Exhibit T3C
SUPERIOR TELECOMMUNICATIONS LLC, as Issuer,
THE GUARANTORS (as defined herein), as Guarantors,
[TRUSTEE], as Trustee
INDENTURE
Dated as of [Plan Effective Date], 2003
$145,000,000
Second Priority Secured Notes due 2008
TABLE OF CONTENTS
Page
ARTICLE 1 Definitions and Incorporation By Reference..........................2
SECTION 1.1. Definitions........................................2
SECTION 1.2. Other Definitions.................................24
SECTION 1.3. Incorporation by Reference of Trust
Indenture Act.....................................24
SECTION 1.4. Rules of Construction.............................24
ARTICLE 2 The Senior Notes...................................................25
SECTION 2.1. Dating; Incorporation of Form in Indenture........25
SECTION 2.2. Execution and Authentication......................25
SECTION 2.3. Agents............................................26
SECTION 2.4. Paying Agent to Hold Money in Trust...............27
SECTION 2.5. Noteholder Lists..................................27
SECTION 2.6. Transfer and Exchange.............................27
SECTION 2.7. Replacement Senior Notes..........................28
SECTION 2.8. Outstanding Senior Notes..........................29
SECTION 2.9. Temporary Senior Notes............................29
SECTION 2.10. Cancellation......................................29
SECTION 2.11. Defaulted Interest................................29
SECTION 2.12. Deposit of Moneys.................................30
SECTION 2.13. CUSIP Number......................................30
SECTION 2.14. Payments to Holders...............................30
SECTION 2.15. Book-Entry Provisions for Global Notes............31
SECTION 2.16. Record Date.......................................32
ARTICLE 3 Redemption.........................................................32
SECTION 3.1. Notices to Trustee................................32
SECTION 3.2. Selection by Trustee of Senior Notes
to Be Redeemed................................. ..32
SECTION 3.3. Notice of Redemption..............................32
SECTION 3.4. Effect of Notice of Redemption....................33
SECTION 3.5. Deposit of Redemption Price.......................33
SECTION 3.6. Senior Notes Redeemed in Part.....................34
SECTION 3.7. Optional Redemption...............................34
ARTICLE 4 Covenants..........................................................34
SECTION 4.1. Payment of Senior Notes...........................34
SECTION 4.2. Reports...........................................34
SECTION 4.3. Waiver of Stay, Extension or Usury Laws...........35
SECTION 4.4. Compliance Certificate............................35
SECTION 4.5. Taxes ............................................36
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SECTION 4.6. Change of Control.................................36
SECTION 4.7. Limitation on Additional Indebtedness.............38
SECTION 4.8. Limitation on Restricted Payments.................39
SECTION 4.9. Limitations on Liens..............................41
SECTION 4.10. Limitation on Certain Asset Sales.................41
SECTION 4.11. Limitation on Transactions with Affiliates........43
SECTION 4.12. Limitations on Investments........................44
SECTION 4.13. Future Subsidiary Guarantors......................44
SECTION 4.14. Designation of Subsidiaries and
Unrestricted Subsidiaries.........................44
SECTION 4.15. Limitation on Dividends and Other
Payment Restrictions Affecting Subsidiaries.......45
SECTION 4.16. Restriction on Sale and Issuance of Certain
Subsidiary Equity Interests.......................46
SECTION 4.17. [Limitation on Sale and Lease-Back
Transactions......................................46
SECTION 4.18. Conduct of Business...............................46
SECTION 4.19. Limitation on Status as Investment Company........47
SECTION 4.20. Corporate Existence...............................47
SECTION 4.21. Maintenance of Office or Agency...................47
SECTION 4.22. Maintenance of Insurance; Books and
Records; Compliance with Laws.....................47
SECTION 4.23. Further Assurances to the Trustee.................48
SECTION 4.24. Collateral Documents..............................48
SECTION 4.25. Subsidiary Guarantees.............................48
SECTION 4.26. Future Pledges of Collateral to Secure
Secondary Senior Notes............................49
SECTION 4.27. Additional Pledges................................49
ARTICLE 5 Successor Corporation..............................................49
SECTION 5.1. Merger, Consolidation or Sale of Assets...........49
SECTION 5.2. Successor Person Substituted......................50
ARTICLE 6 Defaults and Remedies..............................................50
SECTION 6.1. Events of Default.................................50
SECTION 6.2. Acceleration......................................52
SECTION 6.3. Other Remedies....................................52
SECTION 6.4. Waiver of Defaults and Events of Default..........53
SECTION 6.5. Control by Majority...............................53
SECTION 6.6. Limitation on Suits...............................53
SECTION 6.7. Rights of Holders to Receive Payment..............54
SECTION 6.8. Collection Suit by Trustee........................54
SECTION 6.9. Trustee May File Proofs of Claim..................54
SECTION 6.10. Priorities........................................54
SECTION 6.11. Undertaking for Costs.............................55
SECTION 6.12. Restoration of Rights and Remedies................55
SECTION 6.13. Delay or Omission Not Waiver......................55
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ARTICLE 7 Trustee............................................................55
SECTION 7.1. Duties of Trustee.................................55
SECTION 7.2. Rights of Trustee.................................56
SECTION 7.3. Individual Rights of Trustee......................57
SECTION 7.4. Trustee's Disclaimer..............................58
SECTION 7.5. Notice of Defaults................................58
SECTION 7.6. Reports by Trustee to Holders.....................58
SECTION 7.7. Compensation and Indemnity........................58
SECTION 7.8. Replacement of Trustee............................59
SECTION 7.9. Successor Trustee by Consolidation,
Merger or Conversion..............................60
SECTION 7.10. Eligibility; Disqualification.....................60
SECTION 7.11. Preferential Collection of Claims
Against Company...................................60
SECTION 7.12. Paying Agents.....................................60
SECTION 7.13. Co-Trustee and Separate Trustees..................61
ARTICLE 8 Amendments, Supplements and Waivers................................62
SECTION 8.1. Without Consent of Holders........................62
SECTION 8.2. With Consent of Holders...........................63
SECTION 8.3. Compliance with Trust Indenture Act...............64
SECTION 8.4. Revocation and Effect of Consents.................64
SECTION 8.5. Notation on or Exchange of Senior Notes...........65
SECTION 8.6. Trustee to Sign Amendments, etc...................65
ARTICLE 9 Discharge Of Indenture; Defeasance.................................65
SECTION 9.1. Discharge of Indenture............................65
SECTION 9.2. Legal Defeasance..................................66
SECTION 9.3. Covenant Defeasance...............................66
SECTION 9.4. Conditions to Legal Defeasance or
Covenant Defeasance...............................66
SECTION 9.5. Deposited Money and U.S. Government
Obligations to Be Held in Trust; Other
Miscellaneous Provisions..........................68
SECTION 9.6. Reinstatement.....................................68
SECTION 9.7. Moneys Held by Paying Agent.......................69
SECTION 9.8. Moneys Held by Trustee............................69
SECTION 9.9. Senior Note Collateral............................69
ARTICLE 10 Collateral And Security...........................................69
SECTION 10.1. Security..........................................69
SECTION 10.2. Certificates, Opinions and Recording..............70
SECTION 10.3. Release of Collateral.............................71
SECTION 10.4. Protection of the Trust Estate....................73
SECTION 10.5. Certificates of the Company.......................73
SECTION 10.6. Certificates of the Trustee.......................73
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SECTION 10.7. Authorization of Actions to be Taken by
the Trustee Under the Collateral Documents........74
SECTION 10.8. Authorization of Receipt of Funds by the
Trustee Under the Collateral Documents............74
SECTION 10.9. Termination of Security Interest..................74
SECTION 10.10. Cooperation of Trustee............................75
SECTION 10.11. Collateral Trustee................................75
SECTION 10.12. RESERVED..........................................75
SECTION 10.13. Agents Under Collateral Documents.................75
ARTICLE 11 Guarantee of Senior Notes.........................................75
SECTION 11.1. Guarantee.........................................75
SECTION 11.2. Execution and Delivery of Guarantees..............76
SECTION 11.3. Limitation of Guarantee...........................77
SECTION 11.4. Release of Guarantor..............................77
SECTION 11.5. Additional Guarantors.............................78
ARTICLE 12 Miscellaneous.....................................................78
SECTION 12.1. Trust Indenture Act Controls......................78
SECTION 12.2. Notices...........................................78
SECTION 12.3. Communications by Holders with Other Holders......79
SECTION 12.4. Certificate and Opinion as to Conditions
Precedent.........................................79
SECTION 12.5. Statements Required in Certificate and Opinion....79
SECTION 12.6. When Treasury Senior Notes Disregarded............80
SECTION 12.7. Rules by Trustee and Agents.......................80
SECTION 12.8. Business Days; Legal Holidays.....................80
SECTION 12.9. GOVERNING LAW.....................................80
SECTION 12.10. No Adverse Interpretation of Other Agreements.....80
SECTION 12.11. No Recourse Against Others........................81
SECTION 12.12. Successors........................................81
SECTION 12.13. Multiple Counterparts.............................81
SECTION 12.14. Table of Contents, Headings, etc..................81
SECTION 12.15. Separability......................................81
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EXHIBITS
Exhibit A Form of Guarantee Notation
Exhibit B Form of Senior Note
Exhibit C Form of Global Note Legend
Exhibit D Form of Supplemental Indenture
SCHEDULES
Schedule 1 List of Guarantors
Schedule 1.1C Certain Unrestricted Subsidiaries
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THIS INDENTURE is dated as of [Plan Effective Date], 2003 (the
"Effective Date"), among SUPERIOR TELECOMMUNICATIONS LLC, a Delaware limited
liability company, as Issuer (the "Company"), [NEW HOLDCO], ("Holdings"), each
subsidiary of the Company listed in the signature pages (each a "Subsidiary
Guarantor") and together with Holdings, the "Guarantors"), and [TRUSTEE], a New
York banking corporation, as trustee (the "Trustee").
RECITALS
WHEREAS, on March 3, 2003, Holdings, the Company and certain of its
wholly-owned subsidiaries filed a voluntary petition under Chapter 11 of the
United States Code, as amended (the "Bankruptcy Code") with the United States
Bankruptcy Court for the District of Delaware, (the "Bankruptcy Court");
WHEREAS, Holdings, the Company and the Guarantors filed a Plan of
Reorganization (the "Plan") which was approved by the Bankruptcy Court on [ ],
2003;
WHEREAS, pursuant to the Plan, the Company is required to issue the
Senior Notes (as defined herein), to certain holders of indebtedness of the
Company and certain of its Guarantors outstanding on the date the Plan was
approved by the Bankruptcy Court;
WHEREAS, the Company has duly authorized the creation of an issue of
9.5% Second Priority Secured Notes due 2008 and any Secondary Senior Notes (as
defined herein), if any, that may be issued pursuant to paragraph 1 of the
Senior Notes (the "Senior Notes") and, to provide therefore, the Company has
duly authorized the execution and delivery of this Indenture;
WHEREAS, all things necessary to make the Senior Notes, when executed
by the Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid and binding agreement of the Company, in accordance with their and its
terms, have been done;
WHEREAS, each of the Guarantors has duly authorized its Guarantee (as
defined below) of the Senior Notes and Secondary Senior Notes, if any, and, to
provide therefore, each Guarantor has duly authorized the execution and delivery
of this Indenture; and
WHEREAS, all things necessary to make the Guarantees, when executed by
the Guarantors and when the Senior Notes have been authenticated and delivered
hereunder and duly issued by the Company, the valid and binding obligations of
the Guarantors, and to make this Indenture a valid agreement of the Guarantors,
in accordance with their and its terms, have been done;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the acquisition of the
Senior Notes for the Holders thereof, it is mutually agreed, for the equal and
ratable benefit of all Holders of the Senior Notes, as follows:
ARTICLE 1
Definitions and Incorporation By Reference
------------------------------------------
SECTION 1.1. Definitions. All terms defined in the Plan of
Reorganization shall have such defined meanings when used herein or in any
Exhibit hereto unless otherwise defined herein or therein. As used in this
Agreement, the following terms shall have the following meanings:
"Acquired Indebtedness" means Indebtedness of a Person existing at the
time such Person becomes a Subsidiary or assumed in connection with an Asset
Acquisition from such Person.
"Acquisition Indebtedness" means Indebtedness incurred by the Company
or by a Subsidiary after the Issue Date the proceeds of which are used for an
Asset Acquisition.
"Additional Amounts" has the meaning set forth in paragraph 1 of the
Senior Notes.
"Adjusted Net Assets" of a Guarantor at any date shall mean the lesser
of (x) the amount by which the fair value of the property of such Guarantor
exceeds the total amount of liabilities (after giving effect to all fixed and
contingent liabilities (including, without limitation, any guarantees of
Indebtedness)), but excluding liabilities under the Guarantee, of such Guarantor
at such date and (y) the amount by which the present fair salable value of the
assets of such Guarantor at such date exceeds the total amount of its debts
(after giving effect to all fixed and contingent liabilities (including, without
limitation, any guarantees of Indebtedness), and after giving effect to any
collection from any Subsidiary of such Guarantor in respect of the obligations
of such Subsidiary under the Guarantee), but excluding liabilities under the
Guarantee.
"Administrative Agent" means [ ], as Administrative Agent
for the holders of the Senior Indebtedness under the Credit Agreement, together
with any successor Administrative Agent appointed pursuant thereto.
"Affiliate" of any specified Person means any other Person which
directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, such specified Person. For the
purposes of this definition, "control" (including, with correlative meanings,
the terms "controlling," "controlled by," and "under common control with"), as
used with respect to any Person, means the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of
such Person, whether through the ownership of voting securities, by agreement or
otherwise; provided that beneficial ownership of 30% or more of the voting
securities of the Company or Holdings shall be deemed to be control solely for
purposes of this Indenture.
"Agent" means any Registrar, Paying Agent, co-registrar or agent for
service of notices and demands.
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"Applicable Procedures" means, with respect to any transfer or exchange
of or for beneficial interests in any Global Note, the rules and procedures of
the Depositary, Euroclear and Clearstream that apply to such transfer or
exchange.
"Asset Acquisition" means (a) an Investment by the Company or any
Subsidiary of the Company in any other Person pursuant to which such Person
shall become a Subsidiary of the Company, or shall be merged with or into the
Company or any Subsidiary of the Company, (b) the acquisition by the Company or
any Subsidiary of the Company of the assets of any Person (other than a
Subsidiary of the Company) which constitute all or substantially all of the
assets of such Person or (c) the acquisition by the Company or any Subsidiary of
the Company of any division or line of business of any Person (other than a
Subsidiary of the Company).
"Asset Sale" means the direct or indirect sale, transfer, issuance,
conveyance, lease, sub-lease (as lessor or sublessor) (other than operating
leases entered into in the ordinary course of business pursuant to ordinary
business terms), assignment or other disposition (including, without limitation,
by Condemnation) and any merger or consolidation of any Subsidiary of the
Company with or into another Person (other than the Company or any Wholly-Owned
Subsidiary of the Company); provided, however, that Asset Sales shall not
include (i) sales, issuances, leases, conveyances, transfers, assignments or
other dispositions to the Company or to a Subsidiary thereof or to any other
Person if after giving effect to such sale, issuance, lease, conveyance,
transfer, assignment or other disposition such other Person becomes a
Wholly-Owned Subsidiary of the Company, (ii) transactions complying with Section
5.1, (iii) sales, transfers, issuances, conveyances, leases, assignments or
other dispositions to the Company or any Wholly-Owned Subsidiary of the Company,
(iv) sales, leases, conveyances transfers or other dispositions of obsolete,
worn out or surplus property, and (v) sales, leases, conveyances, transfers or
other dispositions with a fair market value less than $[2.0] million in the
aggregate during any Fiscal Year.
"Asset Sale Proceeds" means, with respect to any Asset Sale, (i) cash
or Temporary Cash Investments received by the Company or any Subsidiary thereof
from such Asset Sale, after (a) provision for all income or other taxes measured
by or resulting from such Asset Sale, (b) payment of all brokerage commissions,
underwriting and other fees and expenses related to such Asset Sale, (c)
provision for minority interest holders in any Subsidiary as a result of such
Asset Sale, (d) payments made to retire Indebtedness secured by the assets
subject to such Asset Sale, and (e) payments made to the Trustee, the Collateral
Trustee and the Administrative Agent under the Collateral Trust Agreement and
(f) deduction of appropriate amounts to be provided by the Company or a
Subsidiary thereof as a reserve, in accordance with GAAP, against any
liabilities associated with the assets sold or disposed of in such Asset Sale
and retained by the Company or a Subsidiary thereof after such Asset Sale,
including, without limitation, pension and other post-employment benefit
liabilities and liabilities related to environmental matters or against any
indemnification obligations associated with the assets sold or disposed of in
such Asset Sale, and (ii) promissory notes and other non-cash consideration
received by the Company or any Subsidiary thereof from such Asset Sale or other
disposition upon the liquidation or conversion of such notes or non-cash
consideration into cash.
"Attributable Indebtedness" when used with respect to any Sale and
Lease-Back Transaction means, as at the time of determination, the present value
(discounted at a rate
3
equivalent to the interest rate implicit in the lease, compounded on a
semi-annual basis) of the total obligations of the lessee for rental payments
(after excluding all amounts required to be paid on account of maintenance and
repairs, insurance, taxes, utilities and other similar expenses payable by the
lessee pursuant to the terms of the lease) during the remaining term of the
lease included in any such Sale and Lease-Back Transaction or until the earliest
date on which the lessee may terminate such lease without penalty or upon
payment of a penalty (in which case the rental payments shall include such
penalty)[; provided, that the Attributable Indebtedness with respect to a Sale
and Lease-Back Transaction shall be no less than the fair market value (as
determined reasonably and in good faith by the Board of Directors of the Person
incurring the Attributable Indebtedness) of the property subject to such Sale
and Lease-Back Transaction]. [Need to discuss whether Company needs flex for
sales leasebacks.]
"Bankruptcy Court" means, in the case of the Company and its
Wholly-Owned Debtor Subsidiaries, the United States Bankruptcy Court for the
District of Delaware, in which the Cases were filed.
"Bankruptcy Law" means Title 11, U.S. Code or any similar Federal or
state law for the relief of debtors as in effect from time to time.
"Board of Directors" means, as to any Person, the board of directors
or, if such Person is a partnership (or other non-corporate Person), of the
managing general partner or partners (or Persons serving an analogous function)
of such Person.
"Board Resolution" means, as to any Person, a copy of a resolution
certified pursuant to an Officers' Certificate to have been duly adopted by the
Board of Directors of such Person, and to be in full force and effect, and, if
required hereunder, delivered to the Trustee.
"Capital Stock" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation),
including, without limitation, partnership interests and membership interests,
and any and all warrants, rights or options to purchase or other arrangements or
rights to acquire any of the foregoing.
"Capitalized Lease Obligation" means Indebtedness represented by
obligations under a lease that is required to be capitalized for financial
reporting purposes in accordance with GAAP, and the amount of such Indebtedness
shall be the capitalized amount of such obligations determined in accordance
with GAAP.
"Cases" means, collectively, the cases under chapter 11 of the United
States Bankruptcy Code commenced by the Company and substantially all of its
Subsidiaries, and by Holdings and substantially all of its Wholly-Owned
Subsidiaries, in the Bankruptcy Court on March 3, 2003.
"Cash" means money, currency or a credit balance in any demand or
Deposit Account.
"Casualty" with respect to any Collateral, means loss of, damage to or
destruction of all or any part of such Collateral.
4
"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
(which may include any Initial Holders) 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 Initial Equity
Holder becomes the owner, directly or indirectly, beneficially or of record, of
shares representing more than (A) 50% of the aggregate ordinary voting power
represented by the issued and outstanding Capital Stock of Holdings or (B) 50%
of the aggregate ordinary voting power represented by the issued and outstanding
voting stock of the Company (other than Holdings); (iv) any other Person or
Group shall become the owner, directly or indirectly, beneficially or of record,
of shares representing more than (A) 35% of aggregate ordinary voting power
represented by the issued and outstanding Capital Stock of Holdings or (B) 35%
of the aggregate ordinary voting power represented by the issued and outstanding
voting stock of the Company (other than Holdings); or (v) the first day within
any two-year period on which a majority of the members of the Board of Directors
of the Company or Holdings are not Continuing Directors.
"Collateral" means, collectively, all the real, personal and mixed
property (including Capital Stock) in which Liens are purported to be granted
pursuant to the Collateral Documents as security for the Senior Note
Obligations.
"Collateral Documents" means the [Pledge Agreement,] the Mortgages,
and all other instruments, documents and agreements delivered by any of the
Company and a Guarantor pursuant to the Credit Agreement, this Indenture or any
of the other Senior Note Documents or the Collateral Trust Agreement in order to
grant to the Collateral Trustee, for the benefit of Holders, a Lien on any real,
personal or mixed property of the Company or a Guarantor, as applicable, as
security for the Senior Note Obligations.
"Collateral Trust Agreement" means that Collateral Trust Agreement
entered into by the Company, the Guarantors and the Collateral Trustee on [ ],
2003.
"Collateral Trustee" means the Collateral Trustee, as joint collateral
trustee under the Credit Agreement, the Collateral Trust Agreement and its
successors, in such capacity appointed in accordance with the terms of the
Collateral Trust Agreement.
"Company" means the party named as such in the first paragraph of this
Indenture until a successor replaces such party pursuant to Article 5 of this
Indenture and thereafter means the successor.
"Company Request" means any written request signed in the name of the
Company by any two of the following: the Chief Executive Officer; the President;
any Vice President; the Chief Financial Officer; the Treasurer; or the Secretary
or any Assistant Secretary (but not both the Secretary and any Assistant
Secretary) of the Company.
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"Condemnation" means any taking of the Collateral or any part thereof,
in or by Condemnation, expropriation or similar proceeding, eminent domain
proceedings, seizure or forfeiture, pursuant to any law, general or special, or
by reason of the temporary requisition of the use or occupancy of the
Collateral, or any part thereof, by a governmental authority.
"Condemnation Proceeds" means any awards, proceeds, payment or other
compensation arising out of a Condemnation less any and all payments made to the
Trustee, the Collateral Trustee and the Administrative Agent under the
Collateral Documents and the Collateral Trust Agreement.
"Consolidated Cash Flow Available for Fixed Charges" means, with
respect to any Person for any period, on a consolidated basis in accordance with
GAAP, the sum of, without duplication, the amounts for such period, taken as a
single accounting period, of (A) (i) Consolidated Net Income, (ii) Consolidated
Non-Cash Charges, (iii) Consolidated Interest Expense, (iv) Consolidated Income
Tax Expense and (v) (for any period ending on or prior to December 31, 2003
only) to the extent deducted in determining Consolidated Net Income, any
non-recurring charge or restructuring charge in connection with the
implementation of the Plan of Reorganization less (B) any non-Cash items
increasing Consolidated Net Income for such period (excluding any such non-Cash
item to the extent it represents the reversal of an accrual or reserve for
potential Cash item in any prior period) provided, however, that for the
purposes of this definition, (i) with respect to the First Interest Payment
Date, Consolidated Cash Flow Available for Fixed Charges shall be calculated as
of the six month period ending on the last day of the most recently completed
calendar month which is 30 days prior to the First Interest Payment Date and
(ii) with respect to the Second Interest Payment Date, Consolidated Cash Flow
Available for Fixed Charges shall be calculated as of the 12 month period ending
on the last day of the most recently completed calendar month which is 30 days
prior to the Second Interest Payment Date.
"Consolidated Fixed Charge Coverage Ratio" means with respect to any
Person, the ratio of the aggregate amount of Consolidated Cash Flow Available
for Fixed Charges of such Person for the four full fiscal quarters immediately
preceding the date of the transaction (the "Transaction Date") giving rise to
the need to calculate the Consolidated Fixed Charge Coverage Ratio (such four
full fiscal quarter period being referred to herein as the "Four Quarter
Period") to the aggregate amount of 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 Cash Flow Available
for Fixed Charges" and "Consolidated Fixed Charges" shall be calculated after
giving effect on a pro forma basis for the period of such calculation to,
without duplication, (a) the incurrence of any Indebtedness of such Person or
any of its Subsidiaries (and the application of the net proceeds thereof) during
the period commencing on the first day of the Four Quarter Period to and
including the Transaction Date (the "Reference Period"), including, without
limitation, the incurrence of the Indebtedness giving rise to the need to make
such calculation (and the application of the net proceeds thereof), as if such
incurrence (and application) occurred on the first day of the Four Quarter
Period (it being understood that with respect to Indebtedness incurred under a
revolving facility used primarily to finance working capital, the average daily
principal amount outstanding during the Reference Period shall be deemed to be
the amount incurred during the Reference Period), and (b) any Asset Sales or
Asset Acquisitions (including, without limitation, any Asset Acquisition giving
rise to the
6
need to make such calculation as a result of such Person or one of its
Subsidiaries (including any Person who becomes a Subsidiary as a result of the
Asset Acquisition) incurring, assuming or otherwise being liable for Acquired
Indebtedness) occurring during the Four Quarter Period, as if such Asset Sale or
Asset Acquisition occurred on the first day of the Four Quarter Period.
Furthermore, in calculating "Consolidated Fixed Charges" for purposes of
determining the denominator (but not the numerator) of this "Consolidated Fixed
Charge Coverage Ratio," (i) interest on outstanding Indebtedness determined on a
fluctuating basis as of the Transaction Date and which will continue to be so
determined thereafter shall be deemed to have accrued at a fixed rate per annum
equal to the rate of interest on such Indebtedness in effect on the Transaction
Date; and (ii) if interest on 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. In calculating the Consolidated
Fixed Charge Coverage Ratio and giving pro forma effect to the incurrence of
Indebtedness during a Reference Period, pro forma effect shall be given to use
of proceeds thereof to permanently repay or retire Indebtedness. If such Person
or any of its Subsidiaries directly or indirectly guarantees Indebtedness of a
third Person, for purposes of determining the "Consolidated Fixed Charge
Coverage Ratio," effect shall be given to the incurrence of such guaranteed
Indebtedness as if such Person or such Subsidiary had directly incurred or
otherwise assumed such guaranteed Indebtedness.
"Consolidated Fixed Charges" means, with respect to any Person for any
period, the sum of, without duplication, the amounts for such period of (i)
Consolidated Interest Expense, and (ii) the product of (a) the aggregate amount
of dividends and other distributions paid in cash during such period in respect
of Disqualified Equity Interests of such Person and its Subsidiaries on a
consolidated basis and (b) a fraction, the numerator of which is one and the
denominator of which is one minus the then current combined federal, state and
local statutory income tax rate of such Person, expressed as a decimal.
"Consolidated Income Tax Expense" means, with respect to any Person for
any period, the provision for federal, state, local and foreign income taxes of
such Person and its Subsidiaries for each period as determined on a consolidated
basis in accordance with GAAP.
"Consolidated Interest Expense" means, with respect to any Person, on a
consolidated basis in accordance with GAAP, for any period, the sum of, without
duplication, (a) the aggregate amount of interest which, in conformity with
GAAP, would be set forth opposite the caption "interest expense" or any like
caption on an income statement for such Person and its Subsidiaries on a
consolidated basis, (b) imputed interest included in Capitalized Lease
Obligations, (c) all commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance financing, (d) the net
costs associated with Interest Rate Agreements, (e) amortization of other
financing fees and expenses, (f) the interest portion of any deferred payment
obligation, (g) amortization of discount or premium, if any, (h) all other
non-cash interest expense (other than interest amortized to cost of sales), (i)
the interest component of Capitalized Lease Obligations paid, accrued and/or
scheduled to be paid or accrued by such Person and its Subsidiaries during such
period as determined on a consolidated basis in accordance with GAAP and (j) all
interest incurred or paid under any guarantee of Indebtedness (including a
guarantee of principal, interest or any combination thereof) of any Person.
7
"Consolidated Net Income" means, with respect to any Person, for any
period, the aggregate of the Net Income of such Person and its Subsidiaries for
such period, on a consolidated basis, determined in accordance with GAAP, plus
the amount of any dividends or distributions received by such Person from
Unrestricted Subsidiaries; provided, however, that (a) the Net Income of any
Person (the "other Person") in which the Person in question or any of its
Subsidiaries has less than a 100% interest (which interest does not cause the
net income of such other Person to be consolidated into the net income of the
Person in question in accordance with GAAP) shall be included only to the extent
of the amount of dividends or distributions paid to the Person in question or
its Subsidiaries, (b) the Net Income of any Subsidiary of the Person in question
that is incorporated in a jurisdiction other than the United States, or a state
or territory thereof, shall be included only to the extent of the amount of
dividends or distributions paid to the Person in question or its Subsidiaries,
(c) the Net Income of any Subsidiary of the Person in question that is subject
to any restriction or limitation (whether by terms of its charter, agreement or
applicable law) on the payment of dividends or the making of other distributions
shall be excluded to the extent such restriction or limitation would prevent
such Subsidiary from being able to pay dividends or make other distributions out
of its Net Income, (d)(i) the Net Income of any Person acquired in a pooling of
interests transaction for any period prior to the date of such acquisition and
(ii) any net gain or loss resulting from an Asset Sale by the Person in question
or any of its Subsidiaries other than in the ordinary course of business shall
be excluded, (e) extraordinary gains and losses (including any related tax
effects) shall be excluded and (f) the cumulative effect of changes in
accounting principles shall be excluded.
