Exhibit 4.1
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AVADO BRANDS, INC.,
as Issuer,
the GUARANTORS named herein,
as Guarantors,
and
SUNTRUST BANK, ATLANTA,
as Trustee
INDENTURE
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Dated as of June 22, 1999
$100,000,000
11 3/4% Senior Subordinated Notes due 2009
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
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310(a)(1)................................................................ 7.10
(a)(2)............................................................. 7.10
(a)(3)............................................................. N.A.
(a)(4)............................................................. N.A.
(a)(5)............................................................. 7.08; 7.10
(b)................................................................ 7.08; 7.10; 13.02
(c)................................................................ N.A.
311(a)................................................................... 7.11
(b)................................................................ 7.11
(c)................................................................ N.A.
312(a)................................................................... 2.05
(b)................................................................ 13.03
(c)................................................................ 13.03
313(a)................................................................... 7.06
(b)(1)............................................................. 7.06
(b)(2)............................................................. 7.06
(c)................................................................ 7.06; 13.02
(d)................................................................ 7.06
314(a)................................................................... 4.08; 4.10; 13.02
(b)................................................................ N.A.
(c)(1)............................................................. 7.02; 13.04; 13.05
(c)(2)............................................................. 7.02; 13.04; 13.05
(c)(3)............................................................. N.A.
(d)................................................................ N.A.
(e)................................................................ 13.05
(f)................................................................ N.A.
315(a)................................................................... 7.01(b)
(b)................................................................ 7.05
(c)................................................................ 7.01
(d)................................................................ 6.05; 7.01(c)
(e)................................................................ 6.11
316(a)(last sentence).................................................... 2.09
(a)(1)(A).......................................................... 6.05
(a)(1)(B).......................................................... 6.04
(a)(2)............................................................. 9.05
(b)................................................................ 6.07
(c)................................................................ 9.05
317(a)(1)................................................................ 6.08
(a)(2)............................................................. 6.09
(b)................................................................ 2.04
318(a)................................................................... 13.01
(c)................................................................ 13.01
N.A. means Not Applicable
Note: This Cross-Reference Table shall not, for any purpose, be deemed to
be a part of the Indenture
TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions........................................................................1
SECTION 1.02. Incorporation by Reference of TIA.................................................31
SECTION 1.03. Rules of Construction.............................................................32
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating...................................................................32
SECTION 2.02. Execution and Authentication......................................................33
SECTION 2.03. Registrar and Paying Agent........................................................34
SECTION 2.04. Paying Agent To Hold Assets in Trust..............................................35
SECTION 2.05. Holder Lists......................................................................36
SECTION 2.06. Transfer and Exchange.............................................................36
SECTION 2.07. Replacement Securities............................................................38
SECTION 2.08. Outstanding Securities............................................................38
SECTION 2.09. Treasury Securities...............................................................39
SECTION 2.10. Temporary Securities..............................................................39
SECTION 2.11. Cancellation......................................................................39
SECTION 2.12. Defaulted Interest................................................................40
SECTION 2.13. CUSIP Number......................................................................40
SECTION 2.14. Restrictive Legends...............................................................40
SECTION 2.15. Book-Entry Provisions for Global Security.........................................42
SECTION 2.16. Special Transfer Provisions.......................................................44
SECTION 2.17. Deposit of Moneys.................................................................46
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee................................................................47
SECTION 3.02. Selection of Securities To Be Redeemed............................................47
SECTION 3.03. Notice of Redemption..............................................................47
SECTION 3.04. Effect of Notice of Redemption....................................................49
SECTION 3.05. Deposit of Redemption Price.......................................................49
SECTION 3.06. Securities Redeemed in Part.......................................................49
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ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities.............................................................50
SECTION 4.02. Maintenance of Office or Agency...................................................50
SECTION 4.03. Limitation on Restricted Payments.................................................50
SECTION 4.04. Limitation on Indebtedness........................................................54
SECTION 4.05. Corporate Existence...............................................................57
SECTION 4.06. Payment of Taxes and Other Claims.................................................57
SECTION 4.07. Maintenance of Properties and Insurance...........................................58
SECTION 4.08. Compliance Certificate; Notice of Default.........................................58
SECTION 4.09. Compliance with Laws..............................................................59
SECTION 4.10. Reports to Holders................................................................60
SECTION 4.11. Waiver of Stay, Extension or Usury Laws...........................................60
SECTION 4.12. Limitations on Transactions with Shareholders and Affiliates......................61
SECTION 4.13. Limitation on Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries........................................................62
SECTION 4.14. Limitation on Liens...............................................................64
SECTION 4.15. Change of Control.................................................................65
SECTION 4.16. Limitation on Asset Sales.........................................................67
SECTION 4.17. Prohibition on Incurrence of Senior Subordinated Debt.............................70
SECTION 4.18. Limitation of Guarantees by Restricted Subsidiaries...............................70
SECTION 4.19. Payment for Consents..............................................................72
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Consolidation, Merger and Sale of Assets..........................................72
SECTION 5.02. Successor Corporation Substituted.................................................74
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.................................................................75
SECTION 6.02. Acceleration......................................................................77
SECTION 6.03. Other Remedies....................................................................78
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SECTION 6.04. Waiver of Past Defaults...........................................................78
SECTION 6.05. Control by Majority...............................................................78
SECTION 6.06. Limitation on Suits...............................................................79
SECTION 6.07. Rights of Holders To Receive Payment..............................................79
SECTION 6.08. Collection Suit by Trustee........................................................80
SECTION 6.09. Trustee May File Proofs of Claim..................................................80
SECTION 6.10. Priorities........................................................................81
SECTION 6.11. Undertaking for Costs.............................................................81
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.................................................................82
SECTION 7.02. Rights of Trustee.................................................................83
SECTION 7.03. Individual Rights of Trustee......................................................84
SECTION 7.04. Trustee's Disclaimer..............................................................85
SECTION 7.05. Notice of Default.................................................................85
SECTION 7.06. Reports by Trustee to Holders.....................................................85
SECTION 7.07. Compensation and Indemnity........................................................86
SECTION 7.08. Replacement of Trustee............................................................87
SECTION 7.09. Successor Trustee by Merger, Etc..................................................88
SECTION 7.10. Eligibility; Disqualification.....................................................88
SECTION 7.11. Preferential Collection of Claims Against Company.................................89
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Termination of the Company's Obligations..........................................89
SECTION 8.02. Legal Defeasance and Covenant Defeasance..........................................91
SECTION 8.03. Conditions to Legal Defeasance or Covenant Defeasance.............................92
SECTION 8.04. Application of Trust Money........................................................95
SECTION 8.05. Repayment to the Company..........................................................95
SECTION 8.06. Reinstatement.....................................................................96
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders........................................................96
SECTION 9.02. With Consent of Holders...........................................................97
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SECTION 9.03. Effect on Senior Debt.............................................................99
SECTION 9.04. Compliance with TIA...............................................................99
SECTION 9.05. Revocation and Effect of Consents.................................................99
SECTION 9.06. Notation on or Exchange of Securities............................................100
SECTION 9.07. Trustee To Sign Amendments, Etc..................................................100
ARTICLE TEN
SUBORDINATION OF SECURITIES
SECTION 10.01. Securities Subordinated to Senior Debt...........................................101
SECTION 10.02. Suspension of Payment When Senior Debt Is in Default.............................101
SECTION 10.03. Securities Subordinated to Prior Payment of All Senior Debt on
Dissolution, Liquidation or Reorganization of Company.........................103
SECTION 10.04. Payments May Be Paid Prior to Dissolution........................................105
SECTION 10.05. Holders To Be Subrogated to Rights of Holders of Senior Debt.....................105
SECTION 10.06. Obligations of the Company Unconditional.........................................106
SECTION 10.07. Notice to Trustee................................................................106
SECTION 10.08. Reliance on Judicial Order or Certificate of Liquidating Agent...................107
SECTION 10.09. Trustee's Relation to Senior Debt................................................107
SECTION 10.10. Subordination Rights Not Impaired by Acts or Omissions of the Company
or Holders of Senior Debt.....................................................108
SECTION 10.11. Securityholders Authorize Trustee To Effectuate Subordination of
Securities....................................................................108
SECTION 10.12. This Article Ten Not To Prevent Events of Default................................109
SECTION 10.13. Trustee's Compensation Not Prejudiced............................................109
ARTICLE ELEVEN
GUARANTEE OF SECURITIES
SECTION 11.01. Unconditional Guarantee..........................................................109
SECTION 11.02. Limitations on Guarantees........................................................111
SECTION 11.03. Execution and Delivery of Guarantee..............................................111
SECTION 11.04. Release of a Guarantor...........................................................112
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SECTION 11.05. Waiver of Subrogation............................................................113
SECTION 11.06. Immediate Payment................................................................114
SECTION 11.07. No Set-Off.......................................................................114
SECTION 11.08. Obligations Absolute.............................................................114
SECTION 11.09. Obligations Continuing...........................................................114
SECTION 11.10. Obligations Not Reduced..........................................................115
SECTION 11.11. Obligations Reinstated...........................................................115
SECTION 11.12. Obligations Not Affected.........................................................115
SECTION 11.13. Waiver...........................................................................117
SECTION 11.14. No Obligation To Take Action Against the Company.................................117
SECTION 11.15. Dealing with the Company and Others..............................................117
SECTION 11.16. Default and Enforcement..........................................................118
SECTION 11.17. Amendment, Etc...................................................................118
SECTION 11.18. Acknowledgment...................................................................118
SECTION 11.19. Costs and Expenses...............................................................119
SECTION 11.20. No Merger or Waiver; Cumulative Remedies.........................................119
SECTION 11.21. Survival of Obligations..........................................................119
SECTION 11.22. Guarantee in Addition to Other Obligations.......................................119
SECTION 11.23. Severability.....................................................................120
SECTION 11.24. Successors and Assigns...........................................................120
ARTICLE TWELVE
SUBORDINATION OF GUARANTEE
SECTION 12.01. Guarantee Obligations Subordinated to Guarantor Senior Debt......................120
SECTION 12.02. Suspension of Guarantee Obligations When Guarantor Senior Debt Is in
Default.......................................................................121
SECTION 12.03. Guarantee Obligations Subordinated to Prior Payment of All Guarantor
Senior Debt on Dissolution, Liquidation or Reorganization of Such
Guarantor.....................................................................121
SECTION 12.04. Payments May Be Paid Prior to Dissolution........................................123
SECTION 12.05. Holders of Guarantee Obligations To Be Subrogated to Rights of
Holders of Guarantor Senior Debt..............................................124
SECTION 12.06. Obligations of the Guarantors Unconditional......................................124
SECTION 12.07. Notice to Trustee................................................................125
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SECTION 12.08. Reliance on Judicial Order or Certificate of Liquidating Agent...................126
SECTION 12.09. Trustee's Relation to Guarantor Senior Debt......................................126
SECTION 12.10. Subordination Rights Not Impaired by Acts or Omissions of the
Guarantors or Holders of Guarantor Senior Debt................................127
SECTION 12.11. Holders Authorize Trustee To Effectuate Subordination of Guarantee
Obligations...................................................................127
SECTION 12.12. This Article Twelve Not To Prevent Events of Default.............................128
SECTION 12.13. Trustee's Compensation Not Prejudiced............................................128
ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01. TIA Controls.....................................................................128
SECTION 13.02. Notices..........................................................................129
SECTION 13.03. Communications by Holders with Other Holders.....................................130
SECTION 13.04. Certificate and Opinion as to Conditions Precedent...............................130
SECTION 13.05. Statements Required in Certificate or Opinion....................................130
SECTION 13.06. Rules by Trustee, Paying Agent, Registrar........................................131
SECTION 13.07. Legal Holidays...................................................................131
SECTION 13.08. Governing Law....................................................................131
SECTION 13.09. No Adverse Interpretation of Other Agreements....................................132
SECTION 13.10. No Recourse Against Others.......................................................132
SECTION 13.11. Successors.......................................................................132
SECTION 13.12. Duplicate Originals..............................................................132
SECTION 13.13. Severability.....................................................................132
Signatures ......................................................................................S-1
Exhibit A - Form of Note
Exhibit B Form of Exchange Note
Exhibit C - Form of Guarantee
Exhibit D - Form of Certificate for Transfers to Non-QIB Accredited Investors
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Exhibit E - Form of Certificate for Transfers Pursuant to Regulation S
Note: This Table of Contents shall not, for any purpose, be deemed to be
part of the Indenture
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INDENTURE dated as of June 22, 1999 among AVADO BRANDS, INC.,
a Georgia corporation (the "COMPANY"), as issuer, each of the Guarantors named
herein, as Guarantors, and SUNTRUST BANK, ATLANTA, as trustee (the "TRUSTEE").
The Company has duly authorized the creation of an issue of 11
3/4% Senior Subordinated Notes due 2009 and, when and if issued as provided in
the Registration Rights Agreement, Exchange Notes, and, to provide therefor, the
Company has duly authorized the execution and delivery of this Indenture. All
things necessary to make the Securities, when duly issued and executed by the
Company and authenticated and delivered hereunder, the valid and binding
obligations of the Company and to make this Indenture a valid and binding
agreement of the Company have been done.
Each party hereto agrees as follows for the benefit of each
other party and for the equal and ratable benefit of the Holders of the
Securities:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"ACCELERATION NOTICE" has the meaning set forth in Section
6.02.
"ACCREDITED INVESTOR" has the meaning set forth in Section
2.16(a).
"ACQUIRED INDEBTEDNESS" means Indebtedness of a Person
existing at the time such person merged with or into or became a Restricted
Subsidiary.
"ADJUSTED CONSOLIDATED NET INCOME" means, for any period, the
aggregate net income (or loss) of the Company and its consolidated Restricted
Subsidiaries for such period determined in conformity with GAAP; PROVIDED that
the following items shall be excluded in computing Adjusted Consolidated Net
Income (without duplication):
(1) the net income (or loss) of any person that is not a
Restricted Subsidiary, except to the extent of the
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amount of dividends or other distributions that both (i) are actually
paid in cash to the Company or any of its Restricted Subsidiaries by
such person during such period and (ii) when taken together with all
other dividends and distributions paid during such period in cash to
the Company or any of its Restricted Subsidiaries by such person, are
not in excess of the Company's or any of its Restricted Subsidiaries'
pro rata share of such other person's aggregate net income earned
during such period;
(2) solely for the purposes of calculating the amount of
Restricted Payments that may be made pursuant to clause (iii) of the
first paragraph of the "Limitation on Restricted Payments" covenant
described above (and in such case, except to the extent includable
pursuant to clause (1) above), the net income of any person accrued
prior to the date it becomes a Restricted Subsidiary or is merged into
or consolidated with the Company or any of its Restricted Subsidiaries
or all or substantially all of the property and assets of such person
are acquired by the Company or any of its Restricted Subsidiaries;
(3) the net income (or loss) of any Restricted Subsidiary to
the extent that the declaration or payment of dividends or similar
distributions by such Restricted Subsidiary of such net income is not
permitted by its charter or any agreement, instrument, judgment,
decree, order, statute, rule, or governmental regulation applicable to
such Restricted Subsidiary;
(4) any net gains or losses (on an after-tax basis)
attributable to Asset Sales; and
(5) all net after-tax extraordinary gains and extraordinary
losses.
"AFFILIATE" means, as applied to any person, any other person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with, such person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by,"
and "under common control with"), as applied to any person, is defined to mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management and
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policies of such person, whether through the ownership of voting securities, by
contract, or otherwise.
"AFFILIATE TRANSACTION" has the meaning set forth in Section
4.12.
"AGENT" means any Registrar, Paying Agent or co-Registrar.
"AGENT MEMBERS" has the meaning set forth in Section 2.15.
"ASSET ACQUISITION" means:
(1) an investment by the Company or any of its Restricted
Subsidiaries in any other person pursuant to which such person shall
become a Restricted Subsidiary or shall be merged into or consolidated
with the Company or any of its Restricted Subsidiaries; or
(2) an acquisition by the Company or any of its Restricted
Subsidiaries of the property and assets of any person other than the
Company or any of its Restricted Subsidiaries that constitute
substantially all of a division or line of business, or one or more
restaurant properties, of such person.
"ASSET DISPOSITION" means the sale or other disposition by the
Company or any of its Restricted Subsidiaries (other than to the Company or
another Restricted Subsidiary) of:
(1) all or substantially all of the Capital Stock of any
Restricted Subsidiary; or
(2) all or substantially all of the assets that constitute a
division or line of business, or one or more restaurant properties, of
the Company or any of its Restricted Subsidiaries.
"ASSET SALE" means any sale, transfer, or other disposition
(including by way of merger, consolidation, or sale-leaseback transactions) in
one transaction or a series of related transactions by the Company or any of its
Restricted Subsidiaries of all or any of its property, business, or assets
(including, without limitation, the Capital Stock of any Re-
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stricted Subsidiary); PROVIDED that the following shall not be included in the
definition of "Asset Sale":
(1) any transaction or series of related transactions for
which the Company or any Restricted Subsidiary of the Company receives
aggregate consideration of less than $1.0 million;
(2) any conveyance, sale, lease, transfer, or other
disposition by a Restricted Subsidiary of the Company or any or all of
its assets (upon voluntary liquidation or otherwise) to the Company or
a Restricted Subsidiary of the Company;
(3) any conveyance, sale, lease, transfer, or other
disposition by the Company or any Restricted Subsidiary of the Company
in the ordinary course of business of assets acquired and held for
resale in the ordinary course of business (in no event shall the
conveyance, sale, lease, transfer, or other disposition of a restaurant
property by the Company or any Restricted Subsidiary of the Company be
considered in the ordinary course of business for purposes of this
Indenture);
(4) any conveyance, sale, lease, transfer, or other
disposition by the Company and its Restricted Subsidiaries of assets
pursuant to and in accordance with the provisions described in Section
5.01;
(5) any sale by the Company or any Restricted Subsidiary of
the Company of damaged, worn out, or other obsolete property in the
ordinary course of business;
(6) any abandonment by the Company or any Restricted
Subsidiary of the Company of assets and properties that are no longer
useful in its business and cannot be sold; or
(7) any transfer by the Company or any Restricted Subsidiary
of the Company of any Capital Stock of any Restricted Subsidiary of the
Company to the Company or any Restricted Subsidiary of the Company.
"AVERAGE LIFE" means at any date of determination with respect
to any Note, the quotient obtained by dividing:
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(1) the sum of the products of (i) the number of years from
such date of determination to the dates of each successive scheduled
principal payment of such Note and (ii) the amount of such principal
payment by
(2) the sum of all such principal payments.
"BANKRUPTCY LAW" means Title 11, U.S. Code, or any similar
federal, state or foreign law for the relief of debtors.
"BOARD OF DIRECTORS" means, as to any Person, the board of
directors of such Person or any duly authorized committee thereof.
"BOARD RESOLUTION" means, with respect to any Person, a copy
of a resolution certified by the Secretary or an Assistant Secretary of such
Person to have been duly adopted by the Board of Directors of such Person and to
be in full force and effect on the date of such certification, and delivered to
the Trustee.
"BUSINESS DAY" means any day other than a Saturday, Sunday or
any other day on which banking institutions in The City of New York are required
or authorized by law or other governmental action to be closed.
"CAPITAL STOCK" means with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's capital stock or other ownership
interests, whether now outstanding or issued after the Issue Date, including,
without limitation, all common stock and preferred stock.
"CAPITALIZED LEASE" means, as applied to any Person, any lease
of any property (whether real, personal or mixed) of which the discounted
present value of the rental obligations of such Person as lessee, in conformity
with GAAP, is required to be capitalized on the balance sheet of such Person;
and "Capitalized Lease Obligation" means the rental obligations, as aforesaid,
under such lease.
