EXHIBIT 4.2
INDENTURE
Dated as of February 11, 1998
------------------------
By and Among
METALS USA, INC.
AND
GUARANTORS, NAMED HEREIN,
AND
U.S. TRUST COMPANY OF CALIFORNIA, N.A.,
as Trustee
-----------------------
Up to $300,000,000
8 5/8% Senior Subordinated Notes due 2008
--------------------------------------------------------------------------------
CROSS REFERENCE TABLE
TIA INDENTURE
SECTION SECTION
310(a)(1). . . . . . . . . . . . . . . . . . . ... 8.10
310(a)(5). . . . . . . . . . . . . . . . . . . ... 8.10
310(b). . . . . . . . . . . . . . . . . . . . .. 8.10
310(b)(1). . . . . . . . . . . . . . . . . . . ... 8.10
311(a). . . . . . . . . . . . . . . . . . . . .. 8.11
311(b). . . . . . . . . . . . . . . . . . . . .. 8.11
312(b). . . . . . . . . . . . . . . . . . . . .. 13.3
312(c). . . . . . . . . . . . . . . . . . . . .. 13.3
313(a). . . . . . . . . . . . . . . . . . . . ... 8.6
313(b). . . . . . . . . . . . . . . . . . . . ... 8.6
313(c). . . . . . . . . . . . . . . . . . . . ... 8.6
314(a). . . . . . . . . . . . . . . . . . . . ... 5.9
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a part of
the Indenture.
TABLE OF CONTENTS
ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE. . . . . . . . . . 1
Section 1.1. Definitions. . . . . . . . . . . . ...1
Section 1.2. Incorporation by Reference of TIA. . . . . . . 10
Section 1.3. Rules of Construction. . . . . . . . . . 10
ARTICLE II. THE SECURITIES. . . . . . . . . . . . . . . . ..10
Section 2.1. Form and Dating. . . . . . . . . . . ..10
Section 2.2. Execution and Authentication. . . . . . . . .10
Section 2.3. Registrar and Paying Agent. . . . . . . . ...10
Section 2.4. Paying Agent To Hold Assets in Trust. . . . . . .10
Section 2.5. Holder Lists. . . . . . . . . . . . .10
Section 2.6. Transfer and Exchange. . . . . . . . . . 10
Section 2.7. Replacement Securities. . . . . . . . . ...10
Section 2.8. Outstanding Securities. . . . . . . . . ...10
Section 2.9. Treasury Securities. . . . . . . . . . ..10
Section 2.10. Temporary Securities. . . . . . . . . . 10
Section 2.11. Cancellation. . . . . . . . . . . . 10
Section 2.12. Defaulted Interest. . . . . . . . . . ..10
Section 2.13. CUSIP Number. . . . . . . . . . . . 10
Section 2.14. Deposit of Monies. . . . . . . . . . ...10
Section 2.15. Restrictive Legends. . . . . . . . . . .10
Section 2.16. Book-Entry Provisions for Global Securities. . . . .10
Section 2.17. Special Transfer Provisions. . . . . . . . .10
Section 2.18. Additional Interest Under Registration Rights
Agreement. . . . . . . . . . . . 10
ARTICLE III. REDEMPTION. . . . . . . . . . . . . . . . . .10
Section 3.1. Notices to Trustee. . . . . . . . . . ...10
Section 3.2. Selection of Securities To Be Redeemed. . . . . ...10
Section 3.3. Optional Redemption. . . . . . . . . . ..10
Section 3.4. Notice of Redemption. . . . . . . . . . .10
Section 3.5. Effect of Notice of Redemption. . . . . . . ...10
Section 3.6. Deposit of Redemption Price. . . . . . . . ..10
Section 3.7. Securities Redeemed in Part. . . . . . . . ..10
ARTICLE IV. SUBORDINATION. . . . . . . . . . . . . . . . ...10
Section 4.1. Securities Subordinated to Senior Debt. . . . . ...10
Section 4.2. Suspension of Payment When Senior Debt in Default. . . 10
Section 4.3. Securities Subordinated to Prior Payment of All Senior
Debt on Dissolution, Liquidation or Reorganization
of Company. . . . . . . . . . . ...10
Section 4.4. Holders To Be Subrogated to Rights of Holders of
Senior Debt. . . . . . . . . . . ..10
Section 4.5. Obligations of the Company Unconditional. . . . . .10
Section 4.6. Trustee Entitled To Assume Payments Not Prohibited in
Absence of Notice. . . . . . . . . . 10
Section 4.7. Application by Trustee of Assets Deposited with It. . ...10
Section 4.8. No Waiver of Subordination Provisions. . . . . . 10
Section 4.9. Holders Authorize Trustee To Effectuate Subordination
of Securities. . . . . . . . . . . 10
Section 4.10. Right of Trustee To Hold Senior Debt. . . . . . 10
Section 4.11. No Suspension of Remedies. . . . . . . . ...10
Section 4.12. No Fiduciary Duty of Trustee to Holders of Senior
Debt. . . . . . . . . . . . . .10
ARTICLE V. COVENANTS. . . . . . . . . . . . . . . . . . 10
Section 5.1. Payment of Securities. . . . . . . . . . 10
Section 5.2. Maintenance of Office or Agency. . . . . . . ..10
Section 5.3. Limitation on Restricted Payments. . . . . . . 10
Section 5.4. Corporate Existence. . . . . . . . . . ..10
Section 5.5. Payment of Taxes and Other Claims. . . . . . . 10
Section 5.6. Maintenance of Properties and Insurance. . . . . ..10
Section 5.7. Compliance Certificate; Notice of Default. . . . . 10
Section 5.8. Compliance with Laws. . . . . . . . . . .10
Section 5.9. SEC Reports. . . . . . . . . . . . ..10
Section 5.10. Waiver of Stay, Extension or Usury Laws. . . . . .10
Section 5.11. Limitation on Transactions with Affiliates. . . . ..10
Section 5.12. Limitation on Incurrence of Additional Indebtedness
and Issuance of Preferred Stock of Restricted
Subsidiaries. . . . . . . . . . . .10
Section 5.13. Limitation on Dividends and Other Payment
Restrictions Affecting Restricted Subsidiaries. . ...10
Section 5.14. Limitation on Liens. . . . . . . . . . .10
Section 5.15. Limitation on Change of Control. . . . . . . .10
Section 5.16. Limitation on Asset Sales. . . . . . . . ...10
Section 5.17. Limitation on Other Senior Subordinated Debt. . . . 10
Section 5.18. Limitation on Restricted and Unrestricted
Subsidiaries. . . . . . . . . . . .10
Section 5.19. Conduct of Business. . . . . . . . . . .10
Section 5.20. Additional Subsidiary Guarantees. . . . . . . 10
ARTICLE VI. SUCCESSOR CORPORATION. . . . . . . . . . . . . . ...10
Section 6.1. Limitations on Mergers and Certain Other Transactions. . 10
Section 6.2. Successor Corporation Substituted. . . . . . . 10
ARTICLE VII. DEFAULT AND REMEDIES. . . . . . . . . . . . . . ...10
Section 7.1. Events of Default. . . . . . . . . . . 10
Section 7.2. Acceleration. . . . . . . . . . . . .10
Section 7.3. Other Remedies. . . . . . . . . . . ...10
Section 7.4. Waiver of Past Defaults. . . . . . . . . ..10
Section 7.5. Control by Majority. . . . . . . . . . ..10
Section 7.6. Limitation on Suits. . . . . . . . . . ..10
Section 7.7. Rights of Holders To Receive Payment. . . . . . .10
Section 7.8. Collection Suit by Trustee. . . . . . . . ...10
Section 7.9. Trustee May File Proofs of Claim. . . . . . . .10
Section 7.10. Priorities. . . . . . . . . . . . ..10
Section 7.11. Rights and Remedies Cumulative. . . . . . . ..10
Section 7.12. Delay or Omission Not Waiver. . . . . . . . 10
Section 7.13. Undertaking for Costs. . . . . . . . . ...10
ARTICLE VIII. TRUSTEE. . . . . . . . . . . . . . . . . ...10
Section 8.1. Duties of Trustee. . . . . . . . . . . 10
Section 8.2. Rights of Trustee. . . . . . . . . . . 10
Section 8.3. Individual Rights of Trustee. . . . . . . . .10
Section 8.4. Trustee's Disclaimer. . . . . . . . . . .10
Section 8.5. Notice of Default. . . . . . . . . . . 10
Section 8.6. Reports by Trustee to Holders. . . . . . . . 10
Section 8.7. Compensation and Indemnity. . . . . . . . ...10
Section 8.8. Replacement of Trustee. . . . . . . . . ...10
Section 8.9. Successor Trustee by Merger, Etc. . . . . . . .10
Section 8.10. Eligibility; Disqualification. . . . . . . ...10
Section 8.11. Preferential Collection of Claims Against Company. . ...10
ARTICLE IX. SATISFACTION AND DISCHARGE OF INDENTURE. . . . . . . . . . .10
Section 9.1. Termination of the Company's Obligations. . . . . .10
Section 9.2. Legal Defeasance and Covenant Defeasance. . . . . .10
Section 9.3. Application of Trust Money. . . . . . . . ...10
Section 9.4. Repayment to the Company or Guarantors. . . . . ...10
Section 9.5. Reinstatement. . . . . . . . . . . . 10
ARTICLE X. AMENDMENTS, SUPPLEMENTS AND WAIVERS. . . . . . . . . . . ..10
Section 10.1. Without Consent of Holders. . . . . . . . ..10
Section 10.2. With Consent of Holders. . . . . . . . . .10
Section 10.3. Compliance with TIA. . . . . . . . . . .10
Section 10.4. Revocation and Effect of Consents. . . . . . ...10
Section 10.5. Notation on or Exchange of Securities. . . . . ...10
Section 10.6. Trustee To Sign Amendments, Etc. . . . . . . .10
ARTICLE XI. GUARANTEE. . . . . . . . . . . . . . . . . ...10
Section 11.1. Unconditional Guarantee. . . . . . . . . .10
Section 11.2. Subordination of Guarantee. . . . . . . . ..10
Section 11.3. Severability. . . . . . . . . . . . 10
Section 11.4. Release of a Guarantor. . . . . . . . . ..10
Section 11.5. Limitation of Guarantor's Liability. . . . . . .10
Section 11.6. Guarantors May Consolidate, etc., on Certain Terms. . ..10
Section 11.7. Contribution. . . . . . . . . . . . 10
Section 11.8. Waiver of Subrogation. . . . . . . . . ...10
Section 11.9. Execution of Guarantee. . . . . . . . . ..10
Section 11.10. Waiver of Stay, Extension or Usury Laws. . . . . 10
ARTICLE XII. SUBORDINATION OF GUARANTEE OBLIGATIONS. . . . . . . . . . .10
Section 12.1. Guarantee Obligations Subordinated to Guarantor
Senior Debt. . . . . . . . . . . ..10
Section 12.2. Suspension of Guarantee Obligations When Guarantor
Senior Debt in Default. . . . . . . . ...10
Section 12.3. Guarantee Obligations Subordinated to Prior Payment
of All Guarantor Senior Debt on Dissolution,
Liquidation or Reorganization of Such Guarantor. . ..10
Section 12.4. Holders of Guarantee Obligations To Be Subrogated to
Rights of Holders of Guarantor Senior Debt. . . ...10
Section 12.5. Obligations of the Guarantors Unconditional. . . . .10
Section 12.6. Trustee Entitled To Assume Payments Not Prohibited in
Absence of Notice. . . . . . . . . . 10
Section 12.7. Application by Trustee of Assets Deposited with It. . ..10
Section 12.8. No Waiver of Subordination Provisions. . . . . ...10
Section 12.9. Holders Authorize Trustee To Effectuate Subordination
of Guarantee Obligations. . . . . . . . .10
Section 12.10. Right of Trustee To Hold Guarantor Senior Debt. . . .10
Section 12.11. No Suspension of Remedies. . . . . . . . ..10
Section 12.12. No Fiduciary Duty of Trustee to Holders of Guarantor
Senior Debt. . . . . . . . . . . ..10
ARTICLE XIII. MISCELLANEOUS. . . . . . . . . . . . . . . . .10
Section 13.1. TIA Controls. . . . . . . . . . . . 10
Section 13.2. Notices. . . . . . . . . . . . . .10
Section 13.3. Communications by Holders with Other Holders. . . . 10
Section 13.4. Certificate and Opinion as to Conditions Precedent. . ..10
Section 13.5. Statements Required in Certificate or Opinion. . . ...10
Section 13.6. Rules by Trustee, Paying Agent, Registrar. . . . ...10
Section 13.7. Legal Holidays. . . . . . . . . . . ..10
Section 13.8. Governing Law. . . . . . . . . . . ...10
Section 13.9. No Adverse Interpretation of Other Agreements. . . ...10
Section 13.10. No Recourse Against Others. . . . . . . . .10
Section 13.11. Successors. . . . . . . . . . . . .10
Section 13.12. Duplicate Originals. . . . . . . . . . 10
Section 13.13. Headings and Table of Contents. . . . . . . .10
Section 13.14. Severability. . . . . . . . . . . ...10
EXHIBIT A FORM OF SECURITY
EXHIBIT B FORM OF LEGEND FOR GLOBAL SECURITIES
EXHIBIT C FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH TRANSFERS
TO NON-QIB ACCREDITED INVESTORS
EXHIBIT D FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH TRANSFERS
PURSUANT TO REGULATION S
INDENTURE, dated as of February 11, 1998, among METALS USA, INC.,
a Delaware corporation (the "COMPANY"), the GUARANTORS (as defined herein), and
U.S. TRUST COMPANY OF CALIFORNIA, N.A., as Trustee.
Each party hereto agrees as follows for the benefit of each other
party and for the equal and ratable benefit of the Holders of the Company's
8 5/8% Senior Subordinated Notes due 2008 (the "SECURITIES"):
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions.
"ACQUIRED INDEBTEDNESS" means Indebtedness of a Person or any of
its Subsidiaries existing at the time such Person becomes a Restricted
Subsidiary of the Company or at the time it merges or consolidates with the
Company or any of its Restricted Subsidiaries or assumed in connection with the
acquisition of assets from such Person and in each case not incurred by such
Person in connection with, or in anticipation or contemplation of, such Person
becoming a Restricted Subsidiary of the Company or such acquisition, merger or
consolidation.
"AFFILIATE" means, with respect to any specified Person, any
other Person who directly or indirectly through one or more intermediaries
controls, or is controlled by, or is under common control with, such specified
Person. The term "CONTROL" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise; and the terms "CONTROLLING" and "CONTROLLED" have meanings
correlative of the foregoing.
"AFFILIATE TRANSACTION" shall have the meaning provided in Section
5.11(a).
"AGENT" means any Registrar, Paying Agent or co-Registrar.
"AGENT MEMBERS" has the meaning provided in Section 2.16.
"ASSET ACQUISITION" means (a) an Investment by the Company or any
Restricted Subsidiary of the Company in or purchase of any other Person pursuant
to which such Person shall become a Restricted Subsidiary of the Company or of
any Restricted Subsidiary of the Company, or shall be merged with or into the
Company or any Restricted Subsidiary of the Company, or (b) the acquisition by
the Company or any Restricted Subsidiary of the Company of the assets of any
Person (other than a Restricted Subsidiary of the Company) which constitute all
or substantially all of the assets of such Person or comprises any division or
line of business of such Person or any other properties or assets of such Person
other than in the ordinary course of business.
"ASSET SALE" means any direct or indirect sale, issuance,
conveyance, transfer, lease (other than operating leases entered into in the
ordinary course of business), assignment or other transfer for value by the
Company or any of its Restricted Subsidiaries (including any Sale and Leaseback
Transaction) to any Person other than the Company or a Wholly Owned Restricted
Subsidiary of the Company of (a) any Capital Stock of any Restricted Subsidiary
of the Company; or (b) any other property or assets of the Company or any
Restricted Subsidiary of the Company other than in the ordinary course of
business; PROVIDED, HOWEVER, that Asset Sales shall not include (i) any
transaction or series of related transactions for which the Company or its
Restricted Subsidiaries receive aggregate consideration of less than $1.0
million and (ii) the sale, lease, conveyance, disposition or other transfer of
all or substantially all of the assets of the Company as permitted under Section
6.1.
"BANKRUPTCY LAW" means Title 11, U.S. Code or any similar
Federal, state or foreign law for the relief of debtors.
"BOARD OF DIRECTORS" means, with respect to any Person, the Board
of Directors of such Person or of a subsidiary of such Person or any duly
authorized committee of that Board.
"BOARD RESOLUTION" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"BUSINESS DAY" means a day that is not a Legal Holiday.
"CAPITALIZED LEASE OBLIGATION" means, as to any Person, the
obligations of such Person under a lease that are required to be classified and
accounted for as capital lease obligations under GAAP and, for purposes of this
definition, the amount of such obligations at any date shall be the capitalized
amount of such obligations at such date, determined in accordance with GAAP.
"CAPITAL STOCK" means (i) with respect to any Person that is a
corporation, any and all shares, interests, participations or other equivalents
(however designated and whether or not voting) of corporate stock, including
each class of Common Stock and Preferred Stock of such Person and (ii) with
respect to any Person that is not a corporation, any and all partnership or
other equity interests of such Person.
"CASH EQUIVALENTS" means (i) marketable direct obligations issued
by, or unconditionally guaranteed by, the United States Government or issued by
any agency thereof and backed by the full faith and credit of the United States,
in each case maturing within one year from the date of acquisition thereof; (ii)
marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having one of the two highest ratings
obtainable from either Standard & Poor's Corporation ("S&P") or Xxxxx'x
Investors Service, Inc. ("MOODY'S"); (iii) commercial paper maturing no more
than one year from the date of creation thereof and, at the time of acquisition,
having a rating of at least A-1 from S&P or at least P-1 from Moody's; (iv)
certificates of deposit or bankers' acceptances maturing within one year from
the date of acquisition thereof issued by any bank organized under the laws of
the United States of America or any state thereof or the District of Columbia of
any U.S. branch of a foreign bank having at the date of acquisition thereof
combined capital and surplus of not less than $250.0 million; (v) repurchase
obligations with a term of not more than seven days for underlying securities of
the types described in clause (i) above entered into with any bank meeting the
qualifications specified in clause (iv) above; and (vi) investments in money
market funds which invest substantially all their assets in securities of the
types described in clauses (i) through (v) above.
"CHANGE OF CONTROL" means the occurrence of one or more of the
following events: (i) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially all of
the assets of the Company to any Person or group of related Persons for purposes
of Section 13(d) of the Exchange Act (a "GROUP"), together with any Affiliates
thereof (whether or not otherwise in compliance with the provisions of this
Indenture); (ii) the approval by the holders of Capital Stock of the Company of
any plan or proposal for the liquidation or dissolution of the Company (whether
or not otherwise in compliance with the provisions of this Indenture); (iii) any
Person or Group other than one or more Permitted Holders shall become the owner,
directly or indirectly, beneficially or of record, of shares representing more
than 50% of the aggregate ordinary voting power represented by the issued and
outstanding Capital Stock of the Company; or (iv) the replacement of a majority
of the Board of Directors of the Company over a two-year period from the
directors who constituted the Board of Directors of the Company at the beginning
of such period, and such replacement shall not have been approved by a vote of
at least a majority of the Board of Directors of the Company then still in
office who either were members of such Board of Directors at the beginning of
such period or whose election as a member of such Board of Directors was
previously so approved.
"CHANGE OF CONTROL OFFER" shall have the meaning provided in
Section 5.15(a).
"CHANGE OF CONTROL PAYMENT DATE" shall have the meaning provided
in Section 5.15(b).
"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" of any Person means any and all shares, interests
or other participations in, and other equivalents (however designated and
whether voting or non-voting) of such Person's common stock, whether outstanding
on the Issue Date or issued after the Issue Date, and includes, without
limitation, all series and classes of such common stock.
"COMPANY" means Metals USA, Inc., a Delaware corporation, until a
successor replaces it pursuant to this Indenture and thereafter means such
successor.
"CONSOLIDATED EBITDA" means, with respect to any Person, for any
period, the sum (without duplication) of (i) Consolidated Net Income and (ii) to
the extent Consolidated Net Income has been reduced thereby, (A) all income
taxes of such Person and its Restricted Subsidiaries paid or accrued in
accordance with GAAP for such period (other than income taxes attributable to
extraordinary, unusual or nonrecurring gains or losses or taxes attributable to
sales or dispositions outside the ordinary course of business), (B) Consolidated
Interest Expense and (C) Consolidated Non-cash Charges LESS any non-cash items
increasing Consolidated Net Income for such period, all as determined on a
consolidated basis for such Person and its Restricted Subsidiaries in accordance
with GAAP.
"CONSOLIDATED FIXED CHARGE COVERAGE RATIO" means, with respect to
any Person, the ratio of Consolidated EBITDA of such Person during the four full
fiscal quarters (the "FOUR QUARTER PERIOD") ending on or prior to the date of
the transaction giving rise to the need to calculate the Consolidated Fixed
Charge Coverage Ratio (the "TRANSACTION DATE") to Consolidated Fixed Charges of
such Person for the Four Quarter Period. In addition to and without limitation
of the foregoing, for purposes of this definition, "Consolidated EBITDA" and
"Consolidated Fixed Charges" shall be calculated after giving effect on a PRO
FORMA basis for the period of such calculation to (i) the incurrence or
repayment of any Indebtedness of such Person or any of its Restricted
Subsidiaries (and the application of the proceeds thereof) giving rise to the
need to make such calculation and any incurrence or repayment of other
Indebtedness (and the application of the proceeds thereof), other than the
incurrence or repayment of Indebtedness in the ordinary course of business for
working capital purposes pursuant to working capital facilities, occurring
during the Four Quarter Period or at any time subsequent to the last day of the
Four Quarter Period and on or prior to the Transaction Date, as if such
incurrence or repayment, as the case may be (and the application of the proceeds
thereof), occurred on the first day of the Four Quarter Period; (ii) any Asset
Sales or Asset Acquisitions (including, without limitation, any Asset
Acquisition giving rise to the need to make such calculation as a result of such
Person or one of its Restricted Subsidiaries (including any Person who becomes a
Restricted Subsidiary as a result of the Asset Acquisition) incurring, assuming
or otherwise being liable for Acquired Indebtedness and also including any
Consolidated EBITDA (PROVIDED, that such Consolidated EBITDA shall be included
only to the extent includable pursuant to the definition of "Consolidated Net
Income") attributable to the assets which are the subject of the Asset
Acquisition or Asset Sale during the Four Quarter Period) occurring during the
Four Quarter Period or at any time subsequent to the last day of the Four
Quarter Period and on or prior to the Transaction Date, as if such Asset Sale or
Asset Acquisition (including the incurrence, assumption or liability for any
such Acquired Indebtedness) occurred on the first day of the Four Quarter
Period; and (iii) in calculating Consolidated EBITDA for any period, without
duplicating any adjustments pursuant to clauses (i) and (ii) above, Consolidated
EBITDA for such period shall be calculated giving pro forma adjustments that
would be permitted by the Commission in any filing with the Commission and to
any one-time employee compensation expenses incurred before the Issue Date or in
connection with the Asset Acquisition giving rise for the need to make such
calculation. If such Person or any of its Restricted Subsidiaries directly or
indirectly guarantees Indebtedness of a third Person, the preceding sentence
shall give effect to the incurrence of such guaranteed Indebtedness as if such
Person or any Restricted Subsidiary of such Person had directly incurred or
otherwise assumed such guaranteed Indebtedness. Furthermore, in calculating
"Consolidated Fixed Charges" for purposes of determining the denominator (but
not the numerator) of this "Consolidated Fixed Charge Coverage Ratio," (1)
interest on outstanding Indebtedness determined on a fluctuating basis as of the
Transaction Date and which will continue to be so determined thereafter shall be
deemed to have accrued at a fixed rate per annum equal to the rate of interest
on such Indebtedness in effect on the Transaction Date; (2) if interest on any
Indebtedness actually incurred on the Transaction Date may optionally be
determined at an interest rate based upon a factor of a prime or similar rate, a
eurocurrency interbank offered rate, or other rates, then the interest rate in
effect on the Transaction Date will be deemed to have been in effect during the
Four Quarter Period; and (3) notwithstanding clause (1) above, interest on
Indebtedness determined on a fluctuating basis, to the extent such interest is
covered by agreements relating to Interest Swap Obligations, shall be deemed to
accrue at the rate per annum resulting after giving effect to the operation of
the operation of such agreements. In making such computations, the Consolidated
Fixed Charges attributable to interest on any Indebtedness under a revolving
credit facility computed on a pro forma basis shall be computed based upon the
average daily outstanding balance of such Indebtedness during such period.
"CONSOLIDATED FIXED CHARGES" means, with respect to any Person
for any period, the sum, without duplication, of (i) Consolidated Interest
Expense, plus (ii) the product of (x) the amount of all dividend payments on any
series of Preferred Stock of such Person (other than dividends paid in Qualified
Capital Stock) paid, accrued or scheduled to be paid or accrued during such
period times (y) a fraction, the numerator of which is one and the denominator
of which is one minus the then current effective consolidated federal, state and
local tax rate of such Person, expressed as a decimal.
"CONSOLIDATED INTEREST EXPENSE" means, with respect to any Person
for any period, the sum of, without duplication: (i) the aggregate of the
interest expense (but excluding any write-off of deferred financing fees in
connection with any refinancing or retirement of Indebtedness) of such Person
and its Restricted Subsidiaries of such period determined on a consolidated
basis in accordance with GAAP, including, without limitation, (a) any
amortization of debt discount and deferred financing costs, (b) the net costs
under Interest Swap Obligations, (c) all capitalized interest and (d) the
interest portion of any deferred payment obligation; and (ii) the interest
component of Capitalized Lease Obligations paid, accrued and/or scheduled to be
paid or accrued by such Person and its Restricted Subsidiaries during such
period as determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED NET INCOME" means, with respect to any Person, for
any period, the aggregate net income (or loss) of such Person and its Restricted
Subsidiaries for such period on a consolidated basis, determined in accordance
with GAAP; PROVIDED, that there shall be excluded therefrom (a) after-tax gains
from Asset Sales or abandonments or reserves relating thereto, (b) after-tax
items classified as extraordinary or nonrecurring gains, (c) the net income of
any Person acquired in a "pooling of interests" transaction accrued prior to the
date it becomes a Restricted Subsidiary of the referent Person or is merged or
consolidated with the referent Person or any Restricted Subsidiary of the
referent Person, (d) the net income (but not loss) of any Restricted Subsidiary
of the referent Person to the extent that the declaration of dividends or
similar distributions by that Restricted Subsidiary of that income is restricted
by a contract, operation of law or otherwise, (e) the net income of any Person,
other than a Restricted Subsidiary of the referent Person, except to the extent
of cash dividends or distributions paid to the referent Person or to a Wholly
Owned Restricted Subsidiary of the referent Person by such Person, (f) any
restoration to income of any contingency reserve, except to the extent that
provision for such reserve was made out of Consolidated Net Income accrued at
any time following the Issue Date, (g) income or loss attributable to
discontinued operations (including, without limitation, operations disposed of
during such period whether or not such operations were classified as
discontinued), and (h) in the case of a successor to the referent Person by
consolidation or merger or as a transferee of the referent Person's assets, any
earnings of the successor corporation prior to such consolidation, merger or
transfer of assets.
"CONSOLIDATED NET WORTH" of any Person means the consolidated
stockholders' equity of such Person, determined on a consolidated basis in
accordance with GAAP, less (without duplication) amounts attributable to
Disqualified Capital Stock of such Person.
"CONSOLIDATED NON-CASH CHARGES" means, with respect to any
Person, for any period, the aggregate depreciation, amortization and other
non-cash expenses of such Person and its Restricted Subsidiaries reducing
Consolidated Net Income of such Person and its Restricted Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP (excluding
any such charges constituting an extraordinary item or loss or any such charge
which requires an accrual of or a reserve for cash charges for any future
period).
"CREDIT AGENT" means, at any time, the then-acting Agent as
defined in and under the Credit Agreement, which initially shall be The First
National Bank of Chicago. The Company shall promptly notify the Trustee of any
change in the Credit Agent.
"CREDIT AGREEMENT" means the Amended and Restated Credit
Agreement dated as of February 11, 1998, between the Company, the lenders party
thereto in their capacities as lenders thereunder and The First National Bank of
Chicago, as agent, together with the related documents thereto (including,
without limitation, any guarantee agreements and security documents), in each
case as such agreements may be amended (including any amendment and restatement
thereof), supplemented or otherwise modified from time to time, including any
agreement extending the maturity of, refinancing, replacing or otherwise
restructuring (including increasing the amount of available borrowings
thereunder (PROVIDED, that such increase in borrowings is permitted by Section
5.12) or adding Restricted Subsidiaries of the Company as additional borrowers
or guarantors thereunder) all or any portion of the Indebtedness under such
agreement or any successor or replacement agreement and whether by the same or
any other agent, lender or group of lenders.
"CURRENCY AGREEMENT" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to
protect the Company or any Restricted Subsidiary of the Company against
fluctuations in currency values.
"CUSTODIAN" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"DEFAULT" means an event or condition the occurrence of which is,
or with the lapse of time or the giving of notice or both would be, an Event of
Default.
"DEPOSITORY" shall mean The Depository Trust Company, New York,
New York, or a successor thereto registered under the Exchange Act or other
applicable statute or regulation.
"DESIGNATED SENIOR DEBT" means (i) Indebtedness under or in
respect of the Credit Agreement and (ii) any other Indebtedness constituting
Senior Debt which, at the time of determination, has an aggregate principal
amount of at least $10.0 million and is specifically designated in the
instrument evidencing such Senior Debt as "Designated Senior Debt" by the
Company.
"DISQUALIFIED CAPITAL STOCK" means that portion of any Capital
Stock which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the sole option of the holder
thereof on or prior to the final maturity date of the Securities.
"EVENT OF DEFAULT" shall have the meaning provided in Section
7.1.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, or any successor statute or statutes thereto and the rules and
regulations promulgated by the Commission thereunder.
"EXCHANGE NOTES" means the 8 5/8% Senior Subordinated Notes due
2008, Series B, to be issued in exchange for the Initial Securities pursuant to
the Registration Rights Agreement or, with respect to the Initial Securities
issued under this Indenture subsequent to the Issue Date pursuant to Section
2.2, a registration rights agreement substantially identical to the Registration
Rights Agreement.
"EXCHANGE OFFER" has the meaning provided in the Registration
Rights Agreement.
"FAIR MARKET VALUE" means, with respect to any asset or property,
the price which could be negotiated in an arm's-length, free market transaction,
for cash, between a willing seller and a willing and able buyer, neither of whom
is under undue pressure or compulsion to complete the transaction. Fair market
value shall be determined by the Board of Directors of the Company acting
reasonably and in good faith and shall be evidenced by a Board Resolution of the
Board of Directors of the Company delivered to the Trustee.