"Consolidated Net Worth" means, with respect to any Person at any date,
the consolidated stockholders' equity of such Person less the amount of such
stockholders' equity attributable to Disqualified Equity Interests of such
Person and its Subsidiaries, as determined in accordance with GAAP.
"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 Subsidiaries reducing Consolidated Net Income of such
Person and its 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 required an accrual of or a
reserve for cash charges for any future period).
"Consolidated Rental Payments" of any Person means, for any period, the
aggregate rental obligations of such Person and its consolidated Subsidiaries
(not including taxes, utilities, insurance, maintenance and repairs and other
similar expenses that the lessee is obligated to pay under the terms of the
relevant leases), determined on a consolidated basis in accordance with GAAP,
payable in respect of such period (net of income from subleases thereof, not
including taxes, utilities, insurance, maintenance and repairs and other similar
expenses that the sublessee is obligated to pay under the terms of such
sublease), whether or not such obligations are reflected as liabilities or
commitments on a consolidated balance sheet of such Person and its Subsidiaries
or in the notes thereto, excluding, however, in any event, (i) that portion of
Consolidated Interest Expense of such Person representing payments by such
Person or any of its consolidated Subsidiaries in respect of Capitalized Lease
Obligations (net of payments to such Person or any of its consolidated
Subsidiaries under subleases qualifying as capitalized lease subleases to the
extent that such payments would be deducted in determining Consolidated
8
Interest Expense) and (ii) the aggregate amount of amortization of obligations
of such Person and its consolidated Subsidiaries in respect of such Capitalized
Lease Obligations for such period (net of payments to such Person or any of its
consolidated Subsidiaries and subleases qualifying as capitalized lease
subleases to the extent that such payments could be deducted in determining such
amortization amount).
"Consolidated Total Assets" of any person means the consolidated total
assets of such Person and its consolidated Subsidiaries, as set forth on the
most recent consolidated balance sheet of such Person and its consolidated
Subsidiaries determined in accordance with GAAP.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Company or Holdings, as the case may be,
who (i) was a member of such Board of Directors on the Effective Date or (ii)
was nominated for election or elected to such Board of Directors with, or whose
election to such Board of Directors was approved by, the affirmative vote of a
majority of the Continuing Directors who were members of such Board of Directors
at the time of such nomination or election.
"Corporate Trust Office" means the principal office of the Trustee at
which at any time its corporate trust business shall be administered, which
office at the dated hereof is located at [Trustee address], or such other
address as the Trustee may designate from time to time by notice to the Holders
and the Company, or the principal corporate trust office of any successor
Trustee (or such other address as such successor Trustee may designate from time
to time by notice by notice to the Holders and the Company).
"Credit Agreement" means that certain Agreement dated as of [ ], 2003
(as amended, modified, or otherwise supplemented from time to time), among
Holdings; Superior Telecommunications Inc.; Superior Telecommunications Realty
Company; Essex International Inc.; Essex Group, Inc., a Michigan corporation;
Superior Essex Realty Company; Active Industries, Inc.; Diamond Wire & Cable
Co.; Essex Funding, Inc.; Essex Services Inc.; Essex Canada, Inc.; Essex
Technology, Inc.; Essex Wire Corporation; Essex Group, Inc., a Delaware
corporation; Essex Group Mexico Inc.; and Essex Mexico Holdings, L.L.C., the
financial institutions from time to time party thereto and [ ], as the
Administrative Agent.
"Credit Facility" means (i) the Credit Agreement; (ii) any and all
agreements, instruments and documents executed or delivered pursuant to or in
connection with such Credit Agreement; and (iii) any and all credit agreements,
loan agreements, note purchase agreements, indentures or other agreements,
documents or instruments refinancing, refunding or otherwise replacing, in whole
or in part, the Credit Agreement or any other agreement deemed a Credit Facility
under clause (ii) hereof, whether or not with the same agent, trustee,
representative, lenders or holders, regardless of whether the Credit Facility or
any portion thereof was outstanding or in effect at the time of such
restatement, renewal, extension, restructuring, supplement or modification.
Without limiting the generality of the foregoing, the term "Credit Facility"
shall include any amendment, restatement, renewal, extension, restructuring,
supplement or modification to any Credit Facility and all refundings,
refinancing and replacements of any Credit Facility, in whole or in part,
including any agreement (w) extending the maturity of any Indebtedness incurred
thereunder or contemplated thereby, (x) adding or deleting borrowers or
guarantors thereunder, provided that the addition of such borrower or guarantor
would not be prohibited by this Indenture, (y) increasing
9
the amount for Indebtedness incurred thereunder or available to be borrowed
thereunder, provided such increase is permitted to be incurred under this
Indenture, or (z) otherwise altering the terms and conditions thereof in a
manner not prohibited by this Indenture.
"Currency Agreement" means in respect of a Person any foreign exchange
contract, currency swap agreement or other similar agreement designed to protect
such Person against fluctuations in currency values and not for the purpose of
speculation.
"Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
"Default" means any event that is, or after notice or passage of time
of notice or both would be, an Event of Default.
"Deposit Account" means a demand, time, savings, passbook or like
account with a bank, savings and loan association, credit union or like
organization, other than an account evidenced by a negotiable certificate of
deposit.
"Depository" means, with respect to the Senior Notes issued in the form
of one or more Global Notes, The Depository Trust Company or another Person
designated as Depository by the Company, which Person must be a clearing agency
registered under the Exchange Act.
"Designated Noncash Consideration" means the fair market value of
noncash consideration received by the Company or one of its Subsidiaries in
connection with an Asset Sale, including the cancellation of any Indebtedness,
that is so designated as Designated Noncash Consideration pursuant to an
Officers' Certificate, setting forth the basis of such valuation, or, in the
case of the cancellation of any Indebtedness, the principal amount of such
cancelled Indebtedness, executed by an Officer of the Company.
"Disqualified Equity Interests" means any Equity Interest of the
Company or any of its Subsidiaries which, by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable at the
option of the holder), or upon the happening of any event, matures or is subject
to mandatory redemption, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the option of the holder thereof, in whole or in part, on or
prior to the Maturity Date of the Senior Notes, for cash or securities
constituting Indebtedness. Without limitation of the foregoing, Disqualified
Equity Interests shall also be deemed to include any Preferred Equity Interests
of the Company or a Subsidiary of the Company with respect to which, under the
terms of such Preferred Equity Interests, by agreement or otherwise, the Company
or such Subsidiary is obligated to pay current dividends or distributions in
cash during the period prior to the Maturity Date.
"Domestic Subsidiary" means any Subsidiary that is organized under the
laws of the United States of America or any state thereof or the District of
Columbia.
"Equity Interests" means, with respect to any Person, any and all
shares or other equivalents (however designated) of capital stock, partnership
interests or any other participation, right or other interests in the nature of
an equity interest in such Person or any option, warrant or other security
convertible into or exchangeable for any of the foregoing.
10
"Exchange Act" means the Securities and Exchange Act of 1934, as
amended.
"Fair market value" or "fair value" means, with respect to any assets
or property, the price which could be negotiated in an arm's-length free market
transaction, for cash, between a willing seller and a fully informed, willing
and able buyer, neither of whom is under undue pressure or compulsion to
complete the transaction, all as reasonably determined by a majority of the
Board of Directors acting in good faith, such determination to be evidenced by a
Board Resolution delivered to the Trustee.
"Final Decree" means with respect to the Company and the Guarantors
which on the Issue Date are the subject of the Cases, an order entered in the
Cases by the Bankruptcy Court closing the Cases.
"First Interest Payment Date" means the first Interest Payment Date
after the Issue Date.
"Fiscal Quarter" means a fiscal quarter of any Fiscal Year.
"Fiscal Year" means the fiscal year of Company and its Subsidiaries
ending on December 31 of each calendar year.
"GAAP" means generally accepted accounting principles consistently
applied as in effect in the United States from time to time.
"Global Note" means a Senior Note evidencing all or a part of the
Senior Notes issued to and registered in the name of the Depository and bearing
the Global Note Legend prescribed in Exhibit C.
"Global Note Legend" means the legend set forth in Exhibit C, which is
required to be placed on all Global Notes issued under this Indenture.
"Guarantee" means, as the context may require, individually, a
guarantee, or collectively, any and all guarantees, of the Obligations of the
Company with respect to the Senior Notes by each Guarantor pursuant to the terms
of Article 11 hereof, substantially in the form set forth as part of Exhibit A.
"Guarantor" means each of the Domestic Subsidiaries and Holdings that
guarantee any of the Company's obligations under or related to the Credit
Agreement and shall also include any other Subsidiary that subsequently
guarantees the Senior Notes pursuant to Section 4.25.
"Holder" or "Noteholder" means the Person in whose name a Senior Note
is registered on the Registrar's books.
"incur" means, with respect to any Indebtedness or other obligation of
any Person, to create, issue, incur (by conversion, exchange or otherwise),
assume, guarantee or otherwise become, directly or indirectly, liable in respect
of such Indebtedness or other obligation or the recording, as required pursuant
to GAAP or otherwise, of any such Indebtedness or other obligation on the
balance sheet of such Person (and "incurrence," "incurred," "incurable," and
"incurring" shall have meanings correlative to the foregoing). Any Indebtedness
or Equity
11
Interests of a Person existing at the time such Person becomes a Subsidiary
(whether by merger, consolidation, acquisition or otherwise) shall be deemed to
be incurred by such Person at the time it becomes a Subsidiary. Indebtedness
consisting of reimbursement obligations in respect of a letter of credit will be
deemed to be incurred when the letter of credit is issued or renewed.
"Indebtedness" means (without duplication), with respect to any Person,
(i) any indebtedness at any time outstanding, secured or unsecured, contingent
or otherwise, which is for borrowed money (whether or not the recourse of the
lender is to the whole of the assets of such Person or only to a portion
thereof), or evidenced by bonds, notes, debentures or similar instruments or
representing the balance deferred and unpaid of the purchase price of any
property (excluding, without limitation, any balances that constitute accounts
payable or trade payables) if and to the extent any of the foregoing
indebtedness would appear as a liability on a balance sheet of such Person
prepared in accordance with GAAP, (ii) any Capitalized Lease Obligations, (iii)
obligations secured by a Lien to which the property or assets owned or held by
such Person is subject, whether or not the obligation or obligations secured
thereby shall have been assumed, (iv) all Indebtedness of others of the type
described in the other clauses of this definition (including all dividends of
other Persons) the payment of which is guaranteed, directly or indirectly, by
such Person or that is otherwise its legal liability or which such Person has
agreed to purchase or repurchase or in respect of which such Person has agreed
contingently to supply or advance funds (whether or not such items would appear
upon the balance sheet of the guarantor), (v) all obligations for the
reimbursement of any obligor on any letter of credit, banker's acceptance or
similar credit transaction, (vi) Disqualified Equity Interests, (vii)
obligations of any such Person under any Interest Rate Agreement applicable to
any of the foregoing and (viii) Attributable Indebtedness. The amount of
Indebtedness of any Person at any date shall be the outstanding balance at such
date of all unconditional obligations as described above and, with respect to
contingent obligations, the maximum liability upon the occurrence of the
contingency giving rise to the obligation; provided, however, that (i) the
amount outstanding at any time of any Indebtedness issued with original issue
discount is the principal amount of such Indebtedness less the remaining
unamortized portion of the original issue discount of such Indebtedness at such
time as determined in conformity with GAAP and (ii) Indebtedness shall not
include any liability for federal, state, local or other taxes. Notwithstanding
any other provision of the foregoing definition, any trade payable arising from
the purchase of goods or materials or for services obtained in the ordinary
course of business shall not be deemed to be "Indebtedness" of the Company or
any Subsidiaries for purposes of this definition. Furthermore, guarantees of, or
obligations with respect to letters of credit supporting, Indebtedness otherwise
included in the determination of such amount shall not also be included.
"Indenture" means this Indenture as amended, restated or supplemented
from time to time.
"Initial Holders" means the persons set forth in Exhibit E hereto.
"Insurance Proceeds" means any payment, proceeds or other amounts
received at any time under any insurance policy as compensation in respect of a
Casualty, less any and all payments made to the Trustee, the Collateral Trustee
and Administrative Agent under the Collateral Trust Agreement, provided that
business interruption insurance proceeds shall not constitute Insurance
Proceeds.
12
"interest" when used with respect to any Senior Note, means the amount
of all interest accruing on such Senior Note, including all interest accruing
subsequent to the occurrence of any events specified in Sections 6.1(7) and (8)
or which would have accrued but for any such event.
"Interest Payment Date" means each [date] and [date] of each year,
commencing [date], 200[3].
"Interest Rate Agreement" means, for any Person, any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement or other
similar agreement designed to protect the party indicated therein against
fluctuations in interest rates.
"Investment" means, with respect to any Person, directly or indirectly,
(i) any advance, account receivable (other than an account receivable arising in
the ordinary course of business, including accounts receivable arising in the
ordinary course of business and acquired as part of the assets acquired by the
Company in connection with an acquisition of assets which is otherwise permitted
by the terms of this Indenture), loan or capital contribution to any other
Person (by means of transfers of property to others, payments for property or
services for the account or use of others or otherwise), (ii) the purchase of
any stock, bonds, notes, debentures, partnership or joint venture interests or
other securities of any other Person, (iii) the acquisition, by purchase or
otherwise, of all or substantially all of the business or stock or other
evidence of beneficial ownership of, any other Person, (iv) the guarantee or
assumption of the Indebtedness of any other Person (except for an assumption of
Indebtedness for which the assuming Person receives consideration with a fair
market value at least equal to the principal amount of the Indebtedness
assumed), (v) the designation of a Subsidiary as an Unrestricted Subsidiary and
(vi) all other items that would be classified as investments on a balance sheet
of such Person prepared in accordance with GAAP. Investments shall exclude
extensions of trade credit on commercially reasonable terms in accordance with
normal trade practices.
"Issue Date" means the date on which the Senior Notes are issued, as
indicated on the Senior Notes.
"Lien" means, with respect to any property or assets of any Person, any
mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, security interest, lien, charge, easement, encumbrance, preference,
priority, or other security agreement or preferential arrangement of any kind or
nature whatsoever on or with respect to such property or assets (including,
without limitation, any Capitalized Lease Obligation, conditional sales, or
other title retention agreement having substantially the same economic effect as
any of the foregoing).
"Loss Event" means a Condemnation or Casualty involving an actual or
constructive total loss or agreed or compromised actual or constructive total
loss of all or substantially all of any Property constituting Collateral, except
where the Company reasonably concludes that Restoration of such Property can be
made in accordance with this Indenture and elects to do so in an Officers'
Certificate delivered to the Trustee within 90 days of the relevant Condemnation
or Casualty.
"Maturity Date" means [ ], 2008.
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
13
"Mortgages" means any Mortgage, security agreement, assignment of rents
and leases and fixture filing, open end mortgage, deed of trust, indemnity deed
of trust or similar or equivalent instrument secured by real property, trust
deed, deed to secure debt, credit line, deed of trust or assignment of rents,
purporting to grant a security interest in favor of the Collateral Trustee in
any of the Collateral, as such document may be amended, supplemented, or
otherwise modified from time to time.
"Net Income" means, with respect to any Person for any period, the net
income (loss) of such Person determined in accordance with GAAP.
"Net Investments" means the excess of (i) the aggregate of all
Investments made by the Company or a Subsidiary thereof on or after the Issue
Date (in the case of an Investment made other than in cash, the amount shall be
the fair market value of such Investment) over (ii) the sum of (A) the aggregate
amount returned in cash on such Investments whether through interest payments,
principal payments, dividends or other distributions, (B) the net cash proceeds
received by the Company or such Subsidiary from the disposition of all or any
portion of such Investments (other than to a Subsidiary of the Company), and (C)
the fair market value of any Unrestricted Subsidiary that is redesignated by the
Company as a Subsidiary, as determined in good faith by the Board of Directors
of the Company; provided, however, that with respect to all Investments made in
Unrestricted Subsidiaries, the sum of clauses (A), (B) and (C) above with
respect to such Investments shall not exceed the aggregate amount of all
Investments made in all Unrestricted Subsidiaries.
"Net Proceeds" means (a) in the case of any sale of Equity Interests by
the Company, the aggregate net proceeds received by the Company, less payment of
expenses, commissions and the like incurred in connection therewith and any and
all payments made to the Trustee, the Collateral Trustee and the Administrative
Agent under the Collateral Trust Agreement, whether such proceeds are in cash or
in property (valued at the fair market value thereof at the time of receipt),
and (b) in the case of any exchange, exercise, conversion or surrender of
outstanding securities of any kind (other than Equity Interests of the Company
which are not Disqualified Equity Interests) for or into Equity Interests of the
Company which are not Disqualified Equity Interests, the net book value of such
outstanding securities on the date of such exchange, exercise, conversion or
surrender plus any additional amount required to be paid by the holder to the
Company upon such exchange, exercise, conversion or surrender (e.g., on account
of fractional shares and less all expenses incurred by the Company in connection
therewith).
"Obligations" means, with respect to any Indebtedness, any principal,
premium, interest, penalties, fees, indemnifications, reimbursements, damages
and other expenses payable under the documentation governing such Indebtedness.
"Officer" means, with respect to any Person, the Chief Executive
Officer, the President, any Vice President, the Chief Financial Officer, the
Chief Accounting Officer or the Treasurer of such Person, the Controller, the
Secretary or any Assistant Secretary of the Company or a Guarantor, or any other
officer designated by the Board of Directors of such Person, as the case may be
(or, in the case of a Person that is a partnership (or other noncorporate
Person), a general partner (or analogous individuals) of such Person in such
capacity).
14
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chief Executive Officer, the President or any Vice
President and the Chief Financial Officer, the Chief Accounting Officer or any
Treasurer of such Person (or, in the case of a Person that is a partnership (or
other non-corporate Person), by a general partner (or analogous individuals) of
such Person in such capacity) that shall comply with applicable provisions of
this Indenture.
"Opinion of Counsel" means a written opinion from legal counsel which
counsel is reasonably acceptable to the Trustee.
"Permitted Investments" means, for any Person, Investments made on or
after the date of this Indenture consisting of:
(i) Temporary Cash Investments;
(ii) Investments in the Company or a Subsidiary of the
Company;
(iii) Investments in any Person, if (A) as a result of such
Investment (1) such Person becomes a Wholly-Owned Subsidiary of
the Company or (2) such Person is merged, consolidated or
amalgamated with or into, or transfers or conveys substantially
all of its assets to, or is liquidated into, the Company or a
Wholly-Owned Subsidiary thereof and (B) after giving effect to
such Investment the Company is in compliance with Sections 4.17
and 5.1 hereof;
(iv) Investments represented by accounts receivable created
or acquired in the ordinary course of business;
(v) Loans and advances to employees of the Company and its
Subsidiaries in the ordinary course of business and consistent
with the past practice of the Company and its Subsidiaries
(including, without limitation, for travel, entertainment and
relocation expenses), which loans and advances, in the aggregate
do not exceed $[250,000] at any time outstanding;
(vi) Investments under or pursuant to Interest Rate
Agreements;
(vii) An investment that is made by the Company or a
Subsidiary thereof in the form of any Equity Interests,
Indebtedness or securities that are issued by any Person solely
as partial consideration for the consummation of an Asset Sale
that is otherwise permitted under Section 4.8 hereof;
(viii) Investments in the Senior Notes;
(ix) Investments existing on the Issue Date;
(x) Investments provided for in the Plan of Reorganization;
(xi) Investments (i) in any Securities received in
satisfaction or partial satisfaction thereof from financially
troubled account debtors consistent with the past practices of
the Company and its Subsidiaries and (ii) deposits, prepayments
15
and other credits to suppliers made in the ordinary course of
business consistent with the past practices of Company and its
Subsidiaries;
(xii) guarantees of Indebtedness of the Company or any of
its Subsidiaries issued in accordance with Section 4.6; and
(xiii) Net Investments in any Person; provided, however,
that the aggregate amount of all such Net Investments made
pursuant to this clause (xiii) shall not exceed $[5 million] at
any one time outstanding.
"Permitted Liens" means, without duplication,
(i) Liens securing Senior Indebtedness permitted to be
incurred under clause (i) of the second paragraph of Section 4.6,
(ii) Liens existing on the Issue Date,
(iii) Liens in favor of the Company or any Subsidiary
thereof, provided that if such Liens are on any Collateral as
defined in the Collateral Trust Agreement, that such Liens are
either collaterally assigned to the Collateral Agent or the
Trustee or subordinated to the Lien in favor of the Collateral
Agent securing the Senior Notes,
(iv) Liens on property of a Person existing at the time such
Person becomes a Subsidiary of, or is acquired by, merged into or
consolidated with the Company or any Subsidiary thereof, or such
property is otherwise acquired by the Company or a Subsidiary
thereof; provided, however, that such Liens (a) were not created
in connection with or in anticipation of such acquisition, merger
or consolidation or such Person becoming a Subsidiary and (b) are
not applicable to any other property of the Company or any of the
other Subsidiaries of the Company,
(v) Liens for taxes, assessments or governmental charges or
claims that are not yet delinquent or that are being contested in
good faith by appropriate proceedings promptly instituted and
diligently conducted; provided, however, that any reserve or
other appropriate provision as shall be required in conformity
with GAAP shall have been made therefor,
(vi) landlords', carriers', warehousemen's, mechanics',
materialmen's, repairmen's or other like Liens arising in the
ordinary course of business and with respect to amounts which are
not yet delinquent or are being contested in good faith by
appropriate proceedings,
(vii) Liens incurred or deposits made in the ordinary course
of business (a) to secure the performance of tenders, bids,
leases, contracts (other than for the repayment of Indebtedness),
statutory obligations and other similar obligations, or arising
as a result of progress payments under government contracts, (b)
in connection with workers' compensation, unemployment insurance
and other
16
social security legislation, or (c) to secure the performance of
surety bonds, and appeal bonds required in connection with
judgments that are not paid by an unaffiliated insurance carrier
pursuant to any insurance policy maintained by the Company,
(viii) easements, rights-of-way, restrictions, encroachments
and other minor defects or irregularities in title, in each case
that do not and will not interfere in any material respect with
the ordinary conduct of the business of Company or any of its
Subsidiaries,
(ix) Liens to secure Purchase Money Indebtedness that is
otherwise permitted under this Indenture; provided, however, that
(a) any such Lien is solely for the purpose of securing
Indebtedness representing, or incurred to finance, refinance or
refund, the cost (including sales and excise taxes, installation
and delivery charges and other direct costs of, and other direct
expenses paid or charged in connection with, such a purchase or
construction) of such Property, (b) the principal amount of the
Indebtedness secured by such Lien does not exceed 100% of such
costs, (c) the principal amount of all Purchase Money
Indebtedness secured by such Liens does not exceed $5 million at
any time, (d) such Lien does not extend to or cover any Property
other than such item or items of Property and any improvements on
such item(s) and (e) such Lien is granted within 180 days of the
incurrence of such Purchase Money Indebtedness,
(x) Liens securing Capitalized Lease Obligations permitted
to be incurred under clause (v) of the second paragraph of
Section 4.6 hereof; provided, however, that such Lien does not
extend to any property other than that subject to the underlying
lease,
(xi) Liens pursuant to leases and subleases of real property
which do not interfere with the ordinary conduct of the business
of the Company or any of its Subsidiaries and which are made on
customary and usual terms applicable to similar properties,
(xii) Liens securing reimbursement obligations under
commercial letters of credit, but only in or upon the goods the
purchase of which were financed by such letters of credit,
(xiii) Liens securing Acquisition Indebtedness, provided
that such Liens do not extend to or cover any property other than
the property directly or indirectly acquired with the proceeds of
such Acquisition Indebtedness and any improvements thereto
(unless such Liens are otherwise Permitted Liens),
(xiv) Liens securing Refinancing Indebtedness; provided,
however, that such Liens extend only to the assets securing the
Indebtedness being extended, refinanced, renewed or replaced, and
such Indebtedness was previously secured by such asset and
provided, further, the terms of such Liens are no less favorable
17
to the holders of the Senior Notes than the Liens being extended,
refinanced, renewed or replaced,
(xv) Liens in favor of the Trustee or the Collateral Agent
for the benefit of, among others, the holders of the Senior
Notes,
(xvi) any Lien provided for in the Plan of Reorganization or
as part of any settlement or restructuring entered into prior to
the Issue Date and approved by the Bankruptcy Court,
(xvii) Liens solely on any xxxx xxxxxxx money deposits made
by the Company or any of its Subsidiaries in connection with any
letter of intent or purchase agreement permitted hereunder;
(xviii) purported Liens evidenced by the filing of
precautionary UCC financing statements relating solely to
operating leases of personal property entered into in the
ordinary course of business;
(xix) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of customs duties in
connection with the importation of goods;
(xx) any zoning or similar law or right reserved to or
vested in any governmental office or agency to control or
regulate the use of any real property;
(xxi) licenses of patents, trademarks and other intellectual
property rights granted by the Company or any of its Subsidiaries
in the ordinary course of business and not interfering in any
material respect with the ordinary conduct of the business of the
Company or such Subsidiary;
(xxii) Liens arising out of attachments, judgments or awards
as to which an appeal or other appropriate proceedings for
contest or review are timely commenced (and as to which
foreclosure and other enforcement proceedings shall not have been
commenced, unless fully bonded or otherwise effectively stayed)
and as to which appropriate reserves have been established in
accordance with GAAP; and
(xxiii) other Liens on assets of the Company or its
Subsidiaries securing Indebtedness having an aggregate principal
amount at any one time outstanding not to exceed $[5]million.
"Person" means any individual, corporation, partnership, limited
liability company or partnership, joint venture, association, joint-stock
company, trust, unincorporated organization or government (including any agency
or political subdivision thereof).
"Plan Disclosure Statement" means that certain Disclosure Statement
Pursuant to Section 1125 of the Bankruptcy Code for the Debtors' Joint Plan or
Reorganization Under Chapter 11 of the Bankruptcy Code, as approved by the
Bankruptcy Court for use by the Company in soliciting
18
votes on the Plan of Reorganization, including all schedules and exhibits
thereto and all documents incorporated by reference therein or contained in the
documentary supplement thereto.
"Plan of Reorganization" means the Debtors' Joint Plan of
Reorganization Under Chapter 11 of the Bankruptcy Code, as confirmed by an order
of the United States Bankruptcy Court for the District of Delaware, dated [ ],
2003, including all schedules and exhibits thereto and all documents
incorporated by reference therein or contained in the documentary supplement
thereto.
"Plan of Reorganization Preferred Stock" means the $[ ] million of
preferred stock of the Company issued pursuant to the Plan of Reorganization.
["Pledge Agreement" means that certain Pledge and Security Agreement to
be executed on even date herewith by the Company, each Guarantor and the
Collateral Trustee, as it may be amended, supplemented or otherwise modified
from time to time.]
"Preferred Equity Interest" means any Equity Interest of the Company or
any of its Subsidiaries, however designated, which entitles the holder thereof
to a preference with respect to dividends, distributions or liquidation proceeds
of such Person over the holders of any other Equity Interest issued by such
Person.
"principal" of a debt security means the principal amount of the
security plus, when appropriate, the premium, if any, on the security.
"Proceeding" means a liquidation, dissolution, bankruptcy, insolvency
reorganization, receivership or similar proceeding under Bankruptcy Law, an
assignment for the benefit of creditors, any marshalling of assets or
liabilities or winding up or dissolution, but shall not include any transaction
permitted by and made in compliance with Article 5 hereof.
"Property" or "property" of any Person means all types of real,
personal, tangible, intangible or mixed property owned by such Person whether or
not included in the most recent consolidated balance sheet of such Person and
its Subsidiaries under GAAP.
"Purchase Money Indebtedness" means any Indebtedness incurred in the
ordinary course of business by a Person to finance the cost (including the cost
of construction) of an item of Property, the principal amount of which
Indebtedness does not exceed the sum of (i) 100% of such cost and (ii)
reasonable fees and expenses of such Person incurred in connection therewith.