"CASH EQUIVALENTS" means:
(1) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States Government
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or issued by any agency thereof and backed by the full faith and
credit of the United States, in each case maturing within one year
from the date of acquisition thereof;
(2) marketable direct obligations issued by any state of the
United States of America or any political subdivision of any such state
or any public instrumentality thereof maturing within one year from the
date of acquisition thereof and, at the time of acquisition, having one
of the two highest ratings obtainable from either Standard & Poor's
Ratings Group ("S&P") or Xxxxx'x Investors Service, Inc. ("MOODY'S");
(3) commercial paper maturing no more than one year from the
date of creation thereof and, at the time of acquisition, having a
rating of at least A-1 from S&P or at least P-1 from Moody's;
(4) certificates of deposit or bankers' acceptances maturing
within one year from the date of acquisition thereof issued by any bank
organized under the laws of the United States of America or any state
thereof or the District of Columbia or any U.S. branch of a foreign
bank having at the date of acquisition thereof combined capital and
surplus of not less than $250.0 million;
(5) repurchase obligations with a term of not more than
seven days for underlying securities of the types described in clause
(1) above entered into with any bank meeting the qualifications
specified in clause (4) above; and
(6) investments in money market funds which invest
substantially all their assets in securities of the types described in
clauses (1) through (5) above.
"CEDEL" means Cedel Bank, S.A.
"CHANGE OF CONTROL" means such time as:
(1) a "person" or "group" (within the meaning of sections
13(d) and 14(d)(2) of the Exchange Act) becomes the "beneficial owner"
(as defined in Rule 13d-3 under the Exchange Act) of more than 50% of
the total Voting Stock of the Company on a fully diluted basis; or
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(2) individuals who at the beginning of any period of two
consecutive calendar years constituted the board of directors (together
with any new directors whose election by the board of directors or
whose nomination for election by the Company's stockholders was
approved by a vote of at least two-thirds of the members of the board
of directors then still in office who either were members of the board
of directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any
reason to constitute a majority of the members of the board of
directors then in office.
"CHANGE OF CONTROL OFFER" has the meaning set forth in Section
4.15.
"CHANGE OF CONTROL PAYMENT" has the meaning set forth in
Section 4.15.
"CHANGE OF CONTROL PAYMENT DATE" has the meaning set forth in
Section 4.15.
"COMMISSION" means the Securities and Exchange Commission.
"COMPANY" means the party named as such in this Indenture
until a successor replaces it pursuant to this Indenture and thereafter shall
mean such successor corporation.
"CONSOLIDATED EBITDA" means, for any period, the sum of the
amounts for such period of:
(1) Adjusted Consolidated Net Income;
(2) Consolidated Interest Expense;
(3) income taxes, to the extent such amount was deducted in
calculating Adjusted Consolidated Net Income (other than income taxes
(either positive or negative) attributable to extraordinary and
non-recurring gains or losses or sales of assets);
(4) depreciation expense, to the extent such amount was
deducted in calculating Adjusted Consolidated Net Income;
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(5) amortization expense, to the extent such amount was
deducted in calculating Adjusted Consolidated Net Income; and
(6) all other non-cash items reducing Adjusted Consolidated
Net Income, less all non-cash items increasing Adjusted Consolidated
Net Income, all as determined on a consolidated basis for the Company
and its Restricted Subsidiaries in conformity with GAAP;
PROVIDED that, if any Restricted Subsidiary is not a Wholly-Owned Restricted
Subsidiary, Consolidated EBITDA shall be reduced (to the extent not otherwise
reduced in accordance with GAAP) by an amount equal to:
(i) the amount of the Adjusted Consolidated Net Income
attributable to such Restricted Subsidiary multiplied by
(ii) the quotient of (A) the number of shares of outstanding
common stock of such Restricted Subsidiary not owned on the last day of
such period by the Company or any of its Restricted Subsidiaries
divided by (B) the total number of shares of outstanding common stock
of such Restricted Subsidiary on the last day of such period.
"CONSOLIDATED FIXED CHARGE COVERAGE RATIO" means, on any
Transaction Date, the ratio of the aggregate amount of Consolidated EBITDA for
the four fiscal quarters for which financial information in respect thereof is
available immediately prior to such Transaction Date (the "REFERENCE PERIOD") to
the aggregate Consolidated Fixed Charges during such Reference Period.
In making the foregoing calculation:
(1) PRO FORMA effect shall be given to:
(i) any Indebtedness Incurred subsequent to the end
of the Reference Period and prior to the Transaction Date;
(ii) any Indebtedness Incurred during such Reference
Period to the extent such Indebtedness is outstanding at the
Transaction Date; and
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(iii) any Indebtedness to be Incurred on the
Transaction Date, in each case as if such Indebtedness had
been Incurred on the first day of such Reference Period and
after giving PRO FORMA effect to the application of the
proceeds thereof as if such application had occurred on such
first day;
(2) Consolidated Interest Expense attributable to interest
on any Indebtedness (whether existing or being Incurred) computed on a
PRO FORMA basis and bearing a floating interest rate shall be computed
as if the rate in effect on the Transaction Date (taking into account
any Interest Rate Agreement applicable to such Indebtedness if such
Interest Rate Agreement has a remaining term in excess of 12 months)
had been the applicable rate for the entire period;
(3) there shall be excluded from Consolidated Fixed Charges
any Consolidated Fixed Charges related to any amount of Indebtedness,
Redeemable Stock, or obligations under leases that was outstanding
during such Reference Period or thereafter but that is not outstanding
or is to be repaid on the Transaction Date, except for Consolidated
Interest Expense accrued (as adjusted pursuant to clause (2) above)
during such Reference Period under a revolving credit or similar
working capital facility in the ordinary course for working capital
purposes;
(4) PRO FORMA effect shall be given to Asset Dispositions
and Asset Acquisitions (including giving PRO FORMA effect to the
application of proceeds of any Asset Disposition and the Consolidated
EBITDA relating to such Asset Acquisitions or Asset Dispositions) that
occur during such Reference Period or thereafter and on or prior to the
Transaction Date as if they had occurred and such proceeds had been
applied on the first day of such Reference Period;
(5) with respect to any such Reference Period commencing
prior to the Issue Date, the issuance of the Securities shall be deemed
to have taken place on the first day of such Reference Period; and
(6) PRO FORMA effect shall be given to asset dispositions
and asset acquisitions (including giving PRO FORMA
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effect to the application of proceeds of any asset disposition) that
have been made by any person that has become a Restricted Subsidiary
or has been merged with or into the Company or any Restricted
Subsidiary during such Reference Period or subsequent to such period
and prior to the Transaction Date and that would have constituted
Asset Dispositions or Asset Acquisitions had such transactions
occurred when such person was a Restricted Subsidiary as if such asset
dispositions or asset acquisitions were Asset Dispositions or Asset
Acquisitions that occurred on the first day of such Reference Period;
PROVIDED that to the extent that clause (4) or (6) above requires that PRO FORMA
effect be given to an asset acquisition or asset disposition, such PRO FORMA
calculation shall be based upon the four full fiscal quarters immediately
preceding the Transaction Date the person, or division or line of business of
the Person, or restaurant property, that is acquired or disposed of, for which
financial information is available.
"CONSOLIDATED FIXED CHARGES" means, for any period, the sum
(without duplication) of:
(1) Consolidated Interest Expense for such period; and
(2) the product of (x) cash and non-cash dividends (except
dividends payable solely in shares of Capital Stock that are not
Redeemable Stock) paid, declared, accrued, or accumulated on any
Redeemable Stock and (y) a fraction, the numerator of which is one and
the denominator of which is one minus the sum of the currently
effective combined Federal, state, local, and foreign tax rate of the
Company and its Restricted Subsidiaries.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, the
aggregate amount of:
(1) interest in respect of Indebtedness (including
amortization of original issue discount on any Indebtedness and the
interest portion of any deferred payment obligation, calculated in
accordance with the effective interest method of accounting; all
commissions, discounts, and other fees and charges owed with respect to
letters of credit and bankers' acceptance financing; the net costs
associated with Interest Rate Agreements; and Indebtedness
-11-
that is guaranteed by the Company or any of its Restricted
Subsidiaries) and all but the principal component of rentals in
respect of Capitalized Lease Obligations paid, accrued, or scheduled
to be paid or to be accrued by the Company and its Restricted
Subsidiaries during such period; EXCLUDING, HOWEVER, any amount of
such interest of any Restricted Subsidiary if the net income of such
Restricted Subsidiary is excluded in the calculation of Adjusted
Consolidated Net Income pursuant to clause (3) of the definition
thereof (but only in the same proportion as the net income of such
Restricted Subsidiary is excluded from the calculation of Adjusted
Consolidated Net Income pursuant to clause (3) of the definition
thereof); and
(2) the amount of dividends accrued or payable by such
person or any of its consolidated Restricted Subsidiaries in respect of
preferred stock (other than by Restricted Subsidiaries of such person
to such person or such person's Wholly-Owned Restricted Subsidiaries).
"CONSOLIDATED NET WORTH" means, at any date of determination,
stockholders' equity of the Company and its Restricted Subsidiaries (which shall
be as of a date not more than 90 days prior to the date of such computation),
less:
(1) amounts attributable to Redeemable Stock or any equity
security convertible into or exchangeable for Indebtedness;
(2) cost of treasury stock; and
(3) the principal amount of any promissory notes receivable
from the sale of the Capital Stock of the Company or any of its
Restricted Subsidiaries, each item to be determined in conformity with
GAAP (excluding the effects of foreign currency exchange adjustments
under Financial Accounting Standards Board Statement of Financial
Accounting Standards No. 52).
"COVENANT DEFEASANCE" has the meaning set forth in Section
8.02.
"CREDIT AGREEMENT" means the Credit Agreement dated as of June
22, 1999, between the Company, the lenders party thereto in their capacities as
lenders thereunder and Wachovia Bank, N.A., as agent, together with the related
documents
-12-
thereto (including, without limitation, any guarantee agreements and security
documents), in each case as such agreements may be amended (including any
amendment and restatement thereof), supplemented or otherwise modified from time
to time, including any agreement extending the maturity of, refinancing,
replacing or otherwise restructuring (including increasing the amount of
available borrowings thereunder (PROVIDED that such increase in borrowings is
permitted by Section 4.04) or adding Restricted Subsidiaries of the Company as
additional borrowers or guarantors thereunder) all or any portion of the
Indebtedness under such agreement or any successor or replacement agreement and
whether by the same or any other agent, lender or group of lenders.
"CURRENCY AGREEMENT" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to
protect against fluctuation in currency values.
"CUSTODIAN" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"DEFAULT" means any event that is, or after notice or passage
of time or both would be, an Event of Default.
"DEFAULT NOTICE" has the meaning set forth in Section 10.02.
"DEPOSITORY" shall mean The Depository Trust Company, New
York, New York, or a successor thereto registered under the Exchange Act or
other applicable statute or regulation.
"DESIGNATED SENIOR DEBT" means:
(1) Indebtedness under or in respect of the Credit
Agreement; and
(2) any other Indebtedness constituting Senior Debt which,
at the time of determination, has an aggregate principal amount of at
least $25.0 million and is specifically designated in the instrument
evidencing such Senior Debt as "Designated Senior Debt" by the Company.
"EUROCLEAR" means Xxxxxx Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear system.
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"EVENT OF DEFAULT" has the meaning set forth in Section 6.01.
"EXCESS PROCEEDS" has the meaning set forth in Section 4.16.
"EXCESS PROCEEDS OFFER" has the meaning set forth in Section
4.16.
"EXCESS PROCEEDS PAYMENT" has the meaning set forth in Section
4.16.
"EXCESS PROCEEDS PAYMENT DATE" has the meaning set forth in
Section 4.16.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, or any successor statute or statutes thereto.
"EXCHANGE NOTES" means the notes to be issued in exchange for
the Notes (the terms of which are identical to the Notes except that the
Exchange Notes shall be registered under the Securities Act, and shall not
contain the restrictive legend on the face of the form of the Notes).
"EXCHANGE OFFER" means the registration by the Company under
the Securities Act pursuant to a registration statement of the offer by the
Company to each Holder of the Notes to exchange all the Notes held by such
Holder for the Exchange Notes in an aggregate principal amount equal to the
aggregate principal amount of the Notes held by such Holder, all in accordance
with the terms and conditions of the Registration Rights Agreement.
"FAIR MARKET VALUE" means, with respect to any asset or
property, the price which could be negotiated in an arm's-length, free market
transaction, for cash, between a willing seller and a willing and able buyer,
neither of whom is under undue pressure or compulsion to complete the
transaction. Fair market value shall be determined by the Board of Directors of
the Company acting reasonably and in good faith and shall be evidenced by a
Board Resolution of the Board of Directors of the Company delivered to the
Trustee.
"FORWARD EQUITY CONTRACTS" means (1) the master agreement
(with attached schedule) dated as of August 12, 1998, as amended, and the
confirmation thereto dated September 9,
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1998 between Cooperative Centrale Raiffeisen-Boerenleenbank B.A. and the Company
and (2) the master agreement (with attached schedule) dated as of July 22, 1998,
and the confirmation thereto dated July 28, 1998 between SunTrust Bank, Atlanta
and the Company.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect as of the Issue Date, including, without
limitation, those set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as approved by a significant segment
of the accounting profession. All ratios and computations contained herein shall
be computed in conformity with GAAP applied on a consistent basis, except that
calculations made for purposes of determining compliance with the terms of the
covenants and with other provisions herein shall be made without giving effect
to:
(1) the amortization of any expenses incurred in connection
with the offering of the Securities; and
(2) except as otherwise provided, the amortization of any
amounts required or permitted by Accounting Principles Board Opinion
Nos. 16 and 17.
"GLOBAL SECURITY" shall mean a Security which is executed by
the Company and authenticated and delivered by the Trustee to the Depository or
pursuant to the Depository's instruction, all in accordance with this Indenture
and pursuant to a written order, which shall be registered in the name of the
Depository or its nominee.
"GUARANTEE" means any obligation, contingent or otherwise, of
any person directly or indirectly guaranteeing any Indebtedness or other
obligation of any other person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
person:
(1) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or other obligation of such
other person (whether arising by virtue of partnership arrangements, or
by agreement to keep-well, to purchase assets, goods, securities, or
services, to
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take-or-pay, or to maintain financial statement conditions
or otherwise); or
(2) entered into for purposes of assuring in any other
manner the obligee of such Indebtedness or other obligation of the
payment thereof or to protect such obligee against loss in respect
thereof (in whole or in part);
PROVIDED that the term "guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term
"guarantee" used as a verb has a corresponding meaning.
"GUARANTEE" means each guarantee by a Guarantor of the
Company's obligations under the Securities and this Indenture.
"GUARANTEE OBLIGATIONS" has the meaning set forth in Section
12.01.
"GUARANTOR" means:
(1) each of the Company's Subsidiaries that guarantees
the Securities on the Issue Date; and
(2) each of the Company's Restricted Subsidiaries that in
the future executes a supplemental indenture in which such Restricted
Subsidiary agrees to be bound by the terms of this Indenture as a
Guarantor;
PROVIDED that any Person constituting a Guarantor as described above shall cease
to constitute a Guarantor when its respective Guarantee is released in
accordance with the terms of this Indenture.
"GUARANTOR SENIOR DEBT" means, with respect to any Guarantor:
the principal of, premium, if any, and interest (including any interest accruing
subsequent to the filing of a petition of bankruptcy at the rate provided for in
the documentation with respect thereto, whether or not such interest is an
allowed claim under applicable law) on any Indebtedness of a Guarantor, whether
outstanding on the Issue Date or thereafter created, incurred or assumed,
unless, in the case of any particular Indebtedness, the instrument creating or
evidencing the same or pursuant to which the same is outstanding expressly
provides that such Indebtedness shall not be senior in right of
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payment to the Guarantee of such Guarantor. Without limiting the generality of
the foregoing, "Guarantor Senior Debt" shall also include the principal of,
premium, if any, interest (including any interest accruing subsequent to the
filing of a petition of bankruptcy at the rate provided for in the documentation
with respect thereto, whether or not such interest is an allowed claim under
applicable law) on, and all other amounts owing in respect of:
(1) all monetary obligations of every nature of such
Guarantor under, or with respect to, the Credit Agreement, including,
without limitation, obligations to pay principal and interest,
reimbursement obligations under letters of credit, fees, expenses and
indemnities (and guarantees thereof);
(2) the guarantee by such Guarantor of the Company's
obligations under the 9-3/4% Senior Notes;
(3) all Interest Rate Agreements (and guarantees thereof);
and
(4) all obligations (and guarantees thereof) under Currency
Agreements;
in each case whether outstanding on the Issue Date or thereafter incurred.
Notwithstanding the foregoing, "Guarantor Senior Debt" shall
not include:
(1) any Indebtedness of such Guarantor to a Subsidiary of
such Guarantor;
(2) Indebtedness to, or guaranteed on behalf of, any
shareholder, director, officer or employee of such Guarantor or any
Subsidiary of such Guarantor (including, without limitation, amounts
owed for compensation) other than a shareholder who is also a lender
(or an Affiliate of a lender) under the Credit Agreement;
(3) Indebtedness to trade creditors and other amounts
incurred in connection with obtaining goods, materials or services;
(4) Indebtedness represented by Redeemable Stock;
-17-
(5) any liability for federal, state, local or other taxes
owed or owing by such Guarantor;
(6) that portion of any Indebtedness incurred in violation
of the provisions set forth under Section 4.04 (but, as to any such
obligation, no such violation shall be deemed to exist for purposes of
this clause (6) if the holder(s) of such obligation or their
representative shall have received an Officers' Certificate of the
Company to the effect that the incurrence of such Indebtedness does not
(or, in the case of revolving credit indebtedness, that the incurrence
of the entire committed amount thereof at the date on which the initial
borrowing thereunder is made would not) violate such provisions of this
Indenture);
(7) Indebtedness which, when incurred and without respect
to any election under Section 1111(b) of Xxxxx 00, Xxxxxx Xxxxxx Code,
is without recourse to the Company; and
(8) any Indebtedness which is, by its express terms,
subordinated in right of payment to any other Indebtedness of such
Guarantor.
"INCUR" means, with respect to any Indebtedness, to incur,
create, issue, assume, guarantee, or otherwise become liable for, or become
responsible for, the payment of, contingently or otherwise, such Indebtedness;
PROVIDED that the Indebtedness of a Person existing at the time such Person
became a Subsidiary or a Restricted Subsidiary, as the case may be, shall be
deemed to have been Incurred by such Subsidiary or Restricted Subsidiary, as the
case may be, at such time.
"INDEBTEDNESS" means with respect to any Person at any date of
determination (without duplication):
(1) all indebtedness of such Person for borrowed money;
(2) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments;
(3) all obligations of such person in respect of letters of
credit or other similar instruments (including reimbursement
obligations with respect thereto);
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(4) all obligations of such person to pay the deferred and
unpaid purchase price of property or services (but excluding trade
accounts payable or accrued liabilities arising in the ordinary course
of business);
(5) all obligations of such person as lessee under
Capitalized Leases;
(6) all Indebtedness of other persons secured by a Lien on
any asset or such person, whether or not such Indebtedness is assumed
by such person; PROVIDED that the amount of such Indebtedness shall be
the lesser of (i) the fair market value of such asset at such date of
determination and (ii) the amount of such Indebtedness;
(7) all Indebtedness of other persons guaranteed by such
person to the extent such Indebtedness is guaranteed by such person;
(8) all Redeemable Stock of such person; and
(9) to the extent not otherwise included in this
definition, obligations under Currency Agreements and Interest Rate
Agreements.
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
(1) that the amount outstanding at any time of any
Indebtedness issued with original issue discount is the face 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
(2) that Indebtedness shall not include any liability for
federal, state, local, or other taxes.
"INDENTURE" means this Indenture, as amended or supplemented
from time to time in accordance with the terms hereof.
-19-
"INDEPENDENT FINANCIAL ADVISOR" means a firm:
(1) which does not, and whose directors, officers and
employees or Affiliates do not, have a direct or indirect financial
interest in the Company; and
(2) which, in the judgment of the Board of Directors of the
Company, is otherwise independent and qualified to perform the task for
which it is to be engaged.
"INITIAL PURCHASERS" means BancBoston Xxxxxxxxx Xxxxxxxx Inc.,
X.X. Xxxxxx Securities Inc. and Wachovia Securities, Inc.