"GAAP" means generally accepted accounting principles set forth
in the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession of the United States, which are in effect as of the
Issue Date.
"GLOBAL SECURITY" shall mean a Security which is executed by the
Company and authenticated and delivered by the Trustee to the Depository or
pursuant to the Depository's instruction, all in accordance with this Indenture
and pursuant to a written order, which shall be registered in the name of the
Depository or its nominee and which, together with any other Global Security
representing Securities hereunder, shall represent, and shall be denominated in
an amount equal to the aggregate principal amount of, all of the outstanding
Securities.
"GUARANTEE" means the guarantee of each Guarantor set forth in
Article Eleven and any additional guarantee of the Securities executed by any
Restricted Subsidiary of the Company.
"GUARANTEE OBLIGATIONS" shall have the meaning provided in
Section 12.1.
"GUARANTOR" means (i) each of Affiliated Metals Company,
Cornerstone Aluminum Company, Inc., Cornerstone Building Products, Inc.,
Cornerstone Metals Corporation, Cornerstone Patio Concepts, L.L.C., Federal
Bronze Alloys Inc., Xxxxxx Titanium, Ltd., Independent Metals Co., Inc.,
Interstate Steel Supply Company, Interstate Steel Supply Company of Maryland,
Interstate Steel Supply Company of Pittsburgh, Interstate Steel Processing
Company, Xxxxxxxx Steel Company, Inc., Xxxxx Metal Servicenters, Inc., Metals
USA Finance Corp., Metals USA Service Corporation, MUSA GP, Inc., MUSA LP, Inc.,
Queensboro Steel Corporation, X.X. Fabricating Inc., Royal Aluminum, Inc.,
Southern Alloy of America, Inc., Steel Service Systems, Inc., Texas Aluminum
Industries, Inc., Uni-Steel, Inc., Xxxxx Steel, Inc. and Xxxxxxxx Steel & Supply
Co., Inc. (ii) each of the Company's Restricted Subsidiaries that in the future
executes a supplemental indenture in which such Restricted Subsidiary agrees to
be bound by the terms of this Indenture as a Guarantor; PROVIDED, that any
Person constituting a Guarantor as described above shall cease to constitute a
Guarantor when its respective Guarantee is released in accordance with the terms
described herein.
"GUARANTOR PAYMENT BLOCKAGE PERIOD" shall have the meaning
provided in Section 12.2(b).
"GUARANTOR SENIOR DEBT" means with respect to any Guarantor, (i)
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 of a Guarantor, whether
outstanding on the Issue Date or thereafter created, incurred or assumed,
unless, in the case of any particular Indebtedness, the instrument creating or
evidencing the same or pursuant to which the same is outstanding expressly
provides that such Indebtedness shall not be senior in right of payment to the
Guarantee of such Guarantor. Without limiting the generality of the foregoing,
"Guarantor 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, (x) all monetary obligations of
every nature of the Company under the Credit Agreement guaranteed by a
Guarantor, including, without limitation, obligations to pay principal and
interest, reimbursement obligations under letters of credit, fees, expenses and
indemnities, (y) all Interest Swap Obligations and (z) all obligations under
Currency Agreements, in each case whether outstanding on the Issue Date or
thereafter incurred. Notwithstanding the foregoing, "Guarantor Senior Debt"
shall not include (i) any Indebtedness of such Guarantor to a Restricted
Subsidiary of such Guarantor or any Affiliate of such Guarantor or any of such
Affiliate's Subsidiaries, (ii) Indebtedness to, or guaranteed on behalf of, any
shareholder, director, officer or employee of such Guarantor or any Restricted
Subsidiary of such Guarantor (including, without limitation, amounts owed for
compensation), (iii) Indebtedness to trade creditors and other amounts incurred
in connection with obtaining goods, materials or services, (iv) Indebtedness
represented by Disqualified Capital Stock, (v) any liability for federal, state,
local or other taxes owed or owing by such Guarantor, (vi) Indebtedness incurred
in violation of Section 5.12, (vii) 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 Company and (viii) any Indebtedness which is,
by its express terms, subordinated in right of payment to any other Indebtedness
of such Guarantor.
"HOLDER" means the Person in whose name a Security is
registered on the Registrar's books.
"IAI GLOBAL SECURITY" means, a permanent global security in
registered form representing the aggregate principal amount of the Securities
sold to Institutional Accredited Investors.
"INDEBTEDNESS" means with respect to any Person, without
duplication, (i) all Obligations of such Person for borrowed money, (ii) all
Obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments, (iii) all Capitalized Lease Obligations of such Person,
(iv) all Obligations of such Person issued or assumed as the deferred purchase
price of property, all conditional sale obligations and all Obligations under
any title retention agreement (but excluding trade accounts payable and other
accrued liabilities arising in the ordinary course of business that are not
overdue by 90 days or more or are being contested in good faith), (v) all
Obligations for the reimbursement of any obligor on any letter of credit,
banker's acceptance or similar credit transaction, (vi) guarantees and other
contingent obligations in respect of Indebtedness referred to in clauses (i)
through (v) above and clause (viii) below, (vii) all Obligations of any other
Person of the type referred to in clauses (i) through (vi) which are secured by
any lien on any property or asset of such Person, the amount of such Obligation
being deemed to be the lesser of the fair market value of such property or asset
or the amount of the Obligation so secured, (viii) all Obligations under
Currency Agreements and Interest Swap Obligations of such Person and (ix) all
Disqualified Capital Stock issued by such Person with the amount of Indebtedness
represented by such Disqualified Capital Stock being equal to the greater of its
voluntary or involuntary liquidation preference and its maximum fixed repurchase
price, but excluding accrued dividends, if any. For purposes hereof, the
"maximum fixed repurchase price" of any Disqualified Capital Stock which does
not have a fixed repurchase price shall be calculated in accordance with the
terms of such Disqualified Capital Stock as if such Disqualified Capital Stock
were purchased on any date on which Indebtedness shall be required to be
determined pursuant to this Indenture, and if such price is based upon, or
measured by, the fair market value of such Disqualified Capital Stock, such fair
market value shall be determined reasonably and in good faith by the Board of
Directors of the issuer of such Disqualified Capital Stock.
"INDENTURE" means this Indenture, as amended or supplemented from
time to time in accordance with the terms hereof.
"INDEPENDENT FINANCIAL ADVISOR" means a firm (i) which does not,
and whose directors, officers and employees or Affiliates do not, have a direct
or indirect financial interest in the Company (other than an interest in less
than 5% of the Company's Common Stock or any other publicly traded securities of
the Company) and (ii) which, in the judgment of the Board of Directors of the
Company, is otherwise independent and qualified to perform the task for which it
is to be engaged.
"INITIAL PURCHASERS" means, collectively, BT Alex. Xxxxx
Incorporated, Bear, Xxxxxxx & Co. Inc., Donaldson, Lufkin, Xxxxxxxx Securities
Corporation and NationsBanc
Xxxxxxxxxx Securities LLC.
"INITIAL SECURITIES" means, collectively, (i) the 8 5/8% Senior
Subordinated Notes due 2008 of the Company issued on the Issue Date and (ii) one
or more series of additional 8 5/8% Senior Subordinated Notes due 2008 that are
issued under this Indenture subsequent to the Issue Date pursuant to Section
2.2, in each case for so long as such securities constitute Restricted
Securities.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institution that is
an "accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act.
"INTEREST PAYMENT DATE" means the stated maturity of an
installment of interest on the Securities.
"INTEREST SWAP OBLIGATIONS" means the obligations of any Person
pursuant to any arrangement with any other Person, whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such other
Person calculated by applying a fixed or a floating rate of interest on the same
notional amount and shall include, without limitation, interest rate swaps,
caps, floors, collars and similar agreements.
"INVESTMENT" means, with respect to any Person, any direct or
indirect loan or other extension of credit (including, without limitation, a
guarantee) or capital contribution to (by means of any transfer of cash or other
property to others or any payment for property or services for the account or
use of others), or any purchase or acquisition by such Person of any Capital
Stock, bonds, notes, debentures or other securities or evidences of Indebtedness
issued by, any Person. "Investment" shall exclude extensions of trade credit by
the Company and its Restricted Subsidiaries on commercially reasonable terms in
accordance with normal trade practices of the Company or such Restricted
Subsidiary, as the case may be. For the purposes of Section 5.3, (i)
"Investment" shall include and be valued at the fair market value of the net
assets of any Restricted Subsidiary at the time that such Restricted Subsidiary
is designated as an Unrestricted Subsidiary and shall exclude the fair market
value of the net assets of any Unrestricted Subsidiary at the time that such
Unrestricted Subsidiary is designated as a Restricted Subsidiary and (ii) the
amount of any Investment shall be the original cost of such Investment plus the
cost of all additional Investments by the Company or any of its Restricted
Subsidiaries, without any adjustments for increases or decreases in value, or
write-ups, write-downs or write-offs with respect to such Investment, reduced by
the payment of dividends or distributions in connection with such Investment or
any other amounts received in respect of such Investment; PROVIDED, that no such
payment of dividends or distributions or receipt of any such other amounts shall
reduce the amount of any Investment if such payment of dividends or
distributions or receipt of any such amounts would be included in Consolidated
Net Income. If the Company or any Restricted Subsidiary of the Company sells or
otherwise disposes of any Common Stock of any direct or indirect Restricted
Subsidiary of the Company such that, after giving effect to any such sale or
disposition such entity is no longer a Restricted Subsidiary, the Company shall
be deemed to have made an Investment on the date of any such sale or disposition
equal to the fair market value of the Common Stock or other equity interests of
such entity not sold or disposed of.
"INVESTMENT GRADE RATING" means a rating of BBB- or higher by S&P
and Baa3 or higher by Xxxxx'x or the equivalent of such rating by S&P and
Xxxxx'x or by any other Rating Agency selected as provided in the definition of
Rating Agency.
"ISSUE DATE" means February 11, 1998, the date of original
issuance of the Securities under this Indenture.
"LEGAL HOLIDAY" shall have the meaning provided in Section 13.7.
"LIEN" means any lien, mortgage, deed of trust, pledge, security
interest, charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof and any
agreement to give any security interest).
"MATURITY DATE" means February 15, 2008.
"NET CASH PROCEEDS" means, with respect to any Asset Sale, the
proceeds in the form of cash or Cash Equivalents including payments in respect
of deferred payment obligations when received in the form of cash or Cash
Equivalents (other than the portion of any such deferred payment constituting
interest) received by the Company or any of its Restricted Subsidiaries from
such Asset Sale net of (a) reasonable out-of-pocket expenses and fees relating
to such Asset Sale (including, without limitation, legal, accounting and
investment banking fees and sales commissions and discounts), (b) taxes paid or
payable after taking into account any reduction in consolidated tax liability
due to available tax credits or deductions and any tax sharing arrangements, (c)
repayment of Indebtedness that is required to be repaid in connection with such
Asset Sale and (d) appropriate amounts to be provided by the Company or any of
its Restricted Subsidiaries, as the case may be, as a reserve, in accordance
with GAAP, against any liabilities associated with such Asset Sale and retained
by the Company or any Restricted Subsidiary, as the case may be, after such
Asset Sale, including, without limitation, pension and other post-employment
benefit liabilities, liabilities related to environmental matters and
liabilities under any indemnification obligations associated with such Asset
Sale.
"NET PROCEEDS OFFER" shall have the meaning provided in Section
5.16(a).
"NET PROCEEDS OFFER AMOUNT" shall have the meaning provided in
Section 5.16(a).
"NET PROCEEDS OFFER PAYMENT DATE" shall have the meaning provided
in Section 5.16(a).
"NET PROCEEDS TRIGGER DATE" shall have the meaning provided in
Section 5.16(a).
"NON-PAYMENT DEFAULT" means any event (other than a Payment
Default) the occurrence of which entitles one or more persons to act to
accelerate the maturity of any Designated Senior Debt.
"NON-U.S. PERSON" means a person who is not a U.S. person, as
defined in Regulation S.
"NOTRE" means Notre Capital Ventures II, L.L.C.
"OBLIGATIONS" means all obligations for principal, premium,
interest, penalties, fees, indemnifications, reimbursements, damages and other
liabilities payable under the documentation governing any Indebtedness.
"OFFERING MEMORANDUM" means the offering memorandum of the
Company dated February 6, 1998 relating to the Securities.
"OFFICER" means, with respect to any Person, the Chief Executive
Officer, the Chief Financial Officer, Treasurer or the Chief Accounting Officer
of such Person.
"OFFICERS' CERTIFICATE" means a certificate signed in the name of
and on behalf of the Company by the Chairman, a Vice Chairman, the President or
a Vice President, and by the Treasurer, an Assistant Treasurer, the Controller
or an Assistant Controller, the Secretary or an Assistant Secretary of the
Company, and delivered to the Trustee and otherwise complying with the
requirements of Section 13.5.
"OPERATING LEASE" means any lease the obligations under which do
not constitute Capitalized Lease Obligations.
"OPINION OF COUNSEL" means a written opinion from legal counsel
who is reasonably acceptable to the Trustee complying with the requirements of
Section 13.5. Unless otherwise required by the Trustee, the legal counsel may be
an employee of or counsel to the Company or the Trustee.
"PAYING AGENT" shall have the meaning provided in Section 2.3,
except that for the purposes of Articles Three and Nine and Sections 5.15 and
5.16, the Paying Agent shall not be the Company or an Affiliate of the Company.
"PAYMENT DEFAULT" means any default in the payment of principal,
premium, if any, or interest on any Designated Senior Debt or Guarantor Senior
Debt beyond any applicable grace period with respect thereto.
"PERMITTED HOLDER" means, as of the Issue Date, (i) any officer
or director of the Company, (ii) Notre, (iii) any officer or director of any
Subsidiary of the Company who holds 1% or more of the Company's Common Stock,
(iv) in the case of an entity, any Affiliates of the foregoing and (v) in the
case of an individual, any spouse, sibling, child or grandchild of the foregoing
(in each case, whether such relationship arises from birth, adoption or through
marriage).
"PERMITTED INDEBTEDNESS" means, without duplication, each of the
following:
(i) Indebtedness under the Securities, this Indenture and the
Guarantees;
(ii) Indebtedness incurred pursuant to the Credit Agreement or
any other credit agreement in an aggregate principal amount at any time
outstanding not to exceed $350.0 million with respect to the
Indebtedness under the Credit Agreement or any other credit agreement,
less the amount of all mandatory principal payments actually made by the
Company in respect of any Term Loan Facility (excluding any such
payments to the extent refinanced at the time of payment under a
replaced Credit Agreement);
(iii) other Indebtedness of the Company and its Restricted
Subsidiaries outstanding on the Issue Date reduced by the amount of any
scheduled amortization payments or mandatory prepayments when actually
paid or permanent reductions thereon;
(iv) Interest Swap Obligations of the Company covering
Indebtedness of the Company or any of its Restricted Subsidiaries and
Interest Swap Obligations of any Restricted Subsidiary of the Company
covering Indebtedness of such Restricted Subsidiary; PROVIDED, HOWEVER,
that such Interest Swap Obligations are entered into to protect the
Company and its Restricted Subsidiaries from fluctuations in interest
rates on Indebtedness incurred in accordance with this Indenture to the
extent the notional principal amount of such Interest Swap Obligation
does not exceed the principal amount of the Indebtedness to which such
Interest Swap Obligation relates;
(v) Indebtedness under Currency Agreements; PROVIDED, that in the
case of Currency Agreements which relate to Indebtedness, such Currency
Agreements do not increase the Indebtedness of the Company and its
Restricted Subsidiaries outstanding other than as a result of
fluctuations in foreign currency exchange rates or by reason of fees,
indemnitees and compensation payable thereunder;
(vi) Indebtedness of a Wholly Owned Restricted Subsidiary of the
Company to the Company or to a Wholly Owned Restricted Subsidiary of the
Company for so long as such Indebtedness is held by the Company or a
Wholly Owned Restricted Subsidiary of the Company, in each case subject
to no Lien held by a Person other than the Company or a Wholly Owned
Restricted Subsidiary of the Company; PROVIDED, that if as of any date
any Person other than the Company or a Wholly Owned Restricted
Subsidiary of the Company owns or holds any such indebtedness or holds a
Lien in respect of such Indebtedness, such date shall be deemed the
incurrence of Indebtedness not constituting Permitted Indebtedness by
the issuer of such Indebtedness;
(vii) Indebtedness of the Company to a Wholly Owned Restricted
Subsidiary of the Company for so long as such Indebtedness is held by a
Wholly Owned Restricted Subsidiary of the Company, in each case subject
to no Lien; PROVIDED, that (a) any Indebtedness of the Company to any
Wholly Owned Restricted Subsidiary of the Company is unsecured and
subordinated, pursuant to a written agreement, to the Company's
obligations under this Indenture and the Securities and (b) if as of any
date any Person other than a Wholly Owned Restricted Subsidiary of the
Company owns or holds any such Indebtedness or any Person holds a Lien
in respect of such Indebtedness, such date shall be deemed the
incurrence of Indebtedness not constituting Permitted Indebtedness by
the Company;
(viii) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument
inadvertently (except in the case of daylight overdrafts) drawn against
insufficient funds in the ordinary course of business; PROVIDED,
HOWEVER, that such indebtedness is extinguished within two business days
of incurrence;
(ix) Indebtedness of the Company or any of its Restricted
Subsidiaries represented by letters of credit for the account of the
Company or such Restricted Subsidiary, as the case may be, in order to
provide security for workers' compensation claims, payment obligations
in connection with self-insurance or similar requirements in the
ordinary course of business;
(x) Indebtedness in connection with one or more standby letters
of credit, guarantees, performance bonds or other reimbursement
obligations, in each case, issued in the ordinary course of business and
not in connection with the borrowing of money or the obtaining of
advances or credit (other than advances or credit on open account,
includible in current liabilities, for goods and services in the
ordinary course of business and on terms and conditions which are
customary in the business of the Company and its Restricted Subsidiaries
as existing on the Issue Date or in businesses reasonably related
thereto, and other than the extension of credit represented by such
letter of credit, guarantee or performance bond itself), not to exceed
in the aggregate at any given time 10% of the Consolidated Net Worth of
the Company and its Restricted Subsidiaries; PROVIDED, that any draw
under or call upon any of the foregoing is repaid in full within 30
days;
(xi) the incurrence by the Company or any of the Guarantors of
Indebtedness represented by Capital Lease Obligations, mortgage
financings or purchase money obligations, in each case incurred for the
purpose of financing all or any part of the purchase price or cost of
construction or improvement of property, plant or equipment used in the
business of the Company or such Guarantor, in an aggregate principal
amount not to exceed the greater of (a) $20.0 million or (b) 5% of the
Consolidated Net Worth of the Company at any one time outstanding;
(xii) Refinancing Indebtedness;
(xiii) Incurrence by the Company or any Guarantors of
Indebtedness owed to or guaranteed by any governmental agency,
instrumentality or other authority incurred to provide relief from
natural disasters or otherwise to provide economic development
incentives; and
(xiv) additional Indebtedness of the Company and its Restricted
Subsidiaries in an aggregate principal amount not to exceed the greater
of (a) $20.0 million or (b) 5% of the Consolidated Net Worth of the
Company at any one time outstanding.
For purposes of determining whether any Indebtedness is Permitted
Indebtedness, (i) in the event that an item of Indebtedness meets the criteria
of more than one of the types of Indebtedness described above, the Company, in
its sole discretion, will classify such item of Indebtedness and only be
required to include the amount and type of such Indebtedness in one of the above
clauses and (ii) an item of Indebtedness may be divided and classified in more
than one of the types of Indebtedness described above.
"PERMITTED INVESTMENTS" means (i) Investments by the Company or
any Restricted Subsidiary of the Company in any Person that is or will become
immediately after such Investment a Wholly Owned Restricted Subsidiary of the
Company or that will merge or consolidate into the Company or a Wholly Owned
Restricted Subsidiary of the Company; (ii) Investments in the Company by any
Restricted Subsidiary of the Company; PROVIDED, that any Indebtedness evidencing
such Investment is unsecured and subordinated, pursuant to a written agreement,
to the Company's obligations under the Securities and this Indenture; (iii)
investments in cash and Cash Equivalents; (iv) loans and advances to employees
and officers of the Company and its Restricted Subsidiaries in the ordinary
course of business for bona fide business purposes not in excess of $5.0 million
at any one time outstanding; (v) Currency Agreements and Interest Swap
Obligations entered into in the ordinary course of the Company's or its
Restricted Subsidiaries' businesses and otherwise in compliance with this
Indenture; (vi) Investments in securities of trade creditors or customers
received pursuant to any plan of reorganization or similar arrangement upon the
bankruptcy or insolvency of such trade creditors or customers or received in
settlement of debts created in the ordinary course of business or in
satisfaction of judgments; (vii) Investments made by the Company or its
Restricted Subsidiaries as a result of consideration received in connection with
an Asset Sale made in compliance with Section 5.16; and (viii) additional
Investments by the Company or any Restricted Subsidiary of the Company in an
aggregate amount, based on original cost, not to exceed $20.0 million at any one
time outstanding.
"PERMITTED LIENS" means the following types of Liens:
(i) Liens for taxes, assessments or governmental charges or
claims either (a) not delinquent or (b) contested in good faith by
appropriate proceedings and as to which the Company or its Restricted
Subsidiaries shall have set aside on its books such reserves as may be
required pursuant to GAAP;
(ii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen and other
Liens imposed by law incurred in the ordinary course of business for
sums not yet delinquent or being contested in good faith, if such
reserve or other appropriate provision, if any, as shall be required by
GAAP shall have been made in respect thereof;
(iii) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment
insurance and other types of social security, including any Lien
securing letters of credit issued in the ordinary course of business
consistent with past practice in connection therewith, or to secure the
performance of tenders, statutory obligations, surety and appeal bonds,
bids, leases, government contracts, performance and return-of-money
bonds and other similar obligations (exclusive of obligations for the
payment of borrowed money);
(iv) judgment Liens not giving rise to an Event of Default so
long as such Lien is adequately bonded and any appropriate legal
proceedings which may have been duly initiated for the review of such
judgment shall not have been finally terminated or the period within
which such proceedings may be initiated shall not have expired;
(v) easements, rights-of-way, zoning restrictions and other
similar charges or encumbrances in respect of real property not
interfering in any material respect with the ordinary conduct of the
business of the Company or any of its Restricted Subsidiaries;
(vi) any interest or title of a lessor under any Capitalized
Lease Obligation; PROVIDED, that such Liens do not extend to any
property or assets which is not leased property subject to such
Capitalized Lease Obligation;
(vii) purchase money Liens to finance property or assets of the
Company or any Restricted Subsidiary of the Company acquired in the
ordinary course of business; PROVIDED, HOWEVER, that (A) the related
purchase money Indebtedness shall not exceed the cost of such property
or assets and shall not be secured by any property or assets of the
Company or any Restricted Subsidiary of the Company other than the
property and assets so acquired and (B) the Lien securing such
Indebtedness shall be created within 90 days of such acquisition;
(viii) Liens upon specific items of inventory or other goods and
proceeds of any Person securing such Person's obligations in respect of
bankers' acceptance issued or created for the account of such Person to
facilitate the purchase, shipment or storage of such inventory or other
goods;
(ix) Liens securing reimbursement obligations with respect to
commercial letters of credit which encumber documents and other property
relating to such letters of credit and products and proceeds thereof;
(x) Liens encumbering deposits made to secure obligations arising
from statutory, regulatory, contractual, or warranty requirements of the
Company or any of its Restricted Subsidiaries, including rights of
offset and set-off;
(xi) Liens securing Interest Swap Obligations which Interest Swap
Obligations relate to Indebtedness that is otherwise permitted under
this Indenture;
(xii) Liens securing Indebtedness under Currency Agreements;
(xiii) Liens incurred in the ordinary course of business of the
Company or any Restricted Subsidiary of the Company with respect to
obligations that do not exceed $10.0 million at any one time outstanding
and that (a) are not incurred in connection with the borrowing of money
or the obtaining of advances or credit (other than trade credit in the
ordinary course of business) and (b) do not in the aggregate materially
detract from the value of the property or materially impair the use
thereof in the operation of business by the Company or such Restricted
Subsidiary;
(xiv) Liens securing Acquired Indebtedness incurred in accordance
with Section 5.12; PROVIDED, that (A) such Liens secured such Acquired
Indebtedness at the time of and prior to the incurrence of such Acquired
Indebtedness by the Company or a Restricted Subsidiary of the Company
and were not granted in connection with, or in anticipation of, the
incurrence of such Acquired Indebtedness by the Company or a Restricted
Subsidiary of the Company and (B) such Liens do not extend to or cover
any property or assets of the Company or of any of its Restricted
Subsidiaries other than the property or assets that secured the Acquired
Indebtedness prior to the time such Indebtedness became Acquired
Indebtedness of the Company or a Restricted Subsidiary of the Company
and are no more favorable to the lienholders than those securing the
Acquired Indebtedness prior to the incurrence of such Acquired
Indebtedness by the Company or a Restricted Subsidiary of the Company;
and
(xv) Liens not permitted by clauses (i) through (xiv) that are
incurred in the ordinary course of business of the Company or any
Restricted Subsidiary of the Company with respect to obligations that do
not exceed $10.0 million at any one time outstanding.
"PERSON" means an individual, partnership, corporation,
unincorporated organization, trust or joint venture, limited liability company,
or a governmental agency or political subdivision thereof.
"PHYSICAL SECURITIES" has the meaning provided in Section 2.1.
"PREFERRED STOCK" of any Person means any Capital Stock of such
Person that has preferential rights to any other Capital Stock of such Person
with respect to dividends or redemptions or upon liquidation.
"PRIVATE EXCHANGE NOTES" shall have the meaning provided in the
Registration Rights Agreement.
"PRIVATE PLACEMENT LEGEND" means the legend initially set forth
on the Securities in the form set forth in EXHIBIT A.
"PRO FORMA" means, with respect to any calculation made or
required to be made pursuant to the terms of this Indenture, a calculation in
accordance with Article 11 of Regulation S-X under the Securities Act, as
interpreted by the Company's chief financial officer or Board of Directors in
consultation with its independent certified public accountants.
"PUBLIC EQUITY OFFERING" means an underwritten public offering of
Qualified Capital Stock of the Company, sold by the Company, after the Issue
Date pursuant to a registration statement filed with the Commission in
accordance with the Securities Act.
"QUALIFIED CAPITAL STOCK" means any Capital Stock that is not
Disqualified Capital Stock.
"QUALIFIED INSTITUTIONAL BUYER" or "QIB" shall have the meaning
specified in Rule 144A.
"RATING AGENCY" means S&P and Xxxxx'x, or if S&P or Xxxxx'x or
both shall not make a rating on the Securities publicly available, a nationally
recognized statistical rating agency or agencies, as the case may be, selected
by the Company (as certified by a resolution of the Board of Directors of the
Company) which shall be substituted for S&P or Xxxxx'x or both, as the case may
be.
"RECORD DATE" means the record dates specified in the Securities;
PROVIDED, HOWEVER, that if any such date is a Legal Holiday, the Record Date
shall be the first day immediately preceding such specified day that is not a
Legal Holiday.
"REDEMPTION DATE," when used with respect to any Security to be
redeemed, means the date fixed for such redemption pursuant to this Indenture
and Paragraph 5 of the Securities.
"REDEMPTION PRICE," when used with respect to any Security to be
redeemed, means the price fixed for such redemption pursuant to this Indenture
and Paragraph 5 of the Securities.
"REFINANCE" means, in respect of any security or Indebtedness, to
refinance, extend, renew, refund, repay, pre-pay, redeem, defease or retire, or
to issue a security or Indebtedness in exchange or replacement for, such
security or Indebtedness in whole or in part. "REFINANCED" and "REFINANCING"
shall have correlative meanings.
"REFINANCING INDEBTEDNESS" means any Refinancing by the Company
or any Restricted Subsidiary of the Company of Indebtedness incurred in
accordance with Section 5.12 (other than pursuant to clause (ii), (iv), (v),
(vi), (vii), (viii), (ix), (x), (xi), (xiii) or (xiv) of the definition of
Permitted Indebtedness), in each case that does not (1) result in an increase in
the aggregate principal amount of Indebtedness of such Person as of the date of
such proposed Refinancing (plus the amount of any premium required to be paid
under the terms of the instrument governing such Indebtedness and plus the
amount of reasonable expenses incurred by the Company in connection with such
Refinancing) or (2) create Indebtedness with (A) a Weighted Average Life to
Maturity that is less than the Weighted Average Life to Maturity of the
Indebtedness being Refinanced or (B) a final maturity earlier than the final
maturity of the Indebtedness being Refinanced; PROVIDED, that (x) if such
Indebtedness being Refinanced is solely Indebtedness of the Company, then such
Refinancing Indebtedness shall be Indebtedness solely of the Company and (y) if
such Indebtedness being Refinanced is subordinate or junior to the Securities,
then such Refinancing Indebtedness shall be subordinate to the Securities at
least to the same extent and in the same manner as the Indebtedness being
Refinanced.
"REGISTRAR" shall have the meaning provided in Section 2.3.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement dated as of the Issue Date among the Company, the Guarantors and the
Initial Purchasers.
"REGULATION S" means Regulation S under the Securities Act.
"REGULATION S GLOBAL SECURITY" means a permanent global security
in registered form representing the aggregate principal amount of Securities
sold in reliance on Regulation S under the Securities Act.
"REPLACEMENT ASSETS" shall have the meaning provided in Section
5.16(a).
"REPRESENTATIVE" means the indenture trustee or other trustee,
agent or representative in respect of any Designated Senior Debt; PROVIDED, that
if, and for so long as, any Designated Senior Debt lacks such a representative,
then the Representative for such Designated Senior Debt shall at all times
constitute the holders of a majority in outstanding principal amount of such
Designated Senior Debt in respect of any Designated Senior Debt.
"RESTRICTED SECURITY" has the meaning assigned to such term in
Rule 144(a)(3) under the Securities Act; PROVIDED, HOWEVER, that the Trustee
shall be entitled to request and conclusively rely on an Opinion of Counsel with
respect to whether any Security constitutes a Restricted Security.
"RESTRICTED SUBSIDIARY" of any Person means any Subsidiary of
such Person which is not an Unrestricted Subsidiary.
"RULE 144A" means Rule 144A under the Securities Act.
"SALE AND LEASEBACK TRANSACTION" means any direct or indirect
arrangement with any Person or to which any such Person is a party, providing
for the leasing to the Company or a Restricted Subsidiary of any property,
whether owned by the Company or any Restricted Subsidiary at the Issue Date or
later acquired, which has been or is to be sold or transferred by the Company or
such Restricted Subsidiary to such Person or to any other Person from whom funds
have been or are to be advanced by such Person on the security of such Property.