"Redemption Date" when used with respect to any Senior Note to be
redeemed means the date fixed for such redemption pursuant to this Indenture.
"Refinancing Indebtedness" means Indebtedness that refunds, refinances,
renews, replaces or extends any Indebtedness of the Company or its Subsidiaries
outstanding on the Issue Date (other than Indebtedness incurred under the Credit
Facility) or other Indebtedness permitted to be incurred by the Company or any
Guarantor pursuant to the first paragraph of Section 4.6, whether involving the
same or any other lender or creditor or group of lenders or creditors, but only
to the extent that (i) the Refinancing Indebtedness is subordinated to the
Senior Notes to at least the same
19
extent as the Indebtedness being refunded, refinanced or extended, if at all,
(ii) the Refinancing Indebtedness is scheduled to mature either (a) no earlier
than the Indebtedness being refunded, refinanced or extended, or (b) after the
maturity date of the Senior Notes, (iii) such Refinancing Indebtedness has a
weighted average life to maturity at the time such Refinancing Indebtedness is
incurred that is equal to or greater than the weighted average life to maturity
of the Indebtedness being refunded, refinanced or extended, (iv) such
Refinancing Indebtedness is in an aggregate principal amount that is less than
or equal to the aggregate principal then outstanding under the Indebtedness
being refunded, refinanced or extended, plus reasonable transaction costs and
expenses incurred by the Company and its Subsidiaries in connection with
consummating such Refinancing Indebtedness, and (v) such Refinancing
Indebtedness is incurred by the same Person that initially incurred the
Indebtedness being refunded, refinanced or extended, except that the Company may
incur Refinancing Indebtedness to refund, refinance or extend Indebtedness of
any Wholly-Owned Subsidiary of the Company or any Person that, contemporaneously
with such refunding, refinancing or extension of Indebtedness, will become a
Wholly-Owned Subsidiary of the Company.
"Refinancing Notes" means senior unsecured or subordinated unsecured
debt securities, issued to redeem the Senior Notes.
"Responsible Officer" shall mean, when used with respect to the
Trustee, any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant secretary,
assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at
the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of such person's knowledge of and familiarity with
the particular subject and who shall have direct responsibility for the
administration of this Indenture.
"Restoration" means the restoration of all or any portion of the
Collateral in connection with any destruction or Condemnation thereof.
"Restricted Payment" means any of the following: (i) the declaration or
payment of any dividend or any other distribution or payment on Equity Interests
of the Company or any Subsidiary thereof or any payment made to the direct or
indirect holders (in their capacities as such) of Equity Interests of the
Company or any Subsidiary thereof (other than (a) in the case of Subsidiaries of
the Company, dividends or distributions payable to the Company or to a
Wholly-Owned Subsidiary of the Company, or (b) dividends or distributions
payable solely in the Equity Interests of Holdings) (other than Disqualified
Equity Interests) and any distributions with respect to the Plan of
Reorganization Preferred Stock in an amount not to exceed $? million, (ii) the
purchase, redemption or other acquisition or retirement for value of any Equity
Interest of the Company or any Subsidiary thereof (other than Equity Interests
owned by the Company or a Wholly-Owned Subsidiary, excluding Disqualified Equity
Interests), (iii) the making of any principal payment on, or the purchase,
defeasance, repurchase, redemption or other acquisition or retirement for value,
prior to any scheduled maturity, scheduled repayment or scheduled sinking fund
payment, of any Subordinated Indebtedness (other than Subordinated Indebtedness
acquired in anticipation of satisfying a scheduled sinking fund obligation,
principal installment or final maturity, in each case within one year of the
date of such acquisition), or (iv) the making of any Investment or guarantee of
any Investment in any Person other than a Permitted Investment. For
20
purposes of determining the amount expended for Restricted Payments, cash
distributed or invested shall be valued at the face amount thereof and property
other than cash shall be valued at its fair market value.
"S&P" means Standard & Poor's Ratings Group and its successors.
[Sale and Lease-Back Transaction" means any arrangement with any Person
providing for the leasing by the Company or any Subsidiary of the Company of any
real or tangible personal Property, which Property (i) has been or is to be
sold, conveyed or transferred by the Company or such Subsidiary to such Person
in contemplation of such leasing and (ii) would constitute an Asset Sale if such
Property had been sold in an outright sale thereof]
"SEC" or "Commission" means the United States Securities and Exchange
Commission as constituted from time to time or any successor performing
substantially the same functions.
"Second Interest Payment Date" means the second Interest Payment Date
after the Issue Date.
"Securities" means any stock, shares, partnership interests, voting
trust certificates, certificates of interest or participation in any
profit-sharing agreement or arrangement, options, warrants, bonds, debentures,
notes, or other evidences of indebtedness, secured or unsecured, convertible,
subordinated or otherwise, or in general any instruments commonly known as
"securities" or any certificates of interest, shares or participations in
temporary or interim certificates for the purchase or acquisition of, or any
right to subscribe to, purchase or acquire, any of the foregoing.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Indebtedness" means the following obligations, whether
outstanding on the Issue Date or thereafter incurred: all Indebtedness and other
monetary obligations of the Company or any Subsidiary of the Company under or in
respect of the Credit Facility (including obligations in respect of any lease
financing facility of the Credit Facility) or any Interest Rate Agreement or
Currency Agreement related to Indebtedness under the Credit Facility, whether
for principal, interest (including interest accruing after the filing of a
petition by or against the Company or any Subsidiary of the Company under any
state or federal Bankruptcy Laws, whether or not such interest is allowed as a
claim after such filing in any proceeding under such law), fees, expenses,
indemnification or otherwise
"Senior Note Documents" means this Indenture, the Senior Notes, the
Guarantees and all other documents and instruments entered into in connection
with this Indenture.
"Senior Note Obligations" shall mean all obligations of any nature of
any Guarantor or of the Company from time to time owed to the Trustee or to any
Holder under any Senior Note or this Indenture, whether for principal, premium,
if any, or interest (including interest which, but for the filing of a petition
in bankruptcy with respect to the Company or any Guarantor (as the case may be),
would have accrued on any Senior Note Obligation, whether or not a claim is
allowed against the Company or any Guarantor (as the case may be) for such
interest in the related bankruptcy proceeding) fees, expenses, indemnification
or otherwise.
21
"Senior Notes" means collectively the Second Priority Secured Notes due
2008, being the securities that are issued under this Indenture, as amended or
supplemented from time to time pursuant to this Indenture and including, without
limitation, any Secondary Senior Notes and notes issued in accordance with
Section 2.2 hereof.
"Subordinated Indebtedness" means Indebtedness of any Person which is
expressly subordinated in right of payment to any other Indebtedness of such
Person.
"Subsidiary" of any specified Person means any corporation,
partnership, limited liability company, joint venture, association or other
business entity, whether now existing or hereafter organized or acquired, (i) in
the case of a corporation, of which more than 50% of the total voting power of
the Equity Interests entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, officers or trustees thereof
is held by such first-named Person or any of its Subsidiaries; or (ii) in the
case of a partnership, limited liability company, joint venture, association or
other business entity, with respect to which such first-named Person or any of
its Subsidiaries has the power to direct or cause the direction of the
management and policies of such entity by contract or otherwise or if in
accordance with GAAP such entity is consolidated with the first-named Person for
financial statement purposes. Notwithstanding the foregoing, an Unrestricted
Subsidiary shall not be deemed a Subsidiary of the Company other than for
purposes of the definition of Unrestricted Subsidiary, unless the Company shall
have designated such Unrestricted Subsidiary as a "Subsidiary" by written notice
to the Trustee.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb) as in effect on the date of this Indenture (except as provided in
Section 8.3 hereof).
"Temporary Cash Investments" means, as at any date of determination,
(i) marketable securities (a) issued or directly and unconditionally guaranteed
as to interest and principal by the United States Government or (b) issued by
any agency of the United States the obligations of which are backed by the full
faith and credit of the United States, in each case maturing within one year
after such date; (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, in each case maturing within one year after such
date and having, at the time of the acquisition thereof, a rating of at least
A-1 from S&P or at least P-1 from Xxxxx'x; (iii) commercial paper maturing no
more than one year from the date of creation thereof and having, at the time of
the acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from
Xxxxx'x; (iv) certificates of deposit or bankers' acceptances maturing within
one year after such date and issued or accepted by any lender under the Credit
Agreement or by any commercial bank organized under the laws of the United
States of America or any state thereof or the District of Columbia that (a) is
at least "adequately capitalized" (as defined in the regulations of its primary
Federal banking regulator) and (b) has Tier 1 capital (as defined in such
regulations) of not less than $100,000,000; and (v) shares of any money market
mutual fund that (a) has substantially all of its assets invested continuously
in the types of investments referred to in clauses (i) and (ii) above, (b) has
net assets of not less than $500,000,000, and (c) has the highest rating
obtainable from either S&P or Xxxxx'x.
22
"Trust Officer" when used with respect to the Trustee, means any
officer or assistant officer of the Trustee assigned to the Corporate Trust
Administration department or similar department performing corporate trust work
of the Trustee or any successor to such department or, in the case of a
successor Trustee, any officer of such successor Trustee performing corporate
trust functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Trustee" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means the
successor.
"UCC-1" means those UCC financing statements and fixture filings filed
by the Company or any Guarantor in connection with any of the Collateral
Documents.
"Unrestricted Subsidiary" means (i) any of the entities listed on
Schedule 1.1E, (ii) any Subsidiary of an Unrestricted Subsidiary and (iv) any
Subsidiary of the Company which shall have been designated after the Issue Date
as an Unrestricted Subsidiary by a resolution adopted by the Board of Directors
of the Company; provided that a Subsidiary may be so classified as an
Unrestricted Subsidiary only if such classification is in compliance with
Section 4.14 hereof and an Unrestricted Subsidiary may be designated as a
Subsidiary only if such classification is in compliance with the definition of
"Subsidiary" contained in this Section 1.1. The Trustee shall be given prompt
written notice by the Company of each resolution adopted by the Board of
Directors of the Company under this provision, together with a copy of each such
resolution adopted.
"U.S. Government Obligations" means (i) securities that are direct
obligations of the United States of America for the payment of which its full
faith and credit are pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any such U.S.
Government Obligation held by such custodian for the account of the holder of
such depository receipt; provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or a specific payment of principal or
interest on any such U.S. Government Obligation held by such custodian for the
account of the holder of such depository receipt.
"Wholly-Owned Subsidiary" means any Subsidiary all of the outstanding
Equity Interests (other than directors' qualifying shares) of which are owned,
directly or indirectly, by the Company.
23
SECTION 1.2. Other Definitions. The definitions of the following terms
may be found in the Sections indicated as follows:
Term Defined in Section
---- ------------------
"Agent Members" 2.15
"Business Day" 12.8
"Change of Control Date" 4.8
"Change of Control Offer" 4.8
"Change of Control Payment Date" 4.8
"Change of Control Redemption Period" 4.6
"Collateral Proceeds Amount" 4.9
"Collateral Proceeds Offer" 4.9
"Covenant Defeasance" 9.3
"Event of Default" 6.1
"Legal Defeasance" 9.2
"Legal Holiday" 12.8
"Paying Agent" 2.3
"Physical Notes" 2.1
"Registrar" 2.3
"Required Filing Date" 4.2
"Secondary Senior Notes" 2.2
"transfer" 5.1
SECTION 1.3. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the portion of such
provision required to be incorporated herein in order for this Indenture to be
qualified under the TIA 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 Senior Notes.
"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, the Guarantors
or any other obligor on the Senior Notes.
All other terms used in this Indenture that are defined by the TIA,
defined in the TIA by reference to another statute or defined by SEC rule have
the meanings therein assigned to them.
SECTION 1.4. Rules of Construction. Unless the context otherwise
requires:
24
(1) a term has the meaning assigned to it herein, whether defined
expressly or by reference;
(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 in the plural
include the singular;
(5) words used herein implying any gender shall apply to every
gender;
(6) "herein," "hereof' and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
Subdivision, unless expressly stated otherwise; and
(7) provisions apply to successive events and transactions.
ARTICLE 2
The Senior Notes
----------------
SECTION 2.1. Dating; Incorporation of Form in Indenture. The Senior
Notes and the Trustee's certificate of authentication shall be substantially in
the form of Exhibit B which is incorporated in and made part of this Indenture.
The Senior Notes shall have notations, legends or endorsements required by law,
stock exchange rule, usage, or agreements to which the Company or any Guarantor
is subject. The Company shall use "CUSIP" numbers in issuing the Senior Notes.
Each Senior Note shall be dated the date of its authentication.
One or more permanent Global Notes issued and delivered hereunder may
be in registered form, substantially in the form set forth in Exhibit B, having
the legend set forth in Exhibit C, may be issued to the Depository, to the
extent such Depository is the Registered Holder of the applicable Senior Notes.
Otherwise, Senior Notes hereunder may be issued in the form of certificated
Senior Notes in registered form in substantially the form set forth in Exhibit B
(the "Physical Notes"), without the legend set forth in Exhibit C.
The terms and provisions contained in the Senior Notes and the
Guarantees shall constitute, and are hereby expressly made, a part of this
Indenture and the Company, the Guarantors and the Trustee, by their execution
and delivery of this Indenture, expressly agree to such terms and provisions and
to be bound thereby.
SECTION 2.2. Execution and Authentication. The Senior Notes shall be
executed on behalf of the Company by two Officers of the Company or an Officer
and an Assistant Secretary of the Company. Such signatures may be either manual
or facsimile. If an Officer whose signature is on a Senior Note no longer holds
that office at the time the Trustee authenticates the Senior Note or at any time
thereafter, the Senior Note shall be valid nevertheless.
25
A Senior Note shall not be valid until the Trustee manually signs the
certificate of authentication on the Senior Note. Such signature shall be
conclusive evidence that the Senior Note has been authenticated under this
Indenture.
The Trustee or an authenticating agent shall authenticate Senior Notes
for original issue in the aggregate principal amount of up to $145,000,000),
subject to adjustment pursuant to Section 8.1(7). The aggregate principal amount
of Senior Notes, excluding Secondary Senior Notes, outstanding at any time may
not exceed such amount except as provided in Section 2.7. The Senior Notes shall
be issuable only in registered form without coupons and only in denominations of
whole dollar integrals. The Trustee shall issue Senior Notes upon a Company
Request.
In the event the Company elects to pay a portion of interest as
specified in the terms of the Senior Notes in additional Senior Notes, the
Company shall pay a portion of such interest in Secondary Senior Notes in lieu
of cash as provided in paragraph 1 of the Senior Notes (such Senior Notes,
"Secondary Senior Notes"). The Company shall give written notice to the Trustee
of the amount of interest to be paid in Secondary Senior Notes not less than
five Business Days prior to the relevant Interest Payment Date, and the Trustee
or an authenticating agent (upon written order of the Company signed by an
Officer of the Company given not less than five nor more than 45 days prior to
such Interest Payment Date) shall authenticate for original issue (pro rata to
each Holder of any Senior Notes as of such record date) Secondary Senior Notes
in an aggregate principal amount equal to the amount of interest payable with
such Secondary Senior Notes on such Interest Payment Date. Each issuance of
Secondary Senior Notes in lieu of the payment of a portion of interest in cash
on the Senior Notes shall be made pro rata with respect to the outstanding
Senior Notes, and the Company shall have the right to aggregate amounts of
interest payable in the form of Secondary Senior Notes to a Holder of
outstanding Senior Notes and issue to such Holder a single Secondary Senior Note
in payment thereof. Any Secondary Senior Notes may be denominated as a separate
series if the Company deems it necessary to do so, with appropriate
distinguishing designations. As set forth in paragraph 1 of the Senior Notes, in
the event the Company elects to pay a portion of interest in Secondary Senior
Notes, the Company shall also pay to each Holder, on a pro rata basis, an
additional amount, payable in cash on such Interest Payment Date in amount equal
to ?% of the aggregate amount of Senior Notes outstanding as of the applicable
record date for such Interest Payment (such amounts, "Additional Amount").
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Senior Notes. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Senior Notes whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. Such authenticating agent shall
have the same right as the Trustee in dealing with the Company or an Affiliate.
SECTION 2.3. Agents. The Company shall maintain an office or agency in
the Borough of Manhattan, City of New York, State of New York where Senior Notes
may be presented for registration of transfer or for exchange ("Registrar") and
where Senior Notes may be presented for payment ("Paying Agent") and where
notices and demands to or upon the Company in respect of the Senior Notes and
this Indenture may be served. The Registrar shall
26
keep a register of the Senior Notes and of their transfer and exchange. The
Company may appoint one or more co-Registrars and one or more additional Paying
Agents. The Company may change any Paying Agent, Registrar or co-Registrar
without notice to any Noteholder. Neither the Company nor any of its
Subsidiaries or Affiliates may act as Paying Agent but may act as Registrar or
co-Registrar.
The Company shall enter into an appropriate agency agreement with any
Registrar or Paying Agent which is not a party to this Indenture. The agreement
shall implement the provisions of this Indenture that relate to such Agent. The
Company shall notify the Trustee of the name and address of any such Agent. If
the Company fails to maintain a Registrar or Paying Agent, or agent for service
of notices and demands, or fails to give the foregoing notice, the Trustee shall
act as such and shall be entitled to appropriate compensation pursuant to
Section 7.7. The Company initially appoints the Trustee as Registrar, Paying
Agent and agent for service of notices and demands in connection with the Senior
Notes.
SECTION 2.4. Paying Agent to Hold Money in Trust. On or before each due
date of the principal of, premium if any, interest or Additional Amounts, if
any, on any Senior Notes, the Company shall deposit with the Paying Agent a sum
sufficient to pay such principal, premium if any, interest so becoming due. Each
Paying Agent shall hold in trust for the benefit of Noteholders or the Trustee
all money held by the Paying Agent for the payment of principal of or interest
or Additional Amounts, if any, on the Senior Notes (whether such money has been
paid to it by the Company or any other obligor on the Senior Notes), and the
Company and the Paying Agent shall notify the Trustee of any default by the
Company or any Guarantor (or any other obligor on the Senior Notes) in making
any such payment. Money held in trust by the Paying Agent need not be segregated
except as required by law and in no event shall the Paying Agent be liable for
any interest on any money received by it hereunder. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee, and the
Trustee may at any time during the continuance of any Event of Default specified
in Section 6.1(1) or (2), upon written request to a Paying Agent, require such
Paying Agent to forthwith pay to the Trustee all sums so held in trust by such
Paying Agent together with a complete accounting of such sums. Upon doing so,
the Paying Agent shall have no further liability for the money delivered to the
Trustee.
SECTION 2.5. Noteholder 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 Noteholders. The Trustee shall provide Noteholders with
access to such list in accordance with TIA Section 312. If the Trustee is not
the Registrar, the Company shall furnish to the Trustee on or prior to the tenth
Business Day 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 Noteholders,
including the aggregate principal amount of Senior Notes held by each such
Noteholder.
SECTION 2.6. Transfer and Exchange. (a) Subject to Section 2.16, when a
Senior Note is presented to the Registrar with a request to register the
transfer thereof, the Registrar shall register the transfer as requested if the
requirements of applicable law and of this Indenture are met and, when Senior
Notes are presented to the Registrar with a request to exchange them for an
equal principal amount of Senior Notes of other authorized denominations, the
Registrar shall
27
make the exchange as requested, provided that every Senior Note presented or
surrendered for registration of transfer or exchange shall be duly endorsed or
be accompanied by a written instrument of transfer in form satisfactory to the
Company and the Registrar duly executed by the Holder thereof or his attorney,
duly authorized in writing. To permit registration of transfers and exchanges,
upon surrender of any Senior Note for registration of transfer at the office or
agency maintained pursuant to Section 2.3 hereof, the Company shall issue and
execute and the Trustee shall authenticate Senior Notes at the Registrar's
request. Any exchange or transfer shall be without any service charge to the
Noteholder, except that the Company may require payment by the Noteholder of a
sum sufficient to cover any tax or the governmental charge that may be imposed
in relation to a transfer or exchange, but this provision shall not apply to any
exchange pursuant to this Indenture. The Trustee shall not be required to
register transfers of Senior Notes or to exchange Senior Notes for a period of
15 days before selection of any Senior Notes to be redeemed. The Trustee shall
not be required to exchange or register transfers of any Senior Notes called or
being called for redemption in whole or in part, except the unredeemed portion
of any Senior Note being redeemed in part. All Senior Notes issued upon any
transfer or exchange pursuant to the terms of this Indenture will evidence the
same debt and will be entitled to the same benefits under this Indenture as the
Senior Notes surrendered upon such transfer or exchange.
(b) Any Holder of a Global Note shall, by acceptance of such
Global Note, agree that transfers of the beneficial interests in such Global
Note may be effected only through a book entry system maintained by the Holder
of such Global Note (or its agent), and that ownership of a beneficial interest
in the Global Note shall be required to be reflected in a book entry.
(c) Except as expressly provided herein, neither the Trustee nor
the Registrar shall have any duty to monitor the Company's compliance with or
have any responsibility with respect to the Company's compliance with any
federal or state securities laws.
SECTION 2.7. Replacement Senior Notes. If a mutilated Senior Note is
surrendered to the Registrar or Trustee or if the Holder of a Senior Note
presents evidence to the satisfaction of the Company and the Trustee that the
Senior Note has been lost, destroyed or wrongfully taken and of the ownership
thereof, the Company shall issue and the Trustee shall authenticate a
replacement Senior Note if the Holder of such Senior Note furnishes to the
Company and the Trustee evidence reasonably acceptable to them of the ownership
and destruction, loss or theft of such Senior Note or if the reasonable
requirements of the Trustee and of Section 8-405 of the Uniform Commercial Code
as in effect in the State of Delaware are met. An indemnity bond may be required
by the Company or the Trustee that is sufficient in the judgment of the Company
and the Trustee to protect the Company, the Trustee or any Agent from any loss
which any of them may suffer if a Senior Note is replaced. The Company or the
Trustee each may charge for its expenses (including reasonable attorneys' fees
and expenses) in replacing a Senior Note.
Every replacement Senior Note is an additional obligation of the
Company.
28
SECTION 2.8. Outstanding Senior Notes. Senior Notes outstanding at any
time are all Senior Notes authenticated by the Trustee except for those
cancelled by it, those delivered to it for cancellation, and those described in
this Section 2.8 as not outstanding.
If a Senior Note is replaced pursuant to Section 2.7, such Senior Note
that has been replaced will cease to be outstanding until the Company and the
Trustee receive proof satisfactory to each of them that the replaced Senior Note
is held by a bona fide purchaser in whose hands such obligation is a legal,
valid and binding obligation of the Company.
If a Paying Agent holds on a Redemption Date or Maturity Date money
sufficient to pay the principal of, premium, if any, and all accrued interest
with respect to Senior Notes payable on that date and is not prohibited from
paying such money to the Holders thereof pursuant to the terms of this
Indenture, then on and after that date such Senior Notes shall cease to be
outstanding and interest on them shall cease to accrue.
Subject to Section 12.6, a Senior Note does not cease to be outstanding
solely because the Company or an Affiliate holds the Senior Note.
SECTION 2.9. Temporary Senior Notes. Until definitive Senior Notes are
ready for delivery, the Company may prepare and the Trustee shall authenticate
temporary Senior Notes. Temporary Senior Notes shall be substantially in the
form, and shall carry all rights, benefits and privileges, of definitive Senior
Notes but may have variations that the Company considers appropriate for
temporary Senior Notes. Without unreasonable delay, the Company shall prepare
and the Trustee shall authenticate definitive Senior Notes in exchange for
temporary Senior Notes presented to it.
SECTION 2.10. Cancellation. The Company at any time may deliver Senior
Notes to the Trustee for cancellation. The Registrar and the Paying Agent shall
forward to the Trustee any Senior Notes surrendered to them for transfer,
exchange or payment. The Trustee shall cancel and retain or may dispose of
(subject to the record-retention requirements of the Exchange Act), in
accordance with its normal practice, all Senior Notes surrendered for transfer,
exchange, payment or cancellation. Subject to Section 2.7 hereof, the Company
may not issue new Senior Notes to replace Senior Notes in respect of which it
has previously paid all principal, premium and interest accrued thereon, or
delivered to the Trustee for cancellation.
SECTION 2.11. Defaulted Interest. If the Company defaults in a payment
of any interest on the Senior Notes, it shall pay the defaulted amounts in cash,
plus (to the extent permitted by law) any interest payable on defaulted amounts
pursuant to Section 4.1 hereof, to the persons who are Noteholders on a
subsequent special record date.
The Company shall fix the special record date and payment date for
payment of such defaulted amounts in a manner satisfactory to the Trustee and
provide the Trustee at least 20 days notice of the proposed amount of default
interest to be paid and the special payment date. At least 15 days before the
special record date, the Company shall mail or cause to be mailed to each
Noteholder at his address as it appears on the Senior Notes register maintained
by the Registrar a notice that states the special record date, the payment date
(which shall be not less than five nor more than ten days after the special
record date), and the amount to be paid. In lieu
29
of the foregoing procedures, the Company may pay defaulted interest in any other
lawful manner satisfactory to the Trustee.
SECTION 2.12. Deposit of Moneys. Prior to 10:00 a.m., New York City
time, as required, on (i) each Interest Payment Date and (ii) the Maturity 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 or Maturity Date, as the case may be, in a timely manner which
permits the Trustee to remit payment to the Holders at such times. The principal
and interest on Global Notes shall be payable to the Depository or its nominee,
as the case may be, as the sole registered owner and the sole holder of the
Global Notes represented thereby. The principal and interest on Physical Notes
shall be payable at the office of the Paying Agent.
SECTION 2.13. CUSIP Number. The Company in issuing the Senior Notes may
use a "CUSIP" number (or numbers), and if so, the Trustee may use the CUSIP
number(s) in notices of redemption or exchange as a convenience to Holders,
provided that any such notice may state that no representation is made as to the
correctness or accuracy of the CUSIP number(s) printed in the notice or on the
Senior Notes, and that reliance may be placed only on the other identification
numbers printed on the Senior Notes. The Company will promptly notify in writing
the Trustee of any such CUSIP number used by the Company in connection with the
Senior Notes and any change in such CUSIP number.
SECTION 2.14. Payments to Holders. Notwithstanding any provisions of
this Indenture and the Senior Notes to the contrary:
(a) Except for any payments to be made on a Redemption Date or the
Maturity Date, payments with respect to any of the Senior Notes may be made by
the Paying Agent upon receipt from the Company of immediately available funds,
by check mailed to the Holder, at the address shown in the registrar of the
Senior Notes maintained by the Registrar pursuant to Section 2.3 hereof; or
(b) At the request of a Holder of at least $5 million in aggregate
principal amount of Senior Notes outstanding, all payments with respect to any
of the Senior Notes may be made by the Paying Agent upon receipt from the
Company of immediately available funds prior to 10:00 a.m., New York City time,
directly to the Holder of such Senior Note (whether by federal funds, wire
transfer or otherwise); provided, however, that no such federal funds, wire
transfer or other such direct payment shall be made to any Holder under this
Section 2.14(b) unless such Holder has delivered written instructions to the
Trustee prior to the relevant record date for such payment requesting that such
payment will be so made and designating the bank account to which such payments
shall be so made and, in the case of payments of principal, surrenders the
Senior Note to the Trustee in exchange for a Senior Note or Senior Notes
aggregating the same principal amount as the unredeemed principal amount of the
Senior Notes surrendered. The Trustee shall be entitled to rely on the last
instruction delivered by the Holder pursuant to this Section 2.14(b) unless a
new instruction is delivered prior to the relevant record date for a payment
date. The Company will indemnify and hold the Trustee harmless against any loss,
liability or expense (including attorneys' fees and expenses) resulting from any
act or omission to act on the part of the Company or any such Holder in
connection with any such
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agreement or which the Paying Agent may incur as a result of making any payment
in accordance with any such agreement.
All payments made on a Redemption Date are subject to Section 2.8 and
Article 3 hereof. No later than fifteen (15) days prior to the Maturity Date,
the Trustee shall notify the Holder, at the address shown in the registrar of
the Senior Notes maintained by the Registrar pursuant to Section 2.3 hereof,
that the Company expects that the final installment of principal of and interest
on the Senior Notes will be paid on the Maturity Date. Such notice shall specify
that such final installment will be payable only upon presentation and surrender
of such Senior Note and shall specify the place where such Senior Notes may be
presented and surrendered for payment of such installment. Additionally, in
accordance with Section 2.8, such Senior Notes shall cease to be outstanding.
SECTION 2.15. Book-Entry Provisions for Global Notes.