"INTEREST PAYMENT DATE" means the stated maturity of an
installment of interest on the Securities.
"INTEREST RATE AGREEMENTS" means any obligations of any Person
pursuant to any interest rate swaps, caps, collars, and similar arrangements
providing protection against fluctuations in interest rates. For purposes of
this Indenture, the amount of such obligations shall be the amount determined in
respect thereof as of the end of the then most recently ended fiscal quarter of
such person, based on the assumption that such obligation had terminated at the
end of such fiscal quarter, and in making such determination, if any agreement
relating to such obligation provides for the netting of amounts payable by and
to such Person thereunder or if any such agreement provides for the simultaneous
payment of amounts by and to such Person, then in each such case, the amount of
such obligations shall be the net amount so determined, plus any premium due
upon default by such person.
"INVESTMENT" means any direct or indirect advance, loan, or
other extension of credit (other than advances to customers in the ordinary
course of business that are, in conformity with GAAP, recorded as accounts
receivable on the balance sheet of the Company or its Restricted Subsidiaries)
or capital contribution to (by means of any transfer of cash or other property
to others, or any payment for property or services for the account or use of
others), or any purchase or acquisition of Capital Stock, bonds, notes,
debentures or other similar instruments issued by any other Person.
For purposes of the definition of "Unrestricted Subsidiary"
and Section 4.03:
-20-
(1) "Investment" shall include the fair market value of the
assets (net of liabilities) of any Restricted Subsidiary at the time
that such Restricted Subsidiary is designated an Unrestricted
Subsidiary and shall exclude the fair market value of the assets (net
of liabilities) of any Unrestricted Subsidiary at the time that such
Unrestricted Subsidiary is designated a Restricted Subsidiary;
(2) any property transferred to or from any person shall be
valued at its fair market value at the time of such transfer, in each
case as determined in good faith by the Board of Directors; and
(3) the amount of any Investment shall be the original cost
of such Investment plus the cost of all additional Investments by the
Company or any of its Restricted Subsidiaries, without any adjustments
for increases or decreases in value, or write-ups, write-downs or
write-offs with respect to such Investment, reduced by the payment of
dividends or distributions in connection with such Investment or any
other amounts received in respect of such Investment; PROVIDED that no
such payment of dividends or distributions or receipt of any such other
amounts shall reduce the amount of any Investment if such payment of
dividends or distributions or receipt of any such amounts would be
included in Adjusted Consolidated Net Income.
"ISSUE DATE" means June 22, 1999, the date of original
issuance of the Securities.
"LEGAL DEFEASANCE" has the meaning set forth in Section 8.02.
"LIEN" means any mortgage, pledge, security interest,
encumbrance, lien, or charge of any kind (including, without limitation, any
conditional sale or other title retention agreement or lease in the nature
thereof, any sale with recourse against the seller or any Affiliate of the
seller, any option or other agreement to sell, or any filing of or any agreement
to give any security interest).
"MATURITY DATE" means June 15, 2009.
"NET CASH PROCEEDS" means, with respect to any Asset Sale, the
proceeds of such Asset Sale in the form of cash or cash equivalents, including
payments in respect of deferred
-21-
payment obligations (to the extent corresponding to the principal, but not
interest, component thereof) when received in the form of cash or cash
equivalents (except to the extent such obligations are financed or sold with
recourse to the Company or any Restricted Subsidiary) and proceeds from the
conversion of other property received when converted to cash or cash
equivalents, net of:
(1) brokerage commissions and other fees and expenses
(including fees and expenses of counsel and investment bankers) related
to such Asset Sale;
(2) provisions for all taxes (whether or not such taxes will
actually be paid or are payable) as a result of such Asset Sale without
regard to the consolidated results of operations of the Company and its
Restricted Subsidiaries, taken as a whole;
(3) payments made to repay Indebtedness or any other
obligation outstanding at the time of such Asset Sale that either (i)
is secured by a Lien on the property or assets sold or (ii) is required
to be paid as a result of such sale; and
(4) appropriate amounts to be provided by the Company or any
Restricted Subsidiary as a reserve against any liabilities associated
with such Asset Sale, including, without limitation, pension and other
post-employment benefit liabilities, liabilities related to
environmental matters, and liabilities under any indemnification
obligations associated with such Asset Sale, all as determined in
conformity with GAAP.
"9-3/4% SENIOR NOTES" means the Company's 9-3/4% Senior Notes
due 2006 outstanding on the Issue Date.
"NON-PAYMENT DEFAULT" has the meaning set forth in Section
10.02.
"NOTES" means the 11 3/4% Senior Subordinated Notes due 2009
of the Company issued on the Issue Date and authenticated and delivered under
this Indenture pursuant to Section 2.02 of this Indenture.
"OBLIGATIONS" means all obligations for principal, premium,
interest, penalties, fees, indemnifications, reimbursements,
-22-
damages and other liabilities payable under the documentation governing any
Indebtedness.
"OFFERING" means the offering of the Securities.
"OFFICER" means, with respect to any Person, the Chairman of
the Board, the Chief Executive Officer, the President, any Vice President, the
Chief Financial Officer, the Controller, or the Secretary or Assistant Secretary
of such Person.
"OFFICERS' CERTIFICATE" means a certificate signed by two
Officers of the Company or of a Guarantor, as applicable.
"OPINION OF COUNSEL" means a written opinion from legal
counsel, which opinion and counsel are reasonably acceptable to the Trustee.
"PAYING AGENT" has the meaning set forth in Section 2.03.
"PAYMENT BLOCKAGE PERIOD" has the meaning set forth in Section
10.02.
"PAYMENT DEFAULT" has the meaning set forth in Section 10.02.
"PERMITTED INDEBTEDNESS" has the meaning set forth in Section
4.04.
"PERMITTED INVESTMENTS" means:
(1) Investments by the Company or any Restricted Subsidiary
of the Company in any Person that is or will become immediately after
such Investment a Restricted Subsidiary of the Company or that will
merge or consolidate into the Company or a Restricted Subsidiary of the
Company;
(2) Investments in the Company by any Restricted Subsidiary
of the Company; PROVIDED that any Indebtedness evidencing such
Investment is unsecured and subordinated, pursuant to a written
agreement, to the Company's obligations under the Securities and this
Indenture;
(3) Investments in cash and Cash Equivalents;
-23-
(4) loans and advances to employees and officers of the
Company and its Restricted Subsidiaries in the ordinary course of
business for bona fide business purposes not in excess of $10.0 million
at any one time outstanding;
(5) Currency Agreements and Interest Rate Agreements entered
into in the ordinary course of the Company's or its Restricted
Subsidiaries' businesses and otherwise in compliance with this
Indenture;
(6) additional Investments (including joint ventures) (in
addition to Investments existing on the Issue Date) not to exceed $15.0
million at any one time outstanding;
(7) Investments in securities of trade creditors or
customers received pursuant to any plan of reorganization or similar
arrangement upon the bankruptcy or insolvency of such trade creditors
or customers;
(8) Investments made by the Company or its Restricted
Subsidiaries as a result of consideration received in connection with
an Asset Sale made in compliance with Section 4.16; and
(9) Investments existing on the Issue Date.
"PERMITTED LIENS" means the following types of Liens:
(1) Liens for taxes, assessments, governmental charges, or
claims that are being contested in good faith by appropriate legal
proceedings promptly instituted and diligently conducted and for which
a reserve or other appropriate provision, if any, as shall be required
in conformity with GAAP shall have been made;
(2) statutory Liens of landlords and carriers, warehousemen,
mechanics, suppliers, materialmen, repairmen or other similar Liens
arising in the ordinary course of business and with respect to amounts
not yet delinquent or being contested in good faith by appropriate
legal proceedings promptly instituted and diligently conducted and for
which a reserve or other appropriate provision, if any, as shall be
required in conformity with GAAP shall have been made;
-24-
(3) Liens incurred or deposits made in the ordinary course
of business in connection with workers' compensation, unemployment
insurance and other types of social security;
(4) Liens incurred or deposits made to secure the
performance of tenders, bids, leases, statutory or regulatory
obligations, bankers' acceptances, surety and appeal bonds, government
contracts, performance and return-of-money bonds, and other obligations
of a similar nature incurred in the ordinary course of business
(exclusive of obligations for the payment of borrowed money);
(5) easements, rights-of-way, municipal and zoning
ordinances, and similar charges, encumbrances, title defects, or other
irregularities that do not materially interfere with the ordinary
course of business of the Company or any of its Restricted
Subsidiaries;
(6) Liens (including extensions and renewals thereof) upon
real or personal property acquired after the Issue Date; PROVIDED that
(i) such Lien is created solely for the purpose of
securing Indebtedness Incurred:
(A) to finance the cost (including the cost
of improvement or construction) of the item of
property or assets subject thereto (or to refinance
unsecured Indebtedness Incurred to finance such cost)
and such Lien is created prior to, at the time of or
within twelve months after the later of the
acquisition, the completion of construction or the
commencement of full operation of such property; or
(B) to refinance any Indebtedness previously
so secured;
(ii) the principal amount of the Indebtedness secured
by such Lien does not exceed 100% of such cost; and
(iii) any such Lien shall not extend to or cover any
property or assets other than such item of property or assets
and any improvements on such item;
-25-
(7) leases or subleases granted to others that do not
materially interfere with the ordinary course of business of the
Company and its Restricted Subsidiaries, taken as a whole;
(8) Liens encumbering property or assets under construction
arising from obligations of the Company or any Restricted Subsidiary to
make progress or partial payments relating to such construction;
(9) any interest or title of a lessor in the property
subject to any Capitalized Lease or operating lease;
(10) Liens arising from filing Uniform Commercial Code
financing statements regarding leases;
(11) Liens on property of, or on shares of stock or
Indebtedness of, any corporation existing at the time such corporation
becomes, or becomes part of, any Restricted Subsidiary;
(12) Liens in favor or the Company or any Restricted
Subsidiary;
(13) Liens arising from the rendering of a final judgment or
order against the Company or any Restricted Subsidiary of the Company
that does not give rise to an Event of Default;
(14) Liens securing reimbursement obligations with respect to
letters of credit that encumber documents and other property relating
to such letters of credit and the products and proceeds thereof;
(15) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of customers duties in
connection with the importation of goods;
(16) Liens encumbering customary initial deposits and margin
deposits, and other Liens that are either within the general parameters
customary in the industry and incurred in the ordinary course of
business, in each case, securing Indebtedness under Interest Rate
Agreements and Currency Agreements and forward contracts, options,
futures contracts, futures options, or similar agreements or
arrangements designed to protect the Company or any of its
-26-
Restricted Subsidiaries from fluctuations in the price of commodities;
(17) Liens arising out of conditional sale, title retention,
consignment, or similar arrangements for the sale of goods entered into
by the Company or any of its Restricted Subsidiaries in the ordinary
course of business in accordance with the past practices of the Company
and its Restricted Subsidiaries prior to the Issue Date; and
(18) Liens on or sales of receivables.
"PERSON" means an individual, partnership, corporation,
limited liability company, unincorporated organization, trust or joint venture,
or a governmental agency or political subdivision thereof.
"PHYSICAL SECURITIES" has the meaning provided in Section
2.01. Physical Securities are sometimes referred to herein as certificated
Securities.
"PRIVATE PLACEMENT LEGEND" means the legend initially set
forth on the Securities in the form set forth in the first paragraph of Section
2.14.
"PUBLIC EQUITY OFFERING" means an underwritten public offering
of Capital Stock of the Company (other than Redeemable Stock) pursuant to a
registration statement filed with the Commission in accordance with the
Securities Act.
"QUALIFIED INSTITUTIONAL BUYER" or "QIB" has the meaning
specified in Rule 144A under the Securities Act.
"RECORD DATE" means the applicable record date specified in
the Securities.
"REDEEMABLE STOCK" means any class or series of Capital Stock
of any person that by its terms or otherwise is:
(1) required to be redeemed prior to the Stated Maturity
of the Securities;
(2) redeemable at the option of the holder of such class or
series of Capital Stock at any time prior to the Stated Maturity of the
Securities; or
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(3) convertible into or exchangeable for Capital Stock
referred to in clause (1) or (2) above or Indebtedness having a
scheduled maturity prior to the Stated Maturity of the Securities;
PROVIDED that any Capital Stock that would not constitute Redeemable
Stock but for provisions thereof giving holders thereof the right to
require such person to repurchase or redeem such Capital Stock upon the
occurrence of an "asset sale" or "change of control" occurring prior to
the Stated Maturity of the Securities shall not constitute Redeemable
Stock if the "asset sale" or "change of control" provisions applicable
to such Capital Stock are no more favorable to the holders of such
Capital Stock than the provisions contained in Sections 4.15 and 4.16
and such Capital Stock specifically provides that such person will not
repurchase or redeem any such stock pursuant to such provision prior to
the Company's repurchase of such Securities as are required to be
repurchased pursuant to Sections 4.15 and 4.16. Notwithstanding the
foregoing, Capital Stock shall not be deemed to be Redeemable Stock if
it may only be so redeemed solely in consideration of Capital Stock
that is not Redeemable Stock.
"REDEMPTION DATE" when used with respect to any Security to be
redeemed, means the date fixed for such redemption pursuant to this Indenture
and the Securities.
"REDEMPTION PRICE" when used with respect to any Security to
be redeemed, means the price fixed for such redemption, payable in immediately
available funds, pursuant to this Indenture and the Securities.
"REGISTRAR" has the meaning set forth in Section 2.03.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement dated as of the Issue Date by and among the Company, the Guarantors
and the Initial Purchasers.
"REGULATION S" means Regulation S under the Securities Act.
"REGULATION S GLOBAL SECURITY" has the meaning set forth in
Section 2.01
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"RELATED PARTY TRANSACTION" has the meaning set forth in
Section 4.12.
"REPRESENTATIVE" means the indenture trustee or other trustee,
agent or representative in respect of any Designated Senior Debt; PROVIDED that
if, and for so long as, any Designated Senior Debt lacks such a representative,
then the Representative for such Designated Senior Debt shall at all times
constitute the holders of a majority in outstanding principal amount of such
Designated Senior Debt in respect of any Designated Senior Debt.
"RESPONSIBLE OFFICER" means, when used with respect to the
Trustee, any corporate trust officer in the corporate trust department of the
Trustee (or any successor group of the Trustee) with direct responsibility for
the administration of this Indenture and also means with respect to a particular
corporate trust matter any other officer to whom such corporate trust matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
"RESTRICTED INVESTMENT" means any Investment other than a
Permitted Investment.
"RESTRICTED PAYMENT" has the meaning set forth in Section
4.03.
"RESTRICTED PERIOD" has the meaning set forth in Section 2.01.
"RESTRICTED SECURITY" has the meaning assigned to such term in
Rule 144(a)(3) under the Securities Act; PROVIDED that the Trustee shall be
entitled to request and conclusively rely on an Opinion of Counsel with respect
to whether any Security constitutes a Restricted Security.
"RESTRICTED SUBSIDIARY" means any Subsidiary of the Company
other than an Unrestricted Subsidiary.
"RULE 144A" means Rule 144A under the Securities Act.
"RULE 144A GLOBAL SECURITY" has the meaning set forth in
Section 2.01
"SECURITIES" means the Notes and the Exchange Notes treated as
a single class of securities, as amended or supplemented
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from time to time in accordance with the terms hereof, that are issued pursuant
to this Indenture.
"SECURITIES ACT" means the Securities Act of 1933, as amended,
or any successor statute or statutes thereto.
"SECURITYHOLDER" or "HOLDER" means the Person in whose name a
Security is registered on the Registrar's books.
"SENIOR DEBT" means the principal of, premium, if any, and
interest (including any interest accruing subsequent to the filing of a petition
of bankruptcy at the rate provided for in the documentation with respect
thereto, whether or not such interest is an allowed claim under applicable law)
on any Indebtedness of the Company, whether outstanding on the Issue Date or
thereafter created, incurred or assumed, unless, in the case of any particular
Indebtedness, the instrument creating or evidencing the same or pursuant to
which the same is outstanding expressly provides that such Indebtedness shall
not be senior in right of payment to the Securities.
Without limiting the generality of the foregoing, "Senior
Debt" shall also include the principal of, premium, if any, interest (including
any interest accruing subsequent to the filing of a petition of bankruptcy at
the rate provided for in the documentation with respect thereto, whether or not
such interest is an allowed claim under applicable law) on, and all other
amounts owing in respect of:
(1) all monetary obligations of every nature of the Company
under, or with respect to, the Credit Agreement, including, without
limitation, obligations to pay principal and interest, reimbursement
obligations under letters of credit, fees, expenses and indemnities
(and guarantees thereof);
(2) all monetary obligations of the Company under the 9-3/4%
Senior Notes;
(3) all Interest Rate Agreements (and guarantees thereof);
and
(4) all obligations (and guarantees thereof) under Currency
Agreements;
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in each case whether outstanding on the Issue Date or thereafter incurred.
Notwithstanding the foregoing, "Senior Debt" shall not
include:
(1) any Indebtedness of the Company to a Subsidiary of the
Company;
(2) Indebtedness to, or guaranteed on behalf of, any
shareholder, director, officer or employee of the Company or any
Subsidiary of the Company (including, without limitation, amounts owed
for compensation) other than a shareholder who is also a lender (or an
Affiliate of a lender) under the Credit Agreement;
(3) Indebtedness to trade creditors and other amounts
incurred in connection with obtaining goods, materials or services;
(4) Indebtedness represented by Redeemable Stock;
(5) any liability for federal, state, local or other taxes
owed or owing by the Company;
(6) that portion of any Indebtedness incurred in violation
of Section 4.04 (but, as to any such obligation, no such violation
shall be deemed to exist for purposes of this clause (6) if the
holder(s) of such obligation or their representative shall have
received an Officers' Certificate of the Company to the effect that the
incurrence of such Indebtedness does not (or, in the case of revolving
credit Indebtedness, that the incurrence of the entire committed amount
thereof at the date on which the initial borrowing thereunder is made
would not) violate such provisions of this Indenture);
(7) Indebtedness which, when incurred and without respect to
any election under Section 1111(b) of Xxxxx 00, Xxxxxx Xxxxxx Code, is
without recourse to the Company; and
(8) any Indebtedness which is, by its express terms,
subordinated in right of payment to any other Indebtedness of the
Company.
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"STATED MATURITY" means:
(1) with respect to any Indebtedness, the date specified in
such Indebtedness as the fixed date on which the final installment of
principal of such Indebtedness is due and payable; and
(2) with respect to any scheduled installment of principal
of or interest on any Indebtedness, the date specified in such
Indebtedness as the fixed date on which such installment is due and
payable.
"SUBSIDIARY" means, with respect to any Person, any
corporation, association, or other business entity of which more than 50% of the
outstanding Voting Stock is owned, directly or indirectly, by such Person and
one or more other Subsidiaries of such Person.
"TIA" means the Trust Indenture act of 1939 (15 U.S.C.
Sections 77aaa-77bbbb), as amended, as in effect on the date of the execution
of this Indenture until such time as this Indenture is qualified under the
TIA, and thereafter as in effect on the date on which this Indenture is
qualified under the TIA, except as otherwise provided in Section 9.04.
"TRANSACTION DATE" means, with respect to the Incurrence of
any Indebtedness by the Company or any of its Restricted Subsidiaries, the date
such Indebtedness is to be Incurred and, with respect to any Restricted Payment,
the date such Restricted Payment is to be made.
"TRUSTEE" means the party named as such in this Indenture
unless a successor replaces it in accordance with the provisions of this
Indenture and thereafter means such successor serving hereunder.