"SECURITIES" means, collectively, (i) the Initial Securities,
(ii) the Private Exchange Notes, if any, and (iii) the Unrestricted Securities,
treated as a single class of securities, as amended or supplemented from time to
time in accordance with the terms hereof, that are issued pursuant to this
Indenture.
"SECURITIES ACT" means the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"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 of the Company, whether outstanding on the Issue Date or
thereafter created, incurred or assumed, unless, in the case of any particular
Indebtedness, the instrument creating or evidencing the same or pursuant to
which the same is outstanding expressly provides that such Indebtedness shall
not be senior in right of payment to the Securities. 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 (x) all monetary
obligations of every nature of the Company under the Credit Agreement,
including, without limitation, obligations to pay principal and interest,
reimbursement obligations under letters of credit, fees, expenses and
indemnities, (y) all Interest Swap Obligations and (z) all obligations under
Currency Agreements, in each case whether outstanding on the Issue Date or
thereafter incurred. Notwithstanding the foregoing, "Senior Debt" shall not
include (i) any Indebtedness of the Company to a Restricted Subsidiary of the
Company or any Affiliate of the Company or any of such Affiliate's Subsidiaries,
(ii) Indebtedness to, or guaranteed on behalf of, any shareholder, director,
officer or employee of the Company or any Restricted Subsidiary of the Company
(including, without limitation, amounts owed for compensation), (iii)
Indebtedness to trade creditors and other amounts incurred in connection with
obtaining goods, materials or services, (iv) Indebtedness represented by
Disqualified Capital Stock, (v) any liability for federal, state, local or other
taxes owed or owing by the Company, (vi) Indebtedness incurred in violation of
this Indenture provisions set forth under Section 5.12, (vii) 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 Company and (viii)
any Indebtedness which is, by its express terms, subordinated in right of
payment to any other Indebtedness of the Company.
"SIGNIFICANT SUBSIDIARY" shall have the meaning set forth in Rule
1.02(v) of Regulation S-X under the Securities Act.
"SUBSIDIARY" with respect to any Person, means (i) any
corporation of which the outstanding Capital Stock having at least a majority of
the votes entitled to be cast in the election of directors under ordinary
circumstances shall at the time be owned, directly or indirectly, by such Person
or (ii) any other Person of which at least a majority of the voting interest
under ordinary circumstances is at the time, directly or indirectly, owned by
such Person.
"SURVIVING ENTITY" shall have the meaning provided in Section
6.1(a)(i).
"TERM LOAN FACILITY" means any term loan facilities under the
Credit Agreement.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
Sections 77aaa-77bbbb), as amended, as in effect on the date this Indenture is
qualified under the TIA, except as otherwise provided in Section 10.3.
"TRUST OFFICER" means any officer of the Trustee assigned by the
Trustee to administer its corporate trust matters.
"TRUSTEE" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"UNRESTRICTED SECURITY(IES)" means one or more Securities that do
not and are not required to bear the Private Placement Legend in the form set
forth in EXHIBIT A, including, without limitation, the Exchange Notes (as
defined in the Registration Rights Agreement).
"UNRESTRICTED SUBSIDIARY" of any Person means (i) any Subsidiary
of such Person that at the time of determination shall be or continue to be
designated an Unrestricted Subsidiary by the Board of Directors of such Person
in the manner provided below and (ii) any Subsidiary of an Unrestricted
Subsidiary. The Board of Directors may designate any Subsidiary (including any
newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary
unless such Subsidiary owns any Capital Stock of, or owns or holds any Lien on
any property of, the Company or any other Subsidiary of the Company that is not
a Subsidiary of the Subsidiary to be so designated; PROVIDED, that (x) the
Company certifies to the Trustee that such designation complies with Section 5.3
and (y) each Subsidiary to be so designated and each of 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 of its Restricted Subsidiaries. The Board of
Directors may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary only if (x) immediately after giving effect to such designation, the
Company is able to incur at least $1.00 of additional Indebtedness (other than
Permitted Indebtedness) in compliance with Section 5.12 and (y) immediately
before and immediately after giving effect to such designation, no Default or
Event of Default shall have occurred and be continuing. Any such designation by
the Board of Directors shall be evidenced to the Trustee by promptly filing with
the Trustee a copy of the Board Resolution giving effect to such designation and
an Officers' Certificate certifying that such designation complied with the
foregoing provisions.
"U.S. GOVERNMENT OBLIGATIONS" means direct non-callable
obligations of, or non-callable obligations guaranteed by, the United States of
America for the payment of which guarantee or obligation the full faith and
credit of the United States is pledged.
"U.S. LEGAL TENDER" means such coin or currency of the United
States of America as at the time of payment shall be legal tender for the
payment of public and private debts.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the then
outstanding aggregate principal amount of such Indebtedness into (b) the sum of
the total of the products obtained by multiplying (i) the amount of each then
remaining installment, sinking fund, serial maturity or other required payment
of principal, including payment at final maturity, in respect thereof, by (ii)
the number of years (calculated to the nearest one-twelfth) which will elapse
between such date and the making of such payment.
"WHOLLY OWNED RESTRICTED SUBSIDIARY" of any Person means any
Restricted Subsidiary of such Person of which all the outstanding voting
securities (other than in the case of a foreign Restricted Subsidiary,
directors' qualifying shares or an immaterial amount of shares required to be
owned by other Persons pursuant to applicable law) are owned by such Person or
any Wholly Owned Restricted Subsidiary of such Person.
Section 1.2. Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in, and made a part of, this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"INDENTURE SECURITIES" means the Securities.
"INDENTURE SECURITY HOLDER" means a Holder.
"INDENTURE TO BE QUALIFIED" means this Indenture.
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee.
"OBLIGOR" on the indenture securities means the Company, any
Guarantor or any other obligor on the Securities or the Guarantees.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by Commission
rule and not otherwise defined herein have the meanings assigned to them
therein.
Section 1.3. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the
plural include the singular;
(5) provisions apply to successive events and transactions; and
(6) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or other
subdivision.
ARTICLE II.
THE SECURITIES
Section 2.1. Form and Dating.
The Securities, the notation thereon relating to the Guarantee
and the Trustee's certificate of authentication shall be substantially in the
form of EXHIBIT A. The Securities may have notations, legends or endorsements
required by law, stock exchange rule or usage. The Company and the Trustee shall
approve the form of the Securities and any notation, legend or endorsement on
them. Each Security shall be dated the date of its authentication.
The terms and provisions contained in the Securities and the
Guarantees shall constitute, and are hereby expressly made, a part of this
Indenture and, to the extent applicable, the Company and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.
Securities offered and sold in reliance on Rule 144A, Securities
offered and sold to institutional "accredited investors" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act) and Securities offered and
sold in reliance on Regulation S shall be issued initially in the form of one or
more permanent Global Securities in registered form, substantially in the form
set forth in EXHIBIT A, deposited with the Trustee, as custodian for the
Depository, duly executed by the Company (and having an executed Guarantee
endorsed thereon) and authenticated by the Trustee as hereinafter provided and
shall bear the legend set forth in EXHIBIT B. The aggregate principal amount of
the Global Securities may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for the Depository,
as hereinafter provided.
Securities issued in exchange for interests in a Global Security
pursuant to Section 2.16 may be issued and Securities offered and sold in
reliance on any other exemption from registration under the Securities Act other
than as described in the preceding paragraph shall be issued in the form of
permanent certificated Securities in registered form in substantially the form
set forth in EXHIBIT A (the "PHYSICAL SECURITIES").
All Securities offered and sold in reliance on Regulation S shall
remain in the form of a Global Security until the consummation of the Exchange
Offer pursuant to the Registration Rights Agreement; PROVIDED, HOWEVER, that all
of the time periods specified in the Registration Rights Agreement to be
complied with by the Company and the Guarantors have been so complied with.
Section 2.2. Execution and Authentication.
One Officer of the Company, whom shall have been duly authorized
by all requisite corporate actions, shall sign the Securities for the Company by
manual or facsimile signature. Each Guarantor shall execute the Guarantee in the
manner set forth in Section 11.9.
If an Officer whose signature is on a Security was an Officer at
the time of such execution but no longer holds that office or position at the
time the Trustee authenticates the Security, the Security shall be valid
nevertheless.
A Security shall not be valid until an authorized signatory of
the Trustee manually signs the certificate of authentication on the Security.
The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
The Trustee shall authenticate (i) the Initial Securities for
original issue in the aggregate principal amount not to exceed $300.0 million,
(ii) the Private Exchange Notes from time to time for issue only in exchange for
a like principal amount of the Initial Securities and (iii) Unrestricted
Securities from time to time only (A) in exchange for a like principal amount of
the Initial Securities or (B) in an aggregate principal amount of not more than
the excess of $300.0 million over the sum of the aggregate principal amount of
(x) the Initial Securities than outstanding, (y) the Private Exchange Notes then
outstanding and (z) the Unrestricted Securities issued in accordance with
(iii)(A) above, in each case upon a written order of the Company in the form of
an Officers' Certificate. The Officers' Certificate shall specify the amount of
Securities to be authenticated and the date on which the Securities are to be
authenticated, whether the Securities are to be the Initial Securities, Private
Exchange Notes or Unrestricted Securities and whether the Securities are to be
issued as Physical Securities or Global Securities or such other information as
the Trustee may reasonably request. The aggregate principal amount of Securities
outstanding at any time may not exceed $300.0 million (or such lesser amount as
is requested authenticated by the Trustee and issued by the Company on the Issue
Date), except as provided in Section 2.7. Such Securities shall be in the form
of one or more Global Securities, which (i) shall represent, and shall be
denominated in an amount equal to the aggregate principal amount of, the
outstanding Securities, (ii) shall be registered in the name of the Depository
for such Global Security or Securities or its nominee, (iii) shall be delivered
by the Trustee to the Depository or pursuant to the Depository's instruction and
(iv) shall bear a legend substantially to the following effect:
"Unless and until this Global Security is exchanged in whole or
in part for the individual Securities represented hereby, this
Global Security may not be transferred except as a whole by the
Depository to a nominee of the Depository or by a nominee of the
Depository to the Depository or by a Depository or any such
nominee to a successor Depository or a nominee of a successor
Depository."
In the event that the Company shall issue and the Trustee shall
authenticate any Securities issued under this Indenture subsequent to the Issue
Date pursuant to clauses (i) and (iii) of the first sentence of the immediately
preceding paragraph, the Company shall use its reasonable efforts to obtain the
same "CUSIP" number for such Securities as is printed on the Securities
outstanding at such time; PROVIDED, HOWEVER, that if any series of Securities
issued under this Indenture subsequent to the Issue Date is determined, pursuant
to an Opinion of Counsel of the Company in a form reasonably satisfactory to the
Trustee to be a different class of security than the Securities outstanding at
such time for federal income tax purposes, the Company may obtain a "CUSIP"
number for such Securities that is different than the "CUSIP" number printed on
the Securities then outstanding. Notwithstanding the foregoing, all Securities
issued under this Indenture shall vote and consent together on all matters as
one class and no series of Securities will have the right to vote or consent as
a separate class on any matter.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate Securities. Unless otherwise provided
in the appointment, an authenticating agent may authenticate Securities whenever
the Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company and Affiliates of the Company.
The Securities shall be issuable only in registered form without
coupons in denominations of $1,000 and integral multiples thereof.
Section 2.3. Registrar and Paying Agent.
The Company shall maintain an office or agency in the Borough of
Manhattan, The City of New York, where (a) Securities may be presented or
surrendered for registration of transfer or for exchange ("REGISTRAR"), (b)
Securities may be presented or surrendered for payment ("PAYING AGENT") and (c)
notices and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The office or agency in respect of clauses (a) and (b)
shall be the Trustee, x/x Xxxxxx Xxxxxx Trust Company of New York (770 Xxxxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Corporate Trust Services), and the
office or agency in respect of clause (c) shall be the Trustee, c/o United
States Trust Company of New York (114 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attn: Corporate Trust Administration), unless in either case the Company
shall designate and maintain some other office or agency for one or more of such
purposes. The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
PROVIDED, HOWEVER, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, The City of New York, for such purposes. The Company may
act as its own Registrar or Paying Agent except that for the purposes of
Articles Three and Nine and Sections 5.15 and 5.16, neither the Company nor any
Affiliate of the Company shall act as Paying Agent. The Registrar shall keep a
register of the Securities and of their transfer and exchange. The Company, upon
notice to the Trustee, may have one or more co-Registrars and one or more
additional paying agents reasonably acceptable to the Trustee. The term "Paying
Agent" includes any additional paying agent. The Company initially appoints the
Trustee as Registrar and Paying Agent until such time as the Trustee has
resigned or a successor has been appointed.
The Company shall enter into an appropriate agency agreement with
any Agent not a party to this Indenture, which agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall notify
the Trustee, in advance, of the name and address of any such Agent. If the
Company fails to maintain a Registrar or Paying Agent, the Trustee shall act as
such.
Section 2.4. Paying Agent To Hold Assets in Trust.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that, subject to Article Four and Article Twelve,
each Paying Agent shall hold in trust for the benefit of Holders or the Trustee
all assets held by the Paying Agent for the payment of principal of, or interest
on, the Securities (whether such assets have been distributed to it by the
Company or any other obligor on the Securities), and shall notify the Trustee of
any Default by the Company (or any other obligor on the Securities) in making
any such payment. If the Company or a Subsidiary acts as Paying Agent, it shall
segregate such assets and hold them as a separate trust fund, subject to Article
Four and Article Twelve. The Company at any time may require a Paying Agent to
distribute all assets held by it to the Trustee and account for any assets
disbursed and the Trustee may at any time during the continuance of any payment
Default, upon written request to a Paying Agent, require such Paying Agent to
distribute all assets held by it to the Trustee and to account for any assets
distributed. Upon distribution to the Trustee of all assets that shall have been
delivered by the Company to the Paying Agent, the Paying Agent shall have no
further liability for such assets.
Section 2.5. 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 to the
Trustee on or 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, which list
may be conclusively relied upon by the Trustee.
Section 2.6. Transfer and Exchange.
(a) Subject to Sections 2.16 and 2.17, when Securities are
presented to the Registrar or a co-Registrar with a request to register the
transfer of such Securities or to exchange such Securities for an equal
principal amount of Securities of other authorized denominations, the Registrar
or co-Registrar shall register the transfer or make the exchange as requested if
its requirements for such transaction are met; PROVIDED, HOWEVER, that the
Securities surrendered for transfer or exchange shall be duly endorsed or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Registrar or co-Registrar, duly executed by the Holder thereof
or his or her attorney duly authorized in writing. To permit registrations of
transfers and exchanges, the Company shall execute and the Trustee shall
authenticate Securities at the Registrar's or co-Registrar's request. No service
charge shall be made for any registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than any such
transfer taxes or similar governmental charge payable upon exchanges or
transfers pursuant to Sections 2.2, 2.7, 2.10, 3.7, 5.15, 5.16 or 10.5). The
Registrar or co-Registrar shall not be required to register the transfer of or
exchange of any Security (i) during a period beginning at the opening of
business 15 days before the mailing of a notice of redemption of Securities and
ending at the close of business on the day of such mailing and (ii) selected for
redemption in whole or in part pursuant to Article Three, except the unredeemed
portion of any Security being redeemed in part. A Global Security may be
transferred, in whole but not in part, in the manner provided in this Section
2.6(a), only to a nominee of the Depository for such Global Security, or to the
Depository, or a successor Depository for such Global Security selected or
approved by the Company, or to a nominee of such successor Depository.
(b) If at any time the Depository for the Global Security or
Securities notifies the Company that it is unwilling or unable to continue as
Depository for such Global Security or Securities or the Company becomes aware
that the Depository has ceased to be a clearing agency registered under the
Exchange Act, the Company shall appoint a successor Depository with respect to
such Global Security or Securities. If a successor Depository for such Global
Security or Securities has not been appointed within 120 days after the Company
receives such notice or becomes aware of such ineligibility, the Company shall
execute, and the Trustee, upon receipt of an Officers' Certificate for the
authentication and delivery of Securities, shall authenticate and deliver,
Securities in definitive form, in an aggregate principal amount at maturity
equal to the principal amount at maturity of the Global Security representing
such Securities, in exchange for such Global Security. The Company shall
reimburse the Registrar, the Depository and the Trustee for expenses they incur
in documenting such exchanges and issuances of Securities in definitive form.
The Company may at any time and in its sole discretion determine
that the Securities shall no longer be represented by such Global Security or
Securities. In such event the Company will execute, and the Trustee, upon
receipt of a written order for the authentication and delivery of individual
Securities in exchange in whole or in part for such Global Security or
Securities, will authenticate and deliver individual Securities in definitive
form in an aggregate principal amount equal to the principal amount of such
Global Security or Securities in exchange for such Global Security or
Securities.
In any exchange provided for in any of the preceding two
paragraphs, the Company will execute and the Trustee will authenticate and
deliver individual Securities in definitive registered form in authorized
denominations. Upon the exchange of a Global Security for individual Securities,
such Global Security shall be canceled by the Trustee. Securities issued in
exchange for a Global Security pursuant to this Section 2.6(b) shall be
registered in such names and in such authorized denominations as the Depository
for such Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall deliver
such Securities to the persons in whose names such Securities are so registered.
None of the Company, the Trustee, any Paying Agent or the
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
Section 2.7. Replacement Securities.
If a mutilated Security is surrendered to the Trustee or if the
Holder of a Security claims that the Security has been lost, destroyed or
wrongfully taken, the Company shall issue and the Trustee shall authenticate a
replacement Security if the Trustee's requirements are met. If required by the
Trustee or the Company, such Holder must provide an indemnity bond or other
indemnity, sufficient in the judgment of both the Company and the Trustee, to
protect the Company, the Trustee or any Agent from any loss which any of them
may suffer if a Security is replaced. The Company may charge such Holder for its
reasonable out-of-pocket expenses in replacing a Security pursuant to this
Section 2.7, including reasonable fees and expenses of counsel.
Every replacement Security is an additional obligation of the
Company.
Section 2.8. Outstanding Securities.
Securities outstanding at any time are all the Securities that
have been authenticated by the Trustee except those canceled by it, those
delivered to it for cancellation and those described in this Section as not
outstanding. A Security does not cease to be outstanding because the Company or
any of its Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.7 (other than a
mutilated Security surrendered for replacement), it ceases to be outstanding
unless the Trustee receives proof satisfactory to it that the replaced Security
is held by a bona fide purchaser. A mutilated Security ceases to be outstanding
upon surrender of such Security and replacement thereof pursuant to Section 2.7.
If on a Redemption Date or the Maturity Date the Paying Agent
(other than the Company or a Subsidiary) holds U.S. Legal Tender or U.S.
Government Obligations sufficient to pay all of the principal and interest due
on the Securities payable on that date, then on and after that date such
Securities cease to be outstanding and interest on them ceases to accrue unless,
pursuant to the provisions of Article Four and Article Twelve, the Paying Agent
is unable to make payments on the Securities to the Holders thereof.
Section 2.9. Treasury Securities.
In determining whether the Holders of the required principal
amount of Securities have concurred in any direction, waiver or consent,
Securities owned by the Company or any of its Affiliates shall be disregarded,
except that, for the purposes of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent, only Securities
that the Trustee knows or has reason to know are so owned shall be disregarded.
Section 2.10. Temporary Securities.
Until definitive Securities are ready for delivery, the Company
may prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of definitive Securities but may
have variations that the Company considers appropriate for temporary Securities.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate definitive Securities in exchange for temporary Securities. Until
such exchange, temporary Securities shall be entitled to the same rights,
benefits and privileges as definitive Securities. Notwithstanding the foregoing,
so long as the Securities are represented by a Global Security, such Global
Security may be in typewritten form.
Section 2.11. Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for transfer, exchange or payment. The
Trustee, or at the direction of the Trustee, the Registrar or the Paying Agent
(other than the Company or a Subsidiary), and no one else, shall cancel and, at
the written direction of the Company, shall dispose of all Securities
surrendered for transfer, exchange, payment or cancellation. Subject to Section
2.7, the Company may not issue new Securities to replace Securities that it has
paid or delivered to the Trustee for cancellation. If the Company shall acquire
any of the Securities, such acquisition shall not operate as a redemption or
satisfaction of the Indebtedness represented by such Securities unless and until
the same are surrendered to the Trustee for cancellation pursuant to this
Section 2.11.
Section 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the
Securities, it shall, unless the Trustee fixes another record date pursuant to
Section 7.10, pay the defaulted interest, plus (to the extent lawful) any
interest payable on the defaulted interest, to the persons who are Holders on a
subsequent special record date, which date shall be the fifteenth day next
preceding the date fixed by the Company for the payment of defaulted interest or
the next succeeding Business Day if such date is not a Business Day. At least 15
days before the subsequent special record date, the Company shall mail to each
Holder, with a copy to the Trustee, a notice that states the subsequent special
record date, the payment date and the amount of defaulted interest, and interest
payable on such defaulted interest, if any, to be paid.
Section 2.13. CUSIP Number.
The Company in issuing the Securities may use a "CUSIP" number,
and if so, the Trustee shall use the CUSIP number in notices of redemption or
exchange as a convenience to Holders; PROVIDED, HOWEVER, that any such notice
may state that no representation is made as to the correctness or accuracy of
the CUSIP number printed in the notice or on the Securities, and that reliance
may be placed only on the other identification numbers printed on the
Securities.
Section 2.14. Deposit of Monies.
Prior to 11:00 a.m. New York City time on each Interest Payment
Date, Maturity Date, Redemption Date, Change of Control Payment Date and Net
Proceeds Offer Payment Date, the Company shall have deposited with the Paying
Agent in immediately available funds money sufficient to make cash payments, if
any, due on such Interest Payment Date, Maturity Date, Redemption Date, Change
of Control Payment Date and Net Proceeds Offer Payment Date, as the case may be,
in a timely manner which permits the Paying Agent to remit payment to the
Holders on such Interest Payment Date, Maturity Date, Redemption Date, Change of
Control Payment Date and Net Proceeds Offer Payment Date, as the case may be.
Section 2.15. Restrictive Legends.
Each Global Security and Physical Security that constitutes a
Restricted Security shall bear the legend (the "PRIVATE PLACEMENT LEGEND") as
set forth in EXHIBIT A until after the second anniversary of the later of the
Issue Date and the last date on which the Company or any Affiliate of the
Company was the owner of such Security (or any predecessor security) (or such
shorter period of time as permitted by Rule 144(k) under the Securities Act or
any successor provision thereunder) (or such longer period of time as may be
required under the Securities Act or applicable state securities laws in the
opinion of counsel for the Company, unless otherwise agreed by the Company and
the Holder thereof).
Each Global Security shall also bear the legend as set forth in
EXHIBIT B.
Section 2.16. Book-Entry Provisions for Global Securities.
(a) The Global Securities initially shall (i) be registered in
the name of the Depository or the nominee of such Depository, (ii) be delivered
to the Trustee as custodian for such Depository and (iii) bear the legend as set
forth in EXHIBIT B.
Members of, or participants in, the Depository ("AGENT MEMBERS")
shall have no rights under this Indenture with respect to any Global Security
held on their behalf by the Depository, or the Trustee as its custodian, or
under the Global Securities, and the Depository may be treated by the Company,
the Trustee and any Agent of the Company or the Trustee as the absolute owner of
such Global Security for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee or any Agent of the
Company or the Trustee from giving effect to any written certification, proxy or
other authorization furnished by the Depository or impair, as between the
Depository and its Agent Members, the operation of customary practices governing
the exercise of the rights of a Holder of any Security.
(b) Transfers of a Global Security shall be limited to transfers
in whole, but not in part, to the Depository, its successors or their respective
nominees. Interests of beneficial owners in a Global Security may be transferred
or exchanged for Physical Securities in accordance with the rules and procedures
of the Depository and the provisions of Section 2.17. In addition, Physical
Securities shall be transferred to all beneficial owners in exchange for their
beneficial interests in a Global Security if (i) the Depository notifies the
Company that it is unwilling or unable to continue as the Depository for the
Global Securities and a successor depository is not appointed by the Company
within 90 days of such notice or (ii) an Event of Default has occurred and is
continuing and the Registrar has received a written request from the Depository
to issue Physical Securities.
(c) In connection with any transfer or exchange of a portion of
the beneficial interest in a Global Security to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more Physical Securities are to be
issued) reflect on its books and records the date and a decrease in the
principal amount of such Global Security in an amount equal to the principal
amount of the beneficial interest in the Global Security to be transferred, and
the Company shall execute, the Guarantors shall execute Guarantees on, and the
Trustee shall authenticate and deliver, one or more Physical Securities of like
tenor and amount.
(d) In connection with the transfer of an entire Global Security
to beneficial owners pursuant to paragraph (b) of this Section 2.16, such Global
Security shall be deemed to be surrendered to the Trustee for cancellation, and
the Company shall execute, the Guarantors shall execute Guarantees on and the
Trustee shall authenticate and deliver, to each beneficial owner identified by
the Depository in exchange for its beneficial interest in the Global Security,
an equal aggregate principal amount of Physical Securities of authorized
denominations.
(e) Any Physical Security constituting a Restricted Security
delivered in exchange for an interest in a Global Security pursuant to paragraph
(b) or (c) of this Section 2.16 shall, except as otherwise provided by
paragraphs (a)(i)(x) and (c) of Section 2.17, bear the Private Placement Legend.
(f) The Holder of a Global Security 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 Securities.
Section 2.17. Special Transfer Provisions.
(a) TRANSFERS TO NON-QIB INSTITUTIONAL ACCREDITED INVESTORS AND
NON-U.S. PERSONS. The following provisions shall apply with respect to the
registration of any proposed transfer of a Security constituting a Restricted
Security to any Institutional Accredited Investor which is not a QIB or to any
Non-U.S. Person:
(i) the Registrar shall register the transfer of any
Security constituting a Restricted Security, whether or not such
Security bears the Private Placement Legend, if (x) the requested
transfer is after the second anniversary of the Issue Date (PROVIDED,
HOWEVER, that neither the Company nor any Affiliate of the Company has
held any beneficial interest in such Security, or portion thereof, at
any time on or prior to the second anniversary of the Issue Date) or (y)
(1) in the case of a transfer to an Institutional Accredited Investor
which is not a QIB (excluding Non-U.S. Persons), the proposed transferee
has delivered to the Registrar a certificate substantially in the form
of EXHIBIT C hereto or (2) in the case of a transfer to a Non-U.S.
Person, the proposed transferor has delivered to the Registrar a
certificate substantially in the form of EXHIBIT D hereto;
(ii) if the proposed transferee is an Agent Member and the
Securities to be transferred consist of Physical Securities which after
transfer are to be evidenced by an interest in the IAI Global Security
or Regulation S Global Security, as the case may be, upon receipt by the
Registrar of (x) written instructions given in accordance with the
Depository's and the Registrar's procedures and (y) the appropriate
certificate, if any, required by clause (y) of paragraph (i) above, the
Registrar shall register the transfer and reflect on its books and
records the date and an increase in the principal amount of the IAI
Global Security or Regulation S Global Security, as the case may be, in
an amount equal to the principal amount of Physical Securities to be
transferred, and the Trustee shall cancel the Physical Securities so
transferred; and
(iii) if the proposed transferor is an Agent Member
seeking to transfer an interest in a Global Security, upon receipt by
the Registrar of (x) written instructions given in accordance with the
Depository's and the Registrar's procedures and (y) the appropriate
certificate, if any, required by clause (y) of paragraph (i) above, the
Registrar shall register the transfer and reflect on its books and
records the date and (A) a decrease in the principal amount of the
Global Security from which such interests are to be transferred in an
amount equal to the principal amount of the Securities to be transferred
and (B) an increase in the principal amount of the IAI Global Security
or the Regulation S Global Security, as the case may be, in an amount
equal to the principal amount of the Securities to be transferred.
(b) TRANSFERS TO QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of a Security constituting
a Restricted Security to a QIB (excluding transfers to Non-U.S. Persons):
(i) the Registrar shall register the transfer of any
Restricted Security if such transfer is being made by a proposed
transferor who has checked the box provided for on the form of the
Security stating, or has otherwise advised the Company and the Registrar
in writing, that the sale has been made in compliance with the
provisions of Rule 144A to a transferee who has signed the certification
provided for on the form of the Security stating, or has otherwise
advised the Company and the Registrar in writing, that it is purchasing
the Security 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 QIB within the meaning of Rule 144A, 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 Company as it 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 its foregoing
representations in order to claim the exemption from registration
provided by Rule 144A;
(ii) if the proposed transferee is an Agent Member, and
the Securities to be transferred consist of Physical Securities which
after transfer are to be evidenced by an interest in a Global Security,
upon receipt by the Registrar of written instructions given in
accordance with the Depository's and the Registrar's procedures, the
Registrar shall reflect on its books and records the date and an
increase in the principal amount of such Global Security in an amount
equal to the principal amount of the Physical Securities to be
transferred, and the Trustee shall cancel the Physical Securities so
transferred; and
(iii) if the proposed transferor is an Agent Member
seeking to transfer an interest in the IAI Global Security or the
Regulation S Global Security, upon receipt by the Registrar of written
instructions given in accordance with the Depository's and the
Registrar's procedures, the Registrar shall register the transfer and
reflect on its books and records the date and (A) a decrease in the
principal amount of the IAI Global Security or the Regulation S Global
Security, as the case may be, in an amount equal to the principal amount
of the Securities to be transferred and (B) an increase in the principal
amount of the Global Security in an amount equal to the principal amount
of the Securities to be transferred.
(c) RESTRICTIONS ON TRANSFER AND EXCHANGE OF GLOBAL SECURITIES.
Notwithstanding any other provisions of this Indenture, a Global Security may
not be transferred as a whole except by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or any such
nominee to a successor Depository or a nominee of such successor Depository.
(d) PRIVATE PLACEMENT LEGEND. Upon the transfer, exchange or
replacement of the Securities not bearing the Private Placement Legend, the
Registrar shall deliver the Securities that do not bear the Private Placement
Legend. Upon the transfer, exchange or replacement of the Securities bearing the
Private Placement Legend, the Registrar shall deliver only the Securities that
bear the Private Placement Legend unless (i) the requested transfer is after the
second anniversary of the Issue Date (PROVIDED, HOWEVER, that neither the
Company nor any Affiliate of the Company has held any beneficial interest in
such Security, or portion thereof, at any time prior to or on the second
anniversary of the Issue Date), or (ii) there is delivered to the Registrar an
Opinion of Counsel reasonably satisfactory to the Company and the Trustee to the
effect that neither such legend nor the related restrictions on transfer are
required in order to maintain compliance with the provisions of the Securities
Act.
(e) GENERAL. By its acceptance of any Security bearing the
Private Placement Legend, each Holder of such Security acknowledges the
restrictions on transfer of such Security set forth in this Indenture and in the
Private Placement Legend and agrees that it will transfer such Security only as
provided in this Indenture.
The Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 2.16 or this Section
2.17. The Company shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time during
the Registrar's normal business hours upon the giving of reasonable written
notice to the Registrar.