--------------------------------------
(a) The Global Notes initially shall (i) be registered in the name
of the Depository or the nominee of such Depository, (ii) be delivered to the
Trustee as custodian for such Depository and (iii) bear legends as set forth in
Exhibit C.
Members of, or participants in, the Depository ("Agent Members") shall
have no rights under this Indenture with respect to any Global Note held on
their behalf by Depository, or the Trustee as its custodian, or under the Global
Note, 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 the Global Note 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 Senior Note.
(b) Transfers of Global Notes shall be limited to transfer in
whole, but not in part, to the Depository, its successors or their respective
nominees. Interests of beneficial owners in the Global Notes may be transferred
or exchanged for Physical Notes in accordance with the rules and procedures of
the Depository. In addition, Physical Notes shall be transferred to all
beneficial owners in exchange for their beneficial interests in Global Notes if
(i) the Depository notifies the Company that it is unwilling or unable to
continue as Depository for any Global Note and a successor depositary 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 Notes.
(c) In connection with any transfer or exchange of a portion of
the beneficial interest in any Global Note to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more Physical Notes are to be
issued) reflect on its books and records the date and a decrease in the
principal amount of the Global Note in an amount equal to the principal amount
of the beneficial interest in the Global Note to be transferred, and the Company
shall execute, and the Trustee shall upon receipt of a written order from the
Company authenticate and make available for delivery, one or more Physical Notes
of like tenor and amount.
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(d) In connection with the transfer of Global Notes as an entirety
to beneficial owners pursuant to paragraph (b), the Global Notes shall be deemed
to be surrendered to the Trustee for cancellation, and the Company shall
execute, and the Trustee shall authenticate and deliver, to each beneficial
owner identified by the Depository in writing in exchange for its beneficial
interest in the Global Notes, an equal aggregate principal amount of Physical
Notes of authorized denominations.
(e) The Holder of any Global Note may grant proxies and otherwise
authorize any person, including Agent Members and persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture, the Senior Notes or the Guarantees.
SECTION 2.16. Record Date. The record date for purposes of determining
the identity of Holders entitled to vote or consent to any action by vote or
consent authorized or permitted under this Indenture shall be determined as
provided in TIA Section 316(c).
ARTICLE 3
Redemption
----------
SECTION 3.1. Notices to Trustee. If the Company elects to redeem Senior
Notes pursuant to Section 3.7 hereof, at least 30 days prior to the Redemption
Date (or such shorter period prior to the Redemption Date as the Trustee may
agree to in writing), the Company shall notify the Trustee in writing of the
Redemption Date, the principal amount of Senior Notes to be redeemed and the
redemption price, and deliver to the Trustee an Officers' Certificate stating
that such redemption will comply with the conditions contained in Section 3.7
hereof.
SECTION 3.2. Selection by Trustee of Senior Notes to Be Redeemed. In
the event that fewer than all of the Senior Notes are to be redeemed, the
Trustee shall select the Senior Notes to be redeemed, if the Senior Notes are
listed on a national securities exchange, in accordance with the rules of such
exchange or, if the Senior Notes are not so listed, on either a pro rata basis
or by lot, or such other method as it shall deem fair and equitable. As soon as
practicable but in not less than 20 days prior to the Redemption Date, the
Trustee shall notify the Company of the Senior Notes selected for redemption
and, in the case of any Senior Notes selected for partial redemption, the
principal amount thereof to be redeemed. The Trustee may select for redemption
portions of the principal of the Senior Notes that have denominations larger
than $1,000. Senior Notes and portions thereof the Trustee selects shall be
redeemed in amounts of $1,000 or whole multiples of $1,000. For all purposes of
this Indenture unless the context otherwise requires, provisions of this
Indenture that apply to Senior Notes called for redemption also apply to
portions of Senior Notes called for redemption.
SECTION 3.3. Notice of Redemption. At least 15 days, but no more than
30 days, before a Redemption Date, the Company shall mail, or cause to be
mailed, a notice of redemption by first-class mail to each Holder of Senior
Notes to be redeemed at each Holder's last address as the same appears on the
registry books maintained by the Registrar pursuant to Section 2.3 hereof.
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The notice shall identify the Senior Notes to be redeemed (including
the CUSIP number(s) thereof) and shall state:
(1) the Redemption Date;
(2) the redemption price and the amount of accrued interest,
if any, to be paid (or the method by which any such amount of accrued interest
to be paid is to be calculated);
(3) if any Senior Note is being redeemed in part, the portion
of the principal amount of such Senior Note to be redeemed and that, after the
Redemption Date and upon surrender of such Senior Note, a new Senior Note or
Senior Notes in principal amount equal to the unredeemed portion will be issued;
(4) the name and address of the Paying Agent;
(5) that Senior Notes called for redemption must be
surrendered to the Paying Agent to collect the redemption price;
(6) that unless the Company defaults in making the redemption
payment, interest on Senior Notes called for redemption ceases to accrue on and
after the Redemption Date and that the only remaining right of the Holders of
such Senior Notes is to receive payment of the Senior Notes redemption price
upon surrender to the Paying Agent of the Senior Notes redeemed; and
(7) the aggregate principal amount of Senior Notes that are
being redeemed.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense.
SECTION 3.4. Effect of Notice of Redemption. Once the notice of
redemption described in Section 3.3 is mailed, Senior Notes called for
redemption become due and payable on the Redemption Date and at the redemption
price, including any premium, plus interest accrued to the Redemption Date. Upon
surrender to the Paying Agent, such Senior Notes shall be paid at the redemption
price, including any premium, plus interest accrued to the Redemption Date,
provided that if the Redemption Date is after a regular interest payment record
date and on or prior to the applicable Interest Payment Date, the accrued
interest shall be payable to the Holder of the redeemed Senior Notes registered
on the relevant record date, and provided, further, that if a Redemption Date is
a Legal Holiday, payment shall be made on the next succeeding Business Day and
no interest shall accrue for the period from such Redemption Date to such
succeeding Business Day.
SECTION 3.5. Deposit of Redemption Price. On or prior to 10:00 a.m.,
New York City time, on each Redemption Date, the Company shall deposit with the
Paying Agent in immediately available funds money sufficient to pay the
redemption price of and accrued interest on all Senior Notes to be redeemed on
that date other than Senior Notes or portions thereof
33
called for redemption on that date which have been delivered by the Company to
the Trustee for cancellation.
On and after any Redemption Date, if money sufficient to pay the
redemption price of and accrued interest on Senior Notes called for redemption
shall have been made available in accordance with the preceding paragraph and
payment thereof is not prohibited pursuant to the terms of this Indenture, the
Senior Notes called for redemption will cease to accrue interest and the only
right of the Holders of such Senior Notes will be to receive payment of the
redemption price of and, subject to the first proviso in Section 3.4, accrued
and unpaid interest on such Senior Notes to the Redemption Date. If any Senior
Note called for redemption shall not be so paid, interest will be paid, from the
Redemption Date until such redemption payment is made, on the unpaid principal
of the Senior Note and any interest not paid on such unpaid principal, in each
case, at the rate and in the manner provided in the Senior Notes.
SECTION 3.6. Senior Notes Redeemed in Part. Upon surrender of a Senior
Note that is redeemed in part, the Trustee shall authenticate for a Holder a new
Senior Note equal in principal amount to the unredeemed portion of the Senior
Note surrendered.
SECTION 3.7. Optional Redemption. The Company may redeem the Senior
Notes, in whole or in part, at any time other than during the Change of Control
Redemption Period, defined below, at a redemption price equal to 100% of the
principal amount thereof, plus any accrued and unpaid interest to the Redemption
Date.
ARTICLE 4
Covenants
---------
SECTION 4.1. Payment of Senior Notes.
(a) The Company shall pay the principal of, premium, if any, and
interest in cash on the Senior Notes from the Issue Date, or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, semi-annually in arrears on each Interest Payment Date and in the manner
provided in the Senior Notes at a rate per annum of 9.5% until the principal
hereof shall have become due and payable, and in cash on any overdue principal
and (without duplication and to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at the
same rate per annum compounded semi-annually. The amount of interest payable on
any Interest Payment Date shall be computed on the basis of the actual number of
days elapsed and a 360-day year.
SECTION 4.2. Reports. The Company will file with the SEC all
information, documents and reports to be filed with the SEC pursuant to Section
13 or 15(d) of the Exchange Act, whether or not the Company is subject to such
filing requirements, so long as the SEC will accept such filings on or prior to
the respective dates (such dates, including any extension granted by the SEC,
the "Required Filing Dates") by which the Company would have been or is required
to so file such documents. The Company (at its own expense) shall also in any
event within 15 days after each Required Filing Date (i) transmit by mail to all
Holders, at their addresses appearing in the register of Senior Notes maintained
by the Registrar and (ii) file with
34
the Trustee within 15 days after the Required Filing Date, copies of the annual
reports and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the SEC may by rules and regulations
prescribe) which the Company files with the SEC pursuant to Section 13 or 15(d)
of the Exchange Act or would be required to file with the SEC if it were subject
to Section 13 or 15(d) of the Exchange Act. The Company shall comply with the
provisions of TIA Section 314(a). Delivery of such reports, information and
documents to the Trustee is for informational purposes only and the Trustee's
receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
SECTION 4.3. Waiver of Stay, Extension or Usury Laws. The Company and
each Guarantor covenants (to the extent that it may lawfully do so) that it will
not at any time insist upon, or plead (as a defense or otherwise) or in any
manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law which would prohibit or forgive the
Company or such Guarantor, as the case may be, from paying all or any portion of
the principal of, premium, if any, and/or interest on the Senior Notes 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 and each 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.
SECTION 4.4. Compliance Certificate. (a) The Company and each Guarantor
(to the extent that such Guarantor is so required under the TIA) shall deliver
to the Trustee, within 120 days after the end of each fiscal year, an Officers'
Certificate (one of the signers of which shall be the principal executive
officer, principal financial officer or principal accounting officer of the
Company or such Guarantor, as the case may be) complying with Section 314(a)(4)
of the TIA stating that a review of the activities of the Company or such
Guarantor, as the case may be, during such fiscal year has been made under the
supervision of the signing Officers with a view to determining whether the
Company or such Guarantor, as the case may be, has kept, observed, performed and
fulfilled its obligations under the Collateral Documents and this Indenture, and
further stating, as to each such Officer signing such certificate, that to the
best of his or her knowledge the Company or such Guarantor, as the case may be,
has kept, observed, performed and fulfilled each and every covenant contained in
the Collateral Documents and this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions thereof
or hereof (determined without regard to any period of grace or requirement of
notice provided herein), or, if a Default or Event of Default shall have
occurred, describing all or such Defaults or Events of Default of which he or
she may have knowledge and what action the Company or such Guarantor, as the
case may be, is taking or proposes to take with respect thereto.
(b) The Company will, so long as any of the Senior Notes are
outstanding, deliver to the Trustee, forthwith upon any Officer's becoming aware
of any Default or Event of Default, an Officers' Certificate specifying the
nature and extent of the same in reasonable detail
35
and what action the Company or such Guarantor, as the case may be, is taking or
proposes to take with respect thereto.
SECTION 4.5. Taxes. The Company shall pay or discharge or cause to be
paid or discharged, before the same shall become delinquent, (a) all taxes,
assessments and governmental charges levied or imposed upon it or its
Subsidiaries' income, profits or property and (b) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a Lien upon their
property; 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 (1) whose amount, applicability or validity is being contested in good
faith by appropriate negotiations or proceedings or (2) the failure to pay or
discharge would not have a material adverse effect on the Company and its
Subsidiaries, taken as a whole.
SECTION 4.6. Change of Control.
(a) Upon the occurrence of a Change of Control, each Holder shall
have the right to require that the Company purchase all or a portion of any
outstanding Senior Notes held by such Holder pursuant to the offer described in
paragraph (b) below (the "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. Prior to the mailing of the notice referred to below, but in any
event within 45 days following any Change of Control, the Company shall (i)
repay in full and terminate all commitments under the Credit Agreement, and all
other Senior Indebtedness 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 such other such Senior
Indebtedness 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 Indebtedness to permit the repurchase of the
Senior Notes as provided below.
(b) Within 45 days following the date (the "Change of Control
Date") upon which the Change of Control occurred (the "Change of Control
Redemption Period"), the Company shall send, by first class mail, a notice to
each Holder, with a copy to the Trustee, which notice shall govern the terms of
the Change of Control Offer. The notice to the Holders shall contain all
instructions and materials necessary to enable such Holders to tender Senior
Notes pursuant to the Change of Control Offer. Such notice shall state:
(i) that the Change of Control Offer is being made pursuant
to this Section 4.06 and that all Senior Notes tendered and not withdrawn will
be accepted for payment;
(ii) 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"); provided that the
Change of Control Payment Date for the Senior Notes shall be a date subsequent
to any payment dates for the purchase or other repayment of Senior Indebtedness
having similar provisions;
(iii) that any Senior Notes not tendered will continue to
accrue interest;
36
(iv) that, unless the Company defaults in making payment
therefore, any Senior Notes accepted for payment pursuant to the Change of
Control Offer shall cease to accrue interest after the Change of Control Payment
Date;
(v) that Holders electing to have a Senior Note purchased
pursuant to a Change of Control Offer will be required to surrender the Senior
Note, with the form entitled "Option of Holder to Elect Purchase" on the reverse
of the Senior Note 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;
(vi) that Holders will be entitled to withdraw their election
if the Paying Agent receives, not later than five Business Days prior to the
Change of Control Payment Date, a facsimile transmission or letter setting forth
the name of the Holder, the principal amount of the Senior Notes the Holder
delivered for purchase and a statement that such Holder is withdrawing his
election to have such Senior Notes purchased;
(vii) that Holders whose Senior Notes are purchased only in
part will be issued new Senior Notes in a principal amount equal to the
unpurchased portion of the Senior Notes surrendered; provided that each Senior
Note purchased and each new Senior Note issued shall be in an original principal
amount of $1,000 or integral multiples thereof; and
(viii) the circumstances and relevant facts regarding such
Change of Control.
On or before the Change of Control Payment Date, the Company shall (i)
accept for payment Senior Notes 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 plus accrued interest, if any, of all
Senior Notes so tendered and (iii) deliver to the Trustee Senior Notes so
accepted together with an Officers' Certificate stating the Senior Notes or
portions thereof being purchased by the Company. The Paying Agent shall promptly
mail to the Holders of Senior Notes so accepted payment in an amount equal to
the purchase price plus accrued interest, if any, and the Trustee shall promptly
authenticate and mail to such Holders new Senior Notes equal in principal amount
to any unpurchased portion of the Senior Notes surrendered. Any Senior Notes not
so accepted shall be promptly mailed by the Company to the Holder thereof. For
purposes of this Section 4.6, the Trustee shall act as the Paying Agent.
Any amounts remaining after the purchase of Senior Notes pursuant to a
Change of Control Offer shall be returned by the Trustee to the Company.
The Company shall comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of Senior Notes pursuant to a Change of Control Offer. To the extent
the provisions of any securities laws or regulations conflict with the
provisions under this Section 4.6, the Company shall comply with the applicable
securities laws and regulations and shall not be deemed to have breached its
obligations under this Section 4.6 by virtue thereof.
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SECTION 4.7. Limitation on Additional Indebtedness. Holdings and the
Company will not, and will not permit any of its Subsidiaries to, directly or
indirectly, incur (as defined herein) any Indebtedness (including Acquired
Indebtedness); provided, however, that the Company or any Guarantor may incur
Indebtedness (including Acquired Indebtedness) if (i) after giving effect on a
pro forma basis to the incurrence of such Indebtedness and, to the extent set
forth in the definition of Consolidated Fixed Charge Coverage Ratio, the receipt
and application of the proceeds thereof, the Company's Consolidated Fixed Charge
Coverage Ratio would be greater than [2 to 1]; and (ii) no Default or Event of
Default shall have occurred and be continuing at the time or as a consequence of
the incurrence of such Indebtedness.
The foregoing paragraph shall not prohibit the incurrence of the
following:
(i) Senior Indebtedness at any time outstanding in an
aggregate principal amount not to exceed $160 million;
(ii) Indebtedness under or in connection with the Senior
Notes and the Guarantees;
(iii) Any other Indebtedness provided for in the Plan of
Reorganization;
(iv) Refinancing Indebtedness;
(v) Capitalized Lease Obligations in an aggregate principal
amount outstanding at any time not to exceed $o million;
(vi) Purchase Money Indebtedness in an aggregate principal
amount outstanding at any time not to exceed $o million;
(vii) Indebtedness of a Subsidiary issued to and held by the
Company or a Subsidiary or Indebtedness of the Company to a Subsidiary in
respect of intercompany advances or transactions;
(viii) Indebtedness in respect of non-speculative Interest
Rate Agreements; provided that the notional principal amount related to such
non-speculative Interest Rate Agreement does not exceed the principal amount of
the Indebtedness to which such Interest Rate Agreement relates;
(ix) Indebtedness represented by performance bonds, warranty
or contractual service obligations, standby letters of credit or appeal bonds,
in each case to the extent incurred in the ordinary course of business of the
Company and its Subsidiaries;
(x) Indebtedness in respect of netting services, overdraft
protections and otherwise in connection with Deposit Accounts;
(xi) Guarantees in the ordinary course of business of the
obligations of suppliers, customers, franchisee and licensee of the Company and
its Subsidiaries;
38
(xii) Refinancing Notes, provided, however, that the proceeds
thereof shall be used within one Business Day of receipt to satisfy and repay
the Senior Notes in full;
(xiii) Indebtedness issued in the ordinary course of business
solely to support the Company's or any Subsidiary's insurance or self-insurance
obligations (including, without limitation, to secure workers' compensation and
other similar insurance coverages); and
(xiv) Indebtedness not otherwise permitted to be incurred
pursuant to clauses (i) through (vi) above, which, together with any other
Indebtedness incurred pursuant to this clause (vii), has an aggregate principal
amount not in excess of $[5] million at any time
For purposes of determining compliance with, and the outstanding
principal amount of a particular Indebtedness incurred pursuant to and in
compliance with this Section 4.6, in the event such Indebtedness meets the
criteria of more than one of the types of Indebtedness described in the first
paragraph of this Section 4.6 or in clauses (i) through (xiii) of the second
paragraph of this Section 4.6, (a) the Company, in its sole discretion, shall
classify such item of Indebtedness and only be required to include the amount
and type of such Indebtedness either in the first paragraph of this Section 4.6
or one of such clauses in the second paragraph of this Section 4.6, or any
combination thereof, and (b) the Company, in its sole discretion, may reclassify
such item of Indebtedness under a different paragraph or clause of this Section
4.6 so long as such Indebtedness met the criteria of such paragraph or clause on
the date on which it was incurred.
SECTION 4.8. Limitation on Restricted Payments. The Company will not,
and will not permit any of its Subsidiaries to, directly or indirectly, make,
any Restricted Payment, unless
(a) no Default or Event of Default shall have occurred or would
occur and be continuing at the time of and immediately after giving effect to
such Restricted Payment;
(b) immediately after giving pro forma effect to such Restricted
Payment, the Company could incur $1.00 of additional Indebtedness under the
first paragraph of Section 4.6 hereof; and
(c) [immediately after giving effect to such Restricted Payment,
the aggregate of all Restricted Payments declared or made after the Issue Date
through and including the date of such Restricted Payment (the "Base Period")
does not exceed the sum of (1) 50% of the Company's Consolidated Net Income (or
in the event such Consolidated Net Income shall be a deficit, minus 100% of such
deficit) during the Base Period, and (2) 100% of the aggregate Net Proceeds from
the issue or sale during the Base Period of Equity Interests (other than
Disqualified Equity Interests or Equity Interests of the Company issued to any
Subsidiary of the Company) of the Company or any Indebtedness of the Company
convertible into or exercisable or exchangeable for Equity Interests (other than
Disqualified Equity Interests) of the Company which has been so converted or
exercised or exchanged, as the case may be. For purposes of determining under
clause (c) the amount expended for Restricted Payments, cash distributed shall
be valued at the face amount thereof and property other than cash will be valued
at its fair market value.]
The provisions of this Section 4.8 shall not prohibit
39
(i) the agreement or commitment to make any payment or
distribution permitted under this Indenture or the payment or distribution so
agreed or committed to be made as long as such payment or distribution is made
on the date of such agreement or commitment or within 60 days thereof; provided,
however, that on the date of such agreement or commitment such payment would
comply with the foregoing provisions, it being understood that the agreement or
commitment to make such payment or distribution shall constitute Indebtedness
permitted under the second paragraph of Section 4.6,
(ii) the retirement of any Equity Interests of the Company or
Subordinated Indebtedness of the Company by conversion into or by an exchange
for Equity Interests (other than Disqualified Equity Interests), or out of the
Net Proceeds of the substantially concurrent sale (other than to a Subsidiary of
the Company) of other Equity Interests of the Company (other than Disqualified
Equity Interests),
(iii) the redemption or retirement of Subordinated
Indebtedness of the Company in exchange for, by conversion into, or out of the
Net Proceeds of, a substantially concurrent sale or incurrence of Indebtedness
(other than any Indebtedness owed to a Subsidiary of the Company) that is
contractually subordinated in right of payment to the Senior Notes to at least
the same extent as the Subordinated Indebtedness being redeemed or retired,
(iv) the retirement of any Disqualified Equity Interests by
conversion into, or by exchange for, shares of Disqualified Equity Interests, or
out of the Net Proceeds of the substantially concurrent sale (other than to a
Subsidiary of the Company) of other Disqualified Equity Interests, or
(v) Restricted Payments provided for in the Plan of
Reorganization to be made on or as of the Issue Date;
provided, however, that in the case of the immediately preceding clauses (ii)
and (iii), no Default or Event of Default shall have occurred and be continuing
at the time of such Restricted Payment or would occur as a result thereof.
In determining the aggregate amount of Restricted Payments made
subsequent to the Issue Date for purposes of clause (c) above, amounts expended
pursuant to clauses (i) and (ii) of the immediately preceding paragraph shall be
included, but without duplication, in such calculation.
For purposes of calculating the Net Proceeds received by the Company
from the issuance or sale of its Equity Interests either upon the conversion of,
or in exchange for, Indebtedness of the Company or any Subsidiary, such amount
will be deemed to be an amount equal to the difference of (a) the sum of (i) the
principal amount or accreted value (whichever is less) of such Indebtedness on
the date of such conversion or exchange and (ii) the additional cash
consideration, if any, received by the Company upon such conversion or exchange,
plus any payment on account of fractional shares, minus (b) all expenses
incurred in connection with such issuance or sale. In addition, for purposes of
calculating the Net Proceeds received by the Company from the issuance or sale
of its Equity Interests upon the exercise of any options or warrants of the
Company, such amount shall be deemed to be an amount equal to the difference
40
of (a) the additional cash consideration, if any, received by the Company upon
such exercise, minus (b) all fees, commissions, discounts and expenses incurred
by the Company in connection with such issuance or sale.
SECTION 4.9. Limitations on Liens. The Company will not, and will not
permit any of its Subsidiaries to, create, incur or otherwise cause or suffer to
exist or become effective any Liens of any kind (other than Permitted Liens)
upon any property or asset of the Company or any Subsidiary or any shares of
stock or debt of any Subsidiary which owns property or assets, now owned or
hereafter acquired, or any income or profits therefrom, unless (i) if such Lien
secures Indebtedness which is pari passu with the Senior Notes, then the Senior
Notes are secured on an equal and ratable basis with the obligations so secured
until such time as such obligations are no longer secured by a Lien or (ii) if
such Lien secures Subordinated Indebtedness, any such Lien shall be subordinated
to a Lien on such property or asset or shares of stock or debt granted to the
Holders of the Senior Notes to the same extent as such Subordinated Indebtedness
is subordinated to the Senior Notes.
SECTION 4.10. Limitation on Certain Asset Sales. Neither the Company
nor any of its Subsidiaries will consummate or permit, directly or indirectly,
any Asset Sale, unless (i) the Company or such Subsidiary, as the case may be,
receives consideration at the time of each such Asset Sale at least equal to the
fair market value of the Property subject to such Asset Sale, (ii) in the case
of all Asset Sales, at least 75% of the consideration received by the Company or
such Subsidiary is in the form of cash or Temporary Cash Investments, and (iii)
no Default or Event of Default shall have occurred and be continuing on the date
of such proposed Asset Sale or would result as a consequence of such Asset Sale;
provided that (a) the amount of any notes or other obligations received by the
Company or such Subsidiary from such transferee that are converted by the
Company or such Subsidiary into cash (to the extent of the cash received) within
90 days following the closing of such Asset Sale and (b) any Designated Noncash
Consideration received by the Company or any of its Subsidiaries in such Asset
Sale having an aggregate fair market value, taken together with all other
Designated Noncash Consideration received pursuant to this clause (b) that is at
that time outstanding, less the amount of cash or Temporary Cash Investments
received by the Company or any of its Subsidiaries in connection with a
subsequent sale of such Designated Noncash Consideration, not exceeding $5
million at the time of the receipt of such Designated Noncash Consideration
(measured at the time received and without giving effect to subsequent changes
in value) shall be deemed to be cash for purposes of clause (ii) of this
provision.
[With respect to any Asset Sale Proceeds related to Collateral in the
form of cash or Temporary Cash Investments (including cash collected on any
notes), and any Insurance Proceeds or Condemnation Proceeds on account of any
separate loss of any Collateral of the Company or its Subsidiaries in excess of
[$2] million which are not applied to the repair, rebuilding, restoration or
replacement of the Collateral affected by the subject Loss Event, (in any such
case, the "Collateral Proceeds Amount"), the Company shall (i) first, to the
extent the Company elects (or is required by the terms of any Indebtedness),
prepay, repay, redeem or purchase Senior Indebtedness of the Company or Senior
Indebtedness of a Wholly-Owned Subsidiary (in each case, other than Indebtedness
owed to the Company or an Affiliate of the Company) within 365 days from the
later of the date of such Asset Sale or the receipt of such Collateral Proceeds
Amount; provided, however, that in connection with any prepayment,
41
repayment or purchase of Senior Indebtedness pursuant to this clause (i), the
Company or such Wholly-Owned Subsidiary will retire such Indebtedness and will
cause the related loan commitment (if any) to be permanently reduced in an
amount equal to the principal amount so prepaid, repaid or purchased; (ii)
second, to the extent the Company elects, apply the Collateral Proceeds Amount
to acquire Property (provided that, in the case of an Asset Sale of Property
constituting Collateral under the Collateral Trust Agreement, the Company shall
cause such Property to become Collateral under the Collateral Trust Agreement as
and when received by the Company or by any of its Subsidiaries), that is useful
in any business in which the Company is permitted to be engaged within 365 days
from the later of the date of such Asset Sale or the receipt of such Collateral
Proceeds Amount; and (iii) third, make an offer (a "Collateral Proceeds Offer")
for up to a maximum principal amount (expressed as an integral multiple of
$1,000) of Senior Notes equal to the Collateral Proceeds Amount to the extent of
the balance of such Collateral Proceeds Amount after application in accordance
with clauses (i) and (ii), at a purchase price equal to 100% of the principal
amount thereof plus accrued and unpaid interest thereon, if any, to the date of
purchase in accordance with the procedures set forth in this Indenture. To the
extent that the aggregate principal amount of Senior Notes tendered pursuant to
such Collateral Proceeds Offer is less than the Collateral Proceeds Amount, the
Company may use such portion of the Collateral Proceeds Amount that is not used
to purchase Senior Notes tendered for general corporate purposes not
inconsistent with the Senior Notes or this Indenture. If the aggregate principal
amount of the Senior Notes tendered pursuant to such Collateral Proceeds Offer
is more than the Collateral Proceeds Amount, the Senior Notes tendered will be
repurchased on a pro rata basis or by such other method as the Trustee shall
deem fair and appropriate. Upon the completion of any Collateral Proceeds Offer
and the closing of any repurchase of Senior Notes tendered pursuant to such
Collateral Proceeds Offer, the amount of Collateral Proceeds Amount shall be
deemed to be zero.]
Pending their use as hereinabove prescribed, all Asset Sale Proceeds
from Asset Sales of Property constituting Collateral, Insurance Proceeds and
Condemnation Proceeds from Loss Events and non-cash consideration from Asset
Sales of Property constituting Collateral, including all Collateral Proceeds
Amounts, shall be applied as provided for under the Collateral Documents.
If the Company is required to make a Collateral Proceeds Offer, the
Company shall mail, within 30 days following the date on which the Company
receives any Collateral Proceeds Amounts, notice to the holders of the Senior
Notes stating, among other things: (1) that such holders have the right to
require the Company to apply the Collateral Proceeds Amount to repurchase such
Senior Notes at a purchase price in cash equal to 100% of the principal amount
thereof plus accrued and unpaid interest, if any, to the date of purchase; (2)
the purchase date, which shall be no earlier than 30 days and not later than 60
days from the date such notice is mailed; (3) the instructions, determined by
the Company, that each holder of Senior Notes must follow in order to have such
Senior Notes repurchased; and (4) the calculations used in determining the
amount of Collateral Proceeds Amount to be applied to the repurchase of such
Senior Notes.