"UNRESTRICTED SUBSIDIARY" means (1) any Subsidiary of the
Company that at the time of determination shall be designated an Unrestricted
Subsidiary by the Board of Directors in the manner provided below; and (2) any
Subsidiary of an Unrestricted Subsidiary. The Board of Directors may designate
any Restricted Subsidiary of the Company (including any newly acquired or newly
formed Subsidiary of the Company) to be an Unrestricted Subsidiary unless such
Subsidiary owns any Capital Stock of, or owns or holds any Lien on any property
of, the Company or any Restricted Subsidiary; PROVIDED that either
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(x) the Subsidiary to be so designated has total assets of $1,000, or less; or
(y) if such Subsidiary has assets greater than $1,000, that such designation
would be permitted under Section 4.03. The Board of Directors may designate any
Unrestricted Subsidiary to be a Restricted Subsidiary of the Company; PROVIDED
that immediately after giving effect to such designation (x) the Company could
Incur $1.00 of additional Indebtedness (other than Permitted Indebtedness)
pursuant to Section 4.04 and (y) no Default or Event of Default shall have
occurred and be continuing. Any such designation by the Board of Directors shall
be evidenced to the Trustee by promptly filing with the Trustee a copy of the
Board Resolution giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the foregoing provisions.
Avado Financing I shall be designated as an Unrestricted
Subsidiary as of the Issue Date.
"U.S. GOVERNMENT OBLIGATIONS" means direct obligations of, and
obligations guaranteed by, the United States of America for the payment of which
the full faith and credit of the United States of America is pledged and which
are not callable or redeemable at the issuer's option.
"U.S. LEGAL TENDER" means such coin or currency of the United
States of America as at the time of payment shall be legal tender for the
payment of public and private debts.
"VOTING STOCK" means, with respect to any Person, Capital
Stock of any class or kind ordinarily having the power to vote for the election
of directors, managers, or other voting members of the governing body of such
Person.
"WHOLLY-OWNED" means, with respect to any Subsidiary of any
Person, such Subsidiary if all of the outstanding common stock or other similar
equity ownership interests (but not including preferred stock) in such
Subsidiary (other than any director's qualifying shares or Investments by
foreign nationals mandated by applicable law) is owned directly or indirectly by
such person.
SECTION 1.02. INCORPORATION BY REFERENCE OF TIA.
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in, and made a
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part of, this Indenture. The following TIA terms used in this Indenture have the
following meanings:
"INDENTURE SECURITIES" means the Securities.
"INDENTURE SECURITY HOLDER" means a Holder or a
Securityholder.
"INDENTURE TO BE QUALIFIED" means this Indenture.
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the
Trustee.
"OBLIGOR" on the indenture securities means the Company, any
Guarantor or any other obligor on the Securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by Commission
rule and not otherwise defined herein have the meanings assigned to them
therein.
SECTION 1.03. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in
the plural include the singular;
(5) provisions apply to successive events and transactions;
and
(6) "herein," "hereof" and other words of similar import
refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision.
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ARTICLE TWO
THE SECURITIES
SECTION 2.01. FORM AND DATING.
The Notes and the Trustee's certificate of authentication
shall be substantially in the form of EXHIBIT A and the Exchange Notes and the
Trustee's certificate of authentication shall be substantially in the form of
EXHIBIT B. The Securities may have notations, legends or endorsements required
by law, stock exchange rule or usage. The Company and the Trustee shall approve
the form of the Securities and any notation, legend or endorsement on them. Each
Security shall be dated the date of its authentication. At the time of issuance,
each Security shall have an executed Guarantee from each of the then existing
Guarantors endorsed thereon substantially in the form of EXHIBIT C.
The terms and provisions contained in the Securities, annexed
hereto as EXHIBITS A and B, and the Guarantees shall constitute, and are hereby
expressly made, a part of this Indenture and, to the extent applicable, 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.
Securities offered and sold in reliance on Rule 144A shall be
issued initially in the form of one or more permanent Global Securities in
registered form, substantially in the form set forth in EXHIBIT A, deposited
with the Trustee, as custodian for the Depository, duly executed by the Company
and authenticated by the Trustee as hereinafter provided, and shall bear the
legends set forth in Section 2.14 (the "RULE 144A GLOBAL SECURITY"). Securities
offered and sold in reliance on Regulation S shall be issued initially in the
form of one or more Global Securities in registered form, substantially in the
form set forth in Exhibit A, deposited with the Trustee, as custodian for the
Depositary, duly executed by the Company and authenticated by the Trustee as
hereinafter provided, and shall bear the legends set forth in Section 2.14 (the
"REGULATION S GLOBAL SECURITY"). The aggregate principal amount of the Global
Securities may from time to time be increased or
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decreased by adjustments made on the records of the Trustee, as custodian for
the Depository, as hereinafter provided.
Through including the 40th day after the later of the
commencement of the Offering and the Issue Date (the "RESTRICTED PERIOD"),
beneficial interests in the Regulation S Global Security may be held only
through Euroclear and Cedel (as indirect participants in the Depositary Trust
Company), unless transferred to a person that takes delivery through a Rule 144A
Global Security in accordance with Section 2.15.
Securities issued in exchange for interests in the Global
Securities pursuant to Section 2.15 may be issued in the form of permanent
certificated Securities in registered form (the "PHYSICAL SECURITIES") and shall
bear the first legend set forth in Section 2.14. All Securities offered and sold
in reliance on Regulation S shall remain in the form of a Global Security until
the consummation of the Exchange Offer pursuant to the Registration Rights
Agreement.
SECTION 2.02. EXECUTION AND AUTHENTICATION.
Two Officers, or an Officer and an Assistant Secretary, shall
sign, or one Officer shall sign and one Officer or an Assistant Secretary (each
of whom shall, in each case, have been duly authorized by all requisite
corporate actions) shall attest to, the Securities for the Company by manual or
facsimile signature.
If an Officer whose signature is on a Security was an Officer
at the time of such execution but no longer holds that office at the time the
Trustee authenticates the Security, the Security shall nevertheless be valid.
A Security shall not be valid until an authorized signatory of
the Trustee manually signs the certificate of authentication on the Security.
The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
The Trustee shall authenticate Notes for original issue on the
Issue Date in the aggregate principal amount not to exceed $100,000,000 upon
receipt of a written order of the Company in the form of an Officers'
Certificate which shall specify the amount of Securities to be authenticated and
the date on which the Securities are to be authenticated. The aggregate
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principal amount of Securities outstanding at any time may not exceed
$100,000,000, except as provided in Section 2.07.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate the Securities. Unless otherwise
provided in the appointment, an authenticating agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company
and Affiliates of the Company.
The Securities shall be issuable only in registered form
without coupons in denominations of $1,000 and any integral multiples thereof.
SECTION 2.03. REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency in the Borough
of Manhattan, The City of New York, where (a) Securities may be presented or
surrendered for registration of transfer or for exchange ("REGISTRAR"), (b)
Securities may be presented or surrendered for payment ("PAYING AGENT") and (c)
notices and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The Company may also from time to time designate one or
more other offices or agencies where the Securities may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; PROVIDED, HOWEVER, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in the Borough of Manhattan, The City of New York, for such purposes. The
Company may act as its own Registrar or Paying Agent except that for the
purposes of Articles Three and Eight and Sections 4.15 and 4.16, neither the
Company nor any Affiliate of the Company shall act as Paying Agent. The
Registrar shall keep a register of the Securities and of their transfer and
exchange. The Company, upon notice to the Trustee, may have one or more
co-Registrars and one or more additional paying agents reasonably acceptable to
the Trustee. The term "Paying Agent" includes any additional paying agent. The
Company hereby initially appoints the Trustee as Registrar and Paying Agent
until such time as the Trustee has resigned or a successor has been appointed in
accordance with the terms of this Indenture.
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The Company shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture, which agreement shall implement
the provisions of this Indenture that relate to such Agent. The Company shall
provide written notice to the Trustee, in advance, of the name and address of
any such Agent. If the Company fails to maintain a Registrar or Paying Agent,
the Trustee shall act as such.
SECTION 2.04. PAYING AGENT TO HOLD ASSETS IN TRUST.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that, subject to Article Ten and Article Twelve,
each Paying Agent shall hold in trust for the benefit of Holders or the Trustee
all assets held by the Paying Agent for the payment of principal of, or interest
on, the Securities (whether such assets have been distributed to it by the
Company or any other obligor on the Securities), and shall notify the Trustee of
any Default or Event of Default by the Company (or any other obligor on the
Securities) in making any such payment. If the Company or a Subsidiary acts as
Paying Agent, it shall segregate such assets and hold them as a separate trust
fund. The Company at any time may require a Paying Agent to distribute all
assets held by it to the Trustee and account for any assets disbursed and the
Trustee may at any time during the continuance of any payment Default or payment
Event of Default, upon written request to a Paying Agent, require such Paying
Agent to distribute all assets held by it to the Trustee and to account for any
assets distributed. Upon distribution to the Trustee of all assets that shall
have been delivered by the Company to the Paying Agent, the Paying Agent shall
have no further liability for such assets.
SECTION 2.05. HOLDER LISTS.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Holders. If the Trustee is not the Registrar, the Company shall
furnish to the Trustee on or before each Interest Payment Date and at such other
times as the Trustee may request in writing a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses of
Holders, which list may be conclusively relied upon by the Trustee.
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SECTION 2.06. TRANSFER AND EXCHANGE.
(a) Subject to the provisions of Sections 2.14 and 2.15,
when Securities are presented to the Registrar or a co-Registrar with a request
to register the transfer of such Securities or to exchange such Securities for
an equal principal amount of Securities of other authorized denominations, the
Registrar or co-Registrar shall register the transfer or make the exchange as
requested if its requirements for such transaction are met; PROVIDED, HOWEVER,
that the Securities surrendered for registration of transfer or exchange shall
be duly endorsed or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Registrar or co-Registrar, duly executed by
the Holder thereof or his attorney duly authorized in writing. To permit
registrations of transfers and exchanges, the Company shall execute and the
Trustee shall authenticate Securities at the Registrar's or co-Registrar's
request. No service charge shall be made for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection therewith. The
Registrar or co-Registrar shall not be required to register the transfer of or
exchange of any Security (i) during a period beginning at the opening of
business 15 days before the mailing of a notice of redemption of Securities and
ending at the close of business on the day of such mailing, (ii) selected for
redemption in whole or in part pursuant to Article Three, except the unredeemed
portion of any Security being redeemed in part, and (iii) during a Change of
Control Offer or an Excess Proceeds Offer if such Security is tendered pursuant
to such Change of Control Offer or Excess Proceeds Offer and not withdrawn. A
Global Security may be transferred, in whole but not in part, in the manner
provided in this Section 2.06(a), only to a nominee of the Depository for such
Global Security, or to the Depository, or a successor Depository for such Global
Security selected or approved by the Company, or to a nominee of such successor
Depository.
(b) If at any time the Depository for the Global Security
or Securities notifies the Company that it is unwilling or unable to continue as
Depository for such Global Security or Securities or the Company becomes aware
that the Depository has ceased to be a clearing agency registered under the
Exchange Act, the Company shall appoint a successor Depository with respect to
such Global Security or Securities. If a successor
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Depository for such Global Security or Securities has not been appointed within
120 days after the Company receives such notice or becomes aware of such
ineligibility, the Company shall execute, and the Trustee, upon receipt of an
Officers' Certificate for the authentication and delivery of Securities, shall
authenticate and deliver, Securities in definitive form, in an aggregate
principal amount at maturity equal to the principal amount at maturity of the
Global Security representing such Securities, in exchange for such Global
Security. The Company shall reimburse the Registrar, the Depository and the
Trustee for expenses they incur in documenting such exchanges and issuances of
Securities in definitive form.
The Company may at any time and in its sole discretion
determine that the Securities shall no longer be represented by such Global
Security or Securities. In such event the Company will execute, and the Trustee,
upon receipt of a written order for the authentication and delivery of
individual Securities in exchange in whole or in part for such Global Security
or Securities, will authenticate and deliver individual Securities in definitive
form in an aggregate principal amount equal to the principal amount of such
Global Security or Securities in exchange for such Global Security or
Securities.
In any exchange provided for in any of the preceding two
paragraphs, the Company will execute and the Trustee will authenticate and
deliver individual Securities in definitive registered form in authorized
denominations. Upon the exchange of a Global Security for individual Securities,
such Global Security shall be cancelled by the Trustee. Securities issued in
exchange for a Global Security pursuant to this Section 2.06(b) shall be
registered in such names and in such authorized denominations as the Depository
for such Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall deliver
such Securities to the Persons in whose names such Securities are so registered.
None of the Company, the Trustee, any Paying Agent or the
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
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SECTION 2.07. REPLACEMENT SECURITIES.
If a mutilated Security is surrendered to the Trustee or if
the Holder of a Security claims that the Security has been lost, destroyed or
wrongfully taken, the Company shall issue and the Trustee shall authenticate a
replacement Security if the Trustee and the Company are furnished evidence of
such loss, theft or destruction satisfactory to them, together with an indemnity
bond or other indemnity, sufficient in the judgment of both the Company and the
Trustee, to protect the Company, the Trustee or any Agent from any loss which
any of them may suffer if a Security is replaced. The Company may charge such
Holder for its reasonable out-of-pocket expenses in replacing a Security
pursuant to this Section 2.07, including reasonable fees and expenses of
counsel.
Every replacement Security is an additional obligation of the
Company.
SECTION 2.08. OUTSTANDING SECURITIES.
Securities outstanding at any time are all the Securities that
have been authenticated by the Trustee except those cancelled by it, those
delivered to it for cancellation and those described in this Section as not
outstanding. Subject to Section 2.09, a Security does not cease to be
outstanding because the Company, any of the Guarantors or any of their
respective Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.07 (other than
a mutilated Security surrendered for replacement), it ceases to be outstanding
unless the Trustee receives proof satisfactory to it that the replaced Security
is held by a BONA FIDE purchaser or a protected purchaser. A mutilated Security
ceases to be outstanding upon surrender of such Security and replacement thereof
pursuant to Section 2.07. If the principal amount of any Security is considered
paid under Section 4.01, it ceases to be outstanding and interest ceases to
accrue.
If on a Redemption Date or the Maturity Date the Paying Agent
(other than the Company or a Subsidiary) holds U.S. Legal Tender sufficient to
pay all of the principal and interest due on the Securities payable on that
date, then on and after that date such Securities cease to be outstanding and
interest on them ceases to accrue.
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SECTION 2.09. TREASURY SECURITIES.
In determining whether the Holders of the required principal
amount of Securities have concurred in any direction, waiver or consent,
Securities owned by the Company, any of its Subsidiaries or any of their
respective Affiliates shall be disregarded, except that, for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities that a Responsible Officer of the
Trustee has actual knowledge are so owned shall be disregarded.
SECTION 2.10. TEMPORARY SECURITIES.
Until definitive Securities are ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary Securities.
Temporary Securities shall be substantially in the form of definitive Securities
but may have variations that the Company considers appropriate for temporary
Securities. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate definitive Securities in exchange for temporary
Securities. Until such exchange, temporary Securities shall be entitled to the
same rights, benefits and privileges as definitive Securities. Notwithstanding
the foregoing, so long as the Securities are represented by a Global Security,
such Global Security may be in typewritten form.
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Securities to the Trustee
for cancellation. The Registrar and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for registration of transfer,
exchange or payment. The Trustee, or at the direction of the Trustee, the
Registrar or the Paying Agent (other than the Company or a Subsidiary), and no
one else, shall cancel and shall destroy all Securities surrendered for
registration of transfer, exchange, payment or cancellation. Subject to Section
2.07, the Company may not issue new Securities to replace Securities that it has
paid or delivered to the Trustee for cancellation. If the Company or any
Guarantor shall acquire any of the Securities, such acquisition shall not
operate as a redemption or satisfaction of the Indebtedness represented by such
Securities unless and until the
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same are surrendered to the Trustee for cancellation pursuant to this Section
2.11.
SECTION 2.12. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the
Securities, it shall, unless the Trustee fixes another record date pursuant to
Section 6.10, pay the defaulted interest, plus (to the extent lawful) any
interest payable on the defaulted interest, in any lawful manner. The Company
may pay the defaulted interest to the Persons who are Holders on a subsequent
special record date, which date shall be the fifteenth day next preceding the
date fixed by the Company for the payment of defaulted interest or the next
succeeding Business Day if such date is not a Business Day. At least 15 days
before any such subsequent special record date, the Company shall mail to each
Holder, with a copy to the Trustee, a notice that states the subsequent special
record date, the payment date and the amount of defaulted interest, and interest
payable on such defaulted interest, if any, to be paid.
SECTION 2.13. CUSIP NUMBER.
The Company in issuing the Securities may use a "CUSIP"
number, and if so, the Trustee shall use the CUSIP number in notices of
redemption or exchange as a convenience to Holders; PROVIDED, HOWEVER, that any
such notice may state that no representation is made as to the correctness or
accuracy of the CUSIP number printed in the notice or on the Securities, and
that reliance may be placed only on the other identification numbers printed on
the Securities.
SECTION 2.14. RESTRICTIVE LEGENDS.
Each Global Security and Physical Security that constitutes a
Restricted Security or is sold in compliance with Regulation S shall bear the
following legend (the "PRIVATE PLACEMENT LEGEND") on the face thereof until
after the second anniversary of the later of the Issue Date and the last date on
which the Company or any Affiliate of the Company was the owner of such Security
(or any predecessor security) (or such shorter period of time as permitted by
Rule 144(k) under the Securities Act or any successor provision thereunder) (or
such longer period of time as may be required under the Securities Act or
applicable state securities laws in the opinion of counsel for
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the Company, unless otherwise agreed by the Company and the Holder thereof):
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO,
OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH
BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT
IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS
SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER
THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE
TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY
THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL
BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE
THE UNITED STATES TO AN "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(a)(1), (2), (3) or (7) UNDER THE SECURITIES ACT) THAT, PRIOR TO
SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S.
BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER
OF THIS SECURITY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE
TRUSTEE FOR THIS SECURITY), (D) OUTSIDE THE UNITED STATES IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES
ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE
144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR (F) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3)
AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THIS SECURITY, IF THE PROPOSED
TRANSFEREE IS AN ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH
TRANSFER, FURNISH TO THE TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS,
LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY
REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANING GIVEN
TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
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Each Global Security shall also bear the following legend on
the face thereof:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY, OR
BY ANY SUCH NOMINEE OF THE DEPOSITORY, OR BY THE DEPOSITORY OR NOMINEE
OF SUCH SUCCESSOR DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 2.16 OF THE
INDENTURE GOVERNING THIS SECURITY.
SECTION 2.15. BOOK-ENTRY PROVISIONS FOR GLOBAL SECURITY.
(a) Each Global Security 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 Section 2.14.
Members of, or participants in, the Depository ("AGENT
MEMBERS") shall have no rights under this Indenture with respect to any Global
Security held on their behalf by the Depository, or the Trustee as its
custodian, or under any Global Security, and the Depository may be treated by
the Company,
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the Trustee and any agent of the Company or the Trustee as the absolute owner of
each Global Security for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee or any agent of the
Company or the Trustee from giving effect to any written certification, proxy or
other authorization furnished by the Depository or impair, as between the
Depository and its Agent Members, the operation of customary practices governing
the exercise of the rights of a Holder of any Security.
(b) Transfers of Global Securities shall be limited to
transfers in whole, but not in part, to the Depository, its successors or their
respective nominees. Interests of beneficial owners in any Global Security may
be transferred or, subject to Section 2.01, exchanged for Physical Securities in
accordance with the rules and procedures of the Depository and the provisions of
Section 2.16. In addition, Physical Securities shall be transferred to all
beneficial owners in exchange for their beneficial interests in any Global
Security if (i) the Depository notifies the Company that it is unwilling or
unable to continue as Depository for the Global Securities 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 or the Trustee to issue Physical
Securities.
(c) In connection with any transfer or exchange of a
portion of the beneficial interest in any Global Security to beneficial owners
pursuant to paragraph (b), the Registrar shall (if one or more Physical
Securities are to be issued) reflect on its books and records the date and a
decrease in the principal amount of such Global Security in an amount equal to
the principal amount of the beneficial interest in such Global Security to be
transferred, and the Company shall execute, and the Trustee shall authenticate
and deliver, one or more Physical Securities of like tenor and amount.