(f) TRANSFERS OF SECURITIES HELD BY AFFILIATES. Any certificate
(i) evidencing a Security that has been transferred to an Affiliate of the
Company within two years after the Issue Date, as evidenced by a notation on the
Assignment Form for such transfer or in the representation letter delivered in
respect thereof or (ii) evidencing a Security that has been acquired from an
Affiliate of the Company (other than by an Affiliate of the Company) in a
transaction or a chain of transactions not involving any public offering, shall,
until two years after the last date on which the Company or any Affiliate of the
Company was an owner of such Security, in each case, bear the Private Placement
Legend, unless otherwise agreed by the Company (with written notice thereof to
the Trustee).
Section 2.18. Additional Interest Under Registration Rights Agreement.
Under certain circumstances, the Company shall be obligated to
pay, as liquidated damages, additional interest to the Holders, all as set forth
in Section 4 of the Registration Rights Agreement. The terms thereof are hereby
incorporated herein by reference.
ARTICLE III.
REDEMPTION
Section 3.1. Notices to Trustee.
If the Company elects to redeem Securities pursuant to Paragraph
5 of the Securities, it shall notify the Trustee, with a copy to the Credit
Agent, of the Redemption Date and the principal amount of Securities to be
redeemed and whether it wants the Trustee to give notice of redemption to the
Holders at least 35 days (unless a shorter notice shall be satisfactory to the
Trustee) but not more than 60 days before the Redemption Date. Any such notice
may be canceled at any time prior to notice of such redemption being mailed to
any Holder and shall thereby be void and of no effect.
Section 3.2. Selection of Securities To Be Redeemed.
If fewer than all of the Securities are to be redeemed at any
time, the Trustee shall select the Securities to be redeemed in compliance with
the requirements of the principal national securities exchange, if any, on which
such Securities are listed or, if such Securities are not then listed on a
national securities exchange, on a PRO RATA basis, by lot or by such method as
the Trustee shall deem fair and appropriate; PROVIDED, HOWEVER, that no
Securities of a principal amount of $1,000 or less shall be redeemed in part;
PROVIDED, FURTHER; that any partial redemption pursuant to Paragraph 5 of the
Securities with the proceeds of a Public Equity Offering shall be made on a pro
rata basis or on as nearly a pro rata basis as is practicable (subject to the
Depository's procedures), unless such method is otherwise prohibited.
The Trustee shall make the selection from the Securities
outstanding and not previously called for redemption and shall promptly notify
the Company in writing of the Securities selected for redemption and, in the
case of any Security selected for partial redemption, the principal amount
thereof to be redeemed. Securities in denominations of $1,000 may be redeemed
only in whole. The Trustee may select for redemption portions (equal to $1,000
or integral multiples thereof) of the principal amount of Securities that have
denominations larger than $1,000. Provisions of this Indenture that apply to
Securities called for redemption also apply to portions of Securities called for
redemption.
Section 3.3. Optional Redemption.
(a) On or after February 15, 2003, the Securities may be redeemed
in whole at any time or in part from time to time, at the option of the Company,
upon not less than 30 nor more than 60 days notice, at a redemption price equal
to the applicable percentage of the principal amount thereof set forth below,
together with accrued and unpaid interest (if any) to the Redemption Date, if
redeemed during the twelve-month period commencing on February 15 of the year
set forth below:
Redemption
Year Price
2003. . . . . . . . . . . . . 104.313%
2004. . . . . . . . . . . . . 102.875%
2005. . . . . . . . . . . . . 101.438%
2006 and thereafter. . . . . . . . . . 100.000%
(b) OPTIONAL REDEMPTION UPON PUBLIC EQUITY OFFERINGS. At any
time, or from time to time, on or prior to February 15, 2001, the Company may,
at its option, use the net cash proceeds of one or more Public Equity Offerings
to redeem the Securities at a Redemption Price equal to 108.625% of the
principal amount thereof plus accrued and unpaid interest thereon, if any, to
the Redemption Date; PROVIDED, that at least 65% of the principal amount of the
Securities originally issued remains outstanding immediately after any such
redemption. In order to effect the foregoing redemption with the proceeds of any
Public Equity Offering, the Company shall make such redemption not more than 120
days after the consummation of any such Public Equity Offering.
Section 3.4. Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption
Date, the Company shall mail a notice of redemption by first class mail to each
Holder whose Securities are to be redeemed at such Holder's registered address,
with a copy to the Trustee and the Credit Agent. In order to effect a redemption
pursuant to Paragraph 5 of the Securities with the proceeds of a Public Equity
Offering, the Company shall send the redemption notice not later than 120 days
after the consummation of such Public Equity Offering. At the Company's request,
the Trustee shall give the notice of redemption in the Company's name and at the
Company's expense. Each notice for redemption shall identify the Securities to
be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered
to the Paying Agent to collect the Redemption Price;
(5) that, unless (a) the Company defaults in making the
redemption payment on the Redemption Date or (b) such redemption payment is
prohibited pursuant to Article Four or Article Twelve hereof or otherwise,
interest on Securities called for redemption ceases to accrue on and after the
Redemption Date, and the only remaining right of the Holders of such Securities
is to receive payment of the Redemption Price upon surrender to the Paying Agent
of the Securities redeemed;
(6) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the Redemption
Date, and upon surrender of such Security, a new Security or Securities in
aggregate principal amount equal to the unredeemed portion thereof will be
issued; and
(7) if fewer than all the Securities are to be redeemed, the
identification of the particular Securities (or portion thereof) to be redeemed,
as well as the aggregate principal amount of Securities to be redeemed and the
aggregate principal amount of Securities to be outstanding after such partial
redemption.
Section 3.5. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section
3.4, Securities called for redemption become due and payable on the Redemption
Date and at the Redemption Price. Upon surrender to the Trustee or Paying Agent,
such Securities called for redemption shall be paid at the Redemption Price
unless prohibited pursuant to Article Four or Article Twelve or otherwise
pursuant to this Indenture. Securities that are redeemed by the Company or that
are purchased by the Company pursuant to a Net Proceeds Offer as described in
Section 5.16 or pursuant to a Change of Control Offer as described in Section
5.15 or that are otherwise acquired by the Company will be surrendered to the
Trustee for cancellation.
Section 3.6. Deposit of Redemption Price.
On or before 11:00 a.m. New York City time on the Redemption
Date, the Company shall deposit with the Paying Agent U.S. Legal Tender
sufficient to pay the Redemption Price of all Securities to be redeemed on that
date (other than Securities or portions thereof called for redemption on that
date which have been delivered by the Company to the Trustee for cancellation).
The Paying Agent shall promptly return to the Company any U.S. Legal Tender so
deposited which is not required for that purpose upon the written request of the
Company, except with respect to monies owed as obligations to the Trustee
pursuant to Article Eight and Article Twelve hereof.
If the Company complies with the preceding paragraph and payment
of the Securities called for redemption is not prohibited under Article Four or
Article Twelve or otherwise, then, unless the Company defaults in the payment of
such Redemption Price, interest on the Securities or portions thereof to be
redeemed will cease to accrue on and after the applicable Redemption Date,
whether or not such Securities are presented for payment.
Section 3.7. Securities Redeemed in Part.
Upon surrender and cancellation of a Security that is to be
redeemed in part, the Trustee shall authenticate for the Holder a new Security
or Securities equal in principal amount to the unredeemed portion of the
Security surrendered and canceled.
ARTICLE IV.
SUBORDINATION
Section 4.1. Securities Subordinated to Senior Debt.
Anything herein to the contrary notwithstanding, the Company, for
itself and its successors, and each Holder, by his or her acceptance of
Securities, agrees that the payment of all Obligations on the Securities is
subordinated, to the extent and in the manner provided in this Article Four, in
right of payment to the prior payment in full in cash or Cash Equivalents of all
Obligations on Senior Debt.
This Article Four shall constitute a continuing offer to all
persons who become holders of, or continue to hold, Senior Debt, and such
provisions are made for the benefit of the holders of Senior Debt and such
holders are made obligees hereunder and any one or more of them may enforce such
provisions.
The obligations of the Company to the Trustee under Section 8.7
shall not be subject to the provisions of this Article Four.
Section 4.2. Suspension of Payment When Senior Debt in Default.
(a) Unless Section 4.3 shall be applicable, no direct or indirect
payment (other than payments by a trust previously established pursuant to
Article Nine) or distribution of any asset of the Company of any kind or
character by or on behalf of the Company of Obligations on the Securities or on
account of the purchase or redemption or other acquisition of the Securities
whether pursuant to the terms of the Securities or upon acceleration or
otherwise shall be made if, at the time of such payment or distribution, there
exists a default in the payment of all or any portion of principal of, premium,
if any, or interest on any Designated Senior Debt and such default shall not
have been cured or waived by or on behalf of the holders of such Designated
Senior Debt or shall have ceased to exist, until such default shall have been
cured or waived or shall have ceased to exist or such Designated Senior Debt
shall have been discharged or paid in full in cash or Cash Equivalents, after
which the Company shall resume making any and all required payments in respect
of the Securities, including any missed payments.
(b) Unless Section 4.3 shall be applicable, during the
continuance of any other event of default with respect to any Designated Senior
Debt pursuant to which the maturity thereof may be accelerated, upon the earlier
to occur of (a) receipt by the Trustee of written notice from the holders of a
majority of the outstanding principal amount of the Designated Senior Debt or
their Representative stating that such notice is a notice pursuant to Section
4.2 of this Indenture, or (b) if such event of default results from the
acceleration of the Securities, the date of such acceleration, no such payment
(other than payments by a trust previously established pursuant to Article Nine)
or distribution of any asset of the Company of any kind or character shall be
made by the Company upon or in respect of the Securities (including, without
limitation, on account of any principal of, premium, if any, or interest on the
Securities) or on account of the purchase or redemption or other acquisition of
Securities for a period ("PAYMENT BLOCKAGE PERIOD") commencing on the earlier of
the date of receipt of such notice or the date of such acceleration and ending
180 days thereafter (PROVIDED, that such Designated Senior Debt shall
theretofore not have been accelerated) (unless (x) such Payment Blockage Period
shall be terminated by written notice to the Trustee from the holders of a
majority of the outstanding principal amount of such Designated Senior Debt or
their Representative who delivered such notice or (y) such default is cured or
waived, or ceases to exist or such Designated Senior Debt is discharged or paid
in full in cash or Cash Equivalents), after which the Company shall promptly
notify the Trustee of such cure or waiver and resume making any and all required
payments in respect of the Securities, including any missed payments.
Notwithstanding anything herein to the contrary, in no event will a Payment
Blockage Period extend beyond 180 days from the date on which such Payment
Blockage Period was commenced. Not more than one Payment Blockage Period may be
commenced with respect to the Securities during any period of 360 consecutive
days. No event of default which existed or was continuing on the date of the
commencement of any Payment Blockage Period with respect to the Designated
Senior Debt initiating such Payment Blockage Period shall be, or be made, the
basis for the commencement of a second Payment Blockage Period by the holders of
such Designated Senior Debt or their Representative whether or not within a
period of 360 consecutive days unless such event of default shall have been
cured or waived for a period of not less than 90 consecutive days (it being
acknowledged that any subsequent action, or any breach of any financial
covenants for a period commencing after the date of commencement of such
Blockage Period that, in either case, would give rise to an event of default
pursuant to any provisions under which an event of default previously existed or
was continuing shall constitute a new event of default for this purpose).
(c) In the event that, notwithstanding the foregoing, the Trustee
or a Holder shall have received any payment prohibited by the foregoing
provisions of this Section 4.2, then and in such event such payment shall be
paid over and delivered forthwith to the Representative or as a court of
competent jurisdiction shall direct.
Section 4.3. Securities Subordinated to Prior Payment of All Senior Debt on
Dissolution, Liquidation or Reorganization of Company.
Upon any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities to creditors, upon
any dissolution, winding-up, total or partial liquidation or reorganization of
the Company (including, without limitation, in bankruptcy, reorganization,
insolvency, receivership or other similar proceeding or upon any assignment for
the benefit of creditors or any other marshaling of the Company's assets and
liabilities), whether voluntary or involuntary:
(a) the holders of Senior Debt shall first be entitled to receive
payments in full in cash or Cash Equivalents, or such payment duly provided for
to the satisfaction of the holders of Senior Debt, of all amounts payable under
Senior Debt before the Holders will be entitled to receive any payment with
respect to the Securities, or for the acquisition of any of the Securities for
cash or property or otherwise; PROVIDED, HOWEVER, that no payment on any
Guarantee shall constitute payment on behalf of the Company for purposes of this
Section 4.3(a);
(b) any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities, to which the Holders
or the Trustee on behalf of the Holders would be entitled except for the
provisions of this Article Four, shall be paid by the liquidating trustee or
agent or other person making such a payment or distribution, directly to the
holders of Senior Debt or their Representative, ratably according to the
respective amounts of Senior Debt remaining unpaid held or represented by each,
until all Senior Debt remaining unpaid shall have been paid in full in cash or
Cash Equivalents after giving effect to any concurrent payment or distribution
to the holders of such Senior Debt; and
(c) in the event that, notwithstanding the foregoing, any payment
or distribution of assets of the Company of any kind or character, whether in
cash, property or securities, shall be received by the Trustee or the Holders or
any Paying Agent on account of principal of, premium, if any, or interest on the
Securities before all Senior Debt is paid in full in cash or Cash Equivalents,
such payment or distribution (subject to the provisions of Sections 4.6 and 4.7)
shall be received, segregated from other funds, and held by the Trustee or such
Holder or Paying Agent for the benefit of, and shall immediately be paid over
to, the holders of Senior Debt or their Representative, ratably according to the
respective amounts of Senior Debt held or represented by each, until all Senior
Debt remaining unpaid shall have been paid in full in cash or Cash Equivalents,
after giving effect to any concurrent payment or distribution to or for the
holders of Senior Debt. Notwithstanding anything to the contrary contained
herein, in the absence of its gross negligence or willful misconduct, the
Trustee shall have no duty to collect or retrieve monies previously paid by it
in good faith; PROVIDED, HOWEVER, that this sentence shall not affect the
obligation of any other party receiving such payment to hold such payment for
the benefit of, and to pay over such payment over to, the holders of Senior Debt
or their Representative.
The consolidation of the Company with, or the merger of the
Company with or into, another person or the liquidation or dissolution of the
Company following the conveyance, transfer or lease of its properties and assets
substantially as an entirety to another person upon the terms and conditions set
forth in Article Six shall not be deemed a dissolution, winding-up, liquidation,
reorganization, assignment for the benefit of creditors or marshaling of assets
and liabilities of the Company for the purposes of this Article Four if the
person formed by such consolidation or the surviving entity of such merger or
the person which acquires by conveyance, transfer or lease such properties and
assets substantially as an entirety, as the case may be, shall, as a part of
such consolidation, merger, conveyance, transfer or lease, comply with the
conditions set forth in such Article Six.
The Company shall give prompt notice to the Trustee prior to any
dissolution, winding-up, total or partial liquidation or reorganization
(including, without limitation, in bankruptcy, insolvency, or receivership
proceedings or upon any assignment for the benefit of creditors or any other
marshaling of the Company's assets and liabilities).
Section 4.4. Holders To Be Subrogated to Rights of Holders of Senior Debt.
Subject to the payment in full in cash or Cash Equivalents of all
Senior Debt, Holders shall be subrogated to the rights of the holders of Senior
Debt to receive payments or distributions of assets of the Company applicable to
the Senior Debt until all amounts owing on the Securities shall be paid in full
in cash, and for the purpose of such subrogation no payments or distributions to
the holders of Senior Debt by or on behalf of the Company, or by or on behalf of
the Holders by virtue of this Article Four, which otherwise would have been made
to the Holders, shall, as between the Company and the Holders, be deemed to be
payment by the Company to or on account of the Senior Debt, it being understood
that the provisions of this Article Four are and are intended solely for the
purpose of defining the relative rights of the Holders, on the one hand, and the
holders of Senior Debt, on the other hand.
If any payment or distribution to which the Holders would
otherwise have been entitled but for the provisions of this Article Four shall
have been applied, pursuant to the provisions of this Article Four, to the
payment of all amounts payable under the Senior Debt, then the Holders shall be
entitled to receive from the holders of such Senior Debt any payments or
distributions received by such holders of Senior Debt in excess of the amount
sufficient to pay all amounts payable under or in respect of the Senior Debt in
full in cash or Cash Equivalents.
Section 4.5. Obligations of the Company Unconditional.
Nothing contained in this Article Four or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as between the
Company and the Holders, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders the principal of and interest on the
Securities as and when the same shall become due and payable in accordance with
their terms, or is intended to or shall affect the relative rights of the
Holders and creditors of the Company other than the holders of the Senior Debt,
nor shall anything herein or therein prevent the Trustee or any Holder from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article Four, of the
holders of Senior Debt in respect of cash, property or securities of the Company
received upon the exercise of any such remedy. Upon any payment or distribution
of assets or securities of the Company referred to in this Article Four, the
Trustee, subject to the provisions of Sections 8.1 and 8.2, and the Holders
shall be entitled to rely upon any order or decree made by any court of
competent jurisdiction in which any dissolution, winding-up, liquidation or
reorganization proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, liquidating trustee or agent or other person making any
payment or distribution to the Trustee or to the Holders for the purpose of
ascertaining the persons entitled to participate in such payment or
distribution, the holders of Senior Debt and other Indebtedness of the Company,
the amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article Four. Nothing
in this Section 4.5 shall apply to the claims of, or payments to, the Trustee
under or pursuant to Section 8.7.
Section 4.6. Trustee Entitled To Assume Payments Not Prohibited in Absence of
Notice.
The Trustee shall not at any time be charged with knowledge of
the existence of any facts that would prohibit the making of any payment to or
by the Trustee unless and until the Trustee shall have received written notice
thereof from the Company or from one or more holders of Senior Debt or from any
Representative therefor and, prior to the receipt of any such notice, the
Trustee, subject to the provisions of Sections 8.1 and 8.2, shall be entitled in
all respects conclusively to assume that no such fact exists.
Section 4.7. Application by Trustee of Assets Deposited with It.
U.S. Legal Tender or U.S. Government Obligations deposited in
trust with the Trustee pursuant to and in accordance with Section 9.2 shall be
for the sole benefit of Holders and, to the extent allocated for the payment of
Securities, shall not be subject to the subordination provisions of this Article
Four. Otherwise, any deposit of assets or securities by or on behalf of the
Company with the Trustee or any Paying Agent (whether or not in trust) for the
payment of principal of or interest on any Securities shall be subject to the
provisions of this Article Four; PROVIDED, HOWEVER, that if prior to the second
Business Day preceding the date on which by the terms of this Indenture any such
assets may become distributable for any purpose (including, without limitation,
the payment of principal of or premium or interest on any Security) the Trustee
or such Paying Agent shall not have received with respect to such assets the
notice provided for in Section 4.6, then the Trustee or such Paying Agent shall
have full power and authority to receive such assets and to apply the same to
the purpose for which they were received, and shall not be affected by any
notice to the contrary received by it on or after such date; PROVIDED, FURTHER,
that no payment on any Guarantee shall constitute payment on behalf of the
Company for purposes of this Section 4.7. The foregoing shall not apply to the
Paying Agent if the Company or any Subsidiary or Affiliate of the Company is
acting as Paying Agent. Nothing contained in this Section 4.7 shall limit the
right of the holders of Senior Debt to recover payments as contemplated by this
Article Four.
Section 4.8. No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any Senior Debt
to enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
non-compliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
(b) Without limiting the generality of subsection (a) of this
Section 4.8, the holders of Senior Debt may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders without incurring
responsibility to the Holders and without impairing or releasing the
subordination provided in this Article Four or the obligations hereunder of the
Holders to the holders of Senior Debt, do any one or more of the following: (1)
change the manner, place or terms of payment or extend the time of payment of,
or renew or alter, Senior Debt or any instrument evidencing the same or any
agreement under which Senior Debt is outstanding; (2) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing Senior
Debt; (3) release any person liable in any manner for the collection or payment
of Senior Debt; and (4) exercise or refrain from exercising any rights against
the Company and any other person; PROVIDED, HOWEVER, that in no event shall any
such actions limit the right of the Holders to take any action to accelerate the
maturity of the Securities pursuant to Article Seven or to pursue any rights or
remedies hereunder or under applicable laws if the taking of such action does
not otherwise violate the terms of this Indenture.
(c) Each Holder by accepting a Security agrees that the
Representative of any Senior Debt (including, without limitation, the Credit
Agent), in its discretion, without notice or demand and without affecting any
rights of any holder of Senior Debt under this Article Four, may foreclose any
mortgage or deed of trust covering interests in real property secured thereby,
by judicial or nonjudicial sale; and such Holder hereby waives any defense to
the enforcement by the Representative of any Senior Debt (including, without
limitation, the Credit Agent) or by any holder of any Senior Debt against such
Holder of this Article Four after a judicial or nonjudicial sale or other
disposition of its interests in real property secured by such mortgage or deed
of trust; and such Holder expressly waives any defense or benefits that may be
derived from comparable provisions of the laws of any jurisdiction or any
similar statute in effect in any jurisdiction.
Section 4.9. Holders Authorize Trustee To Effectuate Subordination of
Securities.
Each Holder by his or her acceptance of a Security authorizes and
expressly directs the Trustee on his or her behalf to take such action as may be
necessary or appropriate to effect the subordination provisions contained in
this Article Four, and appoints the Trustee his or her attorney-in-fact for such
purpose, including, in the event of any dissolution, winding-up, liquidation or
reorganization of the Company (whether in bankruptcy, insolvency or receivership
proceedings or upon an assignment for the benefit of creditors or any other
marshaling of assets and liabilities of the Company) tending towards liquidation
or reorganization of the business and assets of the Company, the immediate
filing of a claim for the unpaid balance of such Holder's Securities in the form
required in said proceedings and cause said claim to be approved. If the Trustee
does not file a proper claim or proof of debt in the form required in such
proceeding prior to 30 days before the expiration of the time to file such claim
or claims, then the holders of the Senior Debt or their Representative is hereby
authorized to file an appropriate claim for and on behalf of the Holders.
Nothing herein contained shall be deemed to authorize the Trustee or the holders
of Senior Debt or their Representative to authorize or consent to or accept or
adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder
thereof, or to authorize the Trustee or the holders of Senior Debt or their
Representative to vote in respect of the claim of any Holder in any such
proceeding.
Section 4.10. Right of Trustee To Hold Senior Debt.
The Trustee shall be entitled to all of the rights set forth in
this Article Four in respect of any Senior Debt at any time held by it to the
same extent as any other holder of Senior Debt, and nothing in this Indenture
shall be construed to deprive the Trustee of any of its rights as such holder.
Section 4.11. No Suspension of Remedies.
The failure to make a payment on account of principal of or
interest on the Securities by reason of any provision of this Article Four shall
not be construed as preventing the occurrence of a Default or an Event of
Default under Section 7.1.
Nothing contained in this Article Four shall limit the right of
the Trustee or the Holders to take any action to accelerate the maturity of the
Securities pursuant to Article Seven or to pursue any rights or remedies
hereunder or under applicable law, subject to the rights, if any, under this
Article Four of the holders, from time to time, of Senior Debt.
Section 4.12. No Fiduciary Duty of Trustee to Holders of Senior Debt.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt, and shall not be liable to any such holders (other than
for its willful misconduct or gross negligence) if it shall in good faith
mistakenly pay over or deliver to the Holders or the Company or any other
person, money or assets to which any holders of Senior Debt shall be entitled by
virtue of this Article Four or otherwise. Nothing in this Section 4.12 shall
affect the obligation of any person other than the Trustee to hold such payment
for the benefit of, and to pay such payment over to, the holders of Senior Debt
or their Representative.
ARTICLE V.
COVENANTS
Section 5.1. Payment of Securities.
The Company shall pay the principal of and interest on the
Securities on the dates and in the manner provided in the Securities. An
installment of principal of or interest on the Securities shall be considered
paid on the date it is due if the Trustee or Paying Agent (other than the
Company or a Subsidiary) holds on that date U.S. Legal Tender designated for and
sufficient to pay the installment; PROVIDED, HOWEVER, that U.S. Legal Tender
held by the Trustee for the benefit of holders of Senior Debt or the payment of
which to the Holders is prohibited pursuant to the provisions of Article Four or
Article Twelve or otherwise shall not be considered to be designated for the
payment of any installment of principal or interest on the Securities within the
meaning of this Section 5.1.
The Company shall pay interest on overdue principal at the rate
borne by the Securities and it shall pay interest on overdue installments of
interest at the same rate, to the extent lawful.
Section 5.2. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, The City
of New York, the office or agency required under Section 2.3. The Company shall
give prior notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the address of the Trustee set forth in Section 13.2.
Section 5.3. Limitation on Restricted Payments.
(a) The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, (a) declare or pay any
dividend or make any distribution (other than dividends or distributions payable
in Qualified Capital Stock of the Company) on or in respect of shares of the
Company's Capital Stock to holders of such Capital Stock, (b) purchase, redeem
or otherwise acquire or retire for value any Capital Stock of the Company or any
warrants, rights or options to purchase or acquire shares of any class of such
Capital Stock, (c) make any principal payment on, purchase, defease, redeem,
prepay, decrease or otherwise acquire or retire for value, prior to any
scheduled final maturity, scheduled repayment or scheduled sinking fund payment,
any Indebtedness of the Company that is subordinate or junior in right of
payment to the Securities (other than the purchase, repurchase or other
acquisition of such Indebtedness purchased in anticipation of satisfying sinking
fund obligations, principal installments or final maturity, in each case due
within one year after the date of acquisition) or (d) make any Investment (other
than Permitted Investments) (each of the foregoing actions set forth in clauses
(a), (b), (c) and (d) being referred to as a "Restricted Payment"), if at the
time of such Restricted Payment or immediately after giving effect thereto, (i)
a Default of an Event of Default shall have occurred and be continuing or (ii)
the Company is not able to incur at least $1.00 of additional Indebtedness
(other than Permitted Indebtedness) in compliance with the provisions of Section
5.12 or (iii) the aggregate amount of Restricted Payments (including such
proposed Restricted Payment) made subsequent to the Issue Date (the amount
expended for such purposes, if other than in cash, being the fair market value
of such property as determined reasonably and in good faith by the Board of
Directors of the Company) shall exceed the sum of: (A) 50% of the cumulative
Consolidated Net Income (or if cumulative Consolidated Net Income shall be a
loss, minus 100% of such loss) of the Company from January 1, 1998 to the end of
the most recent quarter for which financial statements are available (the
"REFERENCE DATE") (treating such period as a single accounting period);
PROVIDED, HOWEVER, that if the Securities achieve an Investment Grade Rating as
of the end of any fiscal quarter, the percentage for the fiscal quarter after
such fiscal quarter (and for any other fiscal quarter where, on the first day of
such fiscal quarter, the Securities shall have an Investment Grade Rating) will
be 100% of Consolidated Net Income during each fiscal quarter after such fiscal
quarter; PROVIDED, FURTHER, HOWEVER, that if such Restricted Payment is to be
made in reliance upon an additional amount permitted pursuant to the immediately
preceding proviso, the Securities must have an Investment Grade Rating at the
time such Restricted Payment is declared or, if not declared, made; plus (B)
100% of the aggregate net cash proceeds received by the Company from any Person
(other than a Subsidiary of the Company) from the issuance and sale subsequent
to the Issue Date and on or prior to the Reference Date of Qualified Capital
Stock of the Company; plus (C) without duplication of any amounts included in
clause (iii)(B) above, 100% of the aggregate net cash proceeds of any equity
contribution received by the Company from a holder of the Company's Capital
Stock (excluding, in the case of clauses (iii)(B) and (C), any net cash proceeds
from a Public Equity Offering to the extent used to redeem the Securities); (D)
the amount by which Indebtedness of the Company or its Subsidiaries created
after the Issue Date is reduced on the Company's consolidated balance sheet upon
the conversion or exchange (other than by a Subsidiary of the Company)
subsequent to the Issue Date, of any Indebtedness of the Company or its
Subsidiaries for Qualified Capital Stock of the Company (less the amount of any
cash, or the fair value of any other property, distributed by the Company or its
Subsidiaries upon such conversion or exchange), whether pursuant to the terms of
such indebtedness or pursuant to an agreement with a creditor to engage in an
equity for debt exchange; (E) an amount equal to the sum of (i) the net
reduction in Investments in Unrestricted Subsidiaries resulting from dividends,
repayments of loans or advances or other transfers of assets, in each case to
the Company or any Restricted Subsidiary from Unrestricted Subsidiaries
(PROVIDED, that any amounts included hereunder shall not be included in
Consolidated Net Income), and (ii) the portion (proportionate to the Company's
equity interest in such Subsidiary) of the fair market value (as determined in
good faith by the Company's Board of Directors) of the net assets of an
Unrestricted Subsidiary at the time such Unrestricted Subsidiary is designated a
Restricted Subsidiary; PROVIDED, HOWEVER, that the foregoing sum shall not
exceed, in the case of any Unrestricted Subsidiary, the amount of Investments
previously made (and treated as a Restricted Payment) by the Company or any
Restricted Subsidiary in such Unrestricted Subsidiary.
(b) Notwithstanding the foregoing, the provisions set forth in
the immediately preceding paragraph do not prohibit: (1) the payment of any
dividend within 60 days after the date of declaration of such dividend if the
dividend would have been permitted on the date of declaration; (2) if no Default
or Event of Default shall have occurred and be continuing, the acquisition or
redemption of any shares of Capital Stock of the Company, either (i) solely in
exchange for shares of Qualified Capital Stock of the Company or (ii) through
the application of net proceeds of a substantially concurrent sale for cash
(other than to a Subsidiary of the Company) of shares of Qualified Capital Stock
of the Company; (3) if no Default or Event of Default shall have occurred and be
continuing, the acquisition of any Indebtedness of the Company that is
subordinate or junior in right of payment to the Securities either (i) solely in
exchange for shares of Qualified Capital Stock of the Company, or (ii) through
the application of net proceeds of a substantially concurrent sale for cash
(other than to a Subsidiary of the Company) of (A) shares of Qualified Capital
Stock of the Company or (B) Refinancing Indebtedness; (4) so long as no Default
or Event of Default shall have occurred and be continuing, repurchases by the
Company of Capital Stock of the Company from employees of the Company or any of
its Subsidiaries or their authorized representatives upon the death, disability
or termination of employment of such employees, in an aggregate amount not to
exceed $1.0 million in any calendar year; and (5) other Restricted Payments in
an aggregate amount since the Issue Date not to exceed $10.0 million. In
determining the aggregate amount of Restricted Payments made subsequent to the
Issue Date in accordance with clause (iii) of the immediately preceding
paragraph, amounts expended pursuant to clauses (1), (2) and (4) shall be
included in such calculation.