In the event of the transfer of substantially all (but not all) of the
assets of the Company or any Subsidiary of the Company or substantially all (but
not all) of the assets of any division or line of business of the Company or any
Subsidiary of the Company as an entirety to a Person in a
42
transaction or series of related transactions permitted under Section 5.1
hereof, the successor corporation shall be deemed to have sold the assets of the
Company, the Subsidiary or the division or line of business, as the case may be,
not so transferred for purposes of this covenant, and shall comply with the
provisions of this covenant with respect to such deemed sale as if it were an
Asset Sale. In addition, the fair market value of such assets of the Company,
the Subsidiary or the division or line of business, as the case may be, deemed
to be sold shall be deemed to be Asset Sale Proceeds for purposes of this
covenant.
The Company will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
prepayment, repayment, redemption or the repurchase of Senior Notes with the
Asset Sale Proceeds as required herein.
To the extent that the provisions of any securities laws or regulations
conflict with provisions of this covenant, the Company will comply with the
applicable securities laws and regulations and will not be deemed to have
breached its obligations under this covenant by virtue thereof.
SECTION 4.11. Limitation on Transactions with Affiliates. The Company
will not, and will not permit any of its Subsidiaries to, directly or
indirectly, enter into or suffer to exist any transaction or series of related
transactions (including, without limitation, the sale, purchase, exchange or
lease of assets, property or services) with any Affiliate of the Company
(including any Affiliate in which the Company or any Subsidiary thereof owns a
minority interest) or holder of 30% or more of the Company's Equity Interests
(each such transaction, an "Affiliate Transaction") or extend, renew, waive or
otherwise modify the terms of any Affiliate Transaction entered into prior to
the Issue Date unless (i) such Affiliate Transaction is solely between or among
the Company and its Wholly-Owned Subsidiaries; (ii) such Affiliate Transaction
is solely between or among Wholly-Owned Subsidiaries of the Company; (iii) such
Affiliate Transaction is for reasonable fees and compensation paid to, and
indemnity provided on behalf of, officers, directors, employees or consultants
of the Company or any Subsidiary thereof as reasonably determined in good faith
by the Board of Directors (when required as described below) or senior
management of the Company or of such Subsidiary having no interest in such
Affiliate Transaction; or (iv) the terms of such Affiliate Transaction are fair
and reasonable, as determined by the Board of Directors of the Company, to the
Company or such Subsidiary, as the case may be, and the terms of such Affiliate
Transaction are at least as favorable, as determined by the Board of Directors
of the Company, as the terms which could be obtained by the Company or such
Subsidiary, as the case may be, in a comparable transaction made on an
arm's-length basis between unaffiliated parties. In any Affiliate Transaction
involving an amount or having a value in excess of $[5] million in any one year
which is not permitted under clause (i) or (ii) above, the Company or such
Subsidiary, as the case may be, must obtain a resolution of an independent
committee of its Board of Directors certifying that such Affiliate Transaction
complies with clause (iii) or (iv) above, as the case may be.
The foregoing provisions will not apply to (i) the payment of
reasonable annual compensation to directors or executive officers of the
Company, (ii) the continued performance of transactions with Affiliates
disclosed in the Plan of Reorganization, on the same terms as
43
disclosed in the Plan of Reorganization and (iii) the transactions with
Affiliates listed on Schedule 4.11 to this Indenture.
SECTION 4.12. Limitations on Investments. The Company will not, and
will not permit any of its Subsidiaries to, make any Investment other than (i) a
Permitted Investment or (ii) an Investment that is made as a Restricted Payment
in compliance with Section 4.8 hereof.
SECTION 4.13. Future Subsidiary Guarantors. The Company shall cause
each Subsidiary created or acquired, directly or indirectly, by the Company to
execute a Guarantee in the form included as part of Exhibit A to this Indenture
and reasonably satisfactory in form and substance to the Trustee (and with
documentation relating thereto as the Trustee shall require, including, without
limitation, a supplement or amendment to this Indenture and an Opinion of
Counsel as to the enforceability of such Guarantee); provided that such
Subsidiary shall not be required to execute such a Guarantee if such Subsidiary
is an Unrestricted Subsidiary, is prohibited by law from making such a
Guarantee, such Subsidiary would have been released from its guarantee by virtue
of events set forth in Section 11.4 hereof, such Subsidiary is a Subsidiary of a
Person which has been released as a guarantor pursuant to Section 11.4 hereof,
or such Subsidiary is not obligated to execute a Guarantee pursuant to Section
11.5 hereof.
SECTION 4.14. Designation of Subsidiaries and Unrestricted
Subsidiaries. (a) The Company may by written notice to the Trustee designate any
Subsidiary (including a newly acquired or newly formed Subsidiary) to be an
Unrestricted Subsidiary; provided, however, that (i) no Default or Event of
Default shall have occurred and be continuing or would arise therefrom, (ii)
such designation is at that time permitted under Section 4.8 hereof and (iii)
immediately after giving effect to such designation, the Company could incur
$1.00 of additional Indebtedness pursuant to the first paragraph of Section 4.7.
In the event the Company designates a Subsidiary to be an Unrestricted
Subsidiary, the following provisions shall apply:
(i) an "Investment" shall be deemed to have been made at the
time any Subsidiary is designated as an Unrestricted Subsidiary in an amount
(proportionate to the Company's percentage Equity Interest in such Subsidiary)
equal to the net worth of such Subsidiary at the time that such Subsidiary is
designated as an Unrestricted Subsidiary;
(ii) at any date the aggregate of all Restricted Payments
made as Investments since the Issue Date shall exclude and be reduced by an
amount (proportionate to the Company's percentage Equity Interest in such
Subsidiary) equal to the net worth of any Unrestricted Subsidiary at the time
that such Unrestricted Subsidiary is designated a Subsidiary, not to exceed, in
the case of any such redesignation of an Unrestricted Subsidiary as a
Subsidiary, the amount of Investments previously made by the Company and its
Subsidiaries in such Unrestricted Subsidiary; and
(iii) any property transferred to or from an Unrestricted
Subsidiary shall be valued at its fair market value at the time of such
transfer.
(iv) For purposes of clauses (A) and (B) above, "net worth"
shall be calculated based upon the fair market value of the assets of such
Subsidiary as of any such date of designation.
44
(b) Notwithstanding clause (a) above, the Board of Directors of
the Company may not designate any Subsidiary of the Company to be an
Unrestricted Subsidiary after the Issue Date if, after such designation:
(i) the Company or any Subsidiary provides credit support
for, or a guarantee of, any Indebtedness or other obligation (contingent or
otherwise) of such Subsidiary (including any understanding, agreement or
instrument evidencing such Indebtedness or obligation) or is otherwise subject
to recourse or obligated thereunder or therefor, unless such credit support or
guarantee is permitted by the terms of this Indenture;
(ii) a default with respect to any Indebtedness of such
Subsidiary (including any right which the holders thereof may have to take
enforcement action against such Subsidiary) would permit (upon notice, lapse of
time or both) any holder of any other Indebtedness of the Company or any
Subsidiary of the Company to declare a default on such other Indebtedness or
cause the payment thereof to be accelerated or payable prior to its final
scheduled maturity;
(iii) such Subsidiary owns any Equity Interests in, or owns
or holds any Lien on any property of, any Subsidiary which is not a Subsidiary
of the Subsidiary to be so designated;
(iv) such Subsidiary has any contract, arrangement, agreement
or understanding with the Company, or any Subsidiary of the Company, whether
written or oral, other than a transaction having terms no less favorable to the
Company or such Subsidiary of the Company than those which might be obtained at
the time from persons who are not Affiliates of the Company; or
(v) the Company or any Subsidiary of the Company has any
obligation to subscribe for any Equity Interest in such Subsidiary or to
maintain or preserve such Subsidiary's financial condition or to cause such
Subsidiary to achieve specified levels of operating results, unless such
obligation is permitted by the terms of this Indenture.
SECTION 4.15. Limitation on Dividends and Other Payment Restrictions
Affecting Subsidiaries. The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or restriction of any kind
on the ability of any of its Subsidiaries to (a) pay dividends or make any other
distributions in cash or otherwise on its Equity Interests to the Company or any
Subsidiary, (b) pay any Indebtedness owed to the Company or any Subsidiary, (c)
make loans or advances to the Company or any Subsidiary thereof, (d) transfer
any of its properties or assets to the Company or any Subsidiary thereof (other
than customary restrictions on transfer of property subject to a Permitted Lien
under the term of the agreements creating such Permitted Lien (other than a Lien
on cash not constituting proceeds of non-cash property subject to a Permitted
Lien) which would not materially adversely affect the Company's ability to
satisfy its obligations under the Senior Notes), or (e) guarantee any
Indebtedness of the Company or any Subsidiary of the Company, except, in each
case, for such encumbrances or restrictions existing under or contemplated by
reason of (i) the Senior Notes or this Indenture, (ii) any restrictions existing
under or contemplated by agreements evidencing any Senior
45
Indebtedness, (iii) any restrictions which are in existence on the Issue Date or
which exist with respect to a Person that becomes a Subsidiary on or after the
Issue Date, which are in existence at the time such Person becomes a Subsidiary
of the Company (but not created in connection with or contemplation of such
Person becoming a Subsidiary of the Company and which encumbrance or restriction
is not applicable to any Person or the property or assets of any Person other
than such Person or the property or assets of such Person so acquired) and any
agreement that refinances or replaces the same; provided, however, that the
terms and conditions of any such restrictions are not materially less favorable
in the aggregate to the holders of the Senior Notes than those under or pursuant
to the agreement being replaced or the agreement evidencing the Indebtedness
refinanced or replaced, (iv) customary non-assignment provisions in any contract
or licensing agreement entered into by the Company or any Subsidiary of the
Company in the ordinary course of business or in any lease governing any
leasehold interest of the Company or a Subsidiary, (v) any restrictions existing
under or contemplated by agreements evidencing any Purchase Money Indebtedness
that impose restrictions on the ability of any of the Company or its
Subsidiaries to transfer the property so acquired to the Company or its
Subsidiaries, (vi) any restrictions existing under or contemplated by agreements
evidencing any Refinancing Indebtedness, providing that the restrictions
contained in the agreements governing such Refinancing Indebtedness are no more
restrictive in whole than those contained in the agreements governing the
Indebtedness being refinanced and (vii) the restrictions on Subsidiary dividends
and payments described on Schedule 4.14 to this Indenture.
SECTION 4.16. Restriction on Sale and Issuance of Certain Subsidiary
Equity Interests. The Company and its Subsidiaries will not issue or sell any
Equity Interests of any Subsidiary to any person other than the Company or a
Wholly-Owned Subsidiary of the Company (except for common Equity Interests with
no preferences or special rights or privileges and with no redemption or
prepayment provisions, provided that such common Equity Interests are sold in
compliance with Section 4.8 and immediately after giving effect to such issuance
or sale, such Subsidiary either continues to be a Subsidiary or if such
Subsidiary would no longer be considered a Subsidiary, then the investment of
the Company in such Person (after giving effect to such issuance or sale) would
have been permitted to be made under Section 4.7 as if made on the date of such
issuance or sale and except to qualify directors to the extent required by
applicable law).
SECTION 4.17. [Limitation on Sale and Lease-Back Transactions. The
Company will not, and will not permit any of its Subsidiaries to, enter into any
Sale and Lease-Back Transaction unless (i) the consideration received in such
Sale and Lease-Back Transaction is at least equal to the fair market value of
the property sold and (ii) immediately prior to and after giving effect to the
Attributable Indebtedness in respect of such Sale and Lease-Back Transaction,
the Company could incur at least $1.00 of additional Indebtedness pursuant to
the first paragraph of Section 4.6.]
SECTION 4.18. Conduct of Business. The Company and its Subsidiaries
shall not engage in any businesses a majority of whose revenues are not derived
from the same or reasonably similar, ancillary or related to, or a reasonable
extension, development or expansion of, the businesses in which the Company and
its Subsidiaries are engaged on the Effective Date.
46
SECTION 4.19. Limitation on Status as Investment Company. Neither the
Company nor any of its Subsidiaries will take any action or suffer to exist any
condition that would require the Company or any of its Subsidiaries to register
as an "investment company" (as that term is defined in the Investment Company
Act of 1940, as amended), or otherwise become subject to regulation as an
investment company.
SECTION 4.20. Corporate Existence. Subject to Article 5 hereof, 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 corporate, partnership
or other existence of each Subsidiary, in accordance with the respective
organizational documents (as the same may be amended from time to time) of each
Subsidiary and the rights (charter and statutory), licenses and franchises of
the Company and its Subsidiaries; provided, however, that the Company shall not
be required to preserve any such right, license or franchise, or the corporate,
partnership or other existence of any of its Subsidiaries, if the Board of
Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company and its Subsidiaries, taken as a
whole.
SECTION 4.21. Maintenance of Office or Agency. The Company shall
maintain in the Borough of Manhattan, the City of New York an office or agency
where Senior Notes may be surrendered for registration of transfer or exchange
or for presentation for payment and where notices and demands to or upon the
Company in respect of the Senior Notes and this Indenture may be served. The
Company shall give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the address of the Trustee as set
forth in Section 12.2.
The Company may also from time to time designate one or more other
offices or agencies where the Senior Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations.
The Company shall give prompt written notice to the Trustee of such designation
or rescission and of any change in the location of any such other office or
agency; provided, however, that no such designation or rescission shall 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 initially appoints the Trustee as Registrar, Paying Agent
and Agent for service of notices and demands in connection with the Senior Notes
and this Indenture.
SECTION 4.22. Maintenance of Insurance; Books and Records; Compliance
with Laws. (a) The Company and each of its Subsidiaries shall provide or cause
to be provided, for itself and each of their respective Subsidiaries, insurance
(including appropriate self-insurance) that is adequate and appropriate for the
conduct of the business of the Company and such 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 customary for and available to
businesses similarly situated in the industry.
47
(b) The Company shall and shall cause each of its subsidiaries to
keep proper books of record and account, in which full and correct entries shall
be made of all financial transactions and the assets and business of the Company
and each Subsidiary of the Company, in accordance with GAAP consistently applied
to the Company and its Subsidiaries taken as a whole.
(c) The Company shall and shall cause each of its Subsidiaries to
comply with all statutes, laws, ordinances, or government rules and regulations
to which they are subject, noncompliance with which would materially adversely
affect the business, prospects, earnings, properties, assets or condition
(financial or otherwise) of the Company and its Subsidiaries taken as a whole.
SECTION 4.23. Further Assurances to the Trustee. The Company shall (and
shall cause each of its Subsidiaries to) execute, acknowledge, deliver, record,
re-record, file, re-file, register and re-register, any and all such further
acts, deeds, conveyances, security agreements, mortgages, assignments, estoppel
certificates, financing statements and continuations thereof, termination
statements, notices of assignment, transfers, certificates, assurances and other
instruments as may be required from time to time in order (i) to carry out more
effectively the purposes of the Collateral Documents, (ii) to subject to the
Liens created by any of the Collateral Documents any of the properties, rights
or interest required to be encumbered thereby, (iii) to perfect and maintain the
validity, effectiveness and priority of any of the Collateral Documents and the
Liens intended to be created thereby, and (iv) to better assure, convey, grant,
assign, transfer, preserve, protect and confirm to the Trustee any of the rights
granted or now or hereafter intended by the parties thereto to be granted to the
Trustee or under any other instrument executed in connection therewith or
granted to the Company under the Collateral Documents or under any other
instrument executed in connection therewith.
SECTION 4.24. Collateral Documents. None of the Company or any of its
Subsidiaries will amend, waive or modify, or take or refrain from taking any
action that has the effect of amending, waiving or modifying, any provision of
the Collateral Documents or engaging in any transfer of assets from a company
whose capital stock and assets constitute Collateral or any restructuring of the
affairs of such a company and its subsidiaries to the extent that such
amendment, waiver, modification, action or restructuring could have an adverse
effect on the rights of the Trustee or the Holders, provided that (i) the
Collateral may be released or modified in an Asset Sale as expressly authorized
in this Indenture or in the Collateral Documents; (ii) any Guarantee and pledges
may be released in an Asset Sale as expressly provided in this Indenture or in
the Collateral Documents; and (iii) this Indenture and any of the Collateral
Documents may be otherwise amended, waived or modified as set forth under
Article 10 hereof.
SECTION 4.25. Subsidiary Guarantees. Prior to guaranteeing any other
Indebtedness of the Company (including without limitation any Indebtedness under
the Credit Agreement or other Credit Facility), a Subsidiary of the Company that
is not a Guarantor (if such Subsidiary is also a guarantor of the Credit
Agreement or is required to become such a guarantor) must execute and deliver to
the Trustee a supplemental indenture in the form of Exhibit D hereto pursuant to
which such Subsidiary shall guarantee, on an unsecured senior basis, all of the
Obligations of the Company with respect to the Senior Notes together with an
opinion of counsel
48
(which counsel may be an employee of the Company) to the effect that the
supplemental indenture has been duly executed and delivered by such Subsidiary
and is in compliance in all material respects with the terms of this Indenture.
SECTION 4.26. Future Pledges of Collateral to Secure Secondary Senior
Notes. The Collateral Documents shall provide that the Holders of Secondary
Senior Notes when issued, shall, automatically and without further action,
become the beneficiaries of the pledges of property and assets to the Collateral
Agent pursuant to the Collateral Documents and such Secondary Senior Notes shall
also be secured by the Collateral.
SECTION 4.27. Additional Pledges. If on or after the Effective Date,
Holdings, the Company or any Subsidiary pledges property or assets to secure
obligations under the Credit Agreement (other than pursuant to the Collateral
Documents or as contemplated by the Credit Agreement in effect on the date
hereof) then such property or assets shall also secure the Senior Notes. In the
event the Credit Facility Indebtedness ceases to be outstanding and the
commitments under the Credit Agreement (and any replacement or successor
agreement) terminated, promptly (and in any event within ten (10) business days)
after the creation or acquisition by the Company of a new Subsidiary that
becomes a Guarantor pursuant to Section 4.12, the Company shall cause such
Subsidiary to become a party to the Collateral Documents and the Company or
Guarantor that is such new Guarantor's direct parent company shall execute a
Pledge Agreement in form and substance substantially similar to the Pledge
Agreement or otherwise satisfactory to the Trustee and pursuant to which all the
Equity Interests of such new Guarantor shall be pledged to the Trustee (for the
benefit of the Holders) to secure the Senior Notes Obligations and such other
related documents as the Trustee may request, all in form and substance
satisfactory to the Trustee.
ARTICLE 5
Successor Corporation
---------------------
SECTION 5.1. Merger, Consolidation or Sale of Assets. (a) The Company
will not consolidate with, merge with or into, or sell, assign, lease, convey,
transfer or otherwise dispose of (a "transfer") all or substantially all of its
assets (as an entirety or substantially as an entirety in one transaction or a
series of related transactions), to any Person unless: (i) the Company shall be
the continuing Person, or the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or to which the properties and
assets of the Company are transferred shall be a corporation organized and
existing under the laws of the United States or any State thereof or the
District of Columbia and shall expressly assume, by a supplemental indenture,
executed and delivered to the Trustee, in form satisfactory to the Trustee, all
of the obligations of the Company under the Senior Notes, this Indenture and the
Collateral Documents, and the obligations under this Indenture shall remain in
full force and effect; (ii) immediately before and immediately after giving
effect to such transaction, no Default or Event of Default shall have occurred
and be continuing; (iii) immediately after giving effect to such transaction on
a pro forma basis the Company or such Person could incur at least $1.00
additional Indebtedness pursuant to the first paragraph of Section 4.6 hereof;
and (iv) immediately thereafter, the Company or the other surviving entity, as
the case may be, shall have
49
a Consolidated Net Worth equal to or greater than the Consolidated Net Worth of
the Company immediately prior to such transaction.
(b) In connection with any consolidation, merger or transfer of assets
contemplated by this Section 5.1, the Company shall deliver or cause to be
delivered, to the Trustee, in form and substance reasonably satisfactory to the
Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger or transfer and the supplemental indenture in respect
thereto comply with this Section 5.1 and that all conditions precedent herein
provided for relating to such transaction or transactions have been complied
with.
(c) This Section 5.1 shall not apply to the sale of the stock or assets
of the Company or any Subsidiary of the Company in accordance with Section 4.8
hereof.
SECTION 5.2. Successor Person Substituted. Upon any consolidation or
merger, or any transfer of all or substantially all of the assets of the Company
or any Subsidiary in accordance with Section 5.1 above, the successor
corporation formed by such consolidation or into which the Company or any
Subsidiary is merged or to which such transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company or such
Subsidiary under this Indenture with the same effect as if such successor
corporation had been named as the Company or such Subsidiary herein, and
thereafter the predecessor corporation shall be relieved of all obligations and
covenants under this Indenture and the Senior Notes, except, in the case of a
transfer, for the obligation to pay the principal of, and interest on, the
Senior Notes.
ARTICLE 6
Defaults and Remedies
---------------------
SECTION 6.1. Events of Default. An "Event of Default" occurs if:
-----------------
(1) there is a default in the payment of any principal of, or
premium, if any, on the Senior Notes when the same becomes due and payable on
the Maturity Date, upon optional redemption, upon required repurchase, upon
declaration or otherwise;
(2) there is a default for 30 days in the payment of any
interest on the Senior Notes after such interest becomes due and payable;
(3) the Company or any Guarantor fails to comply with any of
the terms or provisions of Section 5.1 hereof;
(4) the Company or any Guarantor defaults in the observance
or performance of any other provision, covenant or agreement contained in the
Senior Notes, this Indenture or the Collateral Documents for 30 days after
written notice from the Trustee or the holders of not less than 25% in aggregate
principal amount of the Senior Notes then outstanding;
(5) there is a failure to pay when due (and beyond the grace
period, if any, therefor) principal, interest or premium in an aggregate amount
of $[1] million or more with
50
respect to any Indebtedness of the Company or any Subsidiary thereof, or the
acceleration prior to its express maturity of any such Indebtedness aggregating
$[1] million or more and such acceleration does not cease to exist, or such debt
is not satisfied, in either case within 30 days after such acceleration;
(6) a court of competent jurisdiction renders a final
judgment or judgments which can no longer be appealed for the payment of money,
in any individual case or in the aggregate at any time, in excess of $[2]
million (which are not paid or covered by third party insurance by financially
sound insurers) against the Company or any Subsidiary thereof and such judgment
remains undischarged for a period of [60] consecutive days during which a stay
of enforcement of such judgment shall not be in effect;
(7) the Company or any Subsidiary 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 shall admit in writing its inability to pay its
debt, or
(E) generally is not paying its debts as they become
due;
(8) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any Subsidiary
in an involuntary case or proceeding,
(B) appoints a Custodian of the Company or any
Subsidiary or for all or substantially all of the property of
the Company or any Subsidiary, or
(C) orders the liquidation of the Company or any
Subsidiary
(D) and, in each case, the order or decree remains
unstayed and in effect for 60 consecutive days;
(9) at any time after the execution and delivery thereof,
(i) any Guarantee for any reason, other than the satisfaction in full of all
Obligations guaranteed thereunder or the release of such Guarantee pursuant to
Section 11.4, shall cease to be in full force and effect (other than in
accordance with its terms) or shall be declared to be null and void, or (ii) a
material Collateral Document shall cease to be in full force and effect (other
than by
51
reason of a release of Collateral thereunder in accordance with the terms hereof
or thereof, the satisfaction in full of the Obligations or any other termination
of such Collateral Document in accordance with the terms hereof or thereof) or
shall be declared null and void, or the Trustee or the Collateral Trustee shall
not have or shall cease to have a valid and perfected second priority Lien on
any Collateral purported to be covered thereby having a fair market value,
individually or in the aggregate, exceeding $[1] million, in each case for any
reason other than the failure of the Trustee or the Collateral Trustee to take
any action within its control; or
(10) holders of Senior Indebtedness holding a Lien on the
stock or assets of the Company or any of its Subsidiaries take any judicial
action to enforce such Lien.
Subject to the provisions of Sections 7.1 and 7.2, the Trustee shall
not be charged with knowledge of any Default or Event of Default unless written
notice thereof shall have been given to a Trust Officer at the Corporate Trust
Office by the Company or any other Person.
SECTION 6.2. Acceleration. If an Event of Default (other than an Event
of Default arising under Section 6.1(7) or (8) occurs and is continuing, the
Trustee by notice to the Company or the Holders of not less than 25% in
aggregate principal amount of the Senior Notes then outstanding by written
notice to the Company and the Trustee, may declare to be immediately due and
payable the entire principal amount of all the Senior Notes then outstanding
plus premium, if any, and accrued interest to the date of acceleration;
provided, however, that after such acceleration but before a judgment or decree
based on such acceleration is obtained by the Trustee, the Holders of 51% in
aggregate principal amount of the outstanding Senior Notes may rescind and annul
such acceleration if all existing Events of Default, other than nonpayment of
accelerated principal, premium, if any, or interest, have been cured or waived
as provided in this Indenture and if the rescission would not conflict with any
judgment or decree. No such rescission shall affect any subsequent Default or
impair any right consequent thereto.
In case an Event of Default specified in Section 6.1(7) or (8) occurs,
the principal, premium, if any, and interest amount with respect to all of the
Senior Notes shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or the Holders of the
Senior Notes.
SECTION 6.3. 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 premium, if any, and
interest on the Senior Notes or to enforce the performance of any provision of
the Senior Notes or this Indenture and may take any necessary action requested
of it as Trustee to settle, compromise, adjust or otherwise conclude any
proceedings to which it is a party.
The Trustee may maintain a proceeding even if it does not possess any
of the Senior Notes or does not produce any of them in the proceeding. A delay
or omission by the Trustee or any Noteholder 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.
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SECTION 6.4. Waiver of Defaults and Events of Default. Subject to
Sections 6.2, 6.7 and 8.2 hereof, the Holders of a majority in principal amount
of the Senior Notes then outstanding have the right to waive any existing or
future Default or Event of Default or compliance with any provision of this
Indenture or the Senior Notes. Upon any such waiver, such Default shall cease to
exist, and any Event of Default arising therefrom shall be deemed to have been
cured for every purpose of this Indenture; but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any right
consequent thereto except as specifically set forth therein.
SECTION 6.5. Control by Majority. The Holders of a majority in
principal amount of the Senior Notes then outstanding 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 the Trustee by this
Indenture. The Trustee, however, may refuse to follow any direction that
conflicts with law, this Indenture or the Collateral Documents or that the
Trustee determines may be unduly prejudicial to the rights of another Noteholder
not taking part in such direction, and the Trustee shall have the right to
decline to follow any such direction if the Trustee, being advised by counsel,
determines that the action so directed may not lawfully be taken or if the
Trustee in good faith shall determine that the proceedings so directed may
involve it in personal liability unless the Trustee has asked for and received
indemnification reasonably satisfactory to it against any loss, liability or
expense caused by its following such direction; provided that the Trustee may
take any other action deemed proper by the Trustee which is not inconsistent
with such direction.
SECTION 6.6. Limitation on Suits. Subject to Section 6.7 below, a
Noteholder may not institute any proceeding or pursue any remedy with respect to
this Indenture or the Senior Notes unless:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(2) the Holders of at least 25% in aggregate principal amount
of the Senior Notes then outstanding make a written request to the
Trustee to pursue the remedy;
(3) such Holder or Holders offer, and if requested, provide
to the Trustee indemnity reasonably satisfactory to the Trustee against
any loss, liability or expense;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer and, if requested, the
provision of indemnity; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60 day period by the Holders of a
majority in aggregate principal amount of the Senior Notes then
outstanding.
A Noteholder may not use this Indenture to prejudice the rights of
another Noteholder or to obtain a preference or priority over another
Noteholder.
53
SECTION 6.7. Rights of Holders to Receive Payment. Notwithstanding any
other provision of this Indenture, the right of any Holder of a Senior Note to
receive payment of principal of, or premium, if any, and interest on the Senior
Note on or after the respective due dates expressed in the Senior Note, or to
bring suit for the enforcement of any such payment on or after such respective
dates, is absolute and unconditional and shall not be impaired or affected
without the consent of the Holder.