(d) In connection with the transfer of an entire Global
Security to beneficial owners pursuant to paragraph (b), such Global Security
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 exchange for its beneficial
interest in such Global Security, an equal aggregate principal
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amount of Physical Securities of authorized denominations.
(e) Any Physical Security constituting a Restricted
Security delivered in exchange for an interest in a Global Security pursuant to
paragraph (b) or (c) shall, except as otherwise provided by paragraphs (a)(i)(x)
and (c) of Section 2.16, bear the legend regarding transfer restrictions
applicable to the Physical Securities set forth in Section 2.14.
(f) The Holder of a Global Security may grant proxies and
otherwise authorize any person, including Agent Members and persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities.
SECTION 2.16. SPECIAL TRANSFER PROVISIONS.
(a) TRANSFERS TO NON-QIB INSTITUTIONAL ACCREDITED
INVESTORS AND NON-U.S. PERSONS. The following provisions shall apply with
respect to the registration of any proposed transfer of a Security constituting
a Restricted Security to any institutional accredited investor (as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act) (an "ACCREDITED
INVESTOR") which is not a QIB or to any Non-U.S.
Person:
(i)the Registrar shall register the transfer of any Security
constituting a Restricted Security, whether or not such Security bears
the Private Placement Legend, if (x) the transferee certifies that it
is not an Affiliate of the Company and the requested transfer is after
the second anniversary of the later of the (a) Issue Date and (b) the
last date on which the Company or an Affiliate of the Company was the
owner of such Security (or any predecessor Security) or such shorter
period of time as permitted by Rule 144(k) under the Securities Act or
any successor provision thereunder or (y) (1) in the case of a transfer
to an Accredited Investor which is not a QIB (excluding Non-U.S.
Persons), the proposed transferee has delivered to the Registrar a
certificate substantially in the form of EXHIBIT D hereto or (2) in the
case of a transfer to a Non-U.S. Person, the proposed transferor has
delivered to the Registrar a certificate substantially in the form of
EXHIBIT E hereto and such other information that the Trustee may
reasonably request in order to
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confirm that such transaction is being made pursuant to an exemption
from or in a transaction not subject to the registration requirements
of the Securities Act; and
(ii) if the proposed transferor is an Agent Member holding a
beneficial interest in the Global Security, the Registrar shall register
the transfer of any Security constituting a Restricted Security, whether
or not such Security bears a Private Placement Legend upon receipt by
the Registrar of (x) the certificate, if any, required by paragraph (i)
above and (y) instructions given in accordance with the Depository's and
the Registrar's procedures, whereupon (a) the Registrar shall reflect on
its books and records the date and (if the transfer does not involve a
transfer of outstanding Physical Securities) a decrease in the principal
amount of the applicable Global Security in an amount equal to the
principal amount of the beneficial interest in such Global Security to
be transferred, and (b) the Company shall execute and the Trustee shall
authenticate and deliver one or more Physical Securities of like tenor
and amount.
(b) TRANSFERS TO QIBS. The following provisions shall apply
with respect to the registration of any proposed transfer of a Security
constituting a Restricted Security to a QIB (excluding transfers to Non-U.S.
Persons):
(i) the Registrar shall register the transfer if such
transfer is being made by a proposed transferor who has checked the box
provided for on the form of Security stating, or has otherwise advised
the Company and the Registrar in writing, that the sale has been made
in compliance with the provisions of Rule 144A to a transferee who has
signed the certification provided for on the form of Security stating,
or has otherwise advised the Company and the Registrar in writing, that
it is purchasing the Security for its own account or an account with
respect to which it exercises sole investment discretion and that it
and any such account is a QIB within the meaning of Rule 144A, and is
aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the
Company as it has requested pursuant to Rule 144A or has determined not
to request such information and that it is aware that the transferor is
relying upon its foregoing representations
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in order to claim the exemption from registration provided by Rule
144A; and
(ii) if the proposed transferee is an Agent Member, and the
Securities to be transferred consist of Physical Securities which after
transfer are to be evidenced by an interest in a Global Security, upon
receipt by the Registrar of instructions given in accordance with the
Depository's and the Registrar's procedures, the Registrar shall
reflect on its books and records the date and an increase in the
principal amount of the applicable Global Security in an amount equal
to the principal amount of the Physical Securities to be transferred,
and the Trustee shall cancel the Physical Securities so transferred.
(c) PRIVATE PLACEMENT LEGEND. Upon the registration of
transfer, exchange or replacement of Securities not bearing the Private
Placement Legend, the Registrar shall deliver Securities that do not bear the
Private Placement Legend. Upon the registration of transfer, exchange or
replacement of Securities bearing the Private Placement Legend, the Registrar
shall deliver only Securities that bear the Private Placement Legend unless (i)
the circumstance contemplated by paragraph (a)(i)(x) of this Section 2.16 exists
or (ii) there is delivered to the Registrar an Opinion of Counsel reasonably
satisfactory to the Company and the Trustee to the effect that neither such
legend nor the related restrictions on transfer are required in order to
maintain compliance with the provisions of the Securities Act.
(d) GENERAL. By its acceptance of any Security bearing
the Private Placement Legend, each Holder of such Security acknowledges the
restrictions on transfer of such Security set forth in this Indenture and in the
Private Placement Legend and agrees that it will transfer such Security only as
provided in this Indenture.
The Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 2.15 or this Section
2.16 in accordance with its customary procedures. The Company shall have the
right to inspect and make copies of all such letters, notices or other written
communications at any reasonable time upon the giving of reasonable written
notice to the Registrar.
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SECTION 2.17. DEPOSIT OF MONEYS.
Prior to 10:00 a.m. New York City time on each Interest
Payment Date, Maturity Date, Redemption Date, Change of Control Payment Date and
Excess Proceeds Payment Date, the Company shall have deposited with the Paying
Agent in immediately available funds money sufficient to make cash payments, if
any, due on such Interest Payment Date, Maturity Date, Redemption Date, Change
of Control Payment Date and Excess Proceeds Payment Date, as the case may be, in
a timely manner which permits the Paying Agent to remit payment to the Holders
on such Interest Payment Date, Maturity Date, Redemption Date, Change of Control
Payment Date and Excess Proceeds Offer Payment Date, as the case may be.
ARTICLE THREE
REDEMPTION
SECTION 3.01. NOTICES TO TRUSTEE.
If the Company elects to redeem Securities pursuant to
Paragraph 6 or Paragraph 7 of the Securities, it shall notify the Trustee in
writing of the Redemption Date, the Redemption Price and the principal amount of
the applicable Securities to be redeemed. The Company shall give notice of
redemption to the Paying Agent and Trustee at least 30 days but not more than 60
days before the Redemption Date (unless a shorter notice shall be agreed to by
the Trustee in writing), together with an Officers' Certificate stating that
such redemption will comply with the conditions contained herein.
SECTION 3.02. SELECTION OF SECURITIES TO BE REDEEMED.
In the event that less than all of the Securities are to be
redeemed at any time, selection of such Securities for redemption will be made
by the Trustee in compliance with the requirements of the principal national
securities exchange, if any, on which such Securities are listed or, if such
Securities are not then listed on a national securities exchange, on a PRO RATA
basis, by lot or by such method as the Trustee in its sole discretion shall deem
fair and appropriate; PROVIDED, HOWEVER, that no Securities of a principal
amount of $1,000 or less shall be redeemed in part; and PROVIDED, FURTHER, that
if a
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partial redemption is made with the net cash proceeds of a Public Equity
Offering, selection of the Securities or portions thereof for redemption shall
be made by the Trustee only on a PRO RATA basis or on as nearly a PRO RATA basis
as is practicable (subject to the procedures of the Depository), unless such
method is otherwise prohibited.
SECTION 3.03. NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a Redemption
Date, the Company shall mail a notice of redemption by first class mail, postage
prepaid, to each Holder whose Securities are to be redeemed at its registered
address. At the Company's request at least 40 days before a Redemption Date
(unless a shorter period shall be acceptable to the Trustee), the Trustee shall
give the notice of redemption in the Company's name and at the Company's
expense. Each notice of redemption shall identify the Securities to be redeemed
and shall state:
(1) the Redemption Date;
(2) the Redemption Price and the amount of accrued interest,
if any, to be paid;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be
surrendered to the Paying Agent to collect the Redemption Price plus
accrued interest, if any;
(5) that, unless the Company defaults in making the
redemption payment, interest on Securities called for redemption ceases
to accrue on and after the Redemption Date, and the only remaining
right of the Holders of such Securities is to receive payment of the
Redemption Price upon surrender to the Paying Agent of the Securities
redeemed;
(6) if any Security is being redeemed in part, the portion
of the principal amount of such Security to be redeemed and that, after
the Redemption Date, and upon surrender of such Security, a new
Security or Securities in aggregate principal amount equal to the
unredeemed portion thereof will be issued;
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(7) if fewer than all the Securities are to be redeemed, the
identification of the particular Securities (or portion thereof) to be
redeemed, as well as the aggregate principal amount of Securities to be
redeemed and the aggregate principal amount of Securities to be
outstanding after such partial redemption; and
(8) the Paragraph of the Securities pursuant to which the
Securities are to be redeemed.
No representation is made as to the correctness or accuracy of
the CUSIP number, if any, listed in such notice or printed on the Securities.
The notice, if mailed in a manner herein provided, shall be
conclusively presumed to have been given, whether or not the Holder receives
such notice. In any case, failure to give such notice by mail or any defect in
the notice to the Holder of any Security designated for redemption in whole or
in part shall not affect the validity of the proceedings for the redemption of
any other Security.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section
3.03, Securities called for redemption become due and payable on the Redemption
Date and at the Redemption Price plus accrued interest, if any. Upon surrender
to the Trustee or Paying Agent, such Securities called for redemption shall be
paid at the Redemption Price (which shall include accrued interest thereon to
the Redemption Date), but installments of interest, the maturity of which is on
or prior to the Redemption Date, shall be payable to Holders of record at the
close of business on the relevant Record Dates.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
On or before 10:00 a.m. New York time on the Redemption Date,
the Company shall deposit with the Paying Agent U.S. Legal Tender sufficient to
pay the Redemption Price plus accrued interest, if any, of all Securities to be
redeemed on that date.
If the Company complies with the preceding paragraph, then,
unless the Company defaults in the payment of such Redemption Price plus accrued
interest, if any, interest on the
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Securities to be redeemed will cease to accrue on and after the applicable
Redemption Date, whether or not such Securities are presented for payment.
SECTION 3.06. SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is to be redeemed in part
only, the Trustee shall upon written instruction from the Company authenticate
for the Holder a new Security or Securities in a principal amount equal to the
unredeemed portion of the Security surrendered.
ARTICLE FOUR
COVENANTS
SECTION 4.01. PAYMENT OF SECURITIES.
The Company shall pay the principal of and interest on the
Securities in the manner provided in the Securities. An installment of principal
of or interest on the Securities shall be considered paid on the date it is due
if the Trustee or Paying Agent holds on that date money designated for and
sufficient to pay the installment. Interest on the Securities will be computed
on the basis of a 360-day year comprised of twelve 30-day months.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in the Borough of Manhattan, The
City of New York, the office or agency required under Section 2.03. 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 set forth in Section
13.02.
The Company may also from time to time designate one or more
other offices or agencies where the Securities may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations. The Company will give prompt written notice to the Trustee of any
such designa-
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tion or rescission and of any change in the location of any such other office or
agency.
The Company hereby initially designates the Trustee at its
address c/o First National Bank of Chicago, Corporate Trust, 8th Floor, 00 Xxxx
Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxxx Xxxxxxxxxx as such
office of the Company in accordance with Section 2.03.
SECTION 4.03. LIMITATION ON RESTRICTED PAYMENTS.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly:
(1) declare or pay any dividend or make any distribution on
its Capital Stock (other than pro rata dividends or distributions
payable solely in shares of its or such Restricted Subsidiary's Capital
Stock (other than Redeemable Stock) of the same class held by such
holders or in options, warrants, or other rights to acquire such shares
of Capital Stock) held by persons other than the Company or any of its
Wholly-Owned Restricted Subsidiaries;
(2) purchase, redeem, retire, or otherwise acquire for value
any shares of Capital Stock of the Company or any Restricted Subsidiary
(including options, warrants, or other rights to acquire such shares of
Capital Stock) held by persons other than the Company or any of its
Wholly-Owned Restricted Subsidiaries;
(3) make any voluntary or optional principal payment, or
voluntary or optional redemption, repurchase, defeasance, or other
acquisition or retirement for value, of Indebtedness of the Company
that is subordinated in right of payment to the Securities; or
(4) make any Investment that is a Restricted Investment
(each of such payments or any other actions described in clauses (1)
through (4) being referred to as a "RESTRICTED PAYMENT") if, at the
time of, and after giving effect to, the proposed Restricted Payment:
(i) a Default or Event of Default shall have occurred
and be continuing;
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(ii) the Company could not Incur at least $1.00 of
Indebtedness (other than Permitted Indebtedness) pursuant to Section
4.04; or
(iii) the aggregate amount expended for all Restricted Payments
(the amount so expended, if other than in cash, to be determined in
good faith by the board of directors, whose determination shall be
conclusive and evidenced by a Board Resolution) after the Issue Date
shall exceed the sum of:
(A) 50% of the aggregate amount of the
Adjusted Consolidated Net Income (or, if the Adjusted
Consolidated Net Income is a loss, minus 100% of such
amount) (determined by excluding income created by
transfers of assets received by the Company or a
Restricted Subsidiary from an Unrestricted
Subsidiary) accrued on a cumulative basis during the
period (taken as one accounting period) beginning on
the first day of the fiscal quarter in which the
Issue Date occurs and ending on the last day of the
last fiscal quarter preceding the Transaction Date,
PLUS
(B) the aggregate net proceeds (including
the fair market value of non-cash proceeds as
determined in good faith by the Board of Directors)
received by the Company from the issuance and sale of
its Capital Stock (other than Redeemable Stock) to a
person who is not a Subsidiary of the Company,
(including Capital Stock of the Company (other than
Redeemable Stock) issued upon the conversion of
convertible Indebtedness, in exchange for outstanding
Indebtedness or upon the exercise of any options,
warrants or other rights to acquire Capital Stock
(other than Redeemable Stock) of the Company), PLUS
(C) without duplication, the sum of:
(I) the aggregate amount returned
in cash on or with respect to Investments
(other than Permitted Investments) made
subsequent to the Issue Date whether through
interest payments, principal
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payments, dividends or other distributions
or payments;
(II) the net cash proceeds received
by the Company or any Restricted Subsidiary
of the Company from the disposition of all
or any portion of such Investments (other
than to a Subsidiary of the Company); and
(III) upon redesignation of an
Unrestricted Subsidiary as a Restricted
Subsidiary, the fair market value of such
Subsidiary (valued in each case as provided
in the definition of "Investments");
PROVIDED, HOWEVER, that the sum of clauses (I), (II)
and (III) above shall not exceed the aggregate amount
of all such Investments made by the Company or any
Restricted Subsidiary in the relevant person or
Unrestricted Subsidiary subsequent to the Issue Date,
PLUS
(D) $10.0 million.
The foregoing provision shall not take into account, and shall not be violated
by reason of:
(1) the payment of any dividend within 60 days after the date
of declaration thereof if, at said date of declaration, such payment
would comply with the foregoing paragraph;
(2) the redemption, repurchase, defeasance, or other
acquisition or retirement for value of Indebtedness that is
subordinated in right of payment to the Securities including premium,
if any, and accrued and unpaid interest, with the proceeds of, or in
exchange for, permitted refinancing indebtedness;
(3) the repurchase, redemption or other acquisition of Capital
Stock of the Company in exchange for, or out of the proceeds of a
substantially concurrent offering of, shares of Capital Stock (other
than Redeemable Stock) of the Company;
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(4) the acquisition of Indebtedness of the Company that is
subordinated in right of payment to the Securities in exchange for, or
out of the proceeds of a substantially concurrent offering of, shares
of the Capital Stock of the Company (other than Redeemable Stock);
(5) the purchase, redemption, acquisition, cancellation, or
other retirement for value of shares of Capital Stock of the Company,
options on any such shares or related stock appreciation rights or
similar securities held by officers or employees or former officers or
employees (or their estates or beneficiaries under their estates), upon
death, disability, retirement, termination of employment, or pursuant
to any agreement under which such shares of stock or related rights
were issued;
(6) payments or distributions pursuant to or in connection
with a consolidation, merger, or transfer of assets that complies with
the provisions of this Indenture applicable to mergers, consolidations,
and transfers of all or substantially all of the property and assets of
the Company; or
(7) the payment of amounts due with respect to the Forward
Equity Contracts in effect on the Issue Date;
PROVIDED that, except in the case of clauses (1) and (3), no Default or Event of
Default shall have occurred and be continuing or occur as a consequence of the
actions or payments set forth therein.
Notwithstanding the foregoing, in the event of an issuance of
Capital Stock (other than Redeemable Stock) of the Company and (1) the
repurchase, redemption, or other acquisition of Capital Stock out of the
proceeds of such issuance or (2) the acquisition of Indebtedness that is
subordinated in right of payment to the Securities out of the proceeds of such
issuance, then, in calculating whether the conditions of clause (4)(iii) above
have been met with respect to any subsequent Restricted Payments, the proceeds
of any such issuance shall be included under such clause (4)(iii) only to the
extent such proceeds are not applied as described in clause (1) or (2) of this
paragraph.
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SECTION 4.04. LIMITATION ON INDEBTEDNESS.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, Incur any Indebtedness
(other than Permitted Indebtedness); PROVIDED, HOWEVER, that if no Default or
Event of Default shall have occurred and be continuing at the time of or as a
consequence of the Incurrence of any such Indebtedness, the Company or any
Restricted Subsidiary that is a Guarantor may Incur Indebtedness (including,
without limitation, Acquired Indebtedness) and any Restricted Subsidiary that is
not a Guarantor may Incur Acquired Indebtedness, in each case if on the date of
the Incurrence of such Indebtedness, after giving effect to the Incurrence
thereof, the Consolidated Fixed Charge Coverage Ratio of the Company would be
greater than 2.0 to 1.0.
Notwithstanding the foregoing, the Company and any Restricted
Subsidiary (except as specified below) may Incur each and all of the following
(each, "PERMITTED INDEBTEDNESS"):
(1) Indebtedness of the Company and any Guarantor
outstanding at any time in an aggregate principal amount not to exceed
an amount equal to $150.0 million under the Credit Agreement, less any
amount of Indebtedness permanently repaid as provided in Section 4.16;
(2) Indebtedness under the Securities and the related
Guarantees;
(3) other Indebtedness of the Company and its Restricted
Subsidiaries outstanding on the Issue Date;
(4) Indebtedness to the Company or any of its Wholly-Owned
Restricted Subsidiaries as long as such Indebtedness continues to be
owed to the Company or any of its Wholly-Owned Restricted Subsidiaries;
(5) Indebtedness issued in exchange for, or the net proceeds
of which are used to refinance or refund, Indebtedness then
outstanding, other than Indebtedness Incurred under clause (1) or (4)
above or clause (6) or (7) below, and any refinancings thereof in an
amount not to exceed the amount so refinanced or refunded (plus
premiums, accrued interest, fees, and expenses); PROVIDED that
Indebtedness the proceeds of which are used to refinance or refund the
Securities or Indebtedness that is PARI PASSU
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with, or subordinated in right of payment to, the Securities shall only
be permitted under this clause (5) if:
(i) in the case where the Indebtedness to be refinanced is
PARI PASSU with the Securities, such new Indebtedness, by its terms or
by the terms of any agreement or instrument pursuant to which such new
Indebtedness is outstanding, is expressly made PARI PASSU with, or
subordinate in right of payment to, the Securities;
(ii) in the case where the Indebtedness to be refinanced is
subordinated in right of payment to the Securities, such new
Indebtedness, by its terms or by the terms of any agreement or
instrument pursuant to which such new Indebtedness is outstanding, is
expressly made subordinate in right of payment to the Securities at
least to the extent that the Indebtedness to be refinanced is
subordinated to the Securities; and
(iii) such new Indebtedness, determined as of the date of
Incurrence of such new Indebtedness, does not mature prior to the
Stated Maturity of the Indebtedness to be refinanced or refunded, and
the Average Life of such new Indebtedness is at least equal to the
remaining Average Life of the Indebtedness to be refinanced or
refunded;
(6) Indebtedness:
(i) in respect of performance, surety or appeal bonds
provided in the ordinary course of business consistent with past
practice;
(ii) under Currency Agreements and Interest Rate Agreements;
PROVIDED that, in the case of Currency Agreements that relate to other
Indebtedness, such Currency Agreements do not increase the Indebtedness
of the obligor outstanding at any time other than as a result of
fluctuations in foreign currency exchange rates or by reason of fees,
indemnities, and compensation payable thereunder; and
(iii) arising from agreements providing for indemnification,
adjustment of purchase price, or similar obligations, or from
guarantees or letters of credit, bankers' acceptances, surety bonds, or
performance bonds securing any obligations of the Company or any of its
Re-
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stricted Subsidiaries pursuant to such agreements, in any case Incurred
in connection with the disposition of any business, assets, or
Restricted Subsidiary (other than guarantees of Indebtedness Incurred
by any person acquiring all or any portion of such business, assets, or
Restricted Subsidiary for the purpose of financing such acquisition),
in a principal amount not to exceed the gross proceeds actually
received by the Company or any Restricted Subsidiary in connection with
such disposition; and
(7) Indebtedness of the Company and its Restricted
Subsidiaries not to exceed $20.0 million at any time outstanding.