Not later than the date of making any Restricted Payment, the
Company shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment complies with this Indenture and setting forth in reasonable
detail the basis upon which the required calculations were computed, which
calculations may be based upon the Company's latest available internal quarterly
financial statements.
Section 5.4. Corporate Existence.
Except as otherwise permitted by Article Six, the Company shall
do or cause to be done all things necessary to preserve and keep in full force
and effect its corporate existence and the rights (charter and statutory) and
franchises of the Company; PROVIDED, HOWEVER, that the Company shall not be
required to preserve, with respect to itself, any right or franchise, if the
Board of Directors of the Company, as the case may be, shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company.
Section 5.5. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (i) all taxes, assessments
and governmental charges (including withholding taxes and any penalties,
interest and additions to taxes) levied or imposed upon it or any of the
Restricted Subsidiaries or properties of it or any of the Restricted
Subsidiaries and (ii) all lawful claims for labor, materials and supplies that,
if unpaid, might by law become a Lien (other than a Permitted Lien) upon the
property of it or any of the Restricted Subsidiaries; PROVIDED, HOWEVER, that
the Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim if either (a) the amount,
applicability or validity thereof is being contested in good faith by
appropriate proceedings and an adequate reserve has been established therefor to
the extent required by GAAP or (b) the failure to make such payment or effect
such discharge (together with all other such failures) would not have a material
adverse effect on the financial condition or results or operations of the
Company and the Restricted Subsidiaries taken as a whole.
Section 5.6. Maintenance of Properties and Insurance.
(a) The Company shall cause all properties used or useful to the
conduct of its business or the business of any of the Restricted Subsidiaries to
be maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in its
judgment may be necessary, so that the business carried on in connection
therewith may be properly and advantageously conducted at all times unless the
failure to so maintain such properties (together with all other such failures)
would not have a material adverse effect on the financial condition or results
of operations of the Company and the Restricted Subsidiaries taken as a whole;
PROVIDED, HOWEVER, that nothing in this Section 5.6 shall prevent the Company or
any Restricted Subsidiary from discontinuing the operation or maintenance of any
of such properties, or disposing of any of them, if such discontinuance or
disposal is either (i) in the ordinary course of business, (ii) in the good
faith judgment of the Board of Directors of the Company or the Restricted
Subsidiary concerned, or of the senior officers of the Company or such
Restricted Subsidiary, as the case may be, desirable in the conduct of the
business of the Company or such Restricted Subsidiary, as the case may be, or
(iii) is otherwise permitted by this Indenture.
(b) The Company shall provide or cause to be provided, for itself
and each of the Restricted Subsidiaries, insurance (including appropriate
self-insurance) against loss or damage of the kinds that, in the reasonable,
good faith opinion of the Company are adequate and appropriate for the conduct
of the business of the Company and the Restricted Subsidiaries in a prudent
manner, with reputable insurers or with the government of the United States of
America or an agency or instrumentality thereof, in such amounts, with such
deductibles, and by such methods as shall be either (i) consistent with past
practices of the Company or the applicable Restricted Subsidiary or (ii)
customary, in the reasonable, good faith opinion of the Company, for
corporations similarly situated in the industry, unless the failure to provide
such insurance (together with all other such failures) would not have a material
adverse effect on the financial condition or results of operations of the
Company and the Restricted Subsidiaries, taken as a whole.
Section 5.7. Compliance Certificate; Notice of Default.
(a) The Company shall deliver to the Trustee within 120 days
after the end of the Company's fiscal year an Officers' Certificate stating that
a review of its activities and the activities of its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether it has kept, observed, performed and
fulfilled its obligations under this Indenture and further stating, as to each
such Officer signing such certificate, to the best of his or her knowledge the
Company's compliance with all conditions and covenants under this Indenture
without regard to any period of grace or requirement of notice provided under
this Indenture and, if such signers do know of any such non-compliance with any
conditions or covenants, the certificate shall describe such non-compliance and
its status with particularity. The Officers' Certificate shall also notify the
Trustee should the Company elect to change the manner in which it fixes its
fiscal year end.
(b) The Company shall deliver to the Trustee, forthwith upon
becoming aware, and in any event within 5 Business Days after the occurrence, of
(i) any Default or Event of Default or (ii) any event of default in respect of
any Designated Senior Debt, an Officers' Certificate specifying with
particularity such event.
Section 5.8. Compliance with Laws.
The Company shall comply, and shall cause each of the Restricted
Subsidiaries to comply, with all applicable statutes, rules, regulations, orders
and restrictions of the United States of America, all states and municipalities
thereof, and of any governmental department, commission, board, regulatory
authority, bureau, agency and instrumentality of the foregoing, in respect of
the conduct of their respective businesses and the ownership of their respective
properties, except such as are being contested in good faith and by appropriate
proceedings and except for such noncompliances as would not in the aggregate
have a material adverse effect on the financial condition or results of
operations of the Company and the Restricted Subsidiaries taken as a whole.
Section 5.9. SEC Reports.
The Company will deliver to the Trustee within 15 days after the
filing of the same with the Commission, copies of the quarterly and annual
reports and of the information, documents and other reports, if any, which the
Company is required to file with the Commission pursuant to Section 13 or 15(d)
of the Exchange Act. Notwithstanding that the Company may not be subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company
will file with the Commission, to the extent permitted, and provide the Trustee
and Holders with such annual reports and such information, documents and other
reports specified in Sections 13 and 15(d) of the Exchange Act. The Company will
also comply with the other provisions of TIA ss. 314(a).
Section 5.10. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law or any
usury law or other law that would prohibit or forgive the Company from paying
all or any portion of the principal of or interest on the Securities as
contemplated herein, wherever enacted, now or at any time hereafter in force, or
which may affect the covenants or the performance of this Indenture; and (to the
extent that it may lawfully do so) the Company hereby expressly waives all
benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
Section 5.11. Limitation on Transactions with Affiliates.
(a) The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, enter into or permit to
exist any transaction or series of related transactions (including, without
limitation, the purchase, sale, lease or exchange of any property or the
rendering of any service) with, or for the benefit of, any of its Affiliates
(each an "AFFILIATE TRANSACTION"), other than (x) Affiliate Transactions
permitted under paragraph (b) below and (y) Affiliate Transactions on terms that
are no less favorable than those that might reasonably have been obtained in a
comparable transaction at such time on an arm's-length basis from a Person that
is not an Affiliate of the Company or such Restricted Subsidiary. All Affiliate
Transactions (and each series of related Affiliate Transactions which are
similar or part of a common plan) involving aggregate payments or other property
with a fair market value in excess of $5.0 million shall be approved by the
Board of Directors of the Company or such Restricted Subsidiary, as the case may
be, such approval to be evidenced by a Board Resolution stating that such Board
of Directors has determined that such transaction complies with the foregoing
provisions. If the Company or any Restricted Subsidiary of the Company enters
into an Affiliate Transaction (or a series of related Affiliate Transactions
related to a common plan) that involves an aggregate fair market value of more
than $10.0 million, the Company or such Restricted Subsidiary, as the case may
be, shall, prior to the consummation thereof, obtain a favorable opinion as to
the fairness of such transaction or series of related transactions to the
Company or the relevant Restricted Subsidiary, as the case may be, from a
financial point of view, from an Independent Financial Advisor and file the same
with the Trustee.
(b) The restrictions set forth in clause (a) shall not apply to
(i) reasonable fees and compensation paid to and indemnity provided on behalf
of, officers, directors, employees or consultants of the Company or any
Restricted Subsidiary of the Company as determined in good faith by the
Company's Board of Directors or senior management (including, without
limitation, any issuance of securities, grants of cash, securities, stock
options 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 or the board of directors of the relevant Restricted Subsidiary, and
loans or advances in the ordinary course of business); (ii) transactions
exclusively between or among the Company and any of its Wholly Owned Restricted
Subsidiaries or exclusively between or among such Wholly Owned Restricted
Subsidiaries, provided such transactions are not otherwise prohibited by this
Indenture; (iii) any agreement as in effect as of the Issue Date or any
amendment thereto or any transaction contemplated thereby (including pursuant to
any amendment thereto) in any replacement agreement thereto so long as any such
amendment or replacement agreement is not more disadvantageous to the Holders in
any material respect than the original agreement as in effect on the Issue Date;
(iv) the purchase of or payment of Indebtedness of or monies owed by the Company
or any of its Restricted Subsidiaries for goods or materials purchased, or
services received, in the ordinary course of business; (v) the purchase of or
payment of Indebtedness of or monies owed by the Company or any of its
Restricted Subsidiaries which if incurred after the Issue Date meets the
requirements of the provisions of paragraph (a) of this Section 5.11 and (vi)
Restricted Payments and Investments permitted by Section 5.3.
Section 5.12. Limitation on Incurrence of Additional Indebtedness and Issuance
of Preferred Stock of Restricted Subsidiaries.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume, guarantee,
acquire, become liable, contingently or otherwise, with respect to, or otherwise
become responsible for payment of (collectively, "INCUR") any Indebtedness
(other than Permitted Indebtedness), and the Company will not permit any of its
Restricted Subsidiaries to issue any Preferred Stock (other than to the Company
or to a Wholly Owned Restricted Subsidiary of the Company) or permit any Person
(other than the Company or a Wholly Owned Restricted Subsidiary of the Company)
to own any Preferred Stock of any Restricted Subsidiary of the Company;
PROVIDED, HOWEVER, that if no Default or Event of Default shall have occurred
and be continuing at the time of or as a consequence of the incurrence of any
such Indebtedness or issuance of Preferred Stock, the Company or any of its
Restricted Subsidiaries may incur Indebtedness (including, without limitation,
Acquired Indebtedness) or issue Preferred Stock if on the date of the incurrence
of such Indebtedness or issuance of Preferred Stock, after giving effect to the
incurrence or issuance thereof, the Consolidated Fixed Charge Coverage Ratio of
the Company is (i) greater than 2.0 to 1.0 if such incurrence or issuance is on
or prior to February 15, 2000, (ii) greater than 2.25 to 1.0 if such incurrence
or issuance is after February 15, 2000 and is on or prior to February 15, 2002,
or (iii) greater than 2.50 to 1.0 if such incurrence or issuance occurs
thereafter.
Section 5.13. Limitation on Dividends and Other Payment Restrictions Affecting
Restricted Subsidiaries.
The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or
permit to exist or become effective any encumbrance or restriction on the
ability of any Restricted Subsidiary of the Company to (a) pay dividends or make
any other distributions on or in respect of its Capital Stock; (b) make loans or
advances or to pay any Indebtedness or other obligation owed to the Company or
any other Restricted Subsidiary of the Company; or (c) transfer any of its
property or assets to the Company or any other Restricted Subsidiary of the
Company, except for such encumbrances or restrictions existing under or by
reason of: (1) applicable law; (2) this Indenture; (3) customary non-assignment
provisions of any contract or any lease governing a leasehold interest of any
Restricted Subsidiary of the Company; (4) any instrument governing Acquired
Indebtedness, which encumbrance or restriction is not applicable to any Person,
or the properties or assets of any Person, other than the Person or the
properties or assets of the Person so acquired; (5) agreements existing on the
Issue Date to the extent and in the manner such agreements are in effect on the
Issue Date; or (6) an agreement governing Indebtedness incurred to Refinance the
Indebtedness issued, assumed or incurred pursuant to an agreement referred to in
clause (2), (4) or (5) above; PROVIDED, HOWEVER, that the provisions relating to
such encumbrance or restriction contained in any such Indebtedness are no less
favorable to the Company in any material respect as determined by the Board of
Directors of the Company in their reasonable and good faith judgment than the
provisions relating to such encumbrance or restriction contained in agreements
referred to in such clause (2), (4) or (5).
Section 5.14. Limitation on Liens.
The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, assume or
permit or suffer to exist any Liens of any kind against or upon any property or
assets of the Company or any of its Restricted Subsidiaries whether owned on the
Issue Date or acquired after the Issue Date, or any proceeds therefrom, or
assign or otherwise convey any right to receive income or profits therefrom
unless (i) in the case of Liens securing Indebtedness that is expressly
subordinate or junior in right of payment to the Securities, the Securities are
secured by Lien on such property, assets or proceeds that is senior in priority
to such Liens and (ii) in all other cases, the Securities are equally and
ratably secured, except for (A) Liens existing as of the Issue Date to the
extent and in the manner such Liens are in effect on the Issue Date; (B) Liens
securing Senior Debt; (C) Liens securing the Securities and the Guarantees; (D)
Liens of the Company or a Wholly Owned Restricted Subsidiary of the Company on
assets of any Subsidiary of the Company; (E) Liens securing Refinancing
Indebtedness which is incurred to Refinance any Indebtedness which has been
secured by a Lien permitted under this Indenture and which has been incurred in
accordance with the provisions of this Indenture; PROVIDED, HOWEVER, that such
Liens (I) are no less favorable to the Holders and are not more favorable to the
lienholders with respect to such Liens than the Liens in respect of the
Indebtedness being Refinanced and (II) do not extend to or cover any property or
assets of the Company or any of its Restricted Subsidiaries not securing the
Indebtedness so Refinanced; and (F) Permitted Liens.
Section 5.15. Limitation on Change of Control.
(a) Upon the occurrence of a Change of Control, each Holder will
have the right to require that the Company purchase all or a portion of such
Holder's Securities pursuant to the offer described below (the "CHANGE OF
CONTROL OFFER"), at a purchase price equal to 101% of the principal amount
thereof plus accrued interest to the date of purchase.
(b) No later than 30 days following the date upon which the
Change of Control occurred, the Company must send, by first class mail, a notice
to each Holder, with a copy to the Trustee, which notice shall govern the terms
of the Change of Control Offer. Notice of an event giving rise to a Change of
Control shall be given on the same date and in the same manner to all Holders.
Such notice shall state:
(1) that the Change of Control Offer is being made
pursuant to this Section 5.15 and that all Securities tendered will be accepted
for payment;
(2) the purchase price (including the amount of accrued
interest)and the purchase date (which shall be no earlier than 30 days nor later
than 45 days from the date such notice is mailed, other than as may be required
by law) (the "CHANGE OF CONTROL PAYMENT DATE");
(3) that any Security not tendered will continue to accrue
interest if interest is then accruing;
(4) that, unless (i) the Company defaults in making
payment therefor or (ii) such payment is prohibited pursuant to Article Four,
any Security accepted for payment pursuant to the Change of Control Offer shall
cease to accrue interest after the Change of Control Payment Date;
(5) that Holders electing to have a Security purchased
pursuant to a Change of Control Offer will be required to surrender the Security
with the form entitled "Option of Holder to Elect Purchase" on the reverse of
the Security completed, to the Paying Agent at the address specified in the
notice prior to the close of business on the third Business Day prior to the
Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their
election if the Paying Agent receives, not later than two Business Days prior to
the Change of Control Payment Date, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the principal amount of the
Securities the Holder delivered for purchase and a statement that such Holder is
withdrawing his or her election to have such Security purchased;
(7) that Holders whose Securities are purchased only in
part will be issued new Securities equal in principal amount to the unpurchased
portions of the Securities surrendered; PROVIDED, that each Security purchased
and each Security issued shall be in an original principal amount of $1,000 or
integral multiples thereof;
(8) that each Change of Control Offer is required to remain
open for at least 20 Business Days or such longer period as may be required by
law and until 5:00 p.m. New York City time on the applicable Change of Control
Payment Date; and
(9) the circumstances and relevant facts regarding such
Change of Control.
(c) On or before the Change of Control Payment Date, the Company
shall (i) accept for payment Securities or portions thereof tendered pursuant to
the Change of Control Offer, (ii) deposit with the Paying Agent U.S. Legal
Tender sufficient to pay the purchase price of all Securities so tendered and
(iii) deliver to the Trustee Securities so accepted together with an Officers'
Certificate stating the Securities or portions thereof being purchased by the
Company. The Paying Agent shall promptly mail to the Holders of Securities so
accepted payment in an amount equal to the purchase price (and the Trustee shall
promptly authenticate and mail to such Holders new Securities equal in principal
amount to any unpurchased portion of the Securities surrendered; PROVIDED, that
each such new Security shall be in the principal amount of $1,000 or integral
multiples thereof) unless such payment is prohibited pursuant to Article Four or
otherwise. The Company will publicly announce the results of the Change of
Control Offer on or as soon as practicable after the Change of Control Payment
Date. For purposes of this Section 5.15, the Trustee shall act as the Paying
Agent.
(d) Notwithstanding the foregoing, prior to the mailing of the
notice of a Change of Control Offer referred to above, within 30 days following
a Change of Control, the Company shall either (i) repay in full and terminate
all commitments under Indebtedness under the Credit Agreement and all other
Senior Debt the terms of which require repayment upon a Change of Control or
offer to repay in full and terminate all such commitments under all Indebtedness
under the Credit Agreement and all such other Senior Debt and to repay the
Indebtedness owed to each lender which has accepted such offer, or (ii) obtain
the requisite consents under the Credit Agreement and all other Senior Debt to
permit the repurchase of the Securities as provided above. The Company shall
first comply with the covenant in the immediately preceding sentence before it
shall be required to repurchase Securities pursuant to the provisions described
above.
(e) The Company must comply with Rule 14e-1 under the Exchange
Act and other provisions of state and federal securities laws or regulations
thereunder to the extent applicable in connection with the repurchase of
Securities pursuant to a Change of Control Offer. To the extent that the
provisions of any securities laws or regulations conflict with the provisions of
this Section 5.15, the Company shall comply with the applicable securities laws
and regulations and shall not be deemed to have breached its obligations under
the provisions of this Section 5.15 by virtue thereof.
Section 5.16. Limitation on Asset Sales.
(a) The Company will not, and will not permit any of its
Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company or
the applicable Restricted Subsidiary, as the case may be, receives consideration
at the time of such Asset Sale at least equal to the fair market value of the
assets sold or otherwise disposed of (as determined in good faith by the
Company's Board of Directors), (ii) at least 70% of the consideration received
by the Company or the Restricted Subsidiary, as the case may be, from such Asset
Sale shall be in the form of cash or Cash Equivalents; PROVIDED, HOWEVER, that
the amount of any Senior Debt of the Company (as shown on the Company's most
recent balance sheet) or any Indebtedness of any Restricted Subsidiary of the
Company (as shown on such Restricted Subsidiary's most recent balance sheet)
which is not expressly subordinated in right of payment to the Securities or to
any Guarantee of such Restricted Subsidiary, that is expressly assumed by the
transferee of any such assets or by operation of law shall be deemed to be cash
for purposes for this provision; and (iii) upon the consummation of an Asset
Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the
Net Cash Proceeds relating to such Asset Sale within 360 days of receipt thereof
either (A) to prepay any Senior Debt and, in the case of any Senior Debt under
any revolving credit facility, effect a permanent reduction in the availability
under such revolving credit facility, (B) to make an investment in properties
and assets that replace the properties and assets that were the subject of such
Asset Sale or in properties and assets that will be used in the business of the
Company and its Restricted Subsidiaries as existing on the Issue Date or in
businesses reasonably related thereto ("REPLACEMENT ASSETS"), or (C) a
combination of prepayment and investment permitted by the foregoing clauses
(iii)(A) and (iii)(B). On the 361st day after an Asset Sale or such earlier
date, if any, as the Board of Directors of the Company or of such Restricted
Subsidiary determines not to apply the Net Cash Proceeds relating to such Asset
Sale as set forth in clauses (iii)(A), (iii)(B) and (iii)(C) of the next
preceding sentence (each, a "NET PROCEEDS OFFER TRIGGER DATE"), such aggregate
amount of Net Cash Proceeds which have not been applied on or before such Net
Proceeds Offer Trigger Date as permitted in clauses (iii)(A), (iii)(B) and
(iii)(C) of the next preceding sentence (each a "NET PROCEEDS OFFER AMOUNT")
shall be applied by the Company or such Restricted Subsidiary to make an offer
to purchase (the "NET PROCEEDS OFFER") on a date (the "NET PROCEEDS OFFER
PAYMENT DATE") not less than 30 nor more than 45 days following the applicable
Net Proceeds Offer Trigger Date, from all Holders on a PRO RATA basis, that
amount of Securities equal to the Net Proceeds Offer Amount at a price equal to
100% of the principal amount of the Securities to be purchased, plus accrued and
unpaid interest thereon, if any, to the date of purchase; PROVIDED, HOWEVER,
that if at any time any non-cash consideration received by the Company or any
Restricted Subsidiary of the Company, as the case may be, in connection with any
Asset Sale is converted into or sold or otherwise disposed of for cash (other
than interest received with respect to any such non-cash consideration), then
such conversion or disposition shall be deemed to constitute an Asset Sale
hereunder and the Net Cash Proceeds thereof shall be applied in accordance with
this Section 5.16. The Company may defer the Net Proceeds Offer until there is
an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0
million resulting from one or more Asset Sales (at which time, the entire
unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0
million, shall be applied as required pursuant to this paragraph); PROVIDED,
that in no event will the net cash proceeds from an Asset Sale be subjected to
more than one offer to purchase Securities.
(b) In the event of the transfer of substantially all (but not
all) of the property and assets of the Company and its Restricted Subsidiaries
as an entirety to a Person in a transaction permitted under Section 6.1, the
successor corporation shall be deemed to have sold the properties and assets of
the Company and its Restricted Subsidiaries not so transferred for purposes of
this Section 5.16, and shall comply with the provisions of this Section 5.16
with respect to such deemed sale as if it were an Asset Sale. In addition, the
fair market value of such properties and assets of the Company or its Restricted
Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for
purposes of this Section 5.16.
(c) Notwithstanding Sections 5.16(a) and (b), the Company and its
Restricted Subsidiaries will be permitted to consummate an Asset Sale without
complying with such paragraphs to the extent (i) at least 75% of the
consideration for such Asset Sale constitutes Replacement Assets and (ii) such
Asset Sale is for fair market value; PROVIDED, that any consideration not
constituting Replacement Assets received by the Company or any of its Restricted
Subsidiaries in connection with any Asset Sale permitted to be consummated under
this paragraph shall constitute Net Cash Proceeds subject to the provisions of
Sections 5.16(a) and (b).
(d) Each Net Proceeds Offer will be mailed to the record Holders
as shown on the register of Holders of such Securities within 25 days following
the Net Proceeds Offer Trigger Date, with a copy to the Trustee. The notice
shall contain all instructions and materials necessary to enable such Holders to
tender Securities pursuant to the Net Proceeds Offer and shall state the
following terms:
(1) that the Net Proceeds Offer is being made pursuant to
Section 5.16 of this Indenture and that all Securities tendered will be accepted
for payment; PROVIDED, HOWEVER, that if the aggregate principal amount of
Securities tendered in a Net Proceeds Offer plus accrued interest at the
expiration of such offer exceeds the aggregate amount of the Net Proceeds Offer,
the Company shall select the Securities to be purchased on a pro rata basis
(with such adjustments as may be deemed appropriate by the Company so that only
Securities in denominations of $1,000 or multiples thereof shall be purchased);
(2) the purchase price (including the amount of accrued
interest) and the Net Proceeds Offer Payment Date;
(3) that any Security not tendered will continue to accrue
interest if interest is then accruing;
(4) that, unless (i) the Company defaults in making
payment therefor or (ii) such payment is prohibited pursuant to Article Four or
otherwise, any Security accepted for payment pursuant to the Net Proceeds Offer
shall cease to accrue interest after the Net Proceeds Offer Payment Date;
(5) that Holders electing to have a Security purchased
pursuant to a Net Proceeds Offer will be required to surrender the Security,
with the form entitled "Option of Holder to Elect Purchase" on the reverse of
the Security completed, to the Paying Agent at the address specified in the
notice prior to the close of business on the Business Day prior to the Net
Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their
election if the Paying Agent receives, not later than two Business Days prior to
the Net Proceeds Offer Payment Date, a telegram, telex, facsimile transmission
or letter setting forth the name of the Holder, the principal amount of the
Securities the Holder delivered for purchase and a statement that such Holder is
withdrawing his or her election to have such Security purchased;
(7) that Holders whose Securities were purchased only in
part will be issued new securities equal in principal amount to the unpurchased
portion of the Securities surrendered; PROVIDED, HOWEVER, that each Security
purchased and each new Security issued shall be in an original principal amount
of $1,000 or integral multiples thereof; and
(8) that the Net Proceeds Offer shall remain open for a
period of 20 Business Days or such longer period as may be required by law.
(e) On or before the Net Proceeds Offer Payment Date, the Company
shall (i) accept for payment Securities or portions thereof tendered pursuant to
the Net Proceeds Offer which are to be purchased in accordance with item (b)(1)
above, (ii) deposit with the Paying Agent U.S. Legal Tender sufficient to pay
the purchase price of all Securities to be purchased and (iii) deliver to the
Trustee Securities so accepted together with an Officers' Certificate stating
the Securities or portions thereof being purchased by the Company. The Paying
Agent shall promptly mail to the Holders of Securities so accepted payment in an
amount equal to the purchase price (and the Trustee shall promptly authenticate
and mail or deliver to such Holders a new Security equal in principal amount to
any unpurchased portion of the Security surrendered; PROVIDED, that each such
new Security shall be in the principal amount of $1,000 or integral multiples
thereof) unless such payment is prohibited pursuant to Article Four or
otherwise. The Company will publicly announce the results of the Net Proceeds
Offer on or as soon as practicable after the Net Proceeds Offer Payment Date.
For purposes of this Section 5.16, the Trustee shall act as the Paying Agent.
(f) Any amounts remaining after the purchase of Securities
pursuant to a Net Proceeds Offer shall be returned by the Trustee to the
Company.
(g) The Company must comply with Rule 14e-1 under the Exchange
Act and other provisions of state and federal securities laws and regulations
thereunder to the extent such laws and regulations are applicable in connection
with the repurchase of Securities pursuant to a Net Proceeds Offer. To the
extent that the provisions of any securities laws or regulations conflict with
the provisions of this Section 5.16, the Company shall comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations under the provisions of this Section 5.16 by virtue
thereof.
Section 5.17. Limitation on Other Senior Subordinated Debt.
The Company will not incur or suffer to exist Indebtedness that
is senior in right of payment to the Securities and subordinate in right of
payment to any other Indebtedness of the Company.
Section 5.18. Limitation on Restricted and Unrestricted Subsidiaries.
(a) The Board of Directors of the Company may, if no Default or
Event of Default shall have occurred and be continuing or would result
therefrom, designate any Restricted Subsidiary to be an Unrestricted Subsidiary
if such designation is at that time permitted under Section 5.3. The Board of
Directors of the Company may, if no Default or Event of Default shall have
occurred and be continuing or would result therefrom, designate an Unrestricted
Subsidiary to be a Restricted Subsidiary; PROVIDED, HOWEVER, that (i) any such
redesignation shall be deemed to be an Incurrence as of the date of such
redesignation by the Company and the Restricted Subsidiaries of the Indebtedness
(if any) of such redesignated Subsidiary for purposes of Section 5.12; and (ii)
unless such redesignated Subsidiary shall not have any Indebtedness outstanding
(other than Indebtedness which would be Permitted Indebtedness), no such
designation shall be permitted if immediately after giving effect to such
redesignation and the Incurrence of any such Indebtedness, the Company could not
incur $1.00 of additional Indebtedness pursuant to the provisions of Section
5.12. Any such designation by the Board of Directors of the Company shall be
evidenced to the Trustee by the filing with the Trustee of a Board Resolution of
the Company giving effect to such designation or redesignation and an Officers'
Certificate certifying that such designation or redesignation complied with the
foregoing conditions and setting forth in reasonable detail the underlying
calculations.
(b) Subsidiaries that are not designated by the Board of
Directors as Restricted or Unrestricted Subsidiaries will be deemed to be
Restricted Subsidiaries. The designation of a Restricted Subsidiary as an
Unrestricted Subsidiary shall be deemed to include a designation of all of the
subsidiaries of such Unrestricted Subsidiary as Unrestricted Subsidiaries.
Section 5.19. Conduct of Business.
The Company and its Restricted Subsidiaries will not engage in
any businesses which are not the same, similar or related or incidental to the
businesses in which the Company and its Restricted Subsidiaries are engaged on
the Issue Date.
Section 5.20. Additional Subsidiary Guarantees.
If the Company or any of its Restricted Subsidiaries transfers or
causes to be transferred, in one transaction or a series of related
transactions, any property to any Restricted Subsidiary that is not a Guarantor,
or if the Company or any of its Restricted Subsidiaries shall organize, acquire
or otherwise invest in another Restricted Subsidiary having total assets with a
book value in excess of $1.0 million, then such transferee or acquired or other
Restricted Subsidiary shall (i) promptly execute and deliver to the Trustee a
supplemental indenture in form reasonably satisfactory to the Trustee pursuant
to which such Restricted Subsidiary shall unconditionally guarantee all of the
Company's obligations under the Securities and this Indenture on the terms set
forth in this Indenture and (ii) deliver to the Trustee an Opinion of Counsel
that such supplemental indenture has been duly authorized, executed and
delivered by such Restricted Subsidiary and constitutes a legal, valid, binding
and enforceable obligation of such Restricted Subsidiary. Thereafter, such
Restricted Subsidiary shall be a Guarantor for all purposes of this Indenture.
ARTICLE VI.
SUCCESSOR CORPORATION
Section 6.1. Limitations on Mergers and Certain Other Transactions.
(a) The Company will not, in a single transaction or series of
related transactions, consolidate or merge with or into any Person, or sell,
assign, transfer, lease, convey or otherwise dispose of (or cause or permit any
Restricted Subsidiary of the Company to sell, assign, transfer, lease, convey or
otherwise dispose of) all or substantially all of the Company's assets
(determined on a consolidated basis for the Company and the Company's Restricted
Subsidiaries) whether as an entirety or substantially as an entirety to any
Person unless:
(i) either (1) the Company shall be the surviving or
continuing corporation or (2) the Person (if other than the Company)
formed by such consolidation or into which the Company is merged or the
Person which acquires by sale, assignment, transfer, lease, conveyance
or other disposition the properties and assets of the Company and of the
Company's Restricted Subsidiaries substantially as an entirety (the
"SURVIVING ENTITY") (x) shall be a corporation organized and validly
existing under the laws of the United States or any State thereof or the
District of Columbia and (y) shall expressly assume, by supplemental
indenture (in form and substance satisfactory to the Trustee), executed
and delivered to the Trustee, the due and punctual payment of the
principal of, and premium, if any, and interest on all of the Securities
and the performance of every covenant of the Securities, this Indenture
and the Registration Rights Agreement on the part of the Company to be
performed or observed;
(ii) immediately after giving effect to such transaction
and the assumption contemplated by clause (i)(2)(y) above (including
giving effect to any Indebtedness and Acquired Indebtedness incurred or
anticipated to be incurred in connection with or in respect of such
transaction), the Company or such Surviving Entity, as the case may be,
(1) shall have a Consolidated Net Worth equal to or greater than the
Consolidated Net Worth of the Company immediately prior to such
transaction and (2) shall be able to incur at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) pursuant to Section
5.12;
(iii) immediately before and immediately after giving
effect to such transaction and the assumption contemplated by clause
(i)(2)(y) above (including, without limitation, giving effect to any
Indebtedness and Acquired Indebtedness incurred or anticipated to be
incurred and any Lien granted in connection with or in respect of the
transaction), no Default or Event of Default shall have occurred or be
continuing; and
(iv) the Company or the Surviving Entity shall have
delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, sale, assignment,
transfer, lease, conveyance or other disposition and, if a supplemental
indenture is required in connection with such transaction, such
supplemental indenture comply with the applicable provisions of this
Indenture and that all conditions precedent in this Indenture relating
to such transaction have been satisfied.