SECTION 6.8. Collection Suit by Trustee. If an Event of Default in
payment of principal, premium or interest specified in Section 6.1(1) or (2)
hereof occurs and is continuing, the Trustee may recover judgment in its own
name and as trustee of an express trust against the Company or the Guarantors
(or any other obligor on the Senior Notes) for the whole amount of unpaid
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 then
borne by the Senior Notes (after giving effect to Section 4.1), and such further
amounts as shall be sufficient to cover the costs and expenses of collection,
including the compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, including all sums due and owing to the Trustee pursuant
to the Indenture including Section 7.7.
SECTION 6.9. 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 compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and the Noteholders allowed in any judicial proceedings
relative to the Company or the Guarantors (or any other obligor upon the Senior
Notes), their respective creditors or property and shall be entitled and
empowered to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same after deduction of its
reasonable charges and expenses to the extent that any such charges and expenses
are not paid out of the estate in any such proceedings and any custodian in any
such judicial proceeding is hereby authorized by each Noteholder 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 Noteholders, to pay to the Trustee any
amount due to it for the compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the Trustee under
the Indenture, including without limitation Section 7.7 hereof. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Noteholder any plan or reorganization,
arrangement, adjustment or composition affecting the Senior Notes or the rights
of any Holder thereof, or to authorize the Trustee to vote in respect of the
claim of any Noteholder in any such proceedings.
SECTION 6.10. Priorities. If the Trustee collects any money pursuant to
this Article 6, it shall pay out the money in the following order:
FIRST: to the Trustee, its agents and counsel for amounts due under the
Indenture, including without limitation, Section 7.7 hereof;
SECOND: to Noteholders for amounts due and unpaid on the Senior Notes
for principal, premium, if any, and interest as to each, ratably, without
preference or priority of any kind, according to the amounts due and payable on
the Senior Notes; and
54
THIRD: to the Company or, to the extent the Trustee collects any amount
from any Guarantor, to such Guarantor.
The Trustee may fix a record date and payment date for any payment to
Noteholders pursuant to this Section 6.10. The Trustee shall give the Company
prior notice of any such record date and payment date; provided, however, that
the failure to give any such notice shall not affect the establishment of such
record date or payment date or any payment to Noteholders pursuant to this
Section 6.10.
SECTION 6.11. Undertaking for Costs. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section 6.11 does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 6.7 hereof or a suit by Holders
of more than 10% in principal amount of the Senior Notes then outstanding.
SECTION 6.12. Restoration of Rights and Remedies. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then and in
every case, subject to any determination in such proceeding, the Company, the
Trustee and the Holders shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the Trustee
and the Holders shall continue as though no such proceeding had been instituted.
SECTION 6.13. 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 Six 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.
ARTICLE 7
Trustee
-------
SECTION 7.1. Duties of Trustee. (a) If an Event of Default has occurred
and is continuing, the Trustee shall exercise such of the rights and powers
vested in it by this Indenture and any supplemental indenture (including
providing for Guarantees of the Senior Notes and any supplemental indenture
required pursuant to Section 4.24 hereof) and use the same degree of care and
skill in their exercise as a prudent person would exercise or use under the same
circumstances in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default known to
the Trustee:
55
(1) The Trustee need perform only those duties that are
specifically set forth in this Indenture (including any supplemental indenture)
and the Collateral Documents and those actions that are reasonably necessary for
the performance of the specified duties and no others and no implied covenants
or obligations shall be read into this Indenture or the Collateral Documents
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 but, in the case of
any such certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the requirements of
this Indenture and the Collateral Documents (but need not confirm or investigate
the accuracy of mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b)
of this Section 7.1.
(2) In the absence of bad faith on its part, the Trustee
shall not be liable for any error of judgment made in good faith by a
Responsible 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 Sections 6.2 and 6.5 hereof.
(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 rights or powers if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity satisfactory to
it against such risk or liability is not reasonably assured to it.
(e) Whether or not therein expressly so provided, paragraphs (a),
(b), (c), (d), (f) and (g) of this Section 7.1 shall govern every provision of
this Indenture that in any way relates to the Trustee or any Agent.
(f) The Trustee may refuse to perform any duty or exercise any
right or power unless it receives indemnity satisfactory to it against any loss,
liability, expense or fee.
(g) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company or
any Guarantor. Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by the law.
SECTION 7.2. Rights of Trustee. Subject to Section 7.1 hereof
-----------------
56
(1) The Trustee may conclusively rely on and shall be
protected in acting or refraining from acting upon any document reasonably
believed by it to be genuine and to have been signed or presented by the proper
person. The Trustee need not investigate any fact or matter stated in the
document;
(2) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed by it with
due care;
(3) The Trustee shall not be liable for any action it takes
or omits to take in good faith which it reasonably believes to be authorized or
within its rights or powers; provided that the Trustee's conduct does not
constitute negligence or bad faith;
(4) The Trustee may consult with counsel of its selection,
and the advice or opinion of such counsel as to matters of law shall be full and
complete authorization and protection from liability in respect of any action
taken, omitted or suffered by it hereunder in good faith and in accordance with
the advice or opinion of such counsel;
(5) Before the Trustee acts or refrains from acting, it may
require an Officer's Certificate or an Opinion of Counsel, or both;
(6) The Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably believed by
it to be authorized or within the discretion or rights or powers conferred upon
it by this Indenture;
(7) The Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the Trustee has
actual knowledge thereof or unless written notice of any event which is in fact
such a default is received by the Trustee at the Corporate Trust Office of the
Trustee, and such notice references the Securities and this Indenture;
(8) The rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its rights to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and each agent, custodian and other Person employed
to act hereunder; and
(9) The Trustee may request that the Company deliver an
Officers' Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this
Indenture, which Officers' Certificate may be signed by any person authorized to
sign an Officers' Certificate, including any person specified as so authorized
in any such certificate previously delivered and not superseded.
SECTION 7.3. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Senior Notes
and may make loans to, accept deposits from, perform services for or otherwise
deal with the Company or any Guarantor, or any Affiliates thereof, with the same
rights it would have if it were not Trustee. Any Agent may do the same with like
rights. The Trustee, however, shall be subject to Sections 7.10 and 7.11 hereof.
57
SECTION 7.4. Trustee's Disclaimer. The Trustee makes no representation
as to the validity or adequacy of this Indenture, the Collateral Documents, the
Senior Notes or any Guarantee, it shall not be accountable for the Company's use
of the proceeds from the sale of Senior Notes or any money paid to the Company
pursuant to the terms of this Indenture or the Collateral Documents, and it
shall not be responsible for any statement in the Senior Notes or any document
used in connection with the sale of the Senior Notes other than its certificate
of authentication.
SECTION 7.5. Notice of Defaults. If a Default or Event of Default
occurs and is continuing and if it is known to the Trustee, the Trustee shall
mail to each Noteholder notice of the Default or Event of Default within 90 days
after it occurs. Except in the case of a Default or Event of Default in payment
of principal or premium, if any, or interest on the Senior Notes, or that
resulted from the failure of the Company to comply with Section 5.1, the Trustee
may withhold the notice if and so long as a committee of its Trust Officers in
good faith determines it to be in the best interests of the holders of the
Senior Notes to do so.
SECTION 7.6. Reports by Trustee to Holders. If required by TIA Section
313(a), within 60 days after March 15 of any year, commencing the March 15
following the date of this Indenture, the Trustee shall mail to each Noteholder
a brief report dated as of such March 15 that complies with TIA Section 313(a);
provided that no such report need be transmitted if no such events listed in TIA
Section 313(a) have occurred within such period. The Trustee also shall comply
with TIA Section 313(b)(2). The Trustee shall also transmit by mail all reports
as required by TIA Section 313(c) and TIA Section 313(d).
A copy of each report at the time of its mailing to Noteholders shall
be filed with the SEC and each stock exchange on which the Senior Notes are
listed. The Company shall promptly notify the Trustee when the Senior Notes are
listed on, or delisted from, any stock exchange and the Trustee shall comply
with TIA Section 313(d).
SECTION 7.7. Compensation and Indemnity. The Company and the Guarantors
(on a joint and several basis) shall pay to the Trustee from time to time such
compensation as shall be agreed in writing between the Company and the Trustee
(or in the absence of such an agreement, reasonable compensation) for its
services hereunder (which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust). The Company
and the Guarantors (on a joint and several basis) shall reimburse the Trustee
upon request for all reasonable disbursements, expenses and advances incurred or
made by it in connection with its duties under this Indenture, including the
compensation, disbursements and expenses of the Trustee's agents and counsel.
The Company and the Guarantors (on a joint and several basis) shall
indemnify each of the Trustee and any predecessor Trustee for, and hold them
harmless against, any and all loss, damage, claim, liability, expense (including
but not limited to attorneys' fees and expenses) or taxes (other than taxes
based on the income of the Trustee) incurred by it in connection with the
acceptance or performance of its duties under this Indenture including the costs
and expenses of defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties hereunder
(including, without limitation, settlement costs). The Trustee shall notify the
Company and the Guarantors in writing promptly of any claim asserted
58
against the Trustee for which it may seek indemnity. However, the failure by the
Trustee to so notify the Company and the Guarantors shall not relieve the
Company or the Guarantors of their obligations hereunder.
Notwithstanding the foregoing, the Company and the Guarantors need not
reimburse the Trustee for any expense or indemnify it against any loss or
liability incurred by the Trustee through its negligence or bad faith. To secure
the payment obligations of the Company and the Guarantors in this Indenture,
including without limitation, Sections 7.7 and 9.5, the Trustee and any
predecessor Trustee shall have a lien prior to the Senior Notes and the Senior
Indebtedness on all money or property held or collected by the Trustee in its
capacity as such, except such money or property held in trust to pay principal
of and interest on particular Senior Notes. The obligations of the Company and
the Guarantors under this Section 7.7 to compensate and indemnify the Trustee
and each predecessor Trustee and to pay or reimburse the Trustee and each
predecessor Trustee for expenses, disbursements and advances shall be joint and
several liabilities of the Company and each of the Guarantors and shall survive
the satisfaction and discharge of this Indenture, including the termination or
rejection hereof in any bankruptcy proceeding to the extent permitted by law.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1(7) or (8) hereof occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 7.8. Replacement of Trustee. The Trustee may resign by so
notifying the Company and the Guarantors in writing, such resignation to become
effective upon the appointment of a successor Trustee. The Holders of a majority
in principal amount of the outstanding Senior Notes may remove the Trustee by
notifying the removed Trustee in writing and may appoint a successor Trustee
with the Company's written consent which consent shall not be unreasonably
withheld. The Company may remove the Trustee at its election if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(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 otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee.
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 25% in principal amount of the outstanding Senior Notes may
petition any court of competent jurisdiction at the expense of the Company and
Guarantors, in the case of the Trustee, for the appointment of a successor
Trustee.
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If the Trustee fails to comply with Section 7.10 hereof, any Noteholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately following
such delivery, the retiring Trustee shall, subject to its rights under Section
7.7 hereof, transfer all property held by it as Trustee to the successor
Trustee, 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 Noteholder. Notwithstanding replacement of the
Trustee pursuant to this Section 7.8, the Company's obligations under Section
7.7 hereof shall continue for the benefit of the retiring Trustee.
SECTION 7.9. Successor Trustee by Consolidation, Merger or Conversion.
If the Trustee consolidates with, merges or converts into, or transfers all or
substantially all of its corporate trust assets to, another corporation or
national banking association, subject to Section 7.10 hereof, the successor
corporation or national banking association without any further act shall be the
successor Trustee.
SECTION 7.10. Eligibility; Disqualification. This Indenture shall
always have a Trustee who satisfies the requirements of TIA Section 310(a)(1)
and (2) in every respect. The Trustee shall have a combined capital and surplus
of at least $50,000,000 as set forth in its most recent published annual report
of condition. The Trustee shall comply with TIA Section 310(b), including the
provision in Section 310(b)(1); provided that there shall be excluded from the
operation of TIA Section 310(b)(1) any indenture or indentures under which other
securities, or conflicts of interest or participation in other securities, of
the Company or the Guarantors are outstanding if the requirements for exclusion
set forth in TIA Section 310(b)(1) are met.
SECTION 7.11. 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 therein.
SECTION 7.12. Paying Agents. The Company shall cause each Paying Agent
other than the Trustee to execute and deliver to it and the Trustee an
instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section 7.12:
(A) that it will hold all sums held by it as agent for the
payment of principal of, or premium, if any, or interest on, the
Senior Notes (whether such sums have been paid to it by the
Company or by any obligor on the Senior Notes) in trust for the
benefit of Holders of the Senior Notes or the Trustee;
(B) that it will at any time during the continuance of any
Event of Default, upon written request from the Trustee, deliver
to the Trustee all sums so held in trust by it together with a
full accounting thereof; and
(C) that it will give the Trustee written notice within three
(3) Business Days of any failure of the Company (or by any obligor
on the Senior Notes) in the
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payment of any installment of the principal of, premium, if any,
or interest on, the Senior Notes when the same shall be due and
payable.
SECTION 7.13. Co-Trustee and Separate Trustees. At any time or times,
for the purpose of meeting the legal requirements of any applicable
jurisdiction, the Company and the Trustee shall have power to appoint, and, upon
the written request of the Trustee or of the Holders of at least 33% in
principal amount of the Securities then outstanding, the Company shall for such
purpose join with the Trustee in the execution and delivery of all instruments
and agreements necessary or proper to appoint, one or more Persons approved by
the Trustee either to act as co-trustee, jointly with the Trustee, or to act as
separate trustee, in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or Persons, in the
capacity aforesaid, and for the benefit of the Holders, any property, title,
right or power deemed necessary or desirable, subject to the other provisions of
this Section. If the Company does not join in such appointment within 15 days
after the receipt by it of a request so to do, or if an Event of Default shall
have occurred and be continuing, the Trustee alone shall have power to make such
appointment.
Should any written instrument or instruments from the Company be
required by any co-trustee or separate trustee to more fully confirm to such
co-trustee or separate trustee such property, title, right or power, any and all
such instruments shall, on request, be executed, acknowledged and delivered by
the Company.
Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following conditions:
(a) the Securities shall be authenticated and delivered, and all
rights, powers, duties and obligations hereunder in respect of the custody of
securities, cash and other personal property held by, or required to be
deposited or pledged with, the Trustee hereunder, shall be exercised solely, by
the Trustee;
(b) the rights, powers, duties and obligations hereby conferred or
imposed upon the Trustee in respect of any property covered by such appointment
shall be conferred or imposed upon and exercised or performed either by the
Trustee or by the Trustee and such co-trustee or separate trustee jointly, as
shall be provided in the instrument appointing such co-trustee or separate
trustee, except to the extent that under any law of any jurisdiction in which
any particular act is to be performed, the Trustee shall be incompetent or
unqualified to perform such act, in which event such rights, powers, duties and
obligations shall be exercised and performed singly by such co-trustee or
separate trustee;
(c) the Trustee at any time, by an instrument in writing executed
by it, with the concurrence of the Company, may accept the resignation of or
remove any co-trustee or separate trustee appointed under this Section, and, it
an Event of Default shall have occurred and be continuing, the Trustee shall
have power to accept the resignation of, or remove, any such co-trustee or
separate trustee without the concurrence of the Company. Upon the written
request of the Trustee, the Company shall join with the Trustee in the execution
and delivery of all instruments and agreements necessary or proper to effectuate
such resignation or removal. A
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successor to any co-trustee or separate trustee so resigned or removed may be
appointed in the manner provided in this Section;
(d) no co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Trustee, or any other
such trustee hereunder, and the Trustee shall not be personally liable by reason
of any act or omission of any such co-trustee or separate trustee;
(e) any act of Holders delivered to the Trustee shall be deemed to
have been delivered to each such co-trustee and separate trustee;
(f) any separate trustee or co-trustee may at any time appoint the
Trustee as its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Indenture on its behalf and in its name; and
(g) if any separate trustee or co-trustee shall die, become
incapable of acting, resign or be removed, all of its estates, properties,
rights, remedies and trusts shall vest in and be exercised by the Trustee, to
the extent permitted by law, without the appointment of a new successor trustee.
ARTICLE 8
Amendments, Supplements and Waivers
-----------------------------------
SECTION 8.1. Without Consent of Holders. The Company and/or one or more
Guarantors and the Trustee may modify, waive, amend or supplement this
Indenture, the Senior Notes, the Guarantees or the Collateral Documents without
notice to or consent of any Noteholder:
(1) to comply with Section 5.1 hereof;
(2) to provide for uncertificated Senior Notes in addition to
or in place of certificated Senior Notes;
(3) to comply with any requirements of the SEC under the TIA;
(4) to cure any ambiguity, defect or inconsistency, or to
make any other change that does not adversely affect the rights of any
Noteholder;
(5) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Senior Notes;
(6) to enter into additional or supplemental Collateral
Documents consistent with the terms hereof;
(7) to adjust the aggregate principal amount of Senior Notes
permitted to be issued pursuant to this Indenture so that the aggregate
principal amount of Senior Notes permitted to be issued pursuant to this
Indenture are as provided in the Plan of Reorganization;
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(8) to reflect the terms of any agreements with creditors of
the Company and its Subsidiaries entered into pursuant to the Plan of
Reorganization or otherwise approved by the Bankruptcy Court in the Cases, or to
otherwise comply with the terms of the Plan of Reorganization;
(9) to add to the covenants of the Company for the benefit of
the Holders or to surrender any right or power herein conferred upon the
Company;
(10) to make any change that would provide any additional
rights or benefits to the Holders of the Senior Notes (including providing for
Guarantees of the Senior Notes and any supplemental indenture required pursuant
to Section 4.24 hereof) or that does not adversely affect the legal rights under
this Indenture of any such Holder; or
(11) to add any additional Events of Default.
The Trustee is hereby authorized to join with the Company and the
Guarantors, if any, in the execution of any modification, waiver, amendment or
supplement to this Indenture, the Senior Notes, the Guarantees or the Collateral
Documents authorized or permitted by the terms of this Indenture and to make any
further appropriate agreements and stipulations which may be therein contained,
but the Trustee shall not be obligated to enter into any such modification,
waiver, amendment or supplement to this Indenture, the Senior Notes, the
Guarantees or the Collateral Documents which adversely affects its own rights,
duties or immunities under this Indenture.
SECTION 8.2. With Consent of Holders. The Company and/or one or more
Guarantors and the Trustee may modify, amend, waive or supplement this
Indenture, the Senior Notes, the Guarantees or the Collateral Documents (subject
to any amendment provisions contained therein) with the written consent of the
Holders of not less than a majority in aggregate principal amount of outstanding
Senior Notes. The Holders of not less than a majority in aggregate principal
amount of outstanding Senior Notes may waive compliance in a particular instance
by the Company with any provision of this Indenture or the Senior Notes. Subject
to Section 8.4, without the consent of each Noteholder affected, however, an
amendment, supplement or waiver, including a waiver pursuant to Section 6.4, may
not:
(1) reduce the amount of Senior Notes whose Holders must
consent to an amendment, modification, supplement or waiver to this Indenture or
the Senior Notes;
(2) reduce the rate of or change the time for payment of
interest on any Senior Note;
(3) reduce the principal of or premium on or change the
stated maturity of any Senior Note;
(4) make any Senior Note payable in money other than that
stated in the Senior Note or change the place of payment from New York, New
York;
(5) change the amount or time of any payment required by the
Senior Notes;
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(6) waive a default in the payment of the principal of, or
interest on, or redemption payment with respect to any Senior Note;
(7) subordinate in right of payment, or otherwise
subordinate, the Senior Notes or the Guarantees to another Indebtedness or
obligation of the Company or the Guarantors;
(8) take any other action otherwise prohibited by this
Indenture to be taken without the consent of each Holder affected thereby;
(9) release all or substantially all of the Collateral from
the Lien of this Indenture and the Collateral Documents (other than pursuant to
an Asset Sale in compliance with Section 4.8 hereof), or upon payment in full of
all Obligations of the Company hereunder and under the Senior Notes; or
(10) modify this Section 8.2, Section 6.4 or 6.7.
After a modification, amendment, supplement or waiver under this
Section 8.2 becomes effective, the Company shall mail to the Holders a notice
briefly describing the modification, 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 modification,
amendment, supplement or waiver.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, modification,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
SECTION 8.3. Compliance with Trust Indenture Act. Every amendment to or
supplement of this Indenture or the Senior Notes shall comply with the TIA as
then in effect.
SECTION 8.4. Revocation and Effect of Consents. Until a modification,
amendment, supplement, waiver or other action becomes effective, a consent to it
by a Holder of a Senior Note is a continuing consent conclusive and binding upon
such Holder and every subsequent Holder of the same Senior Note or portion
thereof, and of any Senior Note issued upon the transfer thereof or in exchange
therefor or in place thereof, even if notation of the consent is not made on any
such Senior Note. Any such Holder or subsequent Holder, however, may revoke the
consent as to his Senior Note or portion of a Senior Note, if the Trustee
receives the notice of revocation before the date the modification, amendment,
supplement, waiver or other action becomes effective. Notwithstanding the
foregoing, nothing in this paragraph shall impair the right of any Holder under
TIA Section 316(b).
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 modification,
amendment, supplement, or waiver. If a record date is fixed, then,
notwithstanding the preceding paragraph, those Persons who were Holders at such
record date (or their duly designated proxies), and only such Persons, shall be
entitled to consent to such modification, amendment, supplement, or waiver or to
revoke any consent previously given, whether or not such Persons continue to be
Holders after such
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record date. No such consent shall be valid or effective for more than 90 days
after such record date unless the consent of the requisite number of Holders has
been obtained.
After a modification, amendment, supplement, waiver or other action
becomes effective, it shall bind every Holder and every subsequent Holder.
SECTION 8.5. Notation on or Exchange of Senior Notes. If a
modification, amendment, supplement or waiver changes the terms of a Senior
Note, the Trustee may request the Holder of the Senior Note to deliver it to the
Trustee. In such case, the Trustee shall place an appropriate notation on the
Senior Note 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
Senior Note shall issue and the Trustee shall authenticate a new security that
reflects the changed terms. Failure to make the appropriate notation or issue a
new Senior Note shall not affect the validity and effect of such modification,
amendment, supplement or waiver.
SECTION 8.6. Trustee to Sign Amendments, etc. The Trustee shall sign
any modification, amendment, supplement or waiver authorized pursuant to this
Article 8 if the modification, amendment, supplement or waiver does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may, but need not, sign it. In signing or refusing to
sign such modification, amendment, supplement or waiver, the Trustee shall be
entitled to receive and, subject to Section 7.1 hereof, shall be fully protected
in relying upon an Officers' Certificate and an Opinion of Counsel stating that
such modification, amendment, supplement or waiver is authorized or permitted by
this Indenture and such supplemental indenture constitutes the legal, valid and
binding obligation of the Company and the Guarantors enforceable against each of
them in accordance with its terms (subject to customary exceptions). The Company
or any Guarantor may not sign a modification, amendment or supplement until the
Board of Directors of the Company or such Guarantor, as appropriate, approves
it.
ARTICLE 9
Discharge Of Indenture; Defeasance
----------------------------------
SECTION 9.1. Discharge of Indenture. The Company and the Guarantors, if
any, may terminate their obligations under the Senior Notes, the Guarantees, if
any, and this Indenture, except the obligations referred to in the last
paragraph of this Section 9.1, if there shall have been cancelled by the Trustee
or delivered to the Trustee for cancellation all Senior Notes theretofore
authenticated and delivered (other than any Senior Notes that are asserted to
have been destroyed, lost or stolen and that shall have been replaced as
provided in Section 2.7 hereof) and the Company has paid all sums payable by it
hereunder or deposited all required sums with the Trustee.
After such delivery the Trustee upon request shall acknowledge in
writing the discharge of the Company's and the Guarantors' obligations under the
Senior Notes, the Guarantees and this Indenture except for those surviving
obligations specified below.
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Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company in Sections 2.7, 7.7, 9.5, 9.6 and 9.8 hereof shall
survive.
SECTION 9.2. Legal Defeasance. The Company may at its option, by Board
Resolution, be discharged from its obligations with respect to the Senior Notes
and the Guarantors, if any, discharged from their obligations under the
Guarantees, if any, on the date the conditions set forth in Section 9.4 below
are satisfied (hereinafter, "Legal Defeasance"). For this purpose, such Legal
Defeasance means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by the Senior Notes and to have satisfied
all its other obligations under such Senior Notes and this Indenture insofar as
such Senior Notes are concerned (and the Trustee, at the expense of the Company,
shall, subject to Section 9.6 hereof, execute proper instruments acknowledging
the same), except for the following which shall survive until otherwise
terminated or discharged hereunder: (A) the rights of Holders of outstanding
Senior Notes to receive solely from the trust funds described in Section 9.4
hereof and as more fully set forth in such Section, payments in respect of the
principal of, premium, if any, and interest on such Senior Notes when such
payments are due, (B) the Company's obligations with respect to such Senior
Notes under Sections 2.3, 2.4, 2.5, 2.6, 2.7, 2.8 and 4.20 hereof, (C) the
rights, powers, trusts, duties, and immunities of the Trustee hereunder
(including claims of, or payments to, the Trustee under or pursuant to Section
7.7 hereof) and (D) this Article 9. Subject to compliance with this Article 9,
the Company may exercise its option under this Section 9.2 with respect to the
Senior Notes notwithstanding the prior exercise of its option under Section 9.3
below with respect to the Senior Notes.
SECTION 9.3. Covenant Defeasance. At the option of the Company,
pursuant to a Board Resolution, the Company and the Guarantors, if any, shall be
released from their respective obligations under Sections 4.2 through 4.4
hereof, inclusive, Sections 4.6 through 4.17 hereof, inclusive, and Section 4.23
and clauses (iii) and (iv) of Section 5.1 hereof with respect to the outstanding
Senior Notes on and after the date the conditions set forth in Section 9.4
hereof are satisfied (hereinafter, "Covenant Defeasance") and the Senior Notes
shall thereafter be deemed to not be outstanding for purposes of any direction,
waiver, consent, declaration or act of the Holders (and the consequences
thereof) in connection with such covenants but shall continue to be outstanding
for all other purposes hereunder. For this purpose, such Covenant Defeasance
means that the Company and the Guarantors, if any, may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such specified Section or portion thereof, whether directly or
indirectly by reason of any reference elsewhere herein to any such specified
Section or portion thereof or by reason of any reference in any such specified
Section or portion thereof to any other provision herein or in any other
document, but the remainder of this Indenture and the Senior Notes shall be
unaffected thereby.
SECTION 9.4. Conditions to Legal Defeasance or Covenant Defeasance. The
following shall be the conditions to application of Section 9.2 or Section 9.3
hereof to the outstanding Senior Notes:
(1) the Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the requirements of
Section 7. 10 hereof who shall agree to comply with the provisions of this
Article 9 applicable to it) as funds in trust for the purpose of making the
following payments, specifically pledged as security for, and
66
dedicated solely to, the benefit of the Holders of the Senior Notes, (A) money
in an amount, or (B) U.S. Government Obligations which through the scheduled
payment of principal and interest in respect thereof in accordance with their
terms will provide, not later than the due date of any payment, money in an
amount, or (C) a combination thereof, sufficient, in the opinion of a
nationally-recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee (or other qualifying trustee) to pay
and discharge, the principal of, premium, if any, and accrued interest on the
outstanding Senior Notes at the maturity date of such principal, premium, if
any, or interest, or on dates for payment and redemption of such principal,
premium, if any, and interest selected in accordance with the terms of this
Indenture and of the Senior Notes;
(2) no Event of Default or Default with respect to the Senior
Notes shall have occurred and be continuing on the date of such deposit, or
shall have occurred and be continuing at any time during the period ending on
the 91st day after the date of such deposit or, if longer, ending on the day
following the expiration of the longest preference period under any Bankruptcy
Law applicable to the Company in respect of such deposit (it being understood
that this condition shall not be deemed satisfied until the expiration of such
period);
(3) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute default under any other
agreement or instrument to which the Company is a party or by which it is bound;
(4) the Company shall have delivered to the Trustee an
Opinion of Counsel stating that, as a result of such Legal Defeasance or
Covenant Defeasance, neither the trust nor the Trustee will be required to
register as an investment company under the Investment Company Act of 1940, as
amended;
(5) in the case of an election under Section 9.2 above, the
Company shall have delivered to the Trustee an Opinion of Counsel stating that
(i) the Company has received from, or there has been published by, the Internal
Revenue Service a ruling to the effect that or (ii) there has been a change in
any applicable Federal income tax law with the effect that, and such opinion
shall confirm that, the Holders of the outstanding Senior Notes or persons in
their positions will not recognize income, gain or loss for Federal income tax
purposes solely as a result of such Legal Defeasance and will be subject to
Federal income tax on the same amounts, in the same manner, including as a
result of prepayment, and at the same times as would have been the case if such
Legal Defeasance had not occurred;
(6) in the case of an election under Section 9.3 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the outstanding Senior Notes will not recognize income, gain
or loss for Federal income tax purposes as a result of such Covenant Defeasance
and will be subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such Covenant
Defeasance had not occurred;
(7) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that (a) all
conditions precedent provided for relating to either the Legal Defeasance under
Section 9.2 above or the Covenant Defeasance
67
under Section 9.3 hereof (as the case may be) have been complied with and (b) if
any other Indebtedness of the Company shall then be outstanding, such legal
defeasance or covenant defeasance will not violate the provisions of the
agreements or instruments evidencing such Indebtedness; and
(8) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit under clause (1) was not made by
the Company with the intent of defeating, hindering, delaying or defrauding any
creditors of the Company or others.
SECTION 9.5. Deposited Money and U.S. Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions. All money and U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee pursuant
to Section 9.4 hereof in respect of the outstanding Senior Notes shall be held
in trust and applied by the Trustee, in accordance with the provisions of such
Senior Notes and this Indenture, to the payment, either directly or through any
Paying Agent as the Trustee may determine, to the Holders of such Senior Notes,
of all sums due and to become due thereon in respect of principal, premium, if
any, and accrued interest, but such money need not be segregated from other
funds except to the extent required by law. The Trustee shall be under no duty
to invest such money or U.S. Government Obligations.
The Company and the Guarantors 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 Section 9.4 hereof 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 Senior Notes.
Subject to Sections 7.1 and 7.2 hereof, anything in this Article 9 to
the contrary notwithstanding, the Trustee shall deliver or pay to the Company
from time to time upon Company Request any money or U.S. Government Obligations
held by it as provided in Section 9.4 hereof 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 9.6. Reinstatement. If the Trustee or Paying Agent is unable to
apply any money or U.S. Government Obligations in accordance with Section 9.1,
9.2 or 9.3 hereof by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the obligations of the Company and any
Guarantor under this Indenture, the Senior Notes and the Guarantees, if any,
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article 9 until such time as the Trustee or Paying Agent is permitted to
apply all such money or U.S. Government Obligations in accordance with Section
9.1 hereof; provided, however, that if the Company or any Guarantors have made
any payment of principal of, premium, if any, or accrued interest on any Senior
Notes because of the reinstatement of their obligations, the Company or such
Guarantors, as the case may be, shall be subrogated to the rights of the Holders
of such Senior Notes to receive such payment from the money or U.S. Government
Obligations held by the Trustee or Paying Agent.
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SECTION 9.7. Moneys Held by Paying Agent. In connection with the
satisfaction and discharge of this Indenture, all moneys then held by any Paying
Agent under the provisions of this Indenture shall, upon demand of the Company,
be paid to the Trustee, or if sufficient moneys have been deposited pursuant to
Section 9.4 hereof, to the Company (or, if such moneys had been deposited by any
Guarantors, to such Guarantors), and thereupon such Paying Agent shall be
released from all further liability with respect to such moneys.
SECTION 9.8. Moneys Held by Trustee. Any moneys deposited with the
Trustee or any Paying Agent or then held by the Company or any Guarantors in
trust for the payment of the principal of, premium, if any, or interest on any
Senior Note that are not applied but remain unclaimed by the Holder of such
Senior Note for two years after the date upon which the principal of, or
premium, if any, or interest on such Senior Note shall have respectively become
due and payable shall be repaid to the Company (or, if appropriate, the
Guarantors) upon Company Request, or if such moneys are then held by the Company
or any Guarantors in trust, such moneys shall be released from such trust; and
the Holder of such Senior Note entitled to receive such payment shall
thereafter, as an unsecured general creditor, look only to the Company and the
Guarantors, if any, for the payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money shall thereupon cease;
provided, however, that the Trustee or any such Paying Agent, before being
required to make any such repayment, may, at the expense of the Company and the
Guarantors, if any, either mail to each Noteholder affected, at the address
shown in the register of the Senior Notes maintained by the Registrar pursuant
to Section 2.3 hereof, or cause to be published once a week for two successive
weeks, in a newspaper published in the English language, customarily published
each Business Day and of general circulation in the city of New York, New York,
a notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such mailing or
publication, any unclaimed balance of such moneys then remaining will be repaid
to the Company. After payment to the Company or the Guarantors, if any, or the
release of any money held in trust by the Company or any Guarantors, as the case
may be, Noteholders entitled to the money must look only to the Company and any
Guarantors for payment as general creditors unless applicable abandoned property
law designates another person.
SECTION 9.9. Senior Note Collateral. Upon the Company's exercise under
Section 9.1 hereof of the option applicable under either Section 9.2 or 9.3, the
Collateral shall be released pursuant to Section 10.3 hereof.
ARTICLE 10
Collateral And Security
-----------------------
[To be revised pending security structure established by Exit
Facility.]
SECTION 10.1. Security. The due and punctual payment of the principal
of, premium, if any, and interest on the Senior Notes when and as the same shall
be due and payable, whether on an Interest Payment Date, at maturity, by
acceleration, repurchase, redemption or otherwise, and interest on the overdue
principal of, premium, if any, and interest on the Senior Notes and performance
of all other obligations of the Company and the Guarantors to the Holders of
Senior
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Notes or the Trustee under this Indenture, the Senior Notes and the Guarantees,
according to the terms hereunder or thereunder, shall be secured by the
Collateral, as provided in the Collateral Documents which the Company and the
applicable parties have entered into simultaneously with the execution of this
Indenture for the benefit of the Holders of Senior Notes. Each Holder of Senior
Notes, by its acceptance thereof, consents and agrees to the terms of the
Collateral Documents (including, without limitation, the provisions providing
for foreclosure and release of Collateral) as the same may be in effect or may
be amended from time to time in accordance with its terms and authorizes and
directs the Trustee to enter into the Collateral Documents and to perform its
obligations and exercise its rights thereunder in accordance therewith. The
Company and the Guarantors shall deliver to the Trustee copies of all documents
executed pursuant to this Indenture and the Collateral Documents and shall do or
cause to be done all such acts and things as may be necessary or proper, or as
may be required by the provisions of the Collateral Documents to assure and
confirm to the Trustee the security interest in the Collateral contemplated
hereby, by the Collateral Documents or any part thereof, as from time to time
constituted, so as to render the same available for the security and benefit of
this Indenture and of the Senior Notes and the Guarantees secured hereby,
according to the intent and purposes herein expressed. The Company shall take,
or shall cause its Subsidiaries to take any and all actions reasonably required
to cause the Collateral Documents to create and maintain, as security for the
obligations of the Company hereunder, a valid and enforceable perfected priority
Lien in and on all the Collateral in accordance with the terms of the Collateral
Documents.
SECTION 10.2. Certificates, Opinions and Recording. The Company and the
Guarantors will cause this Indenture, if necessary, the applicable Collateral
Documents, including any financing statements, all amendments or supplements to
each of the foregoing and any other similar security documents as necessary, to
be registered, recorded and filed and/or re-recorded, re-filed and renewed in
such manner and in such place or places, if any, as may be required by law in
order fully to preserve and protect (a) the Lien securing the obligations under
the Senior Notes and the Guarantees of those Guarantors that are parties to the
Collateral Documents pursuant to the Collateral Documents and (b) the Lien of
the Guarantors that are parties to the Collateral Documents securing (for the
ratable benefit of the Holders of Senior Notes) the Senior Notes and the
Guarantees and to effectuate and preserve the security of the Holders of Senior
Notes and all rights of the Trustee.
The Company, the Guarantors and any other obligor shall furnish to the
Trustee:
(a) Promptly after the execution and delivery of this Indenture,
and promptly after the execution and delivery of any other instrument of further
assurance or amendment, an Opinion of Counsel in the United States (which may
include one or more local counsel opinions as to matters concerning the laws of
affected jurisdictions) (i) stating that this Indenture, the Senior Notes, the
Pledge Agreement and such instruments of further assurance or amendment, if any,
are valid, binding and enforceable obligations of the Company and its
Subsidiaries which are signatories to those agreements, subject to customary
qualifications and exceptions (and any other qualifications and exceptions
reasonably acceptable to the Trustee), and (ii) either (A) stating that, subject
to customary assumptions and exclusions (and any other qualifications and
exceptions reasonably acceptable to the Trustee), in the opinion of such
counsel, this Indenture and other applicable Collateral Documents or such
instruments of further assurance or amendment either (i) have been recorded,
registered and filed to the extent necessary to make
70
effective the Lien intended to be created by this Indenture and such Collateral
Documents or documents of further assurance (as the case may be) or (ii) are in
proper form to be recorded, registered and filed in the filing offices specified
in such opinion and upon such filing will make effective the Lien intended to be
created by this Indenture and such Collateral Documents, and reciting the
details of such action or referring to prior Opinions of Counsel in which such
details are given, and stating that, subject to customary assumptions and
exclusions (and any other qualifications and exceptions reasonably acceptable to
the Trustee), as to such Indenture and Collateral Documents and such other
instruments such recording, registering and filing will be the only recordings,
registrations and filings necessary to perfect or give constructive notice of
the Liens granted therein and that no re-recordings, re-registerings or
re-filings will be necessary to maintain such perfection or notice, and further
stating that all financing statements and continuation statements (as
applicable) have been executed and provisions for the filing thereof have been
made to the reasonable satisfaction of the Trustee that are necessary fully to
preserve and protect the rights of the Holders of Senior Notes and the Trustee
hereunder and under the Collateral Documents or (B) stating that, subject to
customary assumptions and exclusions (and any other qualifications and
exceptions reasonably acceptable to the Trustee), in the opinion of such
counsel, no such action is necessary to make any Lien created under the
Indenture and/or any of the Collateral Documents effective as intended by this
Indenture and such Collateral Documents; and
(b) Within 30 days after each anniversary of the date of this
Indenture, an Opinion of Counsel, dated as of such date (which may include one
or more local counsel opinions as to matters concerning the laws of affected
jurisdictions), either (i) stating that, subject to customary assumptions and
exclusions (and any other qualifications and exceptions reasonably acceptable to
the Trustee), in the opinion of such counsel, such action has been taken with
respect to the recording, registering, filing, re-recording, re-registering and
re-filing of this Indenture, the Collateral Documents and all supplemental
indentures, financing statements, continuation statements or other instruments
of further assurance as is necessary to maintain the Lien of this Indenture and
the Collateral Documents until the next Opinion of Counsel is required to be
rendered pursuant to this paragraph and reciting the details of such action or
referring to prior Opinions of Counsel in which such details are given, and
stating that all financing statements and continuation statements have been
executed and filed that are necessary fully to preserve and protect the rights
of the Holders and the Trustee hereunder and under the Collateral Documents or
(ii) stating that, subject to customary assumptions and exclusions (and any
other qualifications and exceptions reasonably acceptable to the Trustee), in
the opinion of such counsel, no such action is necessary to maintain such Lien,
until the next Opinion of Counsel is required to be rendered pursuant to this
paragraph.
(c) The Company shall furnish to the Trustee the certificate or
opinions with respect to compliance with a condition or covenant provided for in
this Indenture (other than a certificate provided pursuant to TIA Section
314(a)(4)), as the case may be, required by TIA Section 314(d). Such
certificates or opinions will be subject to the terms of TIA Section 314(e).
SECTION 10.3. Release of Collateral. (a) Subject to subsections (b),
(c), (d), (e) and (f) of this Section 10.3, Collateral may be released from the
Lien and security interest created by this Indenture and the Collateral
Documents at any time or from time to time upon the request of the Company
pursuant to an Officers' Certificate certifying that all terms for release and
71
conditions precedent hereunder and under the applicable Collateral Document have
been met and specifying (A) the identity of the Collateral to be released and
(B) the provision of this Indenture that authorizes such release. The Trustee
shall release, and shall give any necessary consent, waiver or instruction to
the Collateral Trustee, to release (at the sole cost and expense of the Company)
(i) all Collateral that is contributed, sold, leased, conveyed, transferred or
otherwise disposed of, provided such contribution, sale, lease, conveyance,
transfer or other disposition is or will be in accordance with the provisions of
this Indenture, including, without limitation, the requirement that the net
proceeds, if any, from such contribution, sale, lease, conveyance, transfer or
other disposition are or will be applied in accordance with this Indenture and
that no Default or Event of Default has occurred and is continuing or would
occur immediately following such release; (ii) Collateral which may be released
with the consent of Holders pursuant to Article 8 hereof, (iii) all Collateral
(except as provided in Article 9 hereof) upon discharge or defeasance of this
Indenture in accordance with Article 9 hereof; (iv) all Collateral upon the
payment in full of all obligations of the Company with respect to the Senior
Notes; and (v) Collateral of a Guarantor whose Guarantee is released pursuant to
Section 11.4 hereof. Upon receipt of such Officers' Certificate, an Opinion of
Counsel and any other opinions or certificates required by this Indenture and
the TIA, the Trustee shall execute, deliver or acknowledge any necessary or
proper instruments of termination, satisfaction or release to evidence the
release of any Collateral permitted to be released pursuant to this Indenture
and the Collateral Documents.
(b) No Collateral shall be released from the Lien and security
interest created by the Collateral Documents pursuant to the provisions of the
Collateral Documents unless there shall have been delivered to the Trustee the
certificates required by this Section 10.3.
(c) The Trustee may release Collateral from the Lien and security
interest created by this Indenture and the Collateral Documents upon the sale or
disposition of Collateral pursuant to the Trustee's powers, rights and duties
with respect to remedies provided under any of the Collateral Documents.
(d) The release of any Collateral from the terms of this Indenture
and the Collateral Documents shall not be deemed to impair the security under
this Indenture in contravention of the provisions hereof if and to the extent
the Collateral is released pursuant to the terms hereof. To the extent
applicable, the Company shall cause TIA Section 313(b), relating to reports, and
TIA Section 314(d), relating to the release of property or securities from the
Lien and security interest of the Collateral Documents and relating to the
substitution therefor of any property or securities to be subjected to the Lien
and security interest of the Collateral Documents, to be complied with. Any
certificate or opinion required by TIA Section 314(d) may be made by an Officer
of the Company except in cases where TIA Section 314(d) requires that such
certificate or opinion be made by an independent Person, which Person shall be
an independent engineer, appraiser or other expert selected or approved by the
Trustee in the exercise of reasonable care.
(e) Notwithstanding the foregoing, the Company and each
Subsidiary, as the case may be, pursuant to the terms of this Indenture and the
Collateral Documents, may effect any disposition of Collateral and such
Collateral shall be released from the Lien and security interest created by this
Indenture and the Collateral Documents without the delivery of any opinions or
certificates upon any such release; provided that (i) Section 4.8 is complied
with and
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(ii) any property or assets acquired with any proceeds of such disposition
becomes subject to the Lien and security interest created by this Indenture and
the Collateral Documents; provided, further, that the Company shall deliver to
the Trustee, within 15 days after each of the six-month periods ended April 15
and October 15 in each year, an Officers' Certificate to the effect that all
releases of Collateral by the Company or any Subsidiary, as the case may be,
during the preceding six-month period were in accordance with the provisions of
the Collateral Documents and this Indenture and that all proceeds therefrom were
used by the Company or such Subsidiary as permitted herein (or will be so used
within the time permitted by this Indenture).
(f) The fair value of Collateral released from the Lien and
security interest created by this Indenture and the Collateral Documents
pursuant to Section 10.3(e) hereof shall not be considered in determining
whether the aggregate fair value of Collateral released from the Lien and
security interest created by this Indenture and the Collateral Documents in any
calendar year exceeds the 10% threshold specified in Section 314(d)(l) of the
TIA; provided that the Company's right to rely on this sentence at any time is
conditioned upon the Company having furnished to the Trustee the certificates
described in Section 10.3(e) hereof that were required to be furnished to the
Trustee at or prior to such time.
SECTION 10.4. Protection of the Trust Estate. Upon prior written notice
to the Company and the Guarantors, the Trustee shall have the power (i) to
institute and maintain such suits and proceedings as it may deem expedient, to
prevent any impairment of the Collateral under any of the Collateral Documents;
and (ii) to enforce the obligations of the Company, the Guarantors or any
Restricted Subsidiary under this Indenture or the Collateral Documents, to
institute and maintain such suits and proceedings as may be expedient to prevent
any impairment of the Collateral under the Collateral Documents and in the
profits, rents, revenues and other income arising therefrom; including the power
to institute and maintain suits or proceedings to restrain the enforcement of or
compliance with any legislative or other governmental enactment, rule or order
that may be unconstitutional or otherwise invalid if the enforcement of, or
compliance with, such enactment, rule or order would impair any Collateral or be
prejudicial to the interests of the Holders of Senior Notes or the Trustee, to
the extent permitted thereunder.
SECTION 10.5. Certificates of the Company. The Company shall furnish to
the Trustee, prior to each proposed release of Collateral pursuant to the
Collateral Documents (i) all documents required by TIA Section 314(d) and (ii)
an Opinion of Counsel in the United States, which opinion shall be subject to
customary assumptions and exclusions, to the effect that such accompanying
documents constitute all documents required by TIA Section 314(d). The Trustee
may, to the extent permitted by Sections 7.1 and 7.2 hereof, accept as
conclusive evidence of compliance with the foregoing provisions the appropriate
statements contained in such documents and such Opinion of Counsel.
SECTION 10.6. Certificates of the Trustee. In the event that the
Company wishes to release Collateral in accordance with the Collateral Documents
and has delivered the certificates and documents required by the Collateral
Documents and Sections 10.3 and 10.5 hereof, the Trustee shall determine whether
it has received all documents required by TIA Section 314(d) in connection with
such release and, based on such determination and the Opinion of Counsel
delivered pursuant to Section 10.5(ii), shall deliver a certificate to the
Collateral Trustee, setting forth such determination.
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SECTION 10.7. Authorization of Actions to be Taken by the Trustee Under
the Collateral Documents. Subject to the provisions of Sections 7.1 and 7.2
hereof and the Collateral Trust Agreement, the Trustee may, without the consent
of the Holders of Senior Notes, direct, on behalf of the Holders of Senior
Notes, the Collateral Trustee to take all actions it deems necessary or
appropriate in order to (a) enforce any of the terms of the Collateral Documents
and (b) collect and receive any and all amounts payable in respect of the
Obligations of the Company hereunder. Subject to the Collateral Trust Agreement,
the Trustee shall have power to institute and maintain such suits and
proceedings as it may deem expedient to prevent any impairment of the Collateral
by any acts that may be unlawful or in violation of the Collateral Documents or
this Indenture, and such suits and proceedings as the Trustee may deem expedient
to preserve or protect its interests and the interests of the Holders of Senior
Notes in the Collateral (including power to institute and maintain suits or
proceedings to restrain the enforcement of or compliance with any legislative or
other governmental enactment, rule or order that may be unconstitutional or
otherwise invalid if the enforcement of, or compliance with, such enactment,
rule or order would impair the security interest hereunder or be prejudicial to
the interests of the Holders of Senior Notes or of the Trustee).
SECTION 10.8. Authorization of Receipt of Funds by the Trustee Under
the Collateral Documents. Subject to the Collateral Trust Agreement, upon an
Event of Default and so long as such Event of Default continues, the Trustee may
exercise in respect of the Collateral, in addition to the other rights and
remedies provided for herein, in the Collateral Documents or otherwise available
to it, all of the rights and remedies of a secured party under the Uniform
Commercial Code or other applicable law, and the Trustee may also upon obtaining
possession of the Collateral as set forth herein, without notice to the Company,
except as specified below, sell the Collateral or any part thereof in one or
more parcels at public or private sale, at any exchange, broker's board or at
any of the Trustee's offices or elsewhere, for cash, on credit or for future
delivery, and upon such other terms as the Trustee may deem commercially
reasonable. The Company acknowledges and agrees that any such private sale may
result in prices and other terms less favorable to the seller than if such a
sale were a public sale. The Company agrees that, to the extent notice of sale
shall be required by law, at least 10 days' notice to the Company of the time
and place of any public sale or the time after which any private sale is to be
made shall constitute reasonable notification. The Trustee shall not be
obligated to make any sale regardless of notice of sale having been given. The
Trustee may adjourn any public or private sale from time to time by announcement
at the time and place fixed therefor, and such sale may, without further notice,
be made at the time and place to which it was so adjourned.
Any cash that is Collateral held by the Trustee and all cash proceeds
received by the Trustee in respect of any sale of, collection from, or other
realization upon all or any part of the Collateral shall be applied (unless
otherwise provided for in the Collateral Documents) in accordance with Section
6.10 hereof, or as the Holders of the Senior Notes shall direct pursuant to
Section 6.5 hereof. Any surplus of such cash or cash proceeds held by the
Trustee and remaining after payment in full of all the obligations shall be paid
over to the Company or to whomsoever may be lawfully entitled to receive such
surplus or as a court of competent jurisdiction may direct.
SECTION 10.9. Termination of Security Interest. Upon the payment in
full of all Obligations of the Company under this Indenture and the Senior
Notes, or upon Legal
74
Defeasance or Covenant Defeasance, the Trustee shall, at the request of the
Company, deliver a certificate to the Collateral Trustee stating that such
Obligations have been paid in full, and instruct the Collateral Trustee to
release the Liens pursuant to this Indenture and the Collateral Documents.
SECTION 10.10. Cooperation of Trustee. In the event the Company or any
Guarantor pledges or grants to the Trustee a security interest in additional
Collateral, the Trustee shall cooperate with the Company or such Guarantor in
reasonably and promptly agreeing to the form of, and executing as required, any
instruments or documents necessary to make effective the security interest in
the Collateral to be so pledged. To the extent practicable, the terms of any
security agreement or other instrument or document necessitated by any such
pledge shall be comparable to the provisions of the existing relevant Collateral
Documents. Subject to, and in accordance with the requirements of this Article
10 and the terms of the Collateral Documents, in the event that the Company or
any Guarantor engages in any transaction pursuant to Section 10.3, the Trustee,
subject to the provisions of Sections 10.3 and 10.5, shall cooperate with the
Company or such Guarantor in order to facilitate such transaction in accordance
with any reasonable time schedule proposed by the Company, including by
delivering and releasing the Collateral in a prompt and reasonable manner.
SECTION 10.11. Collateral Trustee. The Collateral Trustee may be
delegated any one or more of the duties or rights of the Trustee hereunder or
under the Collateral Documents or which are specified in any Collateral
Documents, including without limitation, the right to hold any Collateral in the
name of, registered to, or in the physical possession of, such Collateral
Trustee for the ratable benefit of the Holders of the Senior Notes and the
holders from time to time of Senior Indebtedness. Such Collateral Trustee shall
have such rights and duties as may be specified in the Collateral Trust
Agreement.
SECTION 10.12. RESERVED
--------
SECTION 10.13. Agents Under Collateral Documents. Each Holder hereby
further authorizes the Trustee on behalf of and for the benefit of the Holders,
to be the agent for and representative of the Holders with respect to the
Collateral and the Collateral Documents and authorizes the Trustee to appoint
and direct the Collateral Trustee to be the agent for and representative of the
Holders with respect to the Collateral and the Collateral Documents in
accordance with the provisions of the Collateral Trust Agreement.
ARTICLE 11
Guarantee of Senior Notes
-------------------------
SECTION 11.1. Guarantee. Subject to the provisions of this Article 11,
each Guarantor hereby jointly and severally unconditionally and irrevocably
guarantees to each Holder and to the Trustee, on behalf of the Holders, (i) the
due and punctual payment of the principal of, premium, if any, and interest on
each Senior Note, when and as the same shall become due and payable, whether at
maturity, by acceleration or otherwise, the due and punctual payment of interest
on the overdue principal of, and premium, if any, and interest on the Senior
Notes, to the extent lawful, and the due and punctual performance of all other
Obligations of the
75
Company to the Holders or the Trustee all in accordance with the terms of such
Senior Note and this Indenture, and (ii) in the case of any extension of time of
payment or renewal of any Senior Notes or any of such other Obligations, that
the same will be promptly paid in full when due or performed in accordance with
the terms of the extension or renewal, at stated maturity, by acceleration or
otherwise. Each Guarantor, by execution of the Guarantee, agrees that its
obligations thereunder and hereunder shall be absolute and unconditional,
irrespective of, and shall be unaffected by, any invalidity, irregularity or
unenforceability of any such Senior Note or this Indenture, any failure to
enforce the provisions of any such Senior Note or this Indenture, any waiver,
modification or indulgence granted to the Company with respect thereto by the
Holder of such Senior Note or the Trustee, any release of any Collateral, or any
other circumstances which may otherwise constitute a legal or equitable
discharge of a surety or such Guarantor.
Each Guarantor, by execution of the Guarantee, waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
merger or bankruptcy of the Company, any right to require a proceeding first
against the Company, protest or notice with respect to any such Senior Note or
the Indebtedness evidenced thereby and all demands whatsoever, and covenants
that the Guarantee will not be discharged as to any such Senior Note except by
payment in full of the principal thereof, premium if any, and interest thereon
and as provided in Section 9.1 hereof. If any Holder or the Trustee is required
by any court or otherwise to return to the Company or any Guarantor or any
Custodian, trustee, liquidator or other similar official acting in relation to
either the Company or any Guarantor, any amount paid by either the Company or
any Guarantor to the Holder or Trustee, each Guarantor's Guarantee, to the
extent therefor discharged, shall be reinstated in full force and effect. Each
Guarantor, by execution of the Guarantee, further agrees that, as between such
Guarantor, on the one hand, and the Holders and the Trustee, on the other hand,
(i) the maturity of the Obligations guaranteed by the Guarantee may be
accelerated as provided in Article 6 hereof for the purposes of the Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the Obligations guaranteed thereby, and (ii) in the
event of any declaration of acceleration of such Obligations as provided in
Article 6 hereof, such Obligations (whether or not due and payable) shall
forthwith become due and payable by each Guarantor for the purpose of the
Guarantee. In addition, without limiting the foregoing provisions, upon the
effectiveness of an acceleration under Article 6 hereof, the Trustee shall
promptly make a demand for payment on the Senior Notes under any Guarantee
provided for in this Article 11 and not discharged. Failure to make such demand
shall not affect the validity or enforceability of the Guarantee upon any
Guarantor.
A Guarantee shall not be valid or become obligatory for any purpose
with respect to a Senior Note unless the certificate of authentication on such
Senior Note shall have been signed by or on behalf of the Trustee.
Each Guarantor also agrees to pay any and all costs and expenses
(including reasonable attorney's fees and expenses) incurred by the Trustee as a
representative of any Holder in enforcing any rights under this section.
SECTION 11.2. Execution and Delivery of Guarantees. To further evidence
the Guarantee set forth in this Article 11, each Guarantor shall execute a
Guarantee in the form
76
included as part of Exhibit A hereto and hereby agrees that a notation of such
Guarantee shall be placed on each Senior Note authenticated and made available
for delivery by the Trustee and that this Guarantee shall be executed on behalf
of each Guarantor by the manual or facsimile signature of an Officer of each
Guarantor or its duly appointed agent.
Each Guarantor hereby agrees that the Guarantee set forth in Section
11.1 shall remain in full force and effect notwithstanding any failure to
endorse on each Senior Note a notation of such Guarantee.
If an Officer of a Guarantor whose signature is on the Guarantee no
longer holds that office at the time the Trustee authenticates the Senior Note
on which the Guarantee is endorsed, the Guarantee shall be valid nevertheless.
The delivery of any Senior Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the Guarantee
set forth in this Indenture on behalf of each Guarantor.
SECTION 11.3. Limitation of Guarantee. The obligations of each
Guarantor will be limited to the maximum amount as will, after giving effect to
all other contingent and fixed liabilities 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 its contribution obligations under this Indenture,
result in the obligations of such Guarantor under the Guarantee not constituting
a fraudulent conveyance or fraudulent transfer under Federal or state law. Each
Guarantor that makes a payment or distribution under a Guarantee shall be
entitled to a contribution from each other Guarantor in a pro rata amount based
on the Adjusted Net Assets of each Guarantor.
SECTION 11.4. Release of Guarantor. A Guarantor shall be released from
all of its obligations under its Guarantee if:
(i) the Guarantor has sold all or substantially all of its
assets or the Company and its Subsidiaries have sold all of the
Equity Interests of the Guarantor owned by them, in each case in a
transaction in compliance with Sections 4.8 and 5.1 hereof to the
extent applicable;
(ii) the Guarantor merges with or into or consolidates with,
or transfers all or substantially all of its assets to, the
Company or another Guarantor in a transaction in compliance with
Section 5.1 hereof; or
(iii) the Guarantor has been designated as an Unrestricted
Subsidiary pursuant to, and in compliance with, Section 4.13 of
this Indenture;
and in each such case, the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to such transactions have been complied
with. At the written request of the Company, the Trustee will promptly execute
and deliver appropriate instruments in forms reasonably acceptable to the
Company evidencing and further implementing any releases or discharges pursuant
to the foregoing provisions.
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SECTION 11.5. Additional Guarantors. The Company covenants and agrees
that it will cause any Person which becomes obligated to guarantee the Senior
Notes pursuant to the terms of Section 4.12 hereof, to execute a Guarantee
satisfactory in form and substance to the Trustee pursuant to which such Person
shall guarantee the obligations of the Company under the Senior Notes and this
Indenture in accordance with this Article 11 with the same effect and to the
same extent as if such Person had been named herein as a Guarantor.
Notwithstanding the foregoing, if such Person is a Subsidiary incorporated in a
jurisdiction other than the United States, and if and to the extent that the
execution of a Guarantee by such Person would have adverse tax consequences for
the Company or any of its Subsidiaries, the Company shall not be obligated to
cause such Person to execute a Guarantee, provided that the Company shall cause
65% (or such other greater or lesser percentage which as a result of a change of
law may be pledged without resulting in adverse tax consequences) of the issued
and outstanding shares of stock of such Person to become Collateral as and when
received by the Company or by any of its Subsidiaries.
ARTICLE 12
Miscellaneous
-------------
SECTION 12.1. Trust Indenture Act Controls. If any provision of this
Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 12.2. Notices. Any notice or communication shall be given in
writing and delivered in person, sent by facsimile, delivered by commercial
courier service or mailed by first-class mail, postage prepaid, addressed as
follows:
if to the Company or any Guarantor:
Superior Telecommunications LLC
[Street]
[City, State Zip Code]
Attention: General Counsel
Telecopy: ([_]) [_]-[_]
with a copy to:
Pachuulsky, Xxxxx, Xxxxx Xxxxx, Xxxxx &
Xxxxxxxxx P.C.
000 X. Xxxxxx Xxxxxx, 00xx Xxxxx
X.X. Xxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: [_]
Telecopy: (000) 000-0000
if to the Trustee:
[Trustee]
[Street]
[City, State Zip Code]
78
Telecopy: ([_]) [_]-[_]
Such notices or communications shall be effective when received and
shall be sufficiently given if so given within the time prescribed in this
Indenture.
The Company, any Guarantors or the Trustee by written notice to the
others may designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Holder shall be mailed to him
by first-class mail, postage prepaid, at his address shown on the register kept
by the Registrar. If a notice or communication to a Holder is mailed in the
manner provided above, it shall be deemed duly given on the date so deposited in
the mail, whether or not the addressee receives it.
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.
In case, by reason of the suspension of regular mail service, or by
reason of any other cause, it shall be impossible to mail any notice as required
by this Indenture, then such method of notification as shall be made with the
approval of the Trustee shall constitute a sufficient mailing of such notice.
SECTION 12.3. 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 Senior Notes. The Company, the
Guarantors, the Trustee, the Registrar and anyone else shall have the protection
of TIA Section 312(c).
SECTION 12.4. Certificate and Opinion as to Conditions Precedent. Upon
any request or application by the Company or any Guarantor to the Trustee to
take any action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate (which shall include the
statements set forth in Section 12.5 below) in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with;
(2) an Opinion of Counsel (which shall include the statements
set forth in Section 12.5 below) in form and substance reasonably satisfactory
to the Trustee stating that, in the opinion of such counsel, all such conditions
precedent have been complied with; and
(3) where applicable, a certificate or opinion by an
independent certified public accountant satisfactory to the Trustee that
complies with TIA Section 314(c).
SECTION 12.5. Statements Required in Certificate and Opinion. Each
certificate and opinion with respect to compliance with a condition or covenant
Provided for in this Indenture shall include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
79
(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, it or he
has made such examination or investigation as is necessary to enable it or him
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether or not, in the opinion of such
Person, such covenant or condition has been complied with.
SECTION 12.6. When Treasury Senior Notes Disregarded. In determining
whether the Holders of the required aggregate principal amount of Senior Notes
have concurred in any direction, waiver or consent, (i) Senior Notes owned by
the Company, any Guarantor or any other obligor on the Senior Notes shall be
disregarded as though they were not outstanding and (ii) solely to the extent
required by TIA Section 316(a) and TIA Section 315(d), Senior Notes owned by
Affiliates shall be disregarded as though they were not outstanding, except that
for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Senior Notes which the
Trustee actually knows are so owned shall be so disregarded. Senior Notes so
owned which have been pledged in good faith shall not be disregarded if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right so to
act with respect to the Senior Notes and that the pledgee is not the Company, a
Guarantor or any other obligor upon the Senior Notes or any Affiliate of any of
them.
SECTION 12.7. Rules by Trustee and Agents. The Trustee may make
reasonable rules for action by or meetings of Holders. The Registrar and Paying
Agent may make reasonable rules for their functions.
SECTION 12.8. Business Days; Legal Holidays. A "Business Day" is a day
that is not a Legal Holiday. A "Legal Holiday" is a Saturday, a Sunday, a
federally-recognized holiday or a day on which banking institutions are not
required to be open in the State of New York. If a payment date is a Legal
Holiday at a place of payment, payment may be made at that place on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue for the
intervening period.
SECTION 12.9. GOVERNING LAW. THIS INDENTURE AND THE SENIOR NOTES SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO THIS INDENTURE OR THE SENIOR NOTES.
SECTION 12.10. No Adverse Interpretation of Other Agreements. This
Indenture may not be used to interpret another indenture, loan, security or debt
agreement of the Company or any Subsidiary thereof. No such indenture, loan,
security or debt agreement may be used to interpret this Indenture.
80
SECTION 12.11. No Recourse Against Others. No recourse for the payment
of the principal of or premium, if any, or interest on any of the Senior Notes,
or for any claim based thereon or otherwise in respect thereof, and no recourse
under or upon any obligation, covenant or agreement of the Company or any
Guarantor in this Indenture or in any supplemental indenture, or in any of the
Senior Notes, or because of the creation of any Indebtedness represented
thereby, shall be had against any stockholder, officer, director, partner,
affiliate, beneficiary or employee, as such, past, present or future, of the
Company or of any successor corporation or against the property or assets of any
such stockholder, officer, employee, partner, affiliate, beneficiary or
director, either directly or through the Company or any Guarantor, or any
successor corporation thereof, whether by virtue of any constitution, statute or
rule of law, or by the enforcement of any assessment or penalty or otherwise; it
being expressly understood that this Indenture and the Senior Notes are solely
obligations of the Company and the Guarantors, and that no such personal
liability whatever shall attach to, or is or shall be incurred by, any
stockholder, officer, employee, partner, affiliate, beneficiary or director, as
such, of the Company or any Guarantor, or any successor corporation thereof,
because of the creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this Indenture
or the Senior Notes or implied therefrom, and that any and all such personal
liability of, and any and all claims against every stockholder, officer,
employee, partner, affiliate, beneficiary and director, as such, are hereby
expressly waived and released as a condition of, and as a consideration for, the
execution of this Indenture and the issuance of the Senior Notes. Such waiver
may not be effective to waive liabilities under federal securities laws and it
is the view of the SEC that such waiver is against public policy. It is
understood that this limitation on recourse is made expressly for the benefit of
any such shareholder, employee, officer, partner, affiliate, beneficiary or
director and may be enforced by any one or all of them.
SECTION 12.12. Successors. All agreements of the Company and the
Guarantors in this Indenture and the Senior Notes shall bind their respective
successors. All agreements of the Trustee, any additional trustee and any Paying
Agents in this Indenture shall bind their respective successors.
SECTION 12.13. Multiple Counterparts. The parties may sign multiple
counterparts of this Indenture. Each signed counterpart shall be deemed an
original, but all of them together represent one and the same agreement.
SECTION 12.14. Table of Contents, Headings, etc. The table of contents,
cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to be
considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.
SECTION 12.15. Separability. Each provision of this Indenture shall be
considered separable and if for any reason any provision which is not essential
to the effectuation of the basic purpose of this Indenture or the Senior Notes
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.
[The remainder of this page is intentionally left blank.]
81
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date and year first written above.
SUPERIOR TELECOMMUNICATIONS LLC
By:
------------------------------------------------
Name: [Name]
Title: [Title]
On behalf of each entity named on the attached
Schedule I
By:
------------------------------------------------
Name: [Name]
Title: [Title]
TRUSTEE,
[TRUSTEE]
By:
------------------------------------------------
Name: [Name]
Title: [Title]
82
EXHIBIT A
FORM OF NOTATION ON SENIOR NOTE RELATING TO GUARANTEE
GUARANTEE
Each guarantor (each a "Guarantor" and collectively the "Guarantors"
including any successor Person under the Indenture) has unconditionally
guaranteed, jointly and severally, to the extent set forth in the Indenture and
subject to the provisions of the Indenture, (a) the due and punctual payment of
the principal of, premium, if any, and interest on the Senior Notes, whether at
maturity, by acceleration or otherwise, the due and punctual payment of interest
on overdue principal, and, to the extent permitted by law, interest, and the due
and punctual performance of all other obligations of the Company to the Holders
or the Trustee all in accordance with the terms set forth in Article 11 of the
Indenture, and (b) in case of any extension of time of payment or renewal of any
Senior Notes or any of such other obligations, that the same will be promptly
paid in full when due or performed in accordance with the terms of the extension
or renewal, whether at stated maturity, by acceleration or otherwise.
The obligations of the Guarantor to the Holders and to the Trustee
pursuant to this Guarantee and the Indenture are expressly set forth in Article
11 of the Indenture and reference is hereby made to the Indenture for the
precise terms and limitations of this Guarantee. Capitalized terms used herein
shall have the meanings assigned to them in the Indenture unless otherwise
indicated.
On behalf of each entity named below
------------------------------------
By:
Title:
[The remainder of this page is intentionally left blank.]
[Insert list.]
A-1
EXHIBIT B
FORM OF NOTE
(FACE OF NOTE)
[Insert the Global Note Legend, if applicable pursuant to the
provisions of the Indenture]
NUMBER _________ AMOUNT _________
CUSIP NUMBER _________
SUPERIOR TELECOMMUNICATIONS LLC
SECOND PRIORITY SECURED NOTES DUE 2008
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN PART OR IN WHOLE PRIOR TO
MATURITY AS SET FORTH BELOW. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF
THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
Superior Telecommunications LLC, 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
Interest Payment Dates: [date] and [date] of each year commencing
[Issue Date], 200[3].
Record Dates: each [date] and [date].
Issue Date: [Issue Date], 2003.
Reference is made to the further provisions of this Senior Note
contained herein, which will for all purposes have the same effect as if set
forth at this place.
[Signature page attached.]
B-1
IN WITNESS WHEREOF, the Company has caused this Second Priority Secured Note due
2008 to be signed manually or by facsimile by its duly authorized officers.
SUPERIOR TELECOMMUNICATIONS LLC
By:
-----------------------------------------
Name:
Title:
By:
-----------------------------------------
Name:
Title:
B-2
Certificate of Authentication:
This is one of the Second Priority Secured Notes due 2008 referred to
in the within-mentioned Indenture.
Dated: [Issue Date], 2003
[TRUSTEE], as Trustee
By:
-----------------------------------
Authorized Signatory
B-3
(REVERSE SIDE)
SUPERIOR TELECOMMUNICATIONS LLC
SECOND PRIORITY SECURED NOTES DUE 2008
1. INTEREST.
(a) Superior Telecommunications LLC, a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of the Senior Notes
at a rate per annum of 9.5% until the principal hereof shall have become due and
payable, and on any overdue principal and (without duplication and to the extent
that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at the same rate per annum compounded
semi-annually, payable semi-annually in arrears on [ ] and [ ] of each year,
commencing [ ] (each, an "Interest Payment Date"), to the person in whose name
the Senior Notes are registered at the close of business on the regular record
date for such interest installment, which shall be the first date of the month
in which the relevant Interest Payment Date falls. The amount of interest
payable on any Interest Payment Date shall be computed on the basis of the
actual number of days elapsed and a 360-day year.
(b) If as of the last day of the most recently completed calendar month
which is 30 days prior to the First Interest Payment Date, Consolidated EBITDA
does not exceed $[amount to be agreed upon by the Company and the Existing
Lenders], then, in lieu of making the otherwise due cash payment on each such
interest payment date, the Company may pay interest as follows: (i) cash
interest at the rate per annum of 4.75%, (ii) payment in Secondary Senior Notes
identical to the Senior Notes and (iii) an additional cash payment to each
holder, on a pro rata basis, equal to [ ]% of the aggregate amount of Senior
Notes outstanding as of the applicable record date for such Interest Payment
(such amounts, "Additional Amounts").
(c) If as of the last day of the most recently completed calendar month
which is 30 days prior to the Second Interest Payment Date, Consolidated EBITDA
does not exceed $[amount to be agreed upon by the Company and the Existing
Lenders], then, in lieu of making the otherwise due cash payment on each such
interest payment date, the Company may pay interest as follows: (i) cash
interest at the rate per annum of 4.75%, (ii) payment in Secondary Senior Notes
identical to the Senior Notes, including the same maturity date, (iii) the
Additional Amount.
2. METHOD OF PAYMENT.
The Company will pay interest on this Senior Note provided for in Paragraph
1 above (except defaulted interest) to the person who is the registered Holder
of this Note at the close of business on the first day of the month in which the
relevant Interest Payment Date falls (whether or not such day is a Business
Day). The Holder must surrender this Note to a Paying Agent to collect principal
payments due on the Maturity Date. The Company will pay principal, premium, if
any, Additional Amounts, if any, and interest in money of the United States that
at the time of payment is legal tender for payment of public and private debts;
provided, however, that the Company may pay principal, premium, if any,
Additional Amounts, if any, and interest by check payable in such money. It may
mail an interest check to the Holder's registered address.
B-4
Notwithstanding the foregoing, all payments with respect to the Senior Notes,
the Holders of which have given wire transfer instructions to the Paying Agent
on or before the relevant record date pursuant to the Indenture (as hereinafter
defined), shall be made by wire transfer of immediately available funds to the
accounts specified by such Holders.
3. PAYING AGENT AND REGISTRAR.
Initially, [Trustee] (the "Trustee"), will act as Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar without notice
to the Holders of the Senior Notes. Neither the Company nor any of its
Subsidiaries or Affiliates may act as Paying Agent but may act as Registrar or
co-Registrar.
4. INDENTURE AND COLLATERAL DOCUMENTS.
The Company issued this Senior Note under an Indenture dated as of [Plan
Effective Date], 2003 (as such may be amended, supplemented, waived and modified
from time to time, the "Indenture") by and among the Company, the Guarantors
party thereto and the Trustee. The terms of this Senior Note include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939 as in effect on the date of the Indenture. This
Senior Note is subject to all such terms, and the Holder of this Senior Note is
referred to the Indenture and said Trust Indenture Act for a statement of them.
The terms of the Indenture shall govern any inconsistencies between the
Indenture and the Senior Notes or the Guarantee. The Senior Notes are secured by
the Collateral (as defined in the Indenture) pursuant to the Collateral
Documents and may be released pursuant to the terms thereof, subject to the
terms of this Indenture. The Collateral Documents govern the rights in and to
the Collateral of the holders from time to time of Senior Indebtedness and of
the Trustee and the Holders. All capitalized terms in this Senior Note, unless
otherwise defined, have the meanings assigned to them by the Indenture. Without
limiting the foregoing, each Holder, by accepting this Senior Note, authorizes
the Trustee on behalf of and for the benefit of each Holder, to be the agent for
and representative of each Holder with respect to the Collateral and the
Collateral Documents and authorizes the Trustee to appoint and direct the
Collateral Trustee (as defined in the Indenture) to be the agent for and
representative of each Holder with respect to the Collateral and the Collateral
Documents in accordance with the provisions of the Collateral Trust Agreement.
The Senior Notes are secured obligations of the Company of up to
$145,000,000 in aggregate principal amount, subject to adjustment as provided in
the Indenture. The Indenture imposes certain restrictions on, among other
things, the Company's ability to consolidate or merge with or into, or to
transfer all or substantially all of its assets to, another person.
5. OPTIONAL REDEMPTION.
Subject to the terms of Section 3.7 of the Indenture, the Company may redeem
the Senior Notes, in whole or in part, at any time other than during the
Redemption Period following a Change of Control at a redemption price equal to
100% of the principal amount thereof, plus any accrued and unpaid interest to
the Redemption Date.
B-5
6. NOTICE OF REDEMPTION.
Notice of redemption will be mailed via first class mail at least 15 days
but not more than 30 days prior to the Redemption Date to each Holder of Senior
Notes to be redeemed at its registered address as it shall appear on the
register of the Senior Notes maintained by the Registrar. On and after any
Redemption Date, interest will cease to accrue on the Senior Notes or portions
thereof called for redemption unless the Company shall default in making the
redemption payment thereon.
7. GUARANTEE.
Payment of principal of, premium, if any, and interest (including interest
on overdue principal and overdue interest (if lawful)) on the Senior Notes and
all other obligations of the Company to the Holders will be unconditionally
guaranteed by the Guarantors pursuant to, and subject to the terms of, Article
11 of the Indenture.
8. COLLATERAL TRUST AGREEMENT.
The Collateral Trust Agreement sets forth the relative rights of the Trustee
and the Holders, on the one hand, and the holders of the Senior Indebtedness, on
the other hand, as to the priority of payment of the Senior Indebtedness over
the Senior Notes and related obligations in certain circumstances. The terms of
the Senior Notes are subject to the terms of the Collateral Trust Agreement and
each Holder, by accepting this Senior Note, agrees to all of the terms and
provisions of the Collateral Trust Agreement which may be amended from time to
time pursuant to the provisions thereof and this Indenture. Without limiting the
foregoing, each Holder, by accepting this Senior Note, acknowledges and agrees
that its rights to payment of the obligations evidenced by the Senior Notes and
the Guarantees are subject to the terms of the Collateral Trust Agreement, and
authorizes the Trustee to give effect thereto and appoints the Trustee as
attorney in fact for such purpose and, without limitation, expressly authorizes
the Trustee to appoint the Joint Collateral Trustee, referred to in the
Indenture as the Collateral Trustee, pursuant to the Collateral Trust Agreement
and upon the terms thereof.
9. DENOMINATIONS, TRANSFER, EXCHANGE.
The Senior Notes are in registered form without coupons in denominations of
whole dollar integrals. A Holder may register the transfer or exchange of Senior
Notes in accordance with the Indenture. The Registrar may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and to pay any taxes and fees required by law or permitted by the Indenture. The
Registrar need not register the transfer of or exchange any Senior Note selected
for redemption or register the transfer of or exchange any Senior Note for a
period of 15 days before a selection of Senior Notes to be redeemed or any
Senior Note after it is called for redemption in whole or in part, except the
unredeemed portion of any Senior Note being redeemed in part.
10. PERSONS DEEMED OWNERS.
The registered Holder of this Senior Note may be treated as the owner of it
for all purposes.
B-6
11. UNCLAIMED MONEY.
If money for the payment of principal, premium or interest on any Senior
Note remains unclaimed for two years, the Trustee or Paying Agent will pay the
money back to the Company at its request. After that, Holders entitled to money
must look to the Company for payment as general creditors unless an "abandoned
property" law designates another person.
12. AMENDMENT, SUPPLEMENT AND WAIVER.
Subject to certain exceptions, the Indenture, the Senior Notes, the
Guarantees or the Collateral Documents (subject to any amendment provisions
contained therein) may be modified, amended or supplemented by the Company, the
Guarantors and the Trustee with the consent of the Holders of at least a
majority in principal amount of the Senior Notes then outstanding and any
existing default or compliance with any provision may be waived in a particular
instance with the consent of the Holders of at least a majority in principal
amount of the Senior Notes then outstanding. Without the consent of Holders, the
Company, the Guarantors and the Trustee may modify, amend the Indenture, the
Senior Notes, the Guarantees or the Collateral Documents or supplement the
Indenture for certain specified purposes, including providing for uncertificated
Senior Notes in addition to certificated Senior Notes, and curing any ambiguity,
defect or inconsistency, or making any other change that does not adversely
affect the rights of any Holder, or to comply with the requirements of the SEC
in order to effect or maintain the qualification of the Indenture under the
Trust Indenture Act to enter into additional or supplemental Collateral
Documents, to adjust the principal amount of the Senior Notes issued pursuant to
the Indenture and to otherwise comply with the terms of the Plan of
Reorganization (as defined in the Indenture).
13. SUCCESSOR ENTITY.
When a successor corporation assumes all the obligations of its predecessor
under the Senior Notes and the Indenture and immediately before and thereafter
no Default exists and certain other conditions are satisfied, the predecessor
corporation will be released from those obligations.
14. DEFAULTS AND REMEDIES.
Events of Default are set forth in the Indenture. If an Event of Default
(other than an Event of Default pursuant to Section 6.1(7) or (8) of the
Indenture) occurs and is continuing, the Trustee by notice to the Company or the
Holders of not less than 25% in aggregate principal amount of the Senior Notes
then outstanding by written notice to the Company and the Trustee, may declare
to be immediately due and payable the entire principal amount of all the Senior
Notes then outstanding plus premium, if any, and accrued but unpaid interest to
the date of acceleration and such amounts shall become immediately due and
payable. In case an Event of Default specified in Section 6.1(7) or (8) of the
Indenture occurs, such principal amount, together with premium, if any, and
interest with respect to all of the Senior Notes, shall be due and payable
immediately without any declaration or other act on the part of the Trustee or
the Holders of the Notes. The Trustee may withhold from Holders notice of any
continuing default
B-7
(except a default in payment of principal, premium, if any, or interest) if it
determines that withholding notice is in their interests.
15. TRUSTEE DEALINGS WITH THE COMPANY.
The Trustee under the Indenture, in its individual or any other capacity,
may become the owner or pledgee of Senior Notes, make loans to, accept deposits
from, and perform services for the Company, any Guarantor or their Affiliates,
and may otherwise deal with the Company, any Guarantor or their Affiliates, as
if it were not the Trustee.
16. NO RECOURSE AGAINST OTHERS.
As more fully described in the Indenture, no past, present or future
director, officer, employee, partner, affiliate, beneficiary or stockholder, as
such, of the Company or any Guarantor shall have any liability for any
obligations of the Company or any Guarantor under the Senior Notes or the
Indenture or for any claim based on, in respect or by reason of, such
obligations or their creation. The Holder of this Senior Note by accepting this
Senior Note waives and releases all such liability. The waiver and release are
part of the consideration for the issuance of this Senior Note. Such waiver may
not be effective to waive liabilities under federal securities laws and it is
the view of the SEC that such waiver is against public policy.
17. DEFEASANCE AND COVENANT DEFEASANCE.
The Indenture contains provisions for defeasance of the entire indebtedness
on this Senior Note and for defeasance of certain covenants in the Indenture
upon compliance by the Company with certain conditions set forth in the
Indenture.
18. ABBREVIATIONS.
Customary abbreviations may be used in the name of a Holder of a Note 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).
19. CUSIP NUMBERS.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Senior Notes and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Holders of the Senior Notes. No
representation is made as to the accuracy of such numbers either as printed on
the Senior Notes or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
20. GOVERNING LAW.
THE INDENTURE AND THE SENIOR NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. EACH OF THE PARTIES HERETO
AGREES TO SUBMIT TO THE JURISDICTION OF
X-0
XXX XXXXXX XX XXX XXXXX XX XXX XXXX OVER ANY SUIT, ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS INDENTURE OR THE SENIOR NOTES.
THE COMPANY WILL FURNISH TO ANY HOLDER OF A SENIOR NOTE UPON WRITTEN REQUEST
AND WITHOUT CHARGE A COPY OF THE INDENTURE. REQUESTS MAY BE MADE TO: SUPERIOR
TELECOMMUNICATIONS LLC, [ADDRESS], ATTENTION: [GENERAL COUNSEL] (OR SUCH OTHER
ADDRESS AS THE COMPANY MAY DESIGNATE FROM TIME TO TIME FOR SUCH PURPOSE IN
WRITTEN NOTICE TO THE HOLDERS OF SENIOR NOTES.
21. AUTHENTICATION.
This Senior Note shall not be valid until the Trustee manually signs the
Certificate of Authentication on the other side of this Senior Note.
B-9
ASSIGNMENT FORM(1)
I or we assign and transfer this Senior Note to:
(Insert assignee's social security or tax I.D. number)
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
(Print or type name, address and zip code of assignee) and irrevocably
appoint:
-------------------------------------------------------------
-------------------------------------------------------------
Agent to transfer this Senior Note on the books of the Company. The Agent
may substitute another to act for him.
Date:
--------------------------------------------------------
Your Signature:
----------------------------------------------
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee:
-----------------------------------------
(1) This Assignment Form should be included only if the Note is in definitive
form.
B-10
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Senior Note purchased
by the Company pursuant to Section 4.8 of the Indenture, check the box:
/ /
If you want to have only part of the Senior Note purchased by the Company
pursuant to Section 4.8 of the Indenture, state the amount you elect to have
purchased: $______ multiple of $1,000)
Date: .
------------------------------------
Your Signature:
--------------------------------------------------------
(Sign exactly as your name appears on the face of this Note)
Signature Guaranteed
-----------------------------------------------------------------------
B-11
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE(1)
The following exchanges of a part of this Global Note for an interest
in another Global Note or for a Definitive Note, or exchanges of a part of
another Global Note or Definitive Note for an interest in this Global Note, have
been made:
Amount of Principal Amount
decrease in Amount of increase of this Global Note Signature of
Principal in Principal following such authorized officer
Amount Amount of this decrease (or of Trustee or Note
Date of Exchange of this Global Note Global Note increase) Custodian
(1) This Schedule should be included only if the Note is in global form.
B-12
EXHIBIT C
FORM OF GLOBAL NOTE LEGEND
Any Global Note authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required in the case of
a Restricted Security) in substantially the following form:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY IN CUSTODY FOR THE BENEFICIAL OWNERS HEREOF. THIS NOTE
IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A
WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE
DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE
REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (A NEW YORK CORPORATION) ("DTC") TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR 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.
C-1
EXHIBIT D
FORM OF SUPPLEMENTAL INDENTURE
THIS SUPPLEMENTAL INDENTURE, dated as of ________, between
_________________ (the "Guarantor"), a subsidiary of Superior Telecommunications
LLC, a Delaware corporation, and ____________, as trustee under the Indenture as
defined below (the "Trustee").
W I T N E S S E T H
WHEREAS, Superior Telecommunications LLC (the "Company") and the
Guarantors as listed on Schedule 1 to the Indenture, have heretofore executed
and delivered to the Trustee an indenture (the "Indenture"), dated as of [Plan
Effective Date], 2003, providing for the issuance of up to an aggregate
principal amount of $145,000,000 (excluding Secondary Senior Notes) of Second
Priority Secured Notes due 2008 (the "Senior Notes");
WHEREAS, Section 4.24 of the Indenture provides that under certain
circumstances the Company is required to cause the Guarantor to execute and
deliver to the Trustee a supplemental indenture pursuant to which the Guarantor
shall unconditionally guarantee all of the Company's Obligations under the
Senior Notes pursuant to a Guarantee on the terms and conditions set forth
herein; and
WHEREAS, pursuant to Section 8.1 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Guarantor and the Trustee mutually covenant and agree for the equal and ratable
benefit of the Holders of the Senior Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The Guarantor hereby agrees, jointly and
severally with all other Guarantors, to guarantee the Company's obligations
under the Senior Notes on the terms and subject to the conditions set forth in
Article 11 of the Indenture and to be bound by all other applicable provisions
of the Indenture.
3. NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, partner, affiliate, beneficiary or stockholder of the
Guarantor, as such, shall have any liability for any obligations of the Company
or any Guarantor under the Senior Notes, any Guarantees, the Indenture or this
Supplemental Indenture or for any claim based on, in respect of, or by reason
of, such obligations or their creation. Each Holder of the Senior Notes by
accepting a Note waives and releases all such liability. The waiver and release
are part of the consideration for issuance of the Senior Notes. Such waiver or
release may not be effective to waive or release liabilities under the federal
securities laws and it is the view of the SEC that such waiver is against public
policy.
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4. NEW YORK LAW TO GOVERN. The laws of the State of New York shall
govern and be used to construe this Supplemental Indenture.
5. COUNTERPARTS. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
6. EFFECT OF HEADINGS. The Section headings herein are for convenience
only and shall not affect the construction hereof.
7. THE TRUSTEE. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
recitals are made solely by the Guarantor and the Company.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated:____________, ____
[Guarantor]
By: ____________________________
Name:
Title:
_____________________, as Trustee
By: _____________________________
Name:
Title:
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