For purposes of determining compliance with this Section 4.04:
(1) in the event that an item of Indebtedness meets the
criteria of more than one of the types of Indebtedness described in the
clauses of the preceding paragraph, the Company, in its sole
discretion, shall classify (or later reclassify) such item of
Indebtedness and only be required to include the amount and type of
such Indebtedness in one such clause; and
(2) the amount of Indebtedness issued at a price that is less
than the principal amount thereof shall be equal to the amount of the
liability in respect thereof determined in conformity with GAAP.
Accrual of interest, accretion or amortization of original
issue discount, the payment of interest on any Indebtedness in the form of
additional Indebtedness with the same terms, and the payment of dividends on
Redeemable Stock in the form of additional shares of the same class of
Redeemable Stock will not be deemed to be an Incurrence of Indebtedness or an
issuance of Redeemable Stock for purposes of this Section 4.04.
SECTION 4.05. CORPORATE EXISTENCE.
Except as otherwise permitted by Article Five, 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 of its Restricted Subsidiaries in accordance with the
respec-
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tive organizational documents of each such Restricted Subsidiary and the rights
(charter and statutory) and material franchises of the Company and each of its
Restricted Subsidiaries; PROVIDED, HOWEVER, that the Company shall not be
required to preserve any such right, franchise or corporate existence with
respect to each such Restricted Subsidiary if the Board of Directors of the
Company shall determine that the loss thereof is not, and will not be, adverse
in any material respect to the Holders.
SECTION 4.06. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (a) all material taxes,
assessments and governmental charges levied or imposed upon it or any of its
Restricted Subsidiaries or upon the income, profits or property of it or any of
its Restricted Subsidiaries and (b) all lawful claims for labor, materials and
supplies which, in each case, if unpaid, might by law become a material
liability or Lien upon the property of it or any of its Restricted Subsidiaries;
PROVIDED, HOWEVER, that the Company shall not be required to pay or discharge or
cause to be paid or discharged any such tax, assessment, charge or claim whose
amount, (i) the applicability or validity is being contested in good faith by
appropriate proceedings and for which appropriate provision has been made or
(ii) where the failure to effect such payment or discharge is not adverse in any
material respect to the Holders.
SECTION 4.07. MAINTENANCE OF PROPERTIES AND INSURANCE.
(a) The Company shall cause all material properties owned by
or leased by it or any of its Restricted Subsidiaries used or useful to the
conduct of its business or the business of any of its Restricted Subsidiaries,
taken as a whole, to be maintained and kept in normal condition, repair and
working order and supplied with all necessary equipment and shall cause to be
made all repairs, renewals, replacements, and betterments thereof, all as in its
judgment may be necessary, so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; PROVIDED,
HOWEVER, that nothing in this Section 4.07 shall prevent the Company or any of
its Restricted Subsidiaries from discontinuing the use, operation or maintenance
of any of such properties, or disposing of any of them, if such discontinuance
or disposal is, in the
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judgment of the Board of Directors of the Company or any such Restricted
Subsidiary desirable in the conduct of the business of the Company or any such
Restricted Subsidiary, and if such discontinuance or disposal is not adverse in
any material respect to the Holders; PROVIDED, FURTHER, that nothing in this
Section 4.07 shall prevent the Company or any of its Restricted Subsidiaries
from discontinuing or disposing of any properties to the extent otherwise
permitted by this Indenture.
(b) The Company shall maintain, and shall cause its Restricted
Subsidiaries to maintain, insurance with responsible carriers against such risks
and in such amounts, and with such deductibles, retentions, self-insured amounts
and co-insurance provisions, as are, in the Company's reasonable judgment,
customarily carried by similar businesses of similar size, including property
and casualty loss, workers' compensation and interruption of business insurance.
SECTION 4.08. COMPLIANCE CERTIFICATE; NOTICE OF DEFAULT.
(a) The Company and each Guarantor shall deliver to the
Trustee, within 90 days after the close of each fiscal year of the Company
(which is currently the Sunday closest to December 31) an Officers' Certificate
stating that a review of the activities of the Company or the applicable
Guarantor has been made under the supervision of the signing Officers with a
view to determining whether it has kept, observed, performed and fulfilled its
obligations under this Indenture and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge the Company
or the applicable Guarantor during such preceding fiscal year has kept,
observed, performed and fulfilled each and every such covenant and no Default or
Event of Default occurred during such year and at the date of such certificate
there is no Default or Event of Default that has occurred and is continuing or,
if such signers do know of such Default or Event of Default, the certificate
shall describe its status with particularity. The applicable Officers'
Certificate shall also notify the Trustee should the Company or any Guarantor
elect to change the manner in which it fixes its fiscal year end.
(b) The annual financial statements delivered pursuant to
Section 4.10 shall be accompanied by a written report of the Company's certified
independent accountants (who shall be a
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firm of established national reputation) that in conducting their audit of such
financial statements nothing has come to their attention that would lead them to
believe that the Company has violated any provisions of Article Four, Five or
Six of this Indenture insofar as they relate to accounting matters or, if any
such violation has occurred, specifying the nature and period of existence
thereof, it being understood that such accountants shall not be liable directly
or indirectly to any Person for any failure to obtain knowledge of any such
violation.
(c) The Company shall deliver to the Trustee, forthwith upon
becoming aware of any Default or Event of Default in the performance of any
covenant, agreement or condition contained in this Indenture, an Officers'
Certificate specifying the Default or Event of Default and describing its status
with particularity.
SECTION 4.09. COMPLIANCE WITH LAWS.
The Company shall comply, and shall cause each of its
Subsidiaries to comply, with all applicable statutes, rules, regulations, orders
and restrictions of the United States, all states and municipalities thereof,
and of any governmental department, commission, board, regulatory authority,
bureau, agency and instrumentality of the foregoing, in respect of the conduct
of their respective businesses and the ownership of their respective properties,
except for such noncompliances as would not in the aggregate have a material
adverse effect on the financial condition or results of operations of the
Company and its Subsidiaries taken as a whole.
SECTION 4.10. REPORTS TO HOLDERS.
Whether or not required by the rules and regulations of the
Commission, so long as any Securities are outstanding, the Company will furnish
the Holders of Securities:
(1) all quarterly and annual financial information that
would be required to be contained in a filing with the Commission on
Forms 10-Q and 10-K if the Company were required to file such forms,
including a "Management's Discussion and Analysis of Financial
Condition and Results of Operations" that describes the financial
condition and results of operations of the Company and its consolidated
Subsidiaries and, with respect to the annual information
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only, a report thereon by the Company's certified independent
accountants; and
(2) all current reports that would be required to be filed
with the Commission on Form 8-K if the Company were required to file
such reports, in each case within the time periods specified in the
Commission's rules and regulations.
In addition, whether or not required by the rules and
regulations of the Commission, the Company will file a copy of all such
information and reports with the Commission for public availability within the
time periods specified in the Commission's rules and regulations (unless the
Commission will not accept such a filing) and make such information available to
securities analysts and prospective investors upon request. In addition, the
Company has agreed that, for so long as any Securities remain outstanding, it
will furnish to the Holders and to securities analysts and prospective
investors, upon their request, the information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act.
SECTION 4.11. WAIVER OF STAY, EXTENSION OR USURY LAWS.
Each of the Company and each Guarantor covenants (to the
extent that it may lawfully do so) that it will not at any time insist upon,
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law or any usury law or other law that would prohibit or
forgive the Company or such Guarantor from paying all or any portion of the
principal of and/or interest on the Securities or the Guarantee of any such
Guarantor as contemplated herein, wherever enacted, now or at any time hereafter
in force, or which may affect the covenants or the performance of this
Indenture, and (to the extent that it may lawfully do so) each 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 4.12. LIMITATIONS ON TRANSACTIONS WITH SHAREHOLDERS AND
AFFILIATES.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, enter into, re-
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new, or extend any transaction (including, without limitation, the purchase,
sale, lease, or exchange of property or assets, or the rendering of any service)
with any holder (or any Affiliate of such holder) of 5% or more of any class of
Capital Stock of the Company or with any Affiliate of the Company or any
Restricted Subsidiary (each, a "RELATED PARTY TRANSACTION"), except upon fair
and reasonable terms no less favorable to the Company or such Restricted
Subsidiary than could be obtained, at the time of such transaction or at the
time of the execution of the agreement providing therefor, in a comparable
arm's-length transaction with a person that is not such a holder or an
Affiliate.
Without limiting the foregoing:
(1) any Related Party Transaction or series of Related Party
Transactions with an aggregate value in excess of $1.0 million must
first be approved pursuant to a Board Resolution by a majority of the
Board of Directors of the Company who are disinterested in the subject
matter of the transaction; and
(2) with respect to any Related Party Transaction or series
of Related Party Transactions with an aggregate value in excess of
$10.0 million, the Company must first obtain a favorable written
opinion from an independent financial advisor of national reputation as
to the fairness, from a financial point of view, of such transaction to
the Company or such Restricted Subsidiary, as the case may be.
The foregoing limitation does not limit, and shall not apply
to:
(1) any transaction between the Company and any of its
Wholly-Owned Restricted Subsidiaries or between Wholly-Owned Restricted
Subsidiaries of the Company;
(2) the payment of reasonable and customary regular fees to
directors of the Company who are not employees of the Company;
(3) any Restricted Payments not prohibited by Section 4.03; or
(4) any loans or advances by the Company to employees of the
Company or a Restricted Subsidiary in the ordi-
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nary course of business and in furtherance of the Company's business.
SECTION 4.13. LIMITATION ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS
AFFECTING RESTRICTED SUBSIDIARIES.
The Company shall not, and shall not permit any Restricted
Subsidiary to, create or otherwise cause or suffer to exist or become effective
any kind of consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to:
(1) pay dividends or make any other distributions permitted
by applicable law on any Capital Stock of such Restricted Subsidiary
owned by the Company or any other Restricted Subsidiary;
(2) pay any Indebtedness or other obligation owed to the
Company or any other Restricted Subsidiary;
(3) make loans or advances to the Company or any other
Restricted Subsidiary; or
(4) transfer any of its property or assets to the Company or
any other Restricted Subsidiary.
The foregoing provisions shall not restrict any encumbrances
or restrictions:
(1) existing on the Issue Date in the Credit Agreement, the
Indenture, or any other agreements in effect on the Issue Date, and any
extensions, refinancings, renewals, or replacements of any of the
foregoing; provided that the encumbrances and restrictions in any such
extensions, refinancings, renewals, or replacements are no less
favorable in any material respect to the Holders than those
encumbrances or restrictions that are then in effect and that are being
extended, refinanced, renewed, or replaced;
(2) existing under or by reason of applicable law;
(3) existing with respect to any person or the property or
assets of such person acquired by the Company or any Restricted
Subsidiary and existing at the time of such acquisition, which
encumbrances or restrictions (i) are
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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 (ii) were not put in place in anticipation of such
acquisition, and any extensions, refinancings, renewals, or
replacements of any of the foregoing; PROVIDED that the encumbrances
and restrictions in any such extensions, refinancings, renewals, or
replacements are no less favorable in any material respect to the
Holders than those encumbrances or restrictions that are then in effect
and that are being extended, refinanced, renewed, or replaced;
(4) in the case of clause (4) of the first paragraph of this
covenant;
(i) that restrict in a customary manner the subletting,
assignment, or transfer of any property or asset that is a lease,
license, conveyance, or contract or similar property or asset;
(ii) existing by virtue of any transfer of, agreement to
transfer, option or right with respect to, or Lien on, any property or
assets of the Company or any Restricted Subsidiary not otherwise
prohibited by the Indenture; or
(iii) not relating to any Indebtedness, and, in each of cases
(i), (ii), or (iii), arising or agreed to in the ordinary course of
business and that do not, individually or in the aggregate, detract
from the value of property or assets of the Company or any Restricted
Subsidiary in any manner material to the Company or any Restricted
Subsidiary; or
(5) with respect to a Restricted Subsidiary and imposed
pursuant to an agreement that has been entered into for the sale or
disposition of all or substantially all of the Capital Stock of, or
property and assets of, such Restricted Subsidiary.
Nothing contained in the preceding paragraph shall prevent the
Company or any Restricted Subsidiary from (1) creating, incurring, assuming, or
suffering to exist any Liens otherwise permitted by Section 4.14 or (2)
restricting the sale or other disposition of property or assets of the Company
or any of its Restricted Subsidiaries that secure Indebtedness of the Company or
any of its Restricted Subsidiaries.
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SECTION 4.14. LIMITATION ON LIENS.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create, Incur, assume or permit or suffer
to exist any Liens of any kind against or upon any property or assets of the
Company or any of its Restricted Subsidiaries whether owned on the Issue Date or
acquired after the Issue Date, or any proceeds therefrom, or assign or otherwise
convey any right to receive income or profits therefrom unless:
(1) in the case of Liens securing Indebtedness that is
expressly subordinate or junior in right of payment to the Securities,
the Securities are secured by a Lien on such property, assets or
proceeds that is senior in priority to such Liens; and
(2) in all other cases, the Securities are equally and ratably
secured, except for:
(i) Liens existing as of the Issue Date to the extent and in
the manner such Liens are in effect on the Issue Date;
(ii) Liens securing Senior Debt and Liens securing Guarantor
Senior Debt;
(iii) Liens securing the Securities and the Guarantees;
(iv) Liens of the Company or a Wholly-Owned Restricted
Subsidiary of the Company on assets of any Restricted Subsidiary of the
Company;
(v) Liens securing Indebtedness which is Incurred to
refinance any Indebtedness which has been secured by a Lien permitted
under this Indenture and which has been Incurred in accordance with the
provisions of this Indenture; PROVIDED, HOWEVER, that such Liens: (A)
are no less favorable to the Holders and are not more favorable to the
lienholders with respect to such Liens than the Liens in respect of the
Indebtedness being refinanced; and (B) do not extend to or cover any
property or assets of the Company or any of its Restricted Subsidiaries
not securing the Indebtedness so refinanced; and
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(vi) Permitted Liens.
SECTION 4.15. CHANGE OF CONTROL.
Upon the occurrence of a Change of Control, each Holder shall
have the right to require the repurchase of its Securities by the Company in
cash pursuant to the offer described below (the "CHANGE OF CONTROL OFFER") at a
purchase price equal to 101% of the principal amount thereof, plus accrued
interest (if any) to the date of purchase (the "CHANGE OF CONTROL PAYMENT").
Prior to the mailing of the notice to Holders provided for in the succeeding
paragraph, but in any event within 30 days following any Change of Control, the
Company covenants to:
(1) repay in full all Indebtedness of the Company that would
prohibit the repurchase of the Securities as provided for in the
succeeding paragraph; or
(2) obtain any requisite consents under instruments
governing any such Indebtedness of the Company to permit the repurchase
of the Securities as provided for in the succeeding paragraph. The
Company shall first comply with clause (1) above before it shall be
required to repurchase Securities pursuant to this Section 4.15.
Within 30 days of the Change of Control, the Company shall
mail a notice to the Trustee and each Holder stating:
(1) that a Change of Control has occurred (and a brief
description of the events resulting in such Change of Control), that
the Change of Control Offer is being made pursuant to this Section 4.15
and that all Securities validly tendered will be accepted for payment;
(2) the purchase price and the date of purchase (which shall
be the date 20 business days from the date such notice is mailed) (the
"CHANGE OF CONTROL PAYMENT DATE");
(3) that any Security not tendered will continue to accrue
interest pursuant to its terms;
(4) that, unless the Company defaults in the payment of the
Change of Control Payment, any Security accepted for payment pursuant
to the Change of Control Offer shall
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cease to accrue interest on and after the Change of Control Payment
Date;
(5) that Holders electing to have any Security or portion
thereof purchased pursuant to the Change of Control Offer will be
required to surrender such Security, together with the form entitled
"Option of the Holder to Elect Purchase" on the reverse side of such
Security completed, to the Paying Agent at the address specified in the
notice prior to the close of business on the business day immediately
preceding the Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their election
if the Paying Agent receives, not later than the close of business on
the third business day immediately preceding the Change of Control
Payment Date, a telegram, telex, facsimile transmission, or letter
setting forth the name of such Holder, the principal amount of
Securities delivered for purchase, and a statement that such Holder is
withdrawing his election to have such Securities purchased; and
(7) that Holders whose Securities are being purchased only
in part will be issued new Securities equal in principal amount to the
unpurchased portion of the Securities surrendered; PROVIDED that each
Security purchased and each new Security issued shall be in a principal
amount of $1,000 or integral multiples thereof.
On the Change of Control Payment Date, the Company shall:
(1) accept for payment Securities or portions thereof
tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent money sufficient to pay
the purchase price of all Securities or portions thereof so accepted;
and
(3) deliver, or cause to be delivered, to the Trustee, all
Securities or portions thereof so accepted together with an officers'
certificate specifying the Securities or portions thereof accepted for
payment by the Company.
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The Paying Agent shall promptly mail, to the holders of
Securities so accepted, payment in an amount equal to the purchase price, and
the Trustee shall promptly authenticate and mail to such Holders a new Security
equal in principal amount to any unpurchased portion of the Securities
surrendered; PROVIDED that each Security purchased and each new Security issued
shall be in a principal amount of $1,000 or integral multiples thereof. The
Company will publicly announce the results of the Change of Control Offer on or
as soon as practicable after the Change of Control Payment Date. For purposes of
this Section 4.15, the Trustee shall act as Paying Agent.
The Company will comply with 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 the event that a Change of Control occurs and
the Company is required to repurchase the Securities pursuant to this Section
4.15.
SECTION 4.16. LIMITATION ON ASSET SALES.
The Company shall not effect or permit any Asset Sale unless:
(1) such Asset Sale is effected at least fair market value
(as determined in good faith by the Board of Directors);
(2) in the case of any Asset Sale or series of related Asset
Sales for a total consideration in excess of $10.0 million, at least
80% of the consideration is received in cash; and
(3) in the event and to the extent that the Net Cash
Proceeds received by the Company or any of its Restricted Subsidiaries
from one or more Asset Sales occurring on or after the Issue Date
exceed $10.0 million;
then the Company shall or shall cause the relevant Restricted Subsidiary to:
(1) within 270 days after the date Net Cash Proceeds so
received exceed $10.0 million:
(i) apply an amount equal to such excess Net Cash Proceeds
to permanently repay Senior Debt, Guarantor Sen-
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ior Debt or Indebtedness of any Restricted Subsidiary that is not a
Guarantor in each case owing to a person other than the Company or any
of its Restricted Subsidiaries and, in the case of repayment of
Indebtedness arising under the Credit Agreement or any other revolving
credit facility, effect a permanent reduction in the commitments or
availability under the Credit Agreement or such other facility; or
(ii) invest an equal amount, or the amount not so applied
pursuant to clause (i) (or enter into a definitive agreement committing
so to invest within 270 days after the date of receipt of such Net Cash
Proceeds and investing within 360 days of the receipt of such Net Cash
Proceeds), in property or assets of a nature or type or that are used
in a business similar or related to the nature or type of the property
and assets of, or the business of, the Company and its Restricted
Subsidiaries existing on the date of such investment (as determined in
good faith by the Board of Directors, whose determination shall be
conclusive and evidenced by a Board Resolution); and
(2) apply (no later than the end of the periods referred to
in clause (1)) such excess Net Cash Proceeds (to the extent not applied
pursuant to clause (1)) as provided below. The amount of such excess
Net Cash Proceeds required to be applied (or to be committed to be
applied) during such 270-day period as set forth in clause (1) of the
preceding sentence and not applied as so required by the end of such
period (or, with respect to such Net Cash Proceeds committed to be
applied, such 360-day period) shall constitute "EXCESS PROCEEDS."
If, as of the first day of any calendar month, the aggregate
amount of Excess Proceeds not theretofore subject to an Excess Proceeds Offer
totals at least $10.0 million, the Company must, not later than the fifteenth
Business Day of such month, make an offer (an "EXCESS PROCEEDS OFFER") to
purchase from the Holders on a pro rata basis an aggregate principal amount of
Securities equal to the Excess Proceeds on such date, at a purchase price equal
to 100% of the principal amount of the Securities, plus, in each case, accrued
interest (if any) to the date of purchase (the "EXCESS PROCEEDS PAYMENT").
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The Company shall commence an Excess Proceeds Offer by mailing
a notice to the Trustee and each Holder stating:
(1) that the Excess Proceeds Offer is being made pursuant to
this Section 4.16 and that all Securities validly tendered will be
accepted for payment on a pro rata basis;
(2) the purchase price and the date of purchase (which shall
be the date 20 Business Days from the date such notice is mailed) (the
"EXCESS PROCEEDS PAYMENT DATE");
(3) that any Security not tendered will continue to accrue
interest pursuant to its terms;
(4) that, unless the Company defaults in the payment of the
Excess Proceeds Payment, any Security accepted for payment pursuant to
the Excess Proceeds Offer shall cease to accrue interest on and after
the Excess Proceeds Payment Date;
(5) that Holders electing to have a Security purchased
pursuant to the Excess Proceeds Offer will be required to surrender the
Security, together with the form entitled "Option of the Holder to
Elect Purchase" on the reverse side of the Security completed, to the
Paying Agent at the address specified in the notice prior to the close
of business on the Business Day immediately preceding the Excess
Proceeds Payment Date;
(6) that Holders will be entitled to withdraw their election
if the Paying Agent receives, not later than the close of business on
the third Business Day immediately preceding the Excess Proceeds
Payment Date, a telegram, facsimile transmission, or letter setting
forth the name of such Holder, the principal amount of Securities
delivered for purchase and a statement that such Holder is withdrawing
his election to have such Securities purchased; and
(7) that Holders whose Securities are being purchased only
in part will be issued new Securities equal in principal amount to the
unpurchased portion of the Securities surrendered; PROVIDED that each
Security purchased
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and each new Security issued shall be in a principal amount of $1,000
or any integral multiples thereof.
On the Excess Proceeds Payment Date, the Company shall:
(1) accept for payment on a pro rata basis Securities or
portions thereof tendered pursuant to the Excess Proceeds Offer;
(2) deposit with the Paying Agent money sufficient to pay
the purchase price of all Securities or portions thereof so accepted;
and
(3) deliver, or cause to be delivered, to the Trustee all
Securities or portions thereof so accepted together with an Officers'
Certificate specifying the Securities or portions thereof accepted for
payment by the Company.
The Paying Agent shall promptly mail to the Holders of
Securities so accepted payment in an amount equal to the purchase price, and the
Trustee shall promptly authenticate and mail to such Holders a new Security
equal in principal amount to any unpurchased portion of the Security
surrendered; PROVIDED that each Security purchased and each new Security issued
shall be in a principal amount of $1,000 or any integral multiples thereof. The
Company will publicly announce the results of the Excess Proceeds Offer as soon
as practicable after the Excess Proceeds Payment Date. For purposes of this
Section 4.16, the Trustee shall act as the Paying Agent.
The Company will comply with 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 the event that such Excess Proceeds are
received by the Company pursuant to this Section 4.16 and the Company is
required to repurchase Securities as described above.
SECTION 4.17. PROHIBITION ON INCURRENCE OF SENIOR SUBORDINATED
DEBT.
The Company shall not, and shall not permit any Restricted
Subsidiary that is a Guarantor to, Incur or suffer to exist Indebtedness that is
senior in right of payment to the Securities or such Guarantor's Guarantee, as
the case may be,
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and subordinate in right of payment to any other Indebtedness of the Company or
such Guarantor, as the case may be.
SECTION 4.18. LIMITATION OF GUARANTEES BY RESTRICTED SUBSIDIARIES.
The Company shall not permit any of its Restricted
Subsidiaries, directly or indirectly, by way of the pledge of any intercompany
note or otherwise, to assume, guarantee or in any other manner become liable
with respect to any Indebtedness of the Company or any other Restricted
Subsidiary of the Company (other than Permitted Indebtedness of a Restricted
Subsidiary of the Company), unless, in any such case:
(1) such Restricted Subsidiary executes and delivers a
supplemental indenture to this Indenture, providing a guarantee of
payment of the Securities by such Restricted Subsidiary; and
(2) (i) if any such assumption, guarantee or other liability
of such Restricted Subsidiary is provided in respect of Senior Debt,
the guarantee or other instrument provided by such Restricted
Subsidiary in respect of such Senior Debt may be senior to the
Guarantee pursuant to subordination provisions no less favorable to the
Holders of the Securities than those contained in this Indenture; and
(ii) if such assumption, guarantee or other liability of such
Restricted Subsidiary is provided in respect of Indebtedness that is
expressly subordinated to the Securities, the guarantee or other
instrument provided by such Restricted Subsidiary in respect of such
subordinated Indebtedness shall be subordinated to the Guarantee
pursuant to subordination provisions no less favorable to the Holders
of the Securities than those contained in the Indenture.
Notwithstanding the foregoing, any such Guarantee by a
Restricted Subsidiary of the Securities shall provide by its terms that it shall
be automatically and unconditionally released and discharged, without any
further action required on the part of the Trustee or any Holder, upon:
(1) the unconditional release of such Restricted Subsidiary
from its liability in respect of the Indebted-
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ness in connection with which such Guarantee was executed and delivered
pursuant to the preceding paragraph; or
(2) any sale or other disposition (by merger or otherwise)
to any person which is not a Restricted Subsidiary of the Company of
all of the Company's Capital Stock in, or all or substantially all of
the assets of, such Restricted Subsidiary; PROVIDED that (i) such sale
or disposition of such Capital Stock or assets is otherwise in
compliance with the terms of this Indenture and (ii) such assumption,
guarantee or other liability of such Restricted Subsidiary has been
released by the holders of the other Indebtedness so guaranteed.
SECTION 4.19. PAYMENT FOR CONSENTS.
Neither the Company nor any of its Subsidiaries shall directly
or indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee, or otherwise, to any Holder of any Security for or as an
inducement to any consent, waiver, or amendment of any of the terms or
provisions of this Indenture or the Securities unless such consideration is
offered to be paid or agreed to be paid to all Holders of the Securities that
consent, waive, or agree to amend in the time frame set forth in the
solicitation documents relating to such consent, waiver, or agreement.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. CONSOLIDATION, MERGER AND SALE OF ASSETS.
The Company shall not consolidate with, merge with or into, or
sell, convey, transfer, lease, or otherwise dispose of all or substantially all
of its property and assets (as an entirety or substantially an entirety in one
transaction or a series of related transactions) to any Person (other than a
consolidation with or merger with or into a Wholly-Owned Restricted Subsidiary
with a positive net worth; PROVIDED that, in connection with any such merger of
the Company with a Wholly-Owned Restricted Subsidiary, no consideration (other
than common stock in the surviving person or the Company) shall
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be issued or distributed to the stockholders of the Company) or permit any
Person to merge with or into the Company unless:
(1) 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 that acquired or leased such property
and assets of the Company shall be a corporation organized and validly
existing under the laws of the United States of America or any state
thereof or the District of Columbia and shall expressly assume, by a
supplemental indenture, executed and delivered to the Trustee, all of
the obligations of the Company on all of the Securities and under this
Indenture;
(2) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(3) immediately after giving effect to such transaction on a
PRO FORMA basis, the Company or any Person becoming the successor
obligor of the Securities, as the case may be, shall have a
Consolidated Net Worth equal to or greater than the Consolidated Net
Worth of the Company immediately prior to such transaction;
(4) immediately after giving effect to such transaction on a
PRO FORMA basis, the consolidated resulting surviving or transferee
entity would immediately thereafter be permitted to incur at least
$1.00 of additional Indebtedness (other than Permitted Indebtedness)
pursuant to Section 4.04; and
(5) the Company delivers to the Trustee an Officers'
Certificate (attaching the arithmetic computations to demonstrate
compliance with clause (3)) and Opinion of Counsel, in each case
stating that such consolidation, merger, or transfer and such
supplemental indenture complies with this provision and that all
conditions precedent provided for herein relating to such transaction
have been complied with; PROVIDED, HOWEVER, that clause (3) above does
not apply if, in the good faith determination of the Board of Directors
of the Company, whose determination shall be evidenced by a Board
Resolution, the principal purpose of such transaction is to change the
state of incorporation of the Company; and PROVIDED FURTHER that any
such trans-
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action shall not have as one of its purposes the evasion of the
limitations contained in this Section 5.01.
Upon any consolidation, combination or merger or any transfer
of all or substantially all of the assets of the Company in accordance with this
Section 5.01, in which the Company is not the continuing corporation, the
successor Person formed by such consolidation or into which the Company is
merged or to which such conveyance, lease or transfer is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture and the Securities with the same effect as if such
surviving entity had been named as such.
Each Guarantor (other than any Guarantor whose Guarantee is to
be released in accordance with the terms of the Guarantee and this Indenture in
connection with any transaction complying with the provisions of Section 4.16)
shall not, and the Company shall not cause or permit any Guarantor to,
consolidate with or merge with or into any Person other than the Company or any
other Guarantor unless:
(1) the entity formed by or surviving any such consolidation
or merger (if other than the Guarantor) or to which such sale, lease,
conveyance or other disposition shall have been made is a corporation
organized and existing under the laws of the United States or any State
thereof or the District of Columbia;
(2) such entity assumes by supplemental indenture all of the
obligations of the Guarantor on the Guarantee;
(3) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing; and
(4) immediately after giving effect to such transaction and
the use of any net proceeds therefrom on a PRO FORMA basis, the Company
could satisfy the provisions of clause (4) of the first paragraph of
this Section 5.01.
Any merger or consolidation of a Guarantor with and into the
Company (with the Company being the surviving entity) or any merger or
consolidation of a Guarantor and a Restricted Subsidiary of the Company (with a
Guarantor being the surviving
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entity) need only comply with clause (5) of the first paragraph of this Section
5.01.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation, combination or merger or any transfer
of all or substantially all of the assets of the Company in accordance with
Section 5.01 in which the Company or any Guarantor, as applicable, is not the
continuing corporation, the successor Person formed by such consolidation or
into which the Company or such Guarantor is merged or to which such conveyance,
lease or transfer is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company or such Guarantor under this
Indenture and the Securities or the Guarantee, as applicable, with the same
effect as if such surviving entity had been named as such.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
Each of the following shall be an "EVENT OF DEFAULT":
(1) the failure to pay the principal of (or premium if any,
on) any Securities, when the same becomes due and payable at maturity,
upon acceleration, redemption, mandatory repurchase or otherwise
(whether or not such payment shall be prohibited by Article Ten or
Twelve of this Indenture);
(2) the failure to pay interest on any Securities when the
same becomes due and payable, and such default continues for a period
of 30 days (whether or not such payment shall be prohibited by Article
Ten or Twelve of this Indenture);
(3) a default in the performance of or breach of any other
covenant or agreement contained in this Indenture, with respect to the
Securities and such default or breach continues for a period of 30
consecutive days after written notice by the Trustee or by the Holders
of 25% or more
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in aggregate principal amount of the Securities specifying the default
(and demanding that such default be remedied);
(4) there occurs with respect to any issue or issues of
Indebtedness of the Company or any Restricted Subsidiary having an
outstanding principal amount of $10.0 million or more in the aggregate
for all such issues of all such persons, whether such Indebtedness now
exists or shall hereafter be created:
(i) an event of default that has caused the holder thereof to
declare such Indebtedness to be due and payable prior to its Stated
Maturity and/or
(ii) the failure to make a principal payment at the final (buy
not any interim) fixed maturity;
(5) any final judgment or order (not covered by insurance)
for the payment of money in excess of $10.0 million in the aggregate
for all such final judgments or orders (treating any deductibles,
self-insurance, or retention as not so covered) is rendered against the
Company or any Restricted Subsidiary and shall not be paid or
discharged, and there shall be any period of 60 consecutive days
following entry of the final judgment or order that causes the
aggregate amount for all such final judgments or orders outstanding and
not paid or discharged against all such persons to exceed $10.0 million
during which a stay of enforcement of such final judgment or order, by
reason of a pending appeal or otherwise, shall not be in effect;
(6) a court having jurisdiction in the premises enters a
decree or order for (i) relief in respect of the Company or any
Restricted Subsidiary in an involuntary case under any applicable
bankruptcy, insolvency, or other similar law now or hereafter in
effect; (ii) appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator, or similar official of the Company or
any Restricted Subsidiary or for all or substantially all of the
property and assets of the Company or any Restricted Subsidiary; or
(iii) the winding up or liquidation of its affairs or any Restricted
Subsidiary, and, in each case, such decree or order shall remain
unstayed and in effect for a period of 60 consecutive days;
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(7) the Company or any Restricted Subsidiary (i) commences a
voluntary case under any applicable bankruptcy, insolvency, or other
similar law now or hereafter in effect or consents to the entry of an
order for relief in an involuntary case or proceeding under any such
law, (ii) consents to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator, or
similar official of the Company or any Restricted Subsidiary or for all
or substantially all of the property and assets of the Company or any
Restricted Subsidiary, (iii) effects any general assignment for the
benefit of its creditors or (iv) takes any corporate action to
authorize or effect any of the foregoing; or
(8) any Guarantee of a Restricted Subsidiary ceases to be in
full force and effect or any Guarantee of a Restricted Subsidiary is
declared to be null and void and unenforceable or any Guarantee of a
Restricted Subsidiary is found to be invalid or any Guarantor that is a
Restricted Subsidiary denies its liability under its Guarantee (other
than by reason of release of such Guarantor in accordance with the
terms of this Indenture).
SECTION 6.02. ACCELERATION.
If an Event of Default (other than an Event of Default
specified in clause (6) or (7) of Section 6.01 above with respect to the
Company) occurs and is continuing, either the Trustee or the Holders of not less
than 25% in aggregate principal amount of outstanding Securities may declare the
principal of and accrued interest on all the Securities to be due and payable by
notice in writing to the Company (and the Trustee if given by the Holders)
specifying the respective Event of Default and that it is a "notice of
acceleration" (the "ACCELERATION NOTICE"), and the same (i) shall become
immediately due and payable or (ii) if there are any amounts outstanding under
the Credit Agreement, shall become immediately due and payable upon the first to
occur of an acceleration under the Credit Agreement or five (5) Business Days
after receipt by the Company and the Representative under the Credit Agreement
of such Acceleration Notice but only if such Event of Default is then
continuing. In the event of a declaration of acceleration because an Event of
Default set forth in clause (4) of Section 6.01 above has occurred and is
continuing, such declaration of acceleration shall be automatically rescinded
and annulled if
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the event of default or payment default triggering such Event of Default
pursuant to such clause (4) shall be remedied or cured by the Company and/or the
relevant Restricted Subsidiary or waived by the holders of the relevant
Indebtedness within 60 days after the declaration of acceleration with respect
thereto. If an Event of Default specified in clause (6) or (7) of Section 6.01
above with respect to the Company occurs and is continuing, then all unpaid
principal of, and premium, if any, and accrued and unpaid interest on all of the
outstanding Securities shall IPSO FACTO become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holder.
At any time after a declaration of acceleration with respect
to the Securities as described in the preceding paragraph, the Holders of a
majority in principal amount of the Securities may rescind and cancel such
declaration and its consequences (i) if the rescission would not conflict with
any judgment or decree, (ii) if all existing Events of Default have been cured
or waived except nonpayment of principal or interest that has become due solely
because of the acceleration, (iii) to the extent the payment of such interest is
lawful, interest on overdue installments of interest and overdue principal,
which has become due otherwise than by such declaration of acceleration, has
been paid, (iv) if the Company has paid the Trustee its reasonable compensation
and reimbursed the Trustee for its expenses, disbursements and advances,
including counsel fees and expenses, and any other amounts due to the Trustee
under Section 7.07 and (v) in the event of the cure or waiver of an Event of
Default of the type described in clause (6) or (7) of Section 6.01, the Trustee
shall have received an Officers' Certificate and an Opinion of Counsel that such
Event of Default has been cured or waived. No such rescission shall affect any
subsequent Default or Event of Default or impair any right consequent thereto.
SECTION 6.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
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The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Securityholder in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
SECTION 6.04. WAIVER OF PAST DEFAULTS.
Subject to Sections 2.09, 6.07 and 9.02, the Holders of not
less than a majority in principal amount of the outstanding Securities by notice
to the Trustee may waive an existing Default or Event of Default and its
consequences, except a Default or Event of Default in the payment of principal
of or interest on any Security as specified in clauses (1) and (2) of Section
6.01. The Company shall deliver to the Trustee an Officers' Certificate stating
that the requisite percentage of Holders have consented to such waiver and
attaching copies of such consents. When a Default or Event of Default is waived,
it is cured and ceases.
SECTION 6.05. CONTROL BY MAJORITY.
The Holders of not less than a majority in principal amount of
the outstanding Securities may direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or exercising any trust
or power conferred on it. Subject to Section 7.01, however, the Trustee may
refuse to follow any direction that conflicts with any law or this Indenture,
that the Trustee determines may be unduly prejudicial to the rights of another
Securityholder, or that may involve the Trustee in personal liability; PROVIDED
that the Trustee may take any other action deemed proper by the Trustee which is
not inconsistent with such direction.
In the event the Trustee takes any action or follows any
direction pursuant to this Indenture, the Trustee shall be entitled to
indemnification satisfactory to it in its sole discretion against any loss or
expense caused by taking such action or following such direction.
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SECTION 6.06. LIMITATION ON SUITS.
A Securityholder may not pursue any remedy with respect to
this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(2) the Holder or Holders of at least 25% in principal
amount of the outstanding Securities make a written request to the
Trustee to pursue the remedy;
(3) such Holder or Holders offer and, if requested, provide
to the Trustee indemnity 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) during such 60-day period the Holder or Holders of a
majority in principal amount of the outstanding Securities do not give
the Trustee a direction which, in the opinion of the Trustee, is
inconsistent with the request.
A Securityholder may not use this Indenture to prejudice the
rights of another Securityholder or to obtain a preference or priority over such
other Securityholder.
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the
right of any Holder to receive payment of principal of and interest on a
Security, on or after the respective due dates expressed in such Security, or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of the Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default in payment of principal or interest
specified in clause (1) or (2) of Section 6.01 occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company or any other obligor on the Securities for the whole amount
of
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principal and accrued interest and fees remaining unpaid, together with interest
on overdue principal and, to the extent that payment of such interest is lawful,
interest on overdue installments of interest, in each case at the rate PER ANNUM
borne by the Securities and such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due to the Trustee under Section 7.07.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due to the Trustee under Section 7.07) and the Securityholders allowed
in any judicial proceedings relating to the Company, its creditors or its
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, and any Custodian in any such judicial proceedings is hereby
authorized by each Securityholder 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 Securityholders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agent and counsel, and any other amounts due the Trustee under Section 7.07.
Nothing herein contained shall be deemed to authorize the Trustee to authorize
or consent to or accept or adopt on behalf of any Securityholder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Securityholder in any such proceeding.
SECTION 6.10. PRIORITIES.
If the Trustee collects any money or property pursuant to this
Article Six, it shall pay out the money or property in the following order:
First: to the Trustee for amounts due under Section 7.07;
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Second: subject to Articles Ten and Twelve, to Holders for
interest accrued on the Securities, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Securities for interest;
Third: subject to Articles Ten and Twelve, to Holders for
principal amounts due and unpaid on the Securities, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Securities for principal; and
Fourth: to the Company or, if applicable, the Guarantors, as
their respective interests may appear.
The Trustee, upon prior notice to the Company, may fix a
record date and payment date for any payment to Securityholders 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 6.07, or a suit by a Holder or Holders of more than
10% in principal amount of the outstanding Securities.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. 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 use the same degree of care and skill in their exercise
as a prudent trustee would ex-
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ercise or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties as are
specifically set forth herein or in the TIA and no duties, covenants,
responsibilities or obligations shall be implied in this Indenture
against the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates
(including Officers' Certificates) or opinions (including Opinions of
Counsel) furnished to the Trustee and conforming to the requirements of
this Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements
of this Indenture.
(c) Notwithstanding anything to the contrary herein, 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 7.01.
(2) 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 Section 6.05.
(d) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or to take or omit
to take any action under this Indenture or take any action at the request or
direction of Holders if it shall have reasonable grounds for believing that
re-
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payment of such funds is not assured to it and indemnity satisfactory to the
Trustee is not provided.
(e) Every provision of this Indenture that in any way
relates to the Trustee is subject to this Section 7.01.
(f) The Trustee shall not be liable for interest on any
money received by it except as the Trustee may agree in a separate writing with
the Company. Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(g) In the absence of bad faith, negligence or willful
misconduct on the part of the Trustee, the Trustee shall not be responsible for
the application of any money by any Paying Agent other than the Trustee.
SECTION 7.02. RIGHTS OF TRUSTEE.
Subject to Section 7.01:
(a) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, or both,
which shall conform to the provisions of Section 13.05. The Trustee
shall not be liable for any action it takes or omits to take in good
faith in reliance on such certificate or opinion.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent
(other than an agent who is an employee of the Trustee) appointed with
due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it reasonably believes to be
authorized or within its rights or powers.
(e) The Trustee may consult with counsel and the advice or
opinion of such counsel as to matters of law shall be full and complete
authorization and protection from li-
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ability 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.
(f) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Holders pursuant to the provisions of
this Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby.
(g) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate
(including any Officers' Certificate), statement, instrument, opinion
(including any Opinion of Counsel), notice, request, direction,
consent, order, bond, debenture, or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit and, if the
Trustee shall determine to make such further inquiry or investigation,
it shall be entitled, upon reasonable notice to the Company, to examine
the books, records, and premises of the Company, personally or by agent
or attorney.
(h) The Trustee shall not be required to give any bond or
surety in respect of the performance of its powers and duties
hereunder.
(i) The permissive rights of the Trustee to do things
enumerated in this Indenture shall not be construed as duties.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Securities and may otherwise deal with the Company, its
Subsidiaries (including the Guarantors), or their respective Affiliates with the
same rights it would have if it were not Trustee. Any Agent may do the same with
like rights. However, the Trustee must comply with Sections 7.10 and 7.11.
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SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture, the Guarantees
or the Securities, it shall not be accountable for the Company's use of the
proceeds from the Securities, and it shall not be responsible for any statement
of the Company in this Indenture or any document issued in connection with the
sale of Securities or any statement in the Securities other than the Trustee's
certificate of authentication. The Trustee makes no representations with respect
to the effectiveness or adequacy of this Indenture.
SECTION 7.05. NOTICE OF DEFAULT.
If a Default or an Event of Default occurs and is continuing
and the Trustee receives actual notice of such Default or Event of Default, the
Trustee shall mail to each Securityholder notice of the uncured Default or Event
of Default within 60 days after such Default or Event of Default occurs. Except
in the case of a Default or an Event of Default in payment of principal of, or
interest on, any Security, including an accelerated payment and the failure to
make payment on the Change of Control Payment Date pursuant to a Change of
Control Offer or the Excess Proceeds Payment Date pursuant to an Excess Proceeds
Offer, the Trustee may withhold the notice if and so long as the Board of
Directors, the executive committee, or a trust committee of directors and/or
Responsible Officers, of the Trustee in good faith determines that withholding
the notice is in the interest of the Securityholders.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each June 15, beginning with the first
June 15 following the date of this Indenture, the Trustee shall, to the
extent that any of the events described in TIA Section 313(a) occurred within
the previous twelve months, but not otherwise, mail to each Securityholder a
brief report dated as of such date that complies with TIA Section 313(a). The
Trustee also shall comply with TIA Sections 313(b), 313(c) and 313(d).
A copy of each report at the time of its mailing to
Securityholders shall be mailed to the Company and filed with the Commission and
each securities exchange, if any, on which the Securities are listed.
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The Company shall notify the Trustee if the Securities become
listed on any securities exchange or of any delisting thereof and the Trustee
shall comply with TIA Section 313(d).
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time
reasonable compensation for its services hereunder. The Trustee's compensation
shall not be limited by any law on compensation of a trustee of an express
trust. The Company shall reimburse the Trustee upon request for all reasonable
disbursements, expenses and advances (including reasonable fees and expenses of
counsel) incurred or made by it in addition to the compensation for its
services, except any such disbursements, expenses and advances as may be
attributable to the Trustee's negligence, bad faith or willful misconduct. Such
expenses shall include the reasonable fees and expenses of the Trustee's agents
and counsel.
The Company shall indemnify the Trustee and its agents,
employees, officers, stockholders and directors for, and hold them harmless
against, any loss, liability or expense incurred by them except for such actions
to the extent caused by any negligence, bad faith or willful misconduct on their
part, arising out of or in connection with the acceptance or administration of
this trust including the reasonable costs and expenses of defending themselves
against or investigating any claim or liability in connection with the exercise
or performance of any of the Trustee's rights, powers or duties hereunder. The
Trustee shall notify the Company promptly of any claim asserted against the
Trustee or any of its agents, employees, officers, stockholders and directors
for which it may seek indemnity. Failure by the Trustee to so notify the Company
shall not relieve the Company of its obligations hereunder. The Company may,
subject to the approval of the Trustee, defend the claim and the Trustee shall
cooperate in the defense. The Trustee and its agents, employees, officers,
stockholders and directors subject to the claim may have separate counsel and
the Company shall pay the reasonable fees and expenses of such counsel;
PROVIDED, HOWEVER, that the Company will not be required to pay such fees and
expenses if, subject to the approval of the Trustee, it assumes the Trustee's
defense and there is no conflict of interest between the Company and the Trustee
and its agents, employees, officers, stockholders and directors subject to the
claim in connection with such
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defense as reasonably determined by the Trustee. The Company need not pay for
any settlement made without its written consent, which consent shall not be
unreasonably withheld. The Company need not reimburse any expense or indemnify
against any loss or liability to the extent incurred by the Trustee through its
negligence, bad faith or willful misconduct.
To secure the Company's payment obligations in this Section
7.07, the Trustee shall have a senior claim prior to the Securities against all
money or property held or collected by the Trustee, in its capacity as Trustee.
The obligations of the Company and the Guarantors under this Section shall not
be subordinated to the payment of Senior Debt pursuant to Article Ten or Article
Twelve except assets or money held in trust to pay principal of or interest on
particular Securities.
When the Trustee incurs expenses or renders services after an
Event of Default specified in clause (6) or (7) of Section 6.01 occurs, such
expenses and the compensation for such services shall be paid to the extent
allowed under any Bankruptcy Law.
Notwithstanding any other provision in this Indenture, the
foregoing provisions of this Section 7.07 shall survive the satisfaction and
discharge of this Indenture or the appointment of a successor Trustee.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
The Trustee may resign at any time by so notifying the Company
in writing. The Holders of a majority in principal amount of the outstanding
Securities may remove the Trustee by so notifying the Company and the Trustee
and may appoint a successor Trustee. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company
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shall notify each Holder of such event and shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the Securities may appoint a successor
Trustee to replace the successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer, after payment of all sums then owing to the
Trustee pursuant to Section 7.07, all property held by it as Trustee to the
successor Trustee, subject to the Lien provided in Section 7.07, the resignation
or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. A successor Trustee shall mail notice of its succession to each
Securityholder.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of at least 10% in principal amount of the outstanding
Securities may petition any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this
Section 7.08, the Company's obligations under Section 7.07 shall continue for
the benefit of the retiring Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee; PROVIDED that such
corporation shall be otherwise qualified and eligible under this Article Seven.
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SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
This Indenture shall always have a Trustee who satisfies
the requirement of TIA Sections 310(a)(1), 310(a)(2) and 310(a)(5). 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. In
addition, if the Trustee is a corporation included in a bank holding company
system, the Trustee, independently of the bank holding company, shall meet
the capital requirements of TIA Section 310(a)(2). The Trustee shall comply
with TIA Section 310(b); PROVIDED, HOWEVER, that there shall be excluded from
the operation of TIA Section 310(b)(1) any indenture or indentures under
which other securities, or certificates of interest or participation in other
securities, of the Company are outstanding, if the requirements for such
exclusion set forth in TIA Section 310(b)(1) are met. The provisions of TIA
Section 310 shall apply to the Company and any other obligor of the Securities.
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee, in its capacity as Trustee hereunder, shall
comply with TIA Section 311(a), excluding any creditor relationship listed in
TIA Section 311(b). A Trustee who has resigned or been removed shall be
subject to TIA Section 311(a) to the extent indicated.
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. TERMINATION OF THE COMPANY'S OBLIGATIONS.
The Company may terminate its obligations under the Securities
and this Indenture, except those obligations referred to in the penultimate
paragraph of this Section 8.01, if all Securities previously authenticated and
delivered (other than destroyed, lost or stolen Securities which have been
replaced or paid or Securities for whose payment U.S. Legal Tender has
theretofore been deposited with the Trustee or the Paying Agent in trust or
segregated and held in trust by the Company and thereafter repaid to the
Company, as provided in Section 8.05) have been delivered to the Trustee for
cancellation
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and the Company has paid all sums payable by it hereunder, or if:
(a) either (i) pursuant to Article Three, the Company shall
have given notice to the Trustee and mailed a notice of redemption to
each Holder of the redemption of all of the Securities in accordance
with the provisions hereof or (ii) all Securities have otherwise become
due and payable hereunder;
(b) the Company shall have irrevocably deposited or caused to
be deposited with the Trustee or a trustee satisfactory to the Trustee,
under the terms of an irrevocable trust agreement in form and substance
satisfactory to the Trustee, as trust funds in trust solely for the
benefit of the Holders of that purpose, U.S. Legal Tender in such
amount as is sufficient without consideration of reinvestment of such
interest, to pay principal of, premium, if any, and interest on the
outstanding Securities to maturity or redemption; PROVIDED that the
Trustee shall have been irrevocably instructed to apply such U.S. Legal
Tender to the payment of said principal, premium, if any, and interest
with respect to the Securities and PROVIDED, FURTHER, that from and
after the time of deposit, the money deposited shall not be subject to
the rights of holders of Senior Debt or Guarantor Senior Debt pursuant
to the provisions of Article Ten or Twelve, as the case may be;
(c) no Default or Event of Default with respect to this
Indenture or the Securities shall have occurred and be continuing on
the date of such deposit or shall occur as a result of such deposit and
such deposit will not result in a breach or violation of, or constitute
a default under, any other instrument or agreement (including, without
limitation, the Credit Agreement) to which the Company is a party or by
which it is bound;
(d) the Company shall have paid all other sums payable by it
hereunder; and
(e) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent providing for or relating to the termination of
the Company's obligations under the Securities and this Indenture have
been complied
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with. Such Opinion of Counsel shall also state that such satisfaction
and discharge does not result in a default under the Credit Agreement
or any other material agreement or instrument then known to such
counsel that binds or affects the Company.
Subject to the next sentence and notwithstanding the foregoing
paragraph, the Company's obligations in Sections 2.05, 2.06, 2.07, 2.08, 4.01,
4.02, 7.07, 8.05 and 8.06 shall survive until the Securities are no longer
outstanding pursuant to the last paragraph of Section 2.08. After the Securities
are no longer outstanding, the Company's obligations in Sections 7.07, 8.05 and
8.06 shall survive.
After such delivery or irrevocable deposit, the Trustee upon
request shall acknowledge in writing the discharge of the Company's obligations
under the Securities and this Indenture except for those surviving obligations
specified above.
SECTION 8.02. LEGAL DEFEASANCE AND COVENANT DEFEASANCE.
(a) The Company may, at its option by Board Resolution of
the board of directors of the Company, at any time, elect to have either
paragraph (b) or (c) below applied to all outstanding Securities upon compliance
with the conditions set forth in Section 8.03.
(b) Upon the Company's exercise under paragraph (a)
hereof of the option applicable to this paragraph (b), the Company and each of
the Guarantors shall, subject to the satisfaction of the conditions set forth in
Section 8.03, be deemed to have been discharged from their respective
obligations with respect to all outstanding Securities and the corresponding
Guarantees on the date the conditions set forth below are satisfied
(hereinafter, "LEGAL DEFEASANCE"). For this purpose, Legal Defeasance means that
the Company shall be deemed to have paid and discharged the entire Indebtedness
represented by the outstanding Securities, which shall thereafter be deemed to
be "outstanding" only for the purposes of Section 8.04 hereof and the other
Sections of this Indenture referred to in (i) and (ii) below, and to have
satisfied all its other obligations under such Securities and this Indenture
(and the Trustee, on demand of and at the expense of the Company, shall execute
proper instruments acknowledging the same), and Holders of the Securities and
any amounts deposited under Section 8.03 hereof shall
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cease to be subject to any obligations to, or the rights of, any holder of
Senior Debt under Article Ten or otherwise, except for the following provisions,
which shall survive until otherwise terminated or discharged hereunder: (i) the
rights of Holders of outstanding Securities to receive solely from the trust
fund described in Section 8.04 hereof, and as more fully set forth in such
Section, payments in respect of the principal of and interest on such Securities
when such payments are due, (ii) the Company's obligations with respect to such
Securities under Article Two and Section 4.02 hereof, (iii) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and the Company's
obligations in connection therewith and (iv) this Article Eight. Subject to
compliance with this Article Eight, the Company may exercise its option under
this paragraph (b) notwithstanding the prior exercise of its option under
paragraph (c) hereof.
(c) Upon the Company's exercise under paragraph (a)
hereof of the option applicable to this paragraph (c), the Company and each of
the Guarantors shall, subject to the satisfaction of the conditions set forth in
Section 8.03 hereof, be released from their obligations, if any, under the
covenants contained in Sections 4.03, 4.04 and Sections 4.12 through 4.18 and
Article Five hereof with respect to the outstanding Securities and the
corresponding Guarantees on and after the date the conditions set forth below
are satisfied (hereinafter, "COVENANT DEFEASANCE"), and the Securities shall
thereafter be deemed not "outstanding" for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
"outstanding" for all other purposes hereunder (it being understood that such
Securities shall not be deemed outstanding for accounting purposes) and Holders
of the Securities and any amounts deposited under Section 8.03 hereof shall
cease to be subject to any obligations to, or the rights of, any holder of
Senior Debt under Article Ten or otherwise. For this purpose, such Covenant
Defeasance means that, with respect to the outstanding Securities, the Company
may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or
by reason of any reference in any such covenant to any other provision herein or
in any other document and such omission to comply shall not constitute a Default
or an Event of Default under
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Section 6.01(c) hereof, but, except as specified above, the remainder of this
Indenture and such Securities shall be unaffected thereby. In addition, upon the
Company's exercise under paragraph (a) hereof of the option applicable to this
paragraph (c), subject to the satisfaction of the conditions set forth in
Section 8.03 hereof, Sections 6.01(3), 6.01(4) and 6.01(5) shall not constitute
Events of Default.
SECTION 8.03. CONDITIONS TO LEGAL DEFEASANCE OR COVENANT
DEFEASANCE.
The following shall be the conditions to the application of
either Section 8.02(b) or 8.02(c) hereof to the outstanding Securities:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders, cash in U.S. dollars,
non-callable U.S. Government Obligations or a combination thereof which
through the scheduled payment of principal and interest in respect
thereof in accordance with their terms, will provide, not later than
one day before the due date of any payment on the Securities, U.S.
Legal Tender, or a combination thereof, in such amounts as will be
sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay the principal of, premium, if
any, and interest on the Securities on the stated date for payment
thereof or on the applicable redemption date, as the case may be;
(b) in the case of an election under Section 8.02(b) hereof,
the Company shall have delivered to the Trustee an Opinion of Counsel
in the United States reasonably acceptable to the Trustee confirming
that (A) the Company has received from, or there has been published by,
the Internal Revenue Service a ruling or (B) since the date of the
execution of this Indenture, there has been a change in the applicable
federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders will
not recognize income, gain or loss for federal income tax purposes as a
result of such Legal Defeasance and will be subject to federal income
tax on the same amounts, in the same manner and at
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the same times as would have been the case if such Legal Defeasance had
not occurred;
(c) in the case of an election under Section 8.02(c) hereof,
the Company shall have delivered to the Trustee an Opinion of Counsel
in the United States reasonably acceptable to the Trustee confirming
that the Holders of the Securities will not recognize income, gain or
loss for federal income tax purposes as a result of such Covenant
Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event
of Default resulting from the incurrence of Indebtedness all or a
portion of the proceeds of which will be used to defease the Securities
pursuant to this Article Eight concurrently with such incurrence) or
insofar as Sections 6.01(6) and 6.01(7) hereof are concerned, at any
time in the period ending on the 91st day after the date of such
deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under this
Indenture, the Credit Agreement or any other material agreement or
instrument to which the Company or any of its Subsidiaries is a party
or by which the Company or any of its Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the
Company with the intent of preferring the Holders over any other
creditors of the Company or with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Company or others;
(g) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent hereunder provided for or relating to the Legal
Defeasance or the Covenant Defeasance have been complied with; and
(h) the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that (i) the trust
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funds will not be subject to any rights of any holders of Senior Debt,
including, without limitation, those arising under this Indenture, and
(ii) assuming no intervening bankruptcy of the Company between the date
of deposit and the 91st day following the deposit and that no Holder is
an insider of the Company, after the 91st day following the deposit,
the trust funds will not be subject to the effect of any applicable
Bankruptcy Law.
Notwithstanding the foregoing, the Opinion of Counsel required
by clause (b) above of this Section 8.03 need not be delivered if all Securities
not theretofore delivered to the Trustee for cancellation (i) have become due
and payable or (ii) will become due and payable on the Maturity Date within one
year under arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company.
SECTION 8.04. APPLICATION OF TRUST MONEY.
The Trustee or Paying Agent shall hold in trust U.S. Legal
Tender or U.S. Government Obligations deposited with it pursuant to this Article
Eight, and shall apply the deposited U.S. Legal Tender and the money from U.S.
Government Obligations in accordance with this Indenture to the payment of
principal of and interest on the Securities.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Legal Tender or
U.S. Government Obligations deposited pursuant to Section 8.03 hereof or the
principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of the
outstanding Securities.
Anything in this Article Eight to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon the Company's written request any U.S. Legal Tender or U.S. Government
Obligations held by it as provided in Section 8.03 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 that would then be required to be deposited to effect an
equivalent Legal Defeasance or Covenant Defeasance.
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SECTION 8.05. REPAYMENT TO THE COMPANY.
The Trustee and the Paying Agent shall pay to the Company upon
request any money held by them for the payment of principal or interest that
remains unclaimed for two years; PROVIDED