(b) For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all of the properties or assets of one or
more Restricted Subsidiaries of the Company the Capital Stock of which
constitutes all or substantially all of the properties and assets of the
Company, shall be deemed to be the transfer of all or substantially all of the
properties and assets of the Company.
(c) Each Guarantor (other than any Guarantor whose Guarantee is
to be released in accordance with the terms of the Guarantee and this Indenture
in connection with any transaction complying with the provisions of Section
5.16) will not, and the Company will not cause or permit any Guarantor to,
consolidate with or merge with or into any Person other than the Company or any
other Guarantor unless the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that: (i) the
entity formed by or surviving any such consolidation or merger (if other than
the Guarantor) or to which such sale, lease, conveyance or other disposition
shall have been made is a corporation organized and existing under the laws of
the United States or any State thereof or the District of Columbia; (ii) such
entity assumes by supplemental indenture all of the obligations of the Guarantor
on the Guarantee; (iii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing; and (iv)
immediately after giving effect to such transaction and the use of any net
proceeds therefrom on a PRO FORMA basis, the Company could satisfy the
provisions of clause (a)(ii) of this Section 6.1. Any merger or consolidation of
a Guarantor with and into the Company (with the Company being the Surviving
Entity) or another Guarantor that is a Wholly Owned Restricted Subsidiary of the
Company need only comply with clause (a)(ii).
Section 6.2. Successor Corporation Substituted.
Upon any consolidation, combination or merger or any transfer of
all or substantially all of the assets of the Company in accordance with Section
6.1, in which the Company is not the continuing corporation, the successor
Person formed by such consolidation or into which the Company is merged or to
which such conveyance, lease or transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture and the Securities with the same effect as if such surviving
entity had been named as such.
ARTICLE VII.
DEFAULT AND REMEDIES
Section 7.1. Events of Default.
Each of the following events constitutes an "Event of Default":
(i) the failure to pay interest on any Securities when the
same becomes due and payable and the default continues for a period of
30 days (whether or not such payment shall be prohibited by Article Four
or Article Twelve);
(ii) the failure to pay the principal on any Securities,
when such principal becomes due and payable, at maturity, upon
redemption or otherwise (including the failure to make a payment to
purchase Securities tendered pursuant to a Change of Control Offer or a
Net Proceeds Offer) (whether or not such payment shall be prohibited by
Article Four or Article Twelve);
(iii) a default in the observance or performance of any
other covenant or agreement contained in this Indenture which default
continues for a period of 60 days after the Company receives written
notice specifying the default (and demanding that such default be
remedied) from the Trustee or the Holders of at least 25% of the
outstanding principal amount of the Securities (except in the case of a
failure to comply with Section 6.1, which will constitute an Event of
Default with such notice requirement but without such passage of time
requirement);
(iv) the failure to pay at final maturity (giving effect
to any applicable grace periods and any extensions thereof) the
principal amount of any Indebtedness of the Company or any Restricted
Subsidiary of the Company, or the acceleration of the final stated
maturity of any such Indebtedness if the aggregate principal amount of
such Indebtedness, together with the principal amount of any other such
Indebtedness in default for failure to pay principal at final maturity
or which has been accelerated, aggregates $15.0 million or more at any
time;
(v) one or more judgments in an aggregate amount in excess
of $10.0 million shall have been rendered against the Company or any of
its Restricted Subsidiaries and such judgments remain undischarged,
unpaid or unstayed for a period of 60 days after such judgment or
judgments become final and non-appealable;
(vi) the Company or any of its Significant Subsidiaries
pursuant to or within the meaning of any Bankruptcy Law: (a) commences a
voluntary case or proceeding; (b) consents to the entry of an order for
relief against it in an involuntary case or proceeding; (c) consents to
the appointment of a Custodian of it or for all or substantially all of
its property; (d) makes a general assignment for the benefit of its
creditors; or (e) generally is not paying its debts as they become due;
(vii) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that: (a) is for relief against the
Company or any of its Significant Subsidiaries in an involuntary case or
proceeding; (b) appoints a Custodian of the Company or any of its
Significant Subsidiaries, or for all or any substantial part of their
respective properties; or (c) orders the liquidation of the Company or
any of its Significant Subsidiaries, and in each case the order or
decree remains unstayed and in effect for 60 days;
(viii) the lenders under the Credit Agreement shall
commence judicial proceedings to foreclose upon any material portion of
the assets of the Company and its Subsidiaries; or
(ix) any of the Guarantees ceases to be in full force and
effect or any of the Guarantees is declared to be null and void and
unenforceable or any of the Guarantees is found to be invalid or any of
the Guarantors denies its liability under its Guarantee (other than by
reason of release of a Guarantor in accordance with the terms of this
Indenture).
Section 7.2. Acceleration.
(a) If an Event of Default (other than an Event of Default
specified in clauses (vi) or (vii) of Section 7.1 with respect to the Company)
shall occur and be continuing, the Trustee or the Holders of at least 25% in
principal amount of outstanding Securities may declare the principal of and
accrued interest on all the Securities 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 (i) shall become immediately due and payable or (ii) if there are
any amounts outstanding under the Credit Agreement, shall become immediately due
and payable upon the first to occur of an acceleration under the Credit
Agreement or 5 Business Days after receipt by the Company and the Credit Agent
under the Credit Agreement of such Acceleration Notice. If an Event of Default
specified in clauses (vi) or (vii) of Section 7.1 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 Securities shall IPSO
facto become and be immediately due and payable without any declaration or other
act on the part of the Trustee or any Holder.
(b) At any time after a declaration of acceleration with respect
to the Securities as described in Section 7.2(a), the Holders of a majority in
principal amount of the Securities may rescind and cancel such declaration and
its consequences (i) if the rescission would not conflict with any judgment or
decree, (ii) if all existing Events of Default have been cured or waived except
nonpayment of principal or interest that has become due solely because of the
acceleration, (iii) to the extent the payment of such interest is lawful,
interest on overdue installments of interest and overdue principal, which has
become due otherwise than by such declaration of acceleration, has been paid,
(iv) if 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 (vi) or (vii) of Section 7.1, 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.
(c) In the case of any Event of Default occurring by reason of
any willful action (or inaction) taken (or not taken) by or on behalf of the
Company with the intention of avoiding payment of the premium that the Company
would have had to pay if the Company then had elected to redeem the Securities
pursuant to the optional redemption provisions of this Indenture, an equivalent
premium shall also become and be immediately due and payable to the extent
permitted by law upon the acceleration of the Securities. If an Event of Default
occurs prior to February 15, 2003, by reason of any willful action (or inaction)
taken (or not taken) by or on behalf of the Company with the intention of
avoiding the prohibition on redemption of the Securities prior to February 15,
2003, then the premium specified in this Indenture shall also become immediately
due and payable to the extent permitted by law upon the acceleration of the
Securities.
(d) The Holders of a majority in principal amount of the
Securities 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 any Securities.
(e) Holders of the Securities may not enforce this Indenture or
the Securities except as provided in this Indenture and under the TIA. Subject
to the provisions of Article Eight, the Trustee is under no obligation to
exercise any of its rights or powers under this Indenture at the request, order
or direction of any of the Holders, unless such Holders have offered to the
Trustee reasonable indemnity. Subject to all provisions of Section 7.5 and
applicable law, the Holders of a majority in aggregate principal amount of the
then outstanding Securities have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee.
(f) The Company is required to provide an Officers' Certificate
to the Trustee promptly upon any such officer obtaining knowledge of any Default
or Event of Default (PROVIDED, that such officers shall provide such
certification at least annually whether or not they know of any Default or Event
of Default) that has occurred and, if applicable, describe such Default or Event
of Default and the status thereof.
Section 7.3. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Securities or does not produce any of them in the proceeding. A delay
or omission by the Trustee or any 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 to the
extent permitted by law.
Section 7.4. Waiver of Past Defaults.
Subject to Sections 7.7 and 10.2, the Holders of a majority in
principal amount of the outstanding Securities by notice to the Trustee may
waive an existing Default or Event of Default and its consequences, except a
Default in the payment of principal of or interest on any Security as specified
in clauses (i) and (ii) of Section 7.1 (other than any such Default arising
solely by reason of acceleration of the Securities). When a Default or Event of
Default is waived, it is cured and ceases.
Section 7.5. Control by Majority.
Subject to Section 2.9, the Holders of a majority in principal
amount of the outstanding Securities may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on it, including, without limitation, any remedies
provided for in Section 7.3. Subject to Section 8.1, however, the Trustee may
refuse to follow any direction that conflicts with any law or this Indenture,
that the Trustee determines may be unduly prejudicial to the rights of another
Holder, or that may involve the Trustee in personal liability; PROVIDED,
HOWEVER, that the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
Section 7.6. Limitation on Suits.
A Holder may not pursue any remedy with respect to this Indenture
or the Securities unless:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(2) the Holder or Holders of at least 25% in principal amount of
the outstanding Securities make a written request to the Trustee to pursue the
remedy;
(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense to be
incurred in compliance with such request;
(4) the Trustee does not comply with the request within 25 days
after receipt of the request and the offer of indemnity; and
(5) during such 25-day period the Holder or Holders of a majority
in principal amount of the outstanding Securities do not give the Trustee a
direction which, in the opinion of the Trustee, is inconsistent with the
request.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over such other Holder.
Section 7.7. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right
of any Holder to receive payment of principal of and interest on a Security, on
or after the respective due dates expressed in such Security, or to bring suit
for the enforcement of any such payment on or after such respective dates, shall
not be impaired or affected without the consent of the Holder.
Section 7.8. Collection Suit by Trustee.
If an Event of Default in payment of principal or interest
specified in clause (i) or (ii) of Section 7.1 occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company or any other obligor on the Securities for the whole amount
of principal and accrued interest remaining unpaid, together with interest on
overdue principal and, to the extent that payment of such interest is lawful,
interest on overdue installments of interest, in each case at the rate per annum
borne by the Securities and such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
Section 7.9. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceedings relating to the Company or any other
obligor upon the Securities, any of their respective creditors or any of their
respective property and shall be entitled and empowered to participate as a
member, voting or otherwise, of any official committee of creditors appointed in
such matter and to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same, and any Custodian in
any such judicial proceedings is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agent and counsel, and any other amounts due the
Trustee under Section 8.7. Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
The Trustee may enforce claims on behalf of Holders without possession of such
Holders' Securities.
Section 7.10. Priorities.
If the Trustee collects any money pursuant to this Article Seven,
it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 8.7;
Second: subject to Article Four and Article Twelve, to Holders
for interest accrued on the Securities, ratably, without preference or priority
of any kind, according to the amounts due and payable on the Securities for
interest;
Third: subject to Article Four and Article Twelve, to Holders for
principal amounts due and unpaid on the Securities, ratably, without preference
or priority of any kind, according to the amounts due and payable on the
Securities for principal; and
Fourth: subject to Article Four and Article Twelve, to the
Company or the Guarantors, as their respective interests may appear.
The Trustee, upon prior notice to the Company, may fix a record
date and payment date for any payment to Holders pursuant to this Section 7.10.
Section 7.11. Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
Section 7.12. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder to exercise
any right or remedy accruing upon any Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article Seven or by
law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
Section 7.13. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 7.13 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 7.7, or a suit by a Holder or Holders of more than 10% in
principal amount of the outstanding Securities.
ARTICLE VIII.
TRUSTEE
The Company hereby appoints and employs the Trustee and the
Trustee hereby accepts the express trust imposed upon it by this Indenture and
covenants and agrees to perform the same, subject to the conditions and terms
hereof.
Section 8.1. Duties of Trustee.
(a) If an Event of Default of which a Trust Officer of the
Trustee is actually aware has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture and use
the same degree of care and skill in its exercise thereof as a prudent person
would exercise or use under the circumstances in the conduct of his or her own
affairs.
(b) Except during the continuance of an Event of Default of which
the Trust Officer of the Trustee is actually aware:
(1) The Trustee need undertake to perform only those
duties as are expressly and specifically set forth in this Indenture and no
covenants or obligations whatsoever shall be implied in this Indenture against
the Trustee.
(2) In the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture. However, the
Trustee shall examine the certificates and opinions to determine whether or not
they conform to the requirements of this Indenture, but shall not be obligated
to verify the contents thereof.
(c) The Trustee shall have no liability except for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of
paragraph (b) of this Section 8.1.
(2) The Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 7.5.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(e) Every provision of this Indenture that in any way relates to
the Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section 8.1.
(f) The Trustee shall not be liable for interest on any assets
received by it. Assets held in trust by the Trustee need not be segregated from
other assets except to the extent required by law.
Section 8.2. Rights of Trustee.
Subject to Section 8.1:
(a) The Trustee may rely on and shall be protected in acting or
refraining from acting upon any document believed by it to be genuine and to
have been signed or presented by the proper Person, including, without
limitation, any Person purporting to be a holder of Senior Debt or a
Representative. The Trustee need not investigate any fact or matter stated in
the document or the status of any such Person delivering such document.
(b) Before the Trustee acts or refrains from acting, it may
consult with counsel and may require in addition to the receipt of written
direction(s) from the Company accompanied by an Officers' Certificate or an
Opinion of Counsel, which opinion or certificate shall conform to Sections 13.4
and 13.5 of this Indenture. The Trustee shall not be liable for any action it
takes or omits to take in good faith in reliance on such certificate or opinion.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any attorney or
agent appointed with due care.
(d) The Trustee shall not be liable for any action that it takes
or omits to take in good faith which it believes to be authorized or within its
rights or powers.
(e) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, notice, request, direction, consent, order, bond,
debenture, or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may
see fit; PROVIDED, HOWEVER, that in so doing the Trustee shall not be deemed to
undertake any liability or additional duty hereunder.
(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, order or
direction of any of the Holders pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby.
Section 8.3. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Securities and may otherwise deal with the Company, its
Subsidiaries, or their respective Affiliates with the same rights it would have
if it were not Trustee. Any Agent may do the same with like rights. However, the
Trustee must comply with Sections 8.10 and 8.11.
Section 8.4. Trustee's Disclaimer.
The Trustee makes no representation or warranty and shall have no
liability whatsoever as to and for the validity or adequacy of this Indenture or
the Securities, it shall not be accountable for the Company's use of the
proceeds from the Securities, and it shall not be responsible for any statement
in the Securities or in any other document used in connection with the sale of
the Securities other than the Trustee's certificate of authentication.
Section 8.5. Notice of Default.
If a Default or an Event of Default occurs and is continuing and
if it is actually known to a Trust Officer of the Trustee, the Trustee shall
mail to each Holder notice of the Default or Event of Default within 90 days
after such Default or Event of Default occurs or if such Default or Event of
Default is known to a Trust Officer of the Trustee during such 90-day period,
promptly after such Default or Event of Default becomes known to a Trust Officer
of the Trustee; PROVIDED, HOWEVER, that, except in the case of a Default or
Event of Default in the payment of the principal of or interest on any Security,
including the failure to make payment on a Change of Control Payment Date
pursuant to a Change of Control Offer or payment when due pursuant to a Net
Proceeds Offer, the Trustee may withhold such notice if it in good faith
determines that withholding such notice is in the interest of the Holders.
Section 8.6. Reports by Trustee to Holders.
Within 60 days after each September 30 beginning with the first
September 30 following the date of this Indenture, the Trustee shall, to the
extent that any of the events described in TIA ss. 313(a) occurred within the
previous twelve months, but not otherwise, mail to each Holder a brief report
dated as of such September 30 that complies with TIA ss. 313(a). The Trustee
also shall comply with TIA Sections 313(b) and 313(c).
A copy of each report at the time of its mailing to Holders shall
be mailed to the Company and filed with the Commission and each stock exchange,
if any, on which the Securities are listed.
The Company shall notify the Trustee in writing if the Securities
become listed on any stock exchange.
Section 8.7. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation for its services. The Trustee's compensation shall not be limited
by any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable disbursements, expenses
and advances incurred or made by it. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee for, and hold it harmless
against, any loss or liability incurred by it except for such actions to the
extent caused by any negligence or willful misconduct on its part, arising out
of or in connection with the administration of this trust, including the costs
and expenses of enforcing this Indenture against the Company (including Section
8.7) and its rights or duties hereunder. The Trustee shall notify the Company
promptly of any claim asserted against the Trustee for which it may seek
indemnity. The Company shall defend the claim and the Trustee shall cooperate in
the defense. The Trustee may have separate counsel and the Company shall pay the
reasonable fees and expenses of such counsel; PROVIDED, HOWEVER, that the
Company will not be required to pay such fees and expenses if it assumes the
Trustee's defense and there is no conflict of interest between the Company and
the Trustee in connection with such defense as reasonably determined by the
Trustee. The Company need not pay for any settlement made without its written
consent, which consent shall not be unreasonably withheld or delayed. The
Company need not reimburse any expense or indemnify against any loss or
liability to the extent incurred by the Trustee through its negligence, bad
faith or willful misconduct.
To secure the Company's payment obligations in this Section 8.7,
the Trustee shall have a lien prior to the Securities on all assets held or
collected by the Trustee, in its capacity as Trustee, except assets held in
trust to pay principal of or interest on particular Securities.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 7.1(vi) or (vii) occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
Section 8.8. Replacement of Trustee.
The Trustee may resign by so notifying the Company. The Holders
of a majority in principal amount of the outstanding Securities may remove the
Trustee and appoint a successor trustee with the Company's consent, by so
notifying the Company and the Trustee.
The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 8.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall notify each Holder of
such event and shall promptly appoint a successor Trustee. Within one year after
the successor Trustee takes office, the Holders of a majority in principal
amount of the Securities may appoint a successor Trustee to replace the
successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided in Section 8.7, 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. A successor Trustee shall mail notice of its succession to each
Holder.
If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of at least 10% in principal amount of the outstanding Securities
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 8.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this
Section 8.8, the Company's obligations under Section 8.7 shall continue for the
benefit of the retiring Trustee.
Section 8.9. Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee.
Section 8.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirement of TIA xx.xx. 310(a)(1) and 310(a)(5). The Trustee shall have (or in
the case of a corporation trust company included in a bank holding company
system, the related bank holding company shall have) a combined capital and
surplus of at least $100.0 million as set forth in its most recent published
annual report of condition. The Trustee shall comply with TIA ss. 310(b);
PROVIDED, HOWEVER, that there shall be excluded from the operation of TIA ss.
310(b)(1) any indenture or indentures under which other securities, or
certificates of interest or participation in other securities, of the Company
are outstanding, if the requirements for such exclusion set forth in TIA Section
310(b)(1) are met.
Section 8.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE IX.
SATISFACTION AND DISCHARGE OF INDENTURE
Section 9.1. Termination of the Company's Obligations.
The Company may terminate its obligations under the Securities
and this Indenture, and the obligations of any Guarantor shall terminate, except
those obligations referred to in the penultimate paragraph of this Section 9.1,
if
(1) either (a) all Securities theretofore authenticated and
delivered (except lost, stolen or destroyed Securities which have been replaced
or paid or Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter repaid to
the Company or discharged from such trust, as provided in Section 9.4) have been
delivered to the Trustee for cancellation, or (b) all Securities not theretofore
delivered to the Trustee for cancellation have become due and payable and the
Company has irrevocably deposited or caused to be deposited with the Trustee
funds in an amount sufficient to pay and discharge the entire Indebtedness on
the Securities not theretofore delivered to the Trustee for cancellation, for
principal of, premium, if any, and interest on the Securities to the date of
deposit together with irrevocable instructions from the Company directing the
Trustee to apply such funds to the payment thereof at maturity or redemption, as
the case may be;
(2) the Company has paid all other sums payable by it hereunder;
and
(3) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent providing for the termination of the Company's and any Guarantor's
obligations under the Securities and this Indenture have been complied with.
Such Opinion of Counsel shall also state that such satisfaction and discharge
does not result in a default under the Credit Agreement (if then in effect) or
any other agreement or instrument then known to such counsel that binds or
affects the Company.
Notwithstanding the foregoing paragraph, the Company's
obligations in Sections 2.5, 2.6, 2.7, 2.8, 5.1, 5.2 and 8.7 and any Guarantor's
obligations in respect thereof shall survive until the Securities are no longer
outstanding pursuant to the last paragraph of Section 2.8. After the Securities
are no longer outstanding, the Company's obligations in Sections 8.7, 9.4 and
9.5 any Guarantor's obligations in respect thereof shall survive.
After such delivery or irrevocable deposit the Trustee upon
request shall acknowledge in writing the discharge of the Company's and any
Guarantor's obligations under the Securities and this Indenture except for those
surviving obligations specified above.
Section 9.2. Legal Defeasance and Covenant Defeasance.
(a) The Company may, at its option, and at any time, with respect
to the Securities, elect to have either paragraph (b) or paragraph (c) below be
applied to the outstanding Securities upon compliance with the conditions set
forth in paragraph (d).
(b) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (b), the Company and any Guarantor shall be deemed
to have been released and discharged from its obligations with respect to the
outstanding Securities on the date the conditions set forth below are satisfied
(hereinafter, "LEGAL DEFEASANCE"). For this purpose, legal defeasance means that
the Company shall be deemed to have paid and discharged the entire indebtedness
represented by the outstanding Securities, which shall thereafter be deemed to
be "outstanding" only for the purposes of paragraph (e) below and the other
Sections of and matters under this Indenture referred to in (i) and (ii) below,
and to have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), and Holders of the Securities and the Guarantees and any amounts
deposited under paragraph (d) below shall cease to be subject to any obligations
to, or the rights of, any holder of Senior Debt under Article Four or Article
Twelve or otherwise, except for the following which shall survive until
otherwise terminated or discharged hereunder: (i) the rights of Holders to
receive payments in respect of the principal of, premium, if any, and interest
on the Securities when such payments are due, (ii) the Company's obligations
with respect to such Securities under Sections 2.6, 2.7, 2.10 and 5.2, (iii) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and the
Company's obligations in connection therewith and (iv) this Section 9.2 and
Section 9.5. Subject to compliance with this Section 9.2, the Company may
exercise its option under this paragraph (b) notwithstanding the prior exercise
of its option under paragraph (c) below with respect to the Securities.
(c) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (c), the Company shall be released and discharged
from its obligations under any covenant contained in Article Four and Article
Six and in Sections 5.3, 5.5 through 5.9 and 5.11 through 5.20 with respect to
the outstanding Securities on and after the date the conditions set forth below
are satisfied (hereinafter, "COVENANT DEFEASANCE"), and the Securities shall
thereafter be deemed to be not "outstanding" for the purpose of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
"outstanding" for all other purposes hereunder and Holders of the Securities and
the Guarantees and any amounts deposited under paragraph (d) below shall cease
to be subject to any obligations to, or the rights of, any holder of Senior Debt
under Article Four or Article Twelve or otherwise. For this purpose, covenant
defeasance means that, with respect to the outstanding Securities, the Company
any Guarantor may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such covenant listed above,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such covenant or by reason of any reference in any such covenant to any
other provision herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under Section 7.1(iii),
but, except as specified above, the remainder of this Indenture and such
Securities shall be unaffected thereby.
(d) The following shall be the conditions to application of
either paragraph (b) or paragraph (c) above to the outstanding Securities:
(i) the Company must have irrevocably deposited with the
Trustee (or another trustee satisfying the requirements of Section 8.10
who shall agree to comply with the provisions of this Section 9.2
applicable to it) in trust, for the benefit of the Holders, cash in U.S.
dollars, U.S. Government Obligations, or a combination thereof, in such
amounts as will be sufficient, in the opinion of a nationally recognized
firm of independent public accountants, to pay the principal of,
premium, if any, and interest on the Securities on the Maturity Date or
Redemption Date, as the case may be;
(ii) in the case of legal defeasance, the Company shall
have delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that (A) the Company has
received from, or there has been published by, the Internal Revenue
Service a ruling or (B) since the date of this Indenture, there has been
a change in the applicable federal income tax law, in either case to the
effect that, and based thereon such Opinion of Counsel shall confirm
that, the Holders will not recognize income, gain or loss for federal
income tax purposes as a result of such legal defeasance and will be
subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such legal
defeasance had not occurred;
(iii) in the case of covenant defeasance, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United
States reasonably acceptable to the Trustee confirming that the Holders
will not recognize income, gain or loss for federal income tax purposes
as a result of such covenant defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same times
as would have been the case if such covenant defeasance had not
occurred;
(iv) no Default or Event of Default shall have occurred
and be continuing on the date of such deposit or insofar as clauses (vi)
or (vii) of Section 7.1 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 shall not
result in a breach or violation of, or constitute a default under this
Indenture or any other material agreement or instrument to which the
Company or any of its Subsidiaries is a party or by which the Company or
any of its Subsidiaries is bound;
(vi) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the
Company with the intent of preferring the Holders over any other
creditors of the Company or with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Company or others;
(vii) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for or relating to the legal defeasance or
the covenant defeasance have been complied with; and
(viii) the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that, after the 91st day following the
deposit, the trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally.
(e) All money and U.S. Government Obligations (including the
proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this paragraph (e), the "TRUSTEE") pursuant to
paragraph (d) above in respect of the outstanding Securities shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (other than the Company or any Affiliate of the Company), to the
Holders of such Securities of all sums due and to become due thereon in respect
of principal, premium and interest, but such money need not be segregated from
other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to paragraph (d) above or the principal, premium,
if any, and interest received in respect thereof other than any such tax, fee or
other charge which by law is for the account of the Holders of the outstanding
Securities. The Company's obligations to pay and indemnify the Trustee as set
forth in this paragraph shall survive the termination of this Indenture and the
Securities.
Anything in this Section 9.2 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the request,
in writing, by the Company any money or U.S. Government Obligations held by it
as provided in paragraph (d) above which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect an equivalent
legal defeasance or covenant defeasance.
Section 9.3. Application of Trust Money.
The Trustee shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to Sections 9.1 and 9.2, and shall apply
the deposited money and the money from U.S. Government Obligations in accordance
with this Indenture to the payment of principal of, premium, if any, and
interest on the Securities.
Section 9.4. Repayment to the Company or Guarantors.
Subject to Sections 8.7, 9.1 and 9.2, the Trustee shall promptly
pay to the Company, or if deposited with the Trustee by any Guarantor, to such
Guarantor, upon receipt by the Trustee of an Officers' Certificate, any excess
money, determined in accordance with Section 9.2, held by it at any time. The
Trustee and the Paying Agent shall pay to the Company or any Guarantor, as the
case may be, upon receipt by the Trustee or the Paying Agent, as the case may
be, of an Officers' Certificate, any money held by it for the payment of
principal, premium, if any, or interest that remains unclaimed for two years
after payment to the Holders is required; PROVIDED, HOWEVER, that the Trustee
and the Paying Agent before being required to make any payment may, but need
not, at the expense of the Company cause to be published once in a newspaper of
general circulation in The City of New York or mail to each Holder entitled to
such money notice that such money remains unclaimed and that after a date
specified therein, which shall be at least 30 days from the date of such
publication or mailing, any unclaimed balance of such money then remaining will
be repaid to the Company. After payment to the Company or any Guarantor, as the
case may be, Holders entitled to money must look solely to the Company for
payment as general creditors unless an applicable abandoned property law
designates another person, and all liability of the Trustee or Paying Agent with
respect to such money shall thereupon cease.
Section 9.5. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or
U.S. Government Obligations in accordance with this Indenture 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, then and only then the Company's and each Guarantor's, if any,
obligations under this Indenture and the Securities shall be revived and
reinstated as though no deposit had been made pursuant to this Indenture until
such time as the Trustee is permitted to apply all such money or U.S. Government
Obligations in accordance with this Indenture; PROVIDED, HOWEVER, that if the
Company or the Guarantors, as the case may be, has made any payment of principal
of, premium, if any, or interest on any Securities because of the reinstatement
of its obligations, the Company or the Guarantors, as the case may be, shall be
subrogated to the rights of the holders of such Securities to receive such
payment from the money or U.S. Government Obligations held by the Trustee or
Paying Agent.
ARTICLE X.
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 10.1. Without Consent of Holders.
The Company and the Guarantors, when authorized by a Board
Resolution, and the Trustee, together, may amend or supplement this Indenture or
the Securities without notice to or consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency, so long as
such change does not, in the opinion of the Trustee, adversely affect the rights
of any of the Holders in any material respect; and
(2) to comply with Article Six.
In formulating its opinion on such matters, the Trustee will be
entitled to rely on such evidence as it deems appropriate, including, without
limitation, solely on an Opinion of Counsel.
Section 10.2. With Consent of Holders.
Subject to Section 7.7, the Company and each Guarantor, when
authorized by a Board Resolution, the Trustee and the Holders of not less than a
majority in aggregate principal amount of the Securities then outstanding, may
amend or supplement (or waive compliance with any provision of) this Indenture,
the Securities or any Guarantee without any notice to any other Holder, except
that without the consent of each Holder of the Securities affected, no such
amendment, supplement or waiver may:
(1) reduce the amount of the Securities whose Holders must
consent to an amendment, supplement or waiver of any provision of this
Indenture, the Securities or the Guarantees;
(2) reduce the rate of or change or have the effect of
changing the time for payment of interest, including defaulted interest, on any
Securities;
(3) reduce the principal of or change or have the effect
of changing the fixed maturity of any Securities, or change the date on which
any Securities may be subject to redemption or repurchase, or reduce the
redemption or repurchase price therefor;
(4) make any Securities payable in money other than that
stated in the Securities;
(5) make any changes in the provisions of this Indenture
protecting the right of each Holder to receive payment of principal of and
interest on such Securities on or after the due date thereof or to bring suit to
enforce such payment, or permitting the Holders of a majority in principal
amount of the Securities to waive Defaults or Events of Default; or
(6) modify or change any provision of this Indenture or
the related definitions affecting the Subordination or ranking of the Securities
or any Guarantee in a manner which adversely affects the Holders.
The Company and each Guarantor agrees that no amendment,
supplement or waiver under this Article Ten may make any change that adversely
affects the rights under Article Four or Twelve of any holders of any Senior
Debt unless the holders of such Senior Debt consent to the change.
It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section
becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture.
In connection with any amendment, supplement or waiver under this
Article Ten, the Company may, but shall not be obligated to, offer to any Holder
who consents to such amendment, supplement or waiver, or to all Holders,
consideration for such Holder's consent to such amendment, supplement or waiver.
Section 10.3. Compliance with TIA.
From the date on which this Indenture is qualified under the TIA,
every amendment, waiver or supplement of this Indenture or the Securities shall
comply with the TIA as then in effect.
Section 10.4. Revocation and Effect of Consents.
Until an amendment, waiver or supplement becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security, even if notation of the consent is not
made on any Security. However, any such Holder or subsequent Holder may revoke
the consent as to his or her Security or portion of his or her Security by
notice to the Trustee or the Company received before the date on which the
Trustee receives an Officers' Certificate certifying that the Holders of the
requisite principal amount of Securities have consented (and not theretofore
revoked such consent) to the amendment, supplement or waiver.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver, which record date shall be at least 30 days prior to the
first solicitation of such consent. If a record date is fixed, then
notwithstanding the last sentence of the immediately preceding paragraph, those
persons who were Holders at such record date (or their duly designated proxies),
and only those persons, shall be entitled to revoke any consent previously
given, whether or not such persons continue to be Holders after such record
date. No such consent shall be valid or effective for more than 90 days after
such record date.
After an amendment, supplement or waiver becomes effective, it
shall bind every Holder, unless it makes a change described in Section 10.2, in
which case, the amendment, supplement or waiver shall bind only each Holder of a
Security who has consented to it and every subsequent Holder of a Security or
portion of a Security that evidences the same debt as the consenting Holder's
Security; PROVIDED, HOWEVER, that any such waiver shall not impair or affect the
right of any Holder to receive payment of principal of and interest on a
Security, on or after the respective due dates expressed in such Security, or to
bring suit for the enforcement of any such payment on or after such respective
dates without the consent of such Holder.
Section 10.5. Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a
Security, the Trustee may require the Holder of the Security to deliver it to
the Trustee. The Trustee may place an appropriate notation on the Security about
the changed terms and return it to the Holder. Alternatively, if the Company or
the Trustee so determines, the Company in exchange for the Security shall issue
and the Trustee shall authenticate a new Security that reflects the changed
terms.
Section 10.6. Trustee To Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article Ten; PROVIDED, HOWEVER, that the Trustee
may, but shall not be obligated to, execute any such amendment, supplement or
waiver which affects the Trustee's own rights, duties or immunities under this
Indenture. The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
any amendment, supplement or waiver authorized pursuant to this Article Ten is
authorized or permitted by this Indenture.
ARTICLE XI.
GUARANTEE
Section 11.1. Unconditional Guarantee.
Each Guarantor hereby unconditionally guarantees (such guarantee
to be referred to herein as the "GUARANTEE"), on a senior subordinated basis,
jointly and severally, subject to Article Twelve, to each Holder of a Security
authenticated and delivered by the Trustee and to the Trustee and its successors
and assigns, the Securities or the obligations of the Company hereunder or
thereunder, that: (i) the principal of and interest on the Securities will be
promptly paid in full when due, subject to any applicable grace period, whether
at maturity, by acceleration or otherwise and interest on the overdue principal,
if any, and interest on any interest, to the extent lawful, of the Securities
and all other obligations of the Company to the Holders or the Trustee hereunder
or thereunder will be promptly paid in full or performed, all in accordance with
the terms hereof and thereof; and (ii) in case of any extension of time of
payment or renewal of any Securities or of any such other obligations, the same
will be promptly paid in full when due or performed in accordance with the terms
of the extension or renewal, subject to any applicable grace period, whether at
stated maturity, by acceleration or otherwise, subject, however, in the case of
clauses (i) and (ii) above, to the limitations set forth in Section 11.5. Each
Guarantor hereby agrees that its obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Securities or
this Indenture, the absence of any action to enforce the same, any waiver or
consent by any Holder of the Securities with respect to any provisions hereof or
thereof, the recovery of any judgment against the Company, any action to enforce
the same or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor. Each Guarantor hereby waives
diligence, presentment, demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands whatsoever
and covenants that this Guarantee will not be discharged except by complete
performance of the obligations contained in the Securities, this Indenture and
in this Guarantee. If any Holder or the Trustee is required by any court or
otherwise to return to the Company, any Guarantor, or any custodian, trustee,
liquidator or other similar official acting in relation to the Company or any
Guarantor, any amount paid by the Company or any Guarantor to the Trustee or
such Holder, this Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect. Each Guarantor further agrees that, as
between each Guarantor, on the one hand, and the Holders and the Trustee, on the
other hand, (x) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article Seven for the purposes of this Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y) in the
event of any acceleration of such obligations as provided in Article Seven, such
obligations (whether or not due and payable) shall forthwith become due and
payable by each Guarantor for the purpose of this Guarantee.
Section 11.2. Subordination of Guarantee.
The obligations of each Guarantor to the Holders of Securities
pursuant to the Guarantee and this Indenture are expressly subordinate and
subject in right of payment to the prior payment in full of all Guarantor Senior
Debt of such Guarantor, to the extent and in the manner provided in Article
Twelve.
Section 11.3. Severability.
In case any provision of this Guarantee shall be invalid, illegal
or unenforceable, the validity, legality, and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 11.4. Release of a Guarantor.
Upon (i) the release by the lenders under the Credit Agreement,
related documents and future refinancings thereof of all guarantees of a
Guarantor and all Liens on the property and assets of such Guarantor relating to
such Indebtedness, or (ii) the sale or disposition (whether by merger, stock
purchase, asset sale or otherwise) of a Guarantor (or all or substantially all
its assets) to an entity which is not a Subsidiary of the Company and which sale
or disposition is otherwise in compliance with the terms of this Indenture
(including, without limitation, Sections 5.16 and 6.1), such Guarantor shall be
deemed released from all obligations under this Article Eleven without any
further action required on the part of the Trustee or any Holder; PROVIDED,
HOWEVER, that any such termination shall occur only to the extent that all
obligations of such Guarantor under all of its guarantees of, and under all of
its pledges of assets or other security interests which secure, such
Indebtedness of the Company shall also terminate upon such release, sale or
transfer.
The Trustee shall deliver an appropriate instrument evidencing
such release upon receipt of a request by the Company accompanied by an
Officers' Certificate certifying as to the compliance with this Section 11.4.
Any Guarantor not so released remains liable for the full amount of principal of
and interest on, and all other obligations under, the Securities as provided in
this Article Eleven.
Section 11.5. Limitation of Guarantor's Liability.
Each Guarantor and by its acceptance hereof each Holder hereby
confirms that it is the intention of all such parties that the guarantee by such
Guarantor pursuant to its Guarantee not constitute a fraudulent transfer or
conveyance for purposes of the Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar federal or state law. To
effectuate the foregoing intention, the Holders and such Guarantor hereby
irrevocably agree that the obligations of such Guarantor under the Guarantee
shall be limited to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of such Guarantor (including, but not limited
to, the Guarantor Senior Debt of such Guarantor) and after giving effect to any
collections from or payments made by or on behalf of any other Guarantor in
respect of the obligations of such other Guarantor under its Guarantee or
pursuant to Section 11.7, result in the obligations of such Guarantor under the
Guarantee not constituting such fraudulent transfer or conveyance under federal
or state law.
Section 11.6. Guarantors May Consolidate, etc., on Certain Terms.
(a) Nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger of a Guarantor with or into
the Company or another Guarantor or shall prevent any sale or conveyance of the
property of a Guarantor as an entirety or substantially as an entirety, to the
Company or another Guarantor. Upon any such consolidation, merger, sale or
conveyance, the Guarantee given by such Guarantor shall no longer have any force
or effect.
(b) Except as set forth in Article Five and Article Six hereof,
nothing contained in this Indenture or in any of the Securities shall prevent
any consolidation or merger of a Guarantor with or into a corporation or
corporations other than the Company or another Guarantor (whether or not
affiliated with the Guarantor); PROVIDED, HOWEVER, that, subject to Sections
11.4 and 11.6(a), (i) immediately after such transaction, and giving effect
thereto, no Default or Event of Default shall have occurred as a result of such
transaction and be continuing, and (ii) upon any such consolidation, merger,
sale or conveyance, the Guarantee set forth in this Article Eleven, and the due
and punctual performance and observance of all of the covenants and conditions
of this Indenture to be performed by such Guarantor, shall be expressly assumed
(in the event that the Guarantor is not the surviving corporation in the
merger), by supplemental indenture satisfactory in form to the Trustee, executed
and delivered to the Trustee, by the corporation formed by such consolidation,
or into which the Guarantor shall have merged, or by the corporation that shall
have acquired such property. In the case of any such consolidation, merger, sale
or conveyance and upon the assumption by the successor corporation, by
supplemental indenture executed and delivered to the Trustee and satisfactory in
form to the Trustee of the due and punctual performance of all of the covenants
and conditions of this Indenture to be performed by the Guarantor, such
successor corporation shall succeed to and be substituted for the Guarantor with
the same effect as if it had been named herein as a Guarantor; PROVIDED,
HOWEVER, that solely for purposes of computing amounts described in subclause
(c) of Section 5.3(a), any such successor corporation shall only be deemed to
have succeeded to and be substituted for any Guarantor with respect to periods
subsequent to the effective time of such merger, consolidation or transfer of
assets.
Section 11.7. Contribution.
In order to provide for just and equitable contribution among the
Guarantors, the Guarantors agree, inter se, that in the event any payment or
distribution is made by any Guarantor (a "FUNDING GUARANTOR") under the
Guarantee, such Funding Guarantor shall be entitled to a contribution from all
other Guarantors in a pro rata amount based on the Adjusted Net Assets of each
Guarantor (including the Funding Guarantor) for all payments, damages and
expenses incurred by that Funding Guarantor in discharging the Company's
obligations with respect to the Securities or any other Guarantor's obligations
with respect to the Guarantee. "ADJUSTED NET ASSETS" with respect to the
Guarantee of such Guarantor at any date shall mean the lesser of the amount by
which (x) the fair value of the property of such Guarantor exceeds the total
amount of liabilities, including, without limitation, contingent liabilities
(after giving effect to all other fixed and contingent liabilities incurred or
assumed on such date (other than liabilities of such Guarantor under
Indebtedness which is subordinated to such Guarantee)), but excluding
liabilities under the Guarantee, of such Guarantor at such date and (y) the
present fair salable value of the assets of such Guarantor at such date exceeds
the amount that will be required to pay the probable liability of such Guarantor
on its debts (after giving effect to all other fixed and contingent liabilities
incurred or assumed on such date (other than liabilities of such Guarantor under
Indebtedness which is subordinated to such Guarantee) and after giving effect to
any collection from any Subsidiary of such Guarantor in respect of the
obligations of such Subsidiary under the Guarantee), excluding debt in respect
of the Guarantee of such Guarantor, as they become absolute and matured.
Section 11.8. Waiver of Subrogation.
Each Guarantor hereby irrevocably waives any claim or other
rights which it may now or hereafter acquire against the Company that arise from
the existence, payment, performance or enforcement of such Guarantor's
obligations under the Guarantee and this Indenture, including, without
limitation, any right of subrogation, reimbursement, exoneration,
indemnification, and any right to participate in any claim or remedy of any
Holder of Securities against the Company, whether or not such claim, remedy or
right arises in equity, or under contract, statute or common law, including,
without limitation, the right to take or receive from the Company, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim or other rights. If any amount
shall be paid to any Guarantor in violation of the preceding sentence and the
Securities shall not have been paid in full, such amount shall have been deemed
to have been paid to such Guarantor for the benefit of, and held in trust for
the benefit of, the Holders of the Securities, and shall, subject to the
provisions of Section 11.2, Article Four and Article Twelve, forthwith be paid
to the Trustee for the benefit of such Holders to be credited and applied upon
the Securities, whether matured or unmatured, in accordance with the terms of
this Indenture. Each Guarantor acknowledges that it will receive direct and
indirect benefits from the financing arrangements contemplated by this Indenture
and that the waiver set forth in this Section 11.8 is knowingly made in
contemplation of such benefits.
Section 11.9. Execution of Guarantee.
To evidence their guarantee to the Holders set forth in this
Article Eleven, the Guarantors hereby agree to execute the Guarantee in
substantially the form included in EXHIBIT A, which shall be endorsed on each
Security ordered to be authenticated and delivered by the Trustee. Each
Guarantor hereby agrees that its Guarantee set forth in this Article Eleven
shall remain in full force and effect notwithstanding any failure to endorse on
each Security a notation of such Guarantee. Each such Guarantee shall be signed
on behalf of each Guarantor by one Officer (whom shall have been duly authorized
by all requisite corporate actions) and the delivery of such Security by the
Trustee, after the authentication thereof hereunder, shall constitute due
delivery of such Guarantee on behalf of such Guarantor. Such signature upon the
Guarantee may be by manual or facsimile signature of such officer and may be
imprinted or otherwise reproduced on the Guarantee, and in case any such officer
who shall have signed the Guarantee shall cease to be such officer before the
Security on which such Guarantee is endorsed shall have been authenticated and
delivered by the Trustee or disposed of by the Company, such Security
nevertheless may be authenticated and delivered or disposed of as though the
person who signed the Guarantee had not ceased to be such officer of the
Guarantor.
Section 11.10. Waiver of Stay, Extension or Usury Laws.
Each Guarantor covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law or any
usury law or other law that would prohibit or forgive each such Guarantor from
performing its Guarantee as contemplated herein, wherever enacted, now or at any
time hereafter in force, or which may affect the covenants or the performance of
this Indenture; and (to the extent that it may lawfully do so) each such
Guarantor hereby expressly waives all benefit or advantage of any such law, and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
ARTICLE XII.
SUBORDINATION OF GUARANTEE OBLIGATIONS
Section 12.1. Guarantee Obligations Subordinated to Guarantor Senior Debt.
Anything herein to the contrary notwithstanding, each of the
Guarantors, for itself and its successors, and each Holder, by his acceptance of
Guarantees, agrees, that any payment of Obligations by a Guarantor in respect of
its Guarantee (collectively, as to any Guarantor, its "GUARANTEE OBLIGATIONS")
is subordinated, to the extent and in the manner provided in this Article
Twelve, to the prior payment in full in cash or Cash Equivalents of all
Guarantor Senior Debt of such Guarantor.
This Article Twelve shall constitute a continuing offer to all
persons who become holders of, or continue to hold, Guarantor Senior Debt, and
such provisions are made for the benefit of the holders of Guarantor Senior Debt
and such holders are made obligees hereunder and any one or more of them may
enforce such provisions.
The obligations of the Guarantors to the Trustee under Section
8.7 shall not be subject to the provisions of this Article Twelve.
Section 12.2. Suspension of Guarantee Obligations When Guarantor Senior Debt in
Default.
(a) Unless Section 12.3 shall be applicable, upon (1) the
occurrence of a Payment Default with respect to any Designated Senior Debt or
Designated Senior Debt guaranteed by a Guarantor (which guarantee constitutes
Guarantor Senior Debt of such Guarantor) and (2) receipt by the Trustee, the
Company and such Guarantor from the Representatives of written notice of such
occurrence, then no payment (other than payments previously made pursuant to
Article Nine hereof) or distribution of any assets of such Guarantor of any kind
or character shall be made by such Guarantor on account of Obligations on the
Securities or on account of the purchase, redemption or other acquisition of
Securities or any of the obligations of such Guarantor under this Guarantee
unless and until such Payment Default shall have been cured or waived or shall
have ceased to exist or such Designated Senior Debt shall have been discharged
or paid in full cash or Cash Equivalents, after which such Guarantor shall
resume making any and all required payments in respect of its obligations under
this Guarantee.
(b) Unless Section 12.3 shall be applicable upon (1) the
occurrence of a Non-payment Default with respect to any Designated Senior Debt
guaranteed by a Guarantor (which guarantee constitutes Guarantor Senior Debt of
such Guarantor) and (2) the earlier of (i) receipt by the Trustee, the Company
and such Guarantor from the Representatives of written notice of such occurrence
stating that such notice is a "Payment Blockage Notice" pursuant to Sections
4.2(b) and 12.2(b) of this Indenture or (ii) if such Non-payment Default results
from the acceleration of the Securities, the date of the acceleration of the
Securities, no payment (other than payments previously made pursuant to Article
Nine hereof) or distribution of any assets of such Guarantor of any kind or
character shall be made by such Guarantor on account of principal, premium, if
any, or interest on the Securities or on account of the purchase, redemption or
other acquisition of Securities or on account of any of the other obligations of
such Guarantor under this Guarantee for a period ("GUARANTOR PAYMENT BLOCKAGE
PERIOD") commencing on the date of receipt by the Trustee of such notice or the
date of the acceleration referred to in clause (ii) above, as the case may be,
unless and until the earlier to occur of the following events: (w) 180 days
shall have elapsed since receipt of such written notice by the Trustee or the
date of the acceleration of the Securities, as the case may be (PROVIDED, that
such Guarantor Senior Debt shall theretofore not have been accelerated), (x)
such Non-payment Default shall have been cured or waived or shall have ceased to
exist, (y) such Guarantor Senior Debt shall have been discharged or paid in full
in cash or Cash Equivalents or (z) such Guarantor Payment Blockage Period shall
have been terminated by written notice to the Guarantor or the Trustee from the
Representative initiating such Guarantor Payment Blockage Period, or the holders
of at least a majority in principal amount of such issue of such Guarantor
Senior Debt, after which, in the case of clauses (w), (x), (y) or (z), the
Guarantor shall resume making any and all required payments in respect of its
obligations under this Guarantee. Notwithstanding any other provisions of this
Indenture, only one Guarantor Payment Blockage Period may be commenced within
any consecutive 360 day period and no Non-payment Default with respect to
Guarantor Senior Debt guaranteed by any Guarantor (which guarantee constitutes
Guarantor Senior Debt of such Guarantor) which existed or was continuing on the
date of the commencement of any Guarantor Payment Blockage Period shall be, or
be made, the basis for the commencement of a second Guarantor Payment Blockage
Period, whether or not within a period of 360 consecutive days, unless such
event of default shall have been cured or waived for a period of not less than
90 consecutive days. In no event shall a Guarantor Payment Blockage Period
extend beyond 180 days from the date of the receipt of the notice or the date of
the acceleration of the Securities referred to in clause (2) hereof.
(c) In the event that, notwithstanding the foregoing, the Trustee
or the Holder of any Security shall have received any payment prohibited by the
foregoing provisions of this Section 12.2, then and in such event such payment
shall be paid over and delivered forthwith to the Representatives or as a court
of competent jurisdiction shall direct.
Section 12.3. Guarantee Obligations Subordinated to Prior Payment of All
Guarantor Senior Debt on Dissolution, Liquidation or Reorganization of Such
Guarantor.
Upon any payment or distribution of assets of any Guarantor of
any kind or character, whether in cash, property or securities upon any
dissolution, winding up, total or partial liquidation or reorganization of such
Guarantor and whether voluntary or involuntary (including, without limitation,
in bankruptcy, insolvency or receivership proceedings or upon any assignment for
the benefit of creditors or any other marshaling of assets and liabilities of
such Guarantor and whether voluntary or involuntary):
(a) the holders of all Guarantor Senior Debt of such Guarantor
shall first be entitled to receive payments in full in cash or Cash Equivalents
of all amounts payable under Guarantor Senior Debt (including, with respect to
Designated Senior Debt guaranteed by such Guarantor, any interest accruing after
the commencement of any such proceeding at the rate specified in the applicable
Designated Senior Debt whether or not interest is an allowed claim enforceable
against the Company in any such proceeding) before the Holders will be entitled
to receive any payment with respect to the Guarantee, and until all Obligations
with respect to the Guarantor Senior Debt are paid in full in cash or Cash
Equivalents, any distribution to which the Holders would be entitled shall be
made to the holders of Guarantor Senior Debt; PROVIDED, HOWEVER, that no payment
by any other Guarantor or the Company shall constitute payment on behalf of such
Guarantee for purposes of this Section 12.3(a);
(b) any payment or distribution of assets of such Guarantor of
any kind or character, whether in cash, property or securities, to which the
Holders or the Trustee on behalf of the Holders would be entitled except for the
provisions of this Article Twelve, shall be paid by the liquidating trustee or
agent or other person making such a payment or distribution, directly to the
holders of Guarantor Senior Debt of such Guarantor or their Representative,
ratably according to the respective amounts of such Guarantor Senior Debt
remaining unpaid held or represented by each, until all such Guarantor Senior
Debt remaining unpaid shall have been paid in full in cash or Cash Equivalents
after giving effect to any concurrent payment or distribution to the holders of
such Guarantor Senior Debt;
(c) in the event that, notwithstanding the foregoing, any payment
or distribution of assets of such Guarantor of any kind or character, whether in
cash, property or securities, shall be received by the Trustee or the Holders or
any Paying Agent in respect of payment of the Guarantee before all Guarantor
Senior Debt of such Guarantor is paid in full in cash or Cash Equivalents, such
payment or distribution (subject to the provisions of Sections 12.6 and 12.7)
shall be received, segregated from other funds, and held by the Trustee or such
Holder or Paying Agent for the benefit of, and shall immediately be paid over
to, the holders of such Guarantor Senior Debt or their Representative, ratably
according to the respective amounts of such Guarantor Senior Debt held or
represented by each, until all such Guarantor Senior Debt remaining unpaid shall
have been paid in full in cash or Cash Equivalents, after giving effect to any
concurrent payment or distribution to the holders of Guarantor Senior Debt.
Notwithstanding anything to the contrary contained herein, in the absence of its
gross negligence or willful misconduct, the Trustee shall have no duty to
collect or retrieve monies previously paid by it in good faith; PROVIDED, that
this sentence shall not affect the obligation of any other party receiving such
payment to hold such payment for the benefit of, and to pay over such payment
over to, the holders of such Guarantor Senior Debt or their Representative.
Each Guarantor shall give prompt notice to the Trustee prior to
any dissolution, winding up, total or partial liquidation or total or
reorganization (including, without limitation, in bankruptcy, insolvency, or
receivership proceedings or upon any assignment for the benefit of creditors or
any other marshaling of such Guarantor's assets and liabilities).
Section 12.4. Holders of Guarantee Obligations To Be Subrogated to Rights of
Holders of Guarantor Senior Debt.
Subject to the payment in full in cash or Cash Equivalents of all
Guarantor Senior Debt, the Holders of Guarantee Obligations of a Guarantor shall
be subrogated to the rights of the holders of Guarantor Senior Debt of such
Guarantor to receive payments or distributions of assets of such Guarantor
applicable to such Guarantor Senior Debt until all amounts owing on or in
respect of the Guarantee Obligations shall be paid in full in cash, and for the
purpose of such subrogation no payments or distributions to the holders of such
Guarantor Senior Debt by or on behalf of such Guarantor, or by or on behalf of
the Holders by virtue of this Article Twelve, which otherwise would have been
made to the holders, shall, as between such Guarantor and the Holders, be deemed
to be payment by such Guarantor to or on account of such Guarantor Senior Debt,
it being understood that the provisions of this Article Twelve are and are
intended solely for the purpose of defining the relative rights of the Holders,
on the one hand, and the holders of such Guarantor Senior Debt, on the other
hand.
If any payment or distribution to which the Holders would
otherwise have been entitled but for the provisions of this Article Twelve shall
have been applied, pursuant to the provisions of this Article Twelve, to the
payment of all amounts payable under such Guarantor Senior Debt, then the
Holders shall be entitled to receive from the holders of such Guarantor Senior
Debt any payments or distributions received by such holders of such Guarantor
Senior Debt in excess of the amount sufficient to pay all amounts payable under
or in respect of such Guarantor Senior Debt in full in cash or Cash Equivalents.
Section 12.5. Obligations of the Guarantors Unconditional.
Nothing contained in this Article Twelve or elsewhere in this
Indenture or in the Guarantees is intended to or shall impair, as between the
Guarantors and the Holders, the obligation of the Guarantors, which is absolute
and unconditional, to pay to the Holders all amounts due and payable under the
Guarantees as and when the same shall become due and payable in accordance with
their terms, or is intended to or shall affect the relative rights of the
Holders and creditors of the Guarantors other than the holders of the Guarantor
Senior Debt, nor shall anything herein or therein prevent the Trustee or any
Holder from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under this Article
Twelve, of the holders of Guarantor Senior Debt in respect of cash, property or
securities of the Guarantors received upon the exercise of any such remedy. Upon
any payment or distribution of assets of any Guarantor referred to in this
Article Twelve, the Trustee, subject to the provisions of Sections 8.1 and 8.2,
and the Holders shall be entitled to rely upon any order or decree made by any
court of competent jurisdiction in which any dissolution, winding up,
liquidation or reorganization proceedings are pending, or a certificate of the
receiver, trustee in bankruptcy, liquidating trustee or agent or other person
making any payment or distribution to the Trustee or to the Holders for the
purpose of ascertaining the persons entitled to participate in such payment or
distribution, the holders of Guarantor Senior Debt and other Indebtedness of any
Guarantor, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article
Twelve. Nothing in this Section 12.5 shall apply to the claims of, or payments
to, the Trustee under or pursuant to Section 8.7.
Section 12.6. Trustee Entitled To Assume Payments Not Prohibited in Absence of
Notice.
The Trustee shall not at any time be charged with knowledge of
the existence of any facts that would prohibit the making of any payment to or
by the Trustee unless and until the Trustee or any Paying Agent shall have
received notice thereof from the Company or any Guarantor or from one or more
holders of Guarantor Senior Debt or from any Representative therefor and, prior
to the receipt of any such notice, the Trustee, subject to the provisions of
Sections 8.1 and 8.2, shall be entitled in all respects conclusively to assume
that no such fact exists.
Section 12.7. Application by Trustee of Assets Deposited with It.
U.S. Legal Tender or U.S. Government obligations deposited in
trust with the Trustee pursuant to and in accordance with Sections 9.1 and 9.2
shall be for the sole benefit of Holders and, to the extent allocated for the
payment of Securities, shall not be subject to the subordination provisions of
this Article Twelve. Otherwise, any deposit of assets or securities by or on
behalf of a Guarantor with the Trustee or any Paying Agent (whether or not in
trust) for payment of the Guarantee shall be subject to the provisions of this
Article Twelve; PROVIDED, that if prior to the second Business Day preceding the
date on which by the terms of this Indenture any such assets may become
distributable for any purpose (including, without limitation, the payment of
either principal of or interest on any Security) the Trustee or such Paying
Agent shall not have received with respect to such assets the notice provided
for in Section 12.6, then the Trustee or such Paying Agent shall have full power
and authority to receive such assets and to apply the same to the purpose for
which they were received, and shall not be affected by any notice to the
contrary received by it on or after such date. The foregoing shall not apply to
the Paying Agent if the Company or any Subsidiary or Affiliate of the Company is
acting as Paying Agent. Nothing contained in this Section 12.7 shall limit the
right of the holders of Guarantor Senior Debt to recover payments as
contemplated by this Article Twelve.
Section 12.8. No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any Guarantor
Senior Debt to enforce subordination as herein provided shall at any time in any
way be prejudiced or impaired by any act or failure to act on the part of any
Guarantor or by any act or failure to act, in good faith, by any such holder, or
by any non-compliance by any Guarantor with the terms, provisions and covenants
of this Indenture, regardless of any knowledge thereof any such holder may have
or be otherwise charged with.
(b) Without limiting the generality of subsection (a) of this
Section 12.8, the holders of Guarantor Senior Debt may, at any time and from
time to time, without the consent of or notice to the Trustee or the Holders of
the Securities, without incurring responsibility to the Holders of the
Securities and without impairing or releasing the subordination provided in this
Article Twelve or the obligations hereunder of the Holders of the Securities to
the holders of Guarantor Senior Debt, do any one or more of the following: (1)
change the manner, place or terms of payment or extend the time of payment of,
or renew or alter, Guarantor Senior Debt or any instrument evidencing the same
or any agreement under which Guarantor Senior Debt is outstanding; (2) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Guarantor Senior Debt; (3) release any person liable in any
manner for the collection or payment of Guarantor Senior Debt; and (4) exercise
or refrain from exercising any rights against the Company and any other person;
PROVIDED, HOWEVER, that in no event shall any such actions limit the right of
the Holders of the Securities to take any action to accelerate the maturity of
the Securities pursuant to Article Seven hereof or to pursue any rights or
remedies hereunder or under applicable laws if the taking of such action does
not otherwise violate the terms of this Indenture.
(c) Each Holder by accepting a Security agrees that the
Representative of any Guarantor Senior Debt (including, without limitation, the
Credit Agent), in its discretion, without notice or demand and without affecting
any rights of any holder of Guarantor Senior Debt under this Article Twelve, may
foreclose any mortgage or deed of trust covering interests in real property
secured thereby, by judicial or nonjudicial sale; and such Holder hereby waives
any defense to the enforcement by the Representative (including, without
limitation, the Credit Agent) of any Guarantor Senior Debt or by any holder of
any Guarantor Senior Debt against such Holder of this Article Twelve after a
Judicial or nonjudicial sale or other disposition of its interests in real
property secured by such mortgage or deed of trust; and such Holder expressly
waives any defense or benefits that may be derived from California Civil Code
xx.xx. 2808, 2809, 2810, 2819, 2845, 2849 or 2850, or California Code of Civil
Procedure xx.xx. 580a, 580d or 726, or comparable provisions of the laws of any
other jurisdiction or any similar statute in effect in any other jurisdiction.
Section 12.9. Holders Authorize Trustee To Effectuate Subordination of
Guarantee Obligations.
Each Holder of the Guarantee Obligations by his acceptance
thereof authorizes and expressly directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effect the subordination provisions
contained in this Article Twelve, and appoints the Trustee his attorney-in-fact
for such purpose, including, in the event of any dissolution, winding up,
liquidation or reorganization of any Guarantor (whether in bankruptcy,
insolvency or receivership proceedings or upon an assignment for the benefit of
creditors or any other marshaling of assets and liabilities of any Guarantor)
tending towards liquidation or reorganization of the business and assets of any
Guarantor, the immediate filing of a claim for the unpaid balance under its or
his Guarantee obligations in the form required in said proceedings and cause
said claim to be approved. If the Trustee does not file a proper claim or proof
of debt in the form required in such proceeding prior to 30 days before the
expiration of the time to file such claim or claims, then the holders of the
Guarantor Senior Debt or their Representative is hereby authorized to file an
appropriate claim for and on behalf of the Holders of said Guarantee
Obligations. Nothing herein contained shall be deemed to authorize the Trustee
or the holders of Guarantor Senior Debt or their Representative to authorize or
consent to or accept or adopt on behalf of any holder of Guarantee Obligations
any plan of reorganization, arrangement, adjustment or composition affecting the
Guarantee Obligations or the rights of any Holder thereof, or to authorize the
Trustee or the holders of Guarantor Senior Debt or their Representative to vote
in respect of the claim of any holder of Guarantee Obligations in any such
proceeding.
Section 12.10. Right of Trustee To Hold Guarantor Senior Debt.
The Trustee shall be entitled to all of the rights set forth in
this Article Twelve in respect of any Guarantor Senior Debt at any time held by
it to the same extent as any other holder of Guarantor Senior Debt, and nothing
in this Indenture shall be construed to deprive the Trustee of any of its rights
as such holder.
Section 12.11. No Suspension of Remedies.
The failure to make a payment in respect of the Guarantees by
reason of any provision of this Article Twelve shall not be construed as
preventing the occurrence of a Default or an Event of Default under Section 7.1.
Nothing contained in this Article Twelve shall limit the right of
the Trustee or the Holders of Securities to take any action to accelerate the
maturity of the Securities pursuant to Article Seven or to pursue any rights or
remedies hereunder or under applicable law, subject to the rights, if any, under
this Article Twelve of the holders, from time to time, of Guarantor Senior Debt.
Section 12.12. No Fiduciary Duty of Trustee to Holders of Guarantor Senior Debt.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Guarantor Senior Debt, and shall not be liable to any such holders
(other than for its willful misconduct or gross negligence) if it shall in good
faith mistakenly pay over or deliver to the holders of Guarantee Obligations or
the Company or any other person, money or assets to which any holders of
Guarantor Senior Debt shall be entitled by virtue of this Article Twelve or
otherwise. Nothing in this Section 12.12 shall affect the obligation of any
person other than the Trustee to hold such payment for the benefit of, and to
pay such payment over to, the holders of Guarantor Senior Debt or their
Representative.
ARTICLE XIII.
MISCELLANEOUS
Section 13.1. TIA Controls.
If any provision of this Indenture limits, qualifies, or
conflicts with the duties imposed by operation of the TIA, the TIA shall
control.
Section 13.2. Notices.
Any notices or other communications required or permitted
hereunder shall be in writing, and shall be sufficiently given if made by hand
delivery, by telex, by telecopier or registered or certified mail, postage
prepaid, return receipt requested, addressed as follows:
if to the Company or any Guarantor:
Metals USA, Inc.
Xxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Chief Executive Officer
with a copy to:
Xxxxxxxxx & Xxxxxxxxx L.L.P.
Pennzoil Tower
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Attention: Xxxxxxx Xxxxxxxxx, Esq.
if to the Trustee:
U.S. Trust Company of California, N.A.
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Corporate Trust Services - Metals USA, Inc.
with a copy to:
Winston & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
if to the Credit Agent:
The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxx X. Xxxxx
Each of the Company, the Trustee, the Guarantors and the Credit
Agent by written notice to each other such person may designate additional or
different addresses for notices to such person. Any notice or communication to
the Company, the Trustee, the Guarantors and the Credit Agent shall be deemed to
have been given or made as of the date so delivered if personally delivered;
when answered back, if telexed; when receipt is acknowledged, if telecopied; and
five (5) calendar days after mailing if sent by registered or certified mail,
postage prepaid (except that any notice or communication to the Trustee or a
notice of change of address shall not be deemed to have been given until
actually received by the Trustee or the addressee, as applicable).
Any notice or communication mailed to a Holder shall be mailed to
him or her by first class mail or other equivalent means at his or her address
as it appears on the registration books of the Registrar and shall be
sufficiently given to him or her if so mailed within the time prescribed.
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.
Section 13.3. Communications by Holders with Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Securities. The
Company, the Guarantors, the Trustee, the Registrar and any other person shall
have the protection of TIA Section 312(c).
Section 13.4. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company, upon request, shall furnish
to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Section 13.5. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture, other than the Officers'
Certificate required by Section 5.7, shall include:
(1) a statement that the person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he or she
has made such examination or investigation as is necessary to enable him or her
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether or not, in the opinion of each such
person, such condition or covenant has been complied with; PROVIDED, HOWEVER,
that with respect to matters of fact an Opinion of Counsel may rely on an
Officers' Certificate or certificates of public officials.
Section 13.6. Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Paying Agent or Registrar may make reasonable rules for
its functions.
Section 13.7. Legal Holidays.
A "LEGAL HOLIDAY" used with respect to a particular place of
payment is a Saturday, a Sunday or a day on which banking institutions in New
York, New York, in the city in which the principal corporate trust office of the
Trustee is located or at such place of payment are not required to be open. If a
payment date is a Legal Holiday at such place, payment may be made at such place
on the next succeeding day that is not a Legal Holiday, and no interest shall
accrue for the intervening period.
Section 13.8. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. Each of the parties hereto agrees to submit to
the jurisdiction of the courts of the State of New York in any action or
proceeding arising out of or relating to this Indenture.
Section 13.9. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of any of the Company or any of its Subsidiaries. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
Section 13.10. No Recourse Against Others.
No director, officer, employee, stockholder or incorporator of
the Company or its Subsidiaries, as such, shall have any liability for any
obligations of the Company under the Securities or this Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder by accepting a Security waives and releases all such
liability. Such waiver and release are part of the consideration for the
issuance of the Securities.
Section 13.11. Successors.
All agreements of the Company and each Guarantor in this
Indenture and the Securities shall bind their respective successors. All
agreements of the Trustee in this Indenture shall bind its successor.
Section 13.12. Duplicate Originals.
All parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together shall represent the
same agreement.
Section 13.13. Headings and Table of Contents.
The headings and table of contents contained in this Indenture
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Indenture.
Section 13.14. Severability.
In case any one or more of the provisions in this Indenture or in
the Securities shall be held invalid, illegal or unenforceable, in any respect
for any reason, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions shall not in any way be
affected or impaired thereby, it being intended that all of the provisions shall
be enforceable to the full extent permitted by law.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, all as of the date first written above.
METALS USA, INC.
By:/s/ J. XXXXXXX XXXXXXX
Name: J. Xxxxxxx Xxxxxxx
Title: Senior Vice President
and Chief Financial Officer
(Signature Page Continues)
GUARANTORS:
AFFILIATED METALS COMPANY, CORNERSTONE
ALUMINUM COMPANY, INC., CORNERSTONE BUILDING
PRODUCTS, INC., CORNERSTONE METALS
CORPORATION, CORNERSTONE PATIO CONCEPTS,
L.L.C., FEDERAL BRONZE ALLOYS INC., XXXXXX
TITANIUM, LTD., INDEPENDENT METALS CO.,
INC., INTERSTATE STEEL PROCESSING COMPANY,
INTERSTATE STEEL SUPPLY COMPANY, INTERSTATE
STEEL SUPPLY COMPANY OF PITTSBURGH,
INTERSTATE STEEL SUPPLY COMPANY OF MARYLAND,
XXXXXXXX STEEL COMPANY, INC., XXXXX METAL
SERVICENTERS, INC., METALS USA FINANCE
CORP., METALS USA SERVICE CORPORATION, MUSA
GP, INC., MUSA LP, INC., QUEENSBORO STEEL
CORPORATION, X. X. FABRICATING INC., ROYAL
ALUMINUM, INC., SOUTHERN ALLOY OF AMERICA,
INC., STEEL SERVICE SYSTEMS, INC., TEXAS
ALUMINUM INDUSTRIES, INC., UNI-STEEL, INC.,
XXXXX STEEL, INC. and XXXXXXXX STEEL &
SUPPLY CO., INC., as guarantors
By:/s/ J. XXXXXXX XXXXXXX
Name: J. Xxxxxxx Xxxxxxx
Title: Vice President and Director
(for each of the above-listed guarantors)
(Signature Page Continues)
U.S. TRUST COMPANY OF CALIFORNIA,
N.A., as Trustee
By: /s/ XXXXX X. XXXXXX
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
EXHIBIT A
FORM OF SECURITY
[FACE OF SECURITY]
METALS USA, INC.
8 5/8% Senior Subordinated Note due 2008
No. $_______________________
CUSIP No. 591234AA6
METALS USA, INC., a Delaware corporation (the "Company," which
term includes any successor corporation), for value received promises to pay to
____________________ or registered assigns, the principal sum of
________________ Dollars, on February 15, 2008.
Interest Payment Dates: February 15 and August 15 commencing
on August 15, 1998.
Record Dates: February 1 and August 1.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Security to be
signed manually or by facsimile by its duly authorized officer.
Dated: February 11, 1998
METALS USA, INC.
By: /s/J. XXXXXXX XXXXXXX
Name: J. Xxxxxxx Xxxxxxx
Title: Senior Vice President and
Chief Financial Officer
Trustee's Certification of Authentication
This is one of the 8 5/8% Senior
Subordinated Notes Due 2008 described in
the within-mentioned Indenture
U.S. TRUST COMPANY OF CALIFORNIA, N.A.,
as Trustee
By:/s/ XXXXX X. XXXXXX
Authorized Signatory
[REVERSE SIDE OF SECURITY]
METALS USA, INC.
8 5/8% SENIOR SUBORDINATED NOTE DUE 2008
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS
SECURITY IN AN OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL NOT WITHIN TWO
YEARS AFTER THE ORIGINAL ISSUANCE OF THE SECURITY RESELL OR OTHERWISE TRANSFER
THIS SECURITY EXCEPT (A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE
UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A
UNDER THE ACT, (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE ACT, (D) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE ACT (IF AVAILABLE), OR (E) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND (3) AGREES THAT IT WILL
GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY
TO THE EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION,"
"UNITED STATES" AND "U.S. PERSON" HAVE THE MEANING GIVEN TO THEM BY REGULATION S
UNDER THE ACT.
1. Interest.
METALS USA, INC. (the "Company"), promises to pay interest on the
principal amount of this Security at the rate per annum shown above. The Company
will pay interest semi-annually on each February 15 and August 15 of each year
(the "Interest Payment Date"), commencing on August 15, 1998, to the Holders of
record on the immediately preceding February 1 and August 1. Interest on the
Securities will accrue from the most recent date to which interest has been paid
or, if no interest has been paid, from the date of issuance of the Securities.
Interest will be computed on the basis of a 360-day year comprised of twelve
30-day months.
The Company shall pay interest on overdue principal and interest
on overdue installments of interest, to the extent lawful, at a rate equal to
the rate of interest otherwise payable on the Securities.
2. Method of Payment.
The Company shall pay interest on the Securities (except
defaulted interest) to the persons who are the registered Holders at the close
of business on the Record Date immediately preceding the interest Payment Date
even if the Securities are canceled on registration of transfer or registration
of exchange after such Record Date. Holders must surrender Securities to a
Paying Agent to collect principal payments. The Company shall pay principal and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts ("U.S. Legal Tender"). However,
the Company may pay principal and interest by wire transfer of Federal funds, or
interest by its check payable in such U.S. Legal Tender. The Company may deliver
any such interest payment to the Paying Agent or to a Holder at the Holder's
registered address. Notwithstanding the foregoing, the Company shall pay or
cause to be paid all amounts payable with respect to non-DTC eligible Securities
by wire transfer of Federal funds to the account of the Holders of such
Securities.
3. Paying Agent and Registrar.
Initially, U.S. Trust Company of California, N.A. (the "Trustee")
will act as Paying Agent and Registrar. The Company may change any Paying Agent,
Registrar or co-Registrar without notice to the Holders. The Company or any of
its Subsidiaries may, subject to certain exceptions, act as Paying Agent,
Registrar or co-Registrar.
4. Indenture and Guarantees.
The Company issued the Securities under an Indenture, dated as of
February 11, 1998 (the "Indenture"), among the Company, the Guarantors and the
Trustee. Capitalized terms herein are used as defined in the Indenture unless
otherwise defined herein. The terms of the Securities include those stated in
the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S. Code xx.xx. 77aaa-77bbbb) (the "TIA"), as in
effect on the date of the Indenture until such time as the Indenture is
qualified under the TIA, and thereafter as in effect on the date on which the
Indenture is qualified under the TIA. Notwithstanding anything to the contrary
herein, the Securities are subject to all such terms, and Holders of Securities
are referred to the Indenture and said Act for a statement of them. The
Securities are general unsecured obligations of the Company limited in aggregate
principal amount not to exceed $300.0 million, of which $200.0 million will be
offered as of the Issue Date and will mature on February 15, 2008. Payment on
each Security is guaranteed on a senior subordinated basis, jointly and
severally, by the Guarantors pursuant to Article Eleven of the Indenture.
5. Optional Redemption.
On or after February 15, 2003, the Securities may be redeemed in
whole at any time or in part from time to time, at the option of the Company,
upon not less than 30 nor more than 60 days notice, at a redemption price equal
to the applicable percentage of the principal amount thereof set forth below,
together with accrued and unpaid interest (if any) to the Redemption Date, if
redeemed during the twelve-month period commencing on February 15 of the year
set forth below:
Year Redemption Price
---- ----------------
2003 ............................... 104.313%
2004 ............................... 102.875%
2005 ............................... 101.438%
2006 and thereafter ................ 100.000%
In addition, on or prior to February 15, 2001, the Company may,
at its option, use the net cash proceeds of one or more Public Equity Offering
to redeem the Securities at a Redemption Price equal to 108.625% of the
principal amount thereof plus accrued and unpaid interest thereon, if any, to
the Redemption Date; PROVIDED, that at least 65% of the principal amount of
Securities originally issued remains outstanding immediately after any such
redemption. In order to effect the foregoing redemption with the proceeds of any
Public Equity Offering, the Company shall make such redemption not more than 120
days after the consummation of any such Public Equity Offering.
6. Notice of Redemption.
Notice of redemption will be mailed at least 30 days but not more
than 60 days before the Redemption Date to each Holder of Securities to be
redeemed at such Holder's registered address. In order to effect a redemption
with the proceeds of a Public Equity Offering, the Company shall send the
redemption notice not later than 120 days after the consummation of such Public
Equity Offering. Securities in denominations larger than $1,000 may be redeemed
in part.
Except as set forth in the Indenture, from and after any
Redemption Date, if monies for the redemption of the Securities called for
redemption shall have been deposited with the Paying Agent for redemption on
such Redemption Date and payment of the Securities called for redemption is not
prohibited under Article Four or Article Twelve of the Indenture, then, unless
the Company defaults in the payment of such Redemption Price, the Securities
called for redemption will cease to bear interest and the only right of the
Holders of such Securities will be to receive payment of the Redemption Price.
7. Change of Control Offer.
Upon the occurrence of a Change of Control, each Holder shall
have the right to require the repurchase of such Holder's Securities pursuant to
a Change of Control Offer at a purchase price equal to 101% of the principal
amount thereof plus accrued interest, if any, to the date of purchase. The
Company shall not be required to repurchase Securities until it has complied
with its covenants to (i) repay in full and terminate all commitments under
Indebtedness under the Credit Agreement and all other Senior Debt the terms of
which require repayment upon a Change of Control or offer to repay in full and
terminate all commitments under all Indebtedness under the Credit Agreement and
all other such Senior Debt and to repay the Indebtedness owed to each lender
which has accepted such offer or (ii) obtain the requisite consents under the
Credit Agreement and all other Senior Debt to permit the repurchase of the Notes
as provided below.
8. Limitation on Asset Sales.
Under certain circumstances the Company is required to apply the
net proceeds from Asset Sales to the repayment of Senior Debt, an investment in
properties and assets that replace the properties and assets that are the
subject of such Asset Sale, an investment in properties and assets that will be
used in the business of the Company and its Restricted Subsidiaries existing on
the Issue Date or in businesses reasonably related thereto or to purchase in a
Net Proceeds Offer (at a price equal to 100% of the aggregate principal amount
thereof, plus accrued interest to the date of purchase) such aggregate principal
amount of Securities which, when added to the accrued interest thereon, shall be
equal to the net proceeds required to be applied thereto.
9. Denominations; Transfer; Exchange.
The Securities are in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder shall
register the transfer of or exchange Securities in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay certain transfer
taxes or similar governmental charges payable in connection therewith as
permitted by the Indenture. The Registrar need not register the transfer of or
exchange any Securities or portions thereof selected for redemption.
10. Persons Deemed Owners.
The registered Holder of a Security shall be treated as the owner
of it for all purposes.
11. Unclaimed Money.
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee and the Paying Agents will pay the money
back to the Company at its request. After that, all liability of the Trustee and
such Paying Agents with respect to such money shall cease.
12. Discharge Prior to Redemption or Maturity.
If the Company at any time deposits with the Trustee U.S. Legal
Tender or U.S. Government Obligations sufficient to pay the principal of and
interest on the Securities to redemption or maturity and complies with the other
provisions of the Indenture relating thereto, the Company will be discharged
from certain provisions of the Indenture and the Securities (including the
financial covenants, but excluding its obligation to pay the principal of and
interest on the Securities).
13. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture, the Securities and
the Guarantees may be amended or supplemented with the written consent of the
Holders of at least a majority in aggregate principal amount of the Securities
then outstanding, and any existing Default or Event of Default or compliance
with any provision may be waived with the consent of the Holders of a majority
in aggregate principal amount of the Securities then outstanding except a
default in payment of the principal of or interest on any Securities. Without
notice to or consent of any Holder, the parties thereto may amend or supplement
the Indenture or the Securities to, among other things, cure any ambiguity,
defect or inconsistency, comply with Article Six or Section 11.6 of the
Indenture, so long as such change does not adversely affect the rights of any of
the Holders in any material respect.
14. Restrictive Covenants.
The Indenture imposes certain limitations on the ability of the
Company and its Subsidiaries to, among other things, incur additional
Indebtedness or Liens, make payments in respect of its Capital Stock and merge
or consolidate with any other person and sell, lease, transfer or otherwise
dispose of substantially all of its properties or assets. The limitations are
subject to a number of important qualifications and exceptions. The Company must
annually report to the Trustee on compliance with such limitations.
15. Subordination.
The Securities will be subordinated in right of payment to the
prior payment in full of all Senior Debt of the Company. The Guarantees are
subordinated in right of payment, in the manner and to the extent set forth in
the Indenture, to the prior payment in full of Guarantor Senior Debt. To the
extent and in the manner provided in the Indenture, Senior Debt, and in the case
of payment by a Guarantor, Guarantor Senior Debt, must be paid before any
payment may be made to any Holder of this Security. Any Holder by accepting this
Security agrees to the subordination and authorizes the Trustee to give it
effect.
16. Successors.
When a successor assumes all the obligations of its predecessor
under the Securities and the Indenture, the predecessor will be released from
those obligations.
17. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee or
the Holders of at least 25% in aggregate principal amount of Securities then
outstanding may declare all the Securities to be due and payable immediately in
the manner and with the effect provided in the Indenture. Holders of Securities
may not enforce the Indenture or the Securities except as provided in the
Indenture. The Trustee may require indemnity satisfactory to it before it
enforces the Indenture or the Securities. Subject to certain limitations,
Holders of a majority in aggregate principal amount of the Securities then
outstanding may direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Holders of Securities notice of any continuing Default
or Event of Default (except a Default in payment of principal or interest) if it
determines that withholding notice is in their interest.
18. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Securities and may otherwise deal
with the Company, its Subsidiaries or their respective Affiliates as if it were
not the Trustee.
19. No Recourse Against Others.
No stockholder, director, officer, employee or incorporator, as
such, of the Company shall have any liability for any obligation of the Company
under the Securities or the Indenture or for any claim based on, in respect of
or by reason of, such obligations or their creation. Each Holder of a Security
by accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Securities.
20. Authentication.
This Security shall not be valid until the Trustee or
authenticating agent manually signs the certificate of authentication on this
Security.
21. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a
Security or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
22. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company will cause CUSIP numbers
to be printed on the Securities immediately prior to the qualification of the
Indenture under the TIA as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
The Company will furnish to any Holder of a Security upon written
request and without charge a copy of the Indenture. Requests may be made to:
Metals USA, Inc., Xxxxx Xxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000, Attention:
Secretary.
[FORM OF NOTATION ON NOTE RELATING TO GUARANTEE]
GUARANTEE
For value received, the undersigned hereby unconditionally
guarantees, as principal obligor and not only as a surety, to the Holder of this
Security the cash payments in United States dollars of principal of, premium, if
any, and interest on this Security (and including Additional Interest payable
thereon) in the amounts and at the times when due and interest on the overdue
principal, premium, if any, and interest, if any, of this Security, if lawful,
and the payment or performance of all other obligations of the Company under the
Indenture or the Securities, to the Holder of this Security and the Trustee, all
in accordance with and subject to the terms and limitations of this Security,
Article Twelve of the Indenture and this Guarantee. This Guarantee will become
effective in accordance with Article Twelve of the Indenture and its terms shall
be evidenced therein. The validity and enforceability of any Guarantee shall not
be affected by the fact that it is not affixed to any particular Security.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Indenture dated as of February 11, 1998, among
Metals USA, Inc., a Delaware corporation, the Guarantors named therein and U.S.
Trust Company of California, N.A., as trustee (the "Trustee"), as amended or
supplemented (the "Indenture").
The obligations of the undersigned to the Holder of this Security
and to the Trustee pursuant to this Guarantee and the Indenture are expressly
set forth in Article Twelve of the Indenture and reference is hereby made to the
Indenture for the precise terms of the Guarantee and all of the other provisions
of the Indenture to which this Guarantee relates.
THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF
CONFLICTS OF LAW. Each Guarantor hereby agrees to submit to the jurisdiction of
the courts of the State of New York in any action or proceeding arising out of
or relating to this Guarantee.
This Guarantee is subject to release upon the terms set forth in
the Indenture.
(Signature Page Follows)
GUARANTORS:
AFFILIATED METALS COMPANY, CORNERSTONE
ALUMINUM COMPANY, INC., CORNERSTONE BUILDING
PRODUCTS, INC., CORNERSTONE METALS
CORPORATION, CORNERSTONE PATIO CONCEPTS,
L.L.C., FEDERAL BRONZE ALLOYS INC.,
INDEPENDENT METALS CO., INC., INTERSTATE
STEEL PROCESSING COMPANY, INTERSTATE STEEL
SUPPLY COMPANY, INTERSTATE STEEL SUPPLY
COMPANY OF PITTSBURGH, INTERSTATE STEEL
SUPPLY COMPANY OF MARYLAND, XXXXXX TITANIUM,
LTD., XXXXXXXX STEEL COMPANY, INC., XXXXX
METAL SERVICENTERS, INC., METALS USA FINANCE
CORP., METALS USA MANAGEMENT CO., L.P.,
METALS USA SERVICE CORPORATION, MUSA GP,
INC., MUSA LP, INC., QUEENSBORO STEEL
CORPORATION, X. X. FABRICATING INC., ROYAL
ALUMINUM, INC., SOUTHERN ALLOY OF AMERICA,
INC., STEEL SERVICE SYSTEMS, INC., TEXAS
ALUMINUM INDUSTRIES, INC., UNI-STEEL, INC.,
XXXXX STEEL, INC. and XXXXXXXX STEEL &
SUPPLY CO., INC., as guarantors
By: /s/J. XXXXXXX XXXXXXX
Name: J. Xxxxxxx Xxxxxxx
Title: Vice President and Director
(for each of the above-listed guarantors)
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to:
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Print or type assignee's name, address and zip code)
______________________________________________________________________________
(Print or type assignee's Social Security or other identifying number)
and irrevocably appoint ________________________________________________________
as agent to transfer this Security on the books of the Company. The agent
may substitute another to act for him or her.
Dated:____________________ Signature:_______________________________
(Sign exactly as your name appears on
the face of this Security)
Signature
Guarantee:______________________________
Note: Signature must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Securities Transfer Agents Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the
Registrar in addition to, or in substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.
In connection with any transfer of this Security occurring prior
to the date which is the earlier of (i) the date of the declaration by the
Commission of the effectiveness of a registration statement under the Securities
Act of 1933, as amended (the "Securities Act") covering resales of this Security
(which effectiveness shall not have been suspended or terminated at the date of
the transfer) and (ii) the second anniversary of the Issue Date (PROVIDED,
HOWEVER, that neither the Company nor any affiliate of the Company has held any
beneficial interest in such Security, or portion thereof, at any time on or
prior to the second anniversary of the Issue Date), the undersigned confirms
that it has not utilized any general solicitation or general advertising in
connection with the transfer:
[Check One]
(1) ____ to the Company or a Subsidiary thereof; or
(2) ____ pursuant to and in compliance with Rule 144A under the Securities
Act of 1933, as amended; or
(3) ____ to an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as
amended) that has furnished to the Trustee a signed letter
containing certain representations and agreements (the form of
which letter can be obtained from the Trustee); or
(4) ____ outside the United states to a "foreign person" in compliance
with Rule 904 of Regulation S under the Securities Act of 1933,
as amended; or
(5) ____ pursuant to the exemption from registration provided by Rule 144
under the Securities Act of 1933, as amended; or
(6) ____ pursuant to an effective registration statement under the
Securities Act of 1933, as amended; or
(7) ____ pursuant to another available exemption from the
registration requirements of the Securities Act of 1933, as
amended.
and unless the box below is checked, the undersigned confirms that such Security
is not being transferred to an "affiliate"' of the Company as defined in Rule
144 under the Securities Act of 1933, as amended (an "Affiliate"):
[ ] The transferee is an Affiliate of the Company.
Unless one of the items is checked, the Trustee will refuse to register any of
the Securities evidenced by this certificate in the name of any person other
than the registered Holder thereof; PROVIDED, HOWEVER, that if item (3), (4),
(5) or (7) is checked, the Company or the Trustee may require, prior to
registering any such transfer of the Securities, in their sole discretion, such
written legal opinions, certifications (including an investment letter in the
case of box (3) or (4)) and other information as the Trustee or the Company 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, as amended.
If none of the foregoing items are checked, the Trustee or
Registrar shall not be obligated to register this Security in the name of any
person other than the Holder hereof unless and until the conditions to any such
transfer of registration set forth herein and in Section 2.17 of the Indenture
shall have been satisfied.
Dated: ____________________ Signed: ________________________________
(Sign exactly as your name appears on the
other side of this Security)
Signature Guarantee:________________________________________________________
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing
this Security 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, as amended 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 Company 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.
Dated:___________________ Signed:____________________________
NOTICE: To be executed by an executive officer
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 5.15 or 5.16 of the Indenture, check the box below:
[ ] Section 5.15 [ ] Section 5.16
If you want to elect to have only part of the Security purchased
by the Company pursuant to Section 5.15 or Section 5.16 of the Indenture, as the
case may be, state the amount you elect to have purchased: $_________________.
Date:_______________________
___________________________________
(Sign exactly as your name appears
on the face of this Security)
Tax Identification No:_____________
___________________________________
(Signature Guaranteed)
Note: Signature must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Securities Transfer Agents Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the
Registrar in addition to, or in substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.
EXHIBIT B
[FORM OF LEGEND FOR GLOBAL SECURITIES]
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY, OR BY ANY SUCH NOMINEE OF THE
DEPOSITORY, OR BY THE DEPOSITORY, OR BY ANY SUCH NOMINEE OF THE DEPOSITORY, OR
BY THE DEPOSITORY OR NOMINEE OF SUCH SUCCESSOR DEPOSITORY OR ANY SUCH NOMINEE TO
A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTION 2.17 OF THE INDENTURE.
EXHIBIT C
Form of Certificate To Be
Delivered in Connection with
TRANSFERS TO NON-QIB ACCREDITED INVESTORS
------------- --, ----
[Address]
Re: METALS USA, INC. (the "Company") -
8 5/8% SENIOR SUBORDINATED NOTES DUE 2008 (THE "NOTES")
Ladies and Gentlemen:
In connection with our proposed purchase of 8 5/8% Senior
Subordinated Notes due 2008 (the "Notes") of METALS USA, INC. (the "Company"),
we confirm that:
1. We understand that any subsequent transfer of the Notes is
subject to certain restrictions and conditions set forth in the indenture
relating to the Notes (the "Indenture") and the undersigned agrees to be bound
by, and not to resell, pledge or otherwise transfer the Notes except in
compliance with, such restrictions and conditions and the Securities Act of
1933, as amended (the "Securities Act"), and all applicable State securities
laws.
2. We understand that the offer and sale of the Notes have not
been registered under the Securities Act or any other applicable securities law,
and that the Notes may not be offered or sold within the United States or to, or
for the account or benefit of, U.S. persons except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any accounts for which we
are acting as hereinafter stated, that if we should sell any Notes, we will do
so only (i) to the Company or any subsidiary thereof, (ii) inside the United
States in accordance with Rule 144A under the Securities Act to a person who we
reasonably believe is a "qualified institutional buyer" (as defined in Rule 144A
promulgated under the Securities Act), (iii) inside the United States to an
institutional "accredited investor" (as defined below) that, prior to such
transfer, furnishes (or has furnished on its behalf by a U.S. broker-dealer) to
the Trustee (as defined in the Indenture) a signed letter containing certain
representations and agreements relating to the restrictions on transfer of the
Notes (the form of which letter can be obtained from the Trustee), (iv) outside
the United States in accordance with Rule 904 of Regulation S promulgated under
the Securities Act, (v) pursuant to the exemption from registration provided by
Rule 144 under the Securities Act (if available), or (vi) pursuant to an
effective registration statement under the Securities Act, and we further agree
to provide to any person purchasing any of the Notes from us a notice advising
such purchaser that resales of the Notes are restricted as stated herein.
3. We understand that, on any proposed resale of any Notes, we
will be required to furnish to the Trustee and the Company such certification,
legal opinions and other information as the Trustee and the Company may
reasonably require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Notes purchased by us will bear a
legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and
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 and any accounts for which we are acting are each able to bear the economic
risk of our or their investment, as the case may be.
5. We are acquiring the Notes purchased by us for our account or
for one or more accounts (each of which is an institutional "accredited
investor") as to each of which we exercise sole investment discretion.
6. We have received a copy of the Company's Offering Memorandum
dated February 6, 1998 and acknowledge that we have had access to such financial
and other information and have been afforded the opportunity to ask such
questions of representatives of the Company and receive answers thereto, as we
deem necessary in connection with our decision to purchase the Notes.
You, the Company, the Trustee, the Initial Purchasers and others
are entitled to rely upon this letter and are irrevocably authorized to produce
this letter or a copy hereof to any interested party in any administrative or
legal proceeding or official inquiry with respect to the matters covered hereby.
Very truly yours,
______________________________________
[Name of Transferee]
By:____________________________________
Name:___________________________________
Title:___________________________________
EXHIBIT D
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
-------------- ---, -----
[Address]
Re: METALS USA, INC. (the "Company") -
8 5/8% SENIOR SUBORDINATED NOTES DUE 2008 (THE "NOTES")
Ladies and Gentlemen:
In connection with our proposed sale of $[_________] aggregate
principal amount of the Notes, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the U.S. Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Notes was not made to a person in the United
States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United States, or
(b) the transaction was executed in, on or through the facilities of a
designated offshore securities market and neither we nor any person acting on
our behalf knows that the transaction has been prearranged with a buyer in the
United States;
(3) no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) we have advised the transferee of the transfer restrictions
applicable to the Notes.
You, the Company, the Trustee and counsel for the Company are
entitled to rely upon this letter and are irrevocably authorized to produce this
letter or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby.
Terms used in this certificate have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferee]
By:___________________________________
Authorized Signature
