. The Trustee makes no
representation as to the validity or sufficiency of this Supplemental
Indenture.
7. Counterparts. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
8. Effect of Headings. The Section headings herein are for
convenience only and shall not effect the construction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
NEW GUARANTOR
By:
----------------------------------
Name:
Title:
GPC CAPITAL CORP. I
By:
----------------------------------
Name:
Title:
XXXXXX PACKAGING COMPANY, L.P.
By: GPC Opco GP, LLC,
its general partner
By:
----------------------------------
Name:
Title:
XXXXXX PACKAGING HOLDINGS COMPANY
By: BCP/Xxxxxx Holdings LLC,
its general partner
By:
----------------------------------
Name:
Title:
[SUBSIDIARY GUARANTORS]
By:
----------------------------------
Name:
Title:
THE BANK OF NEW YORK, as Trustee
By:
----------------------------------
Name:
Title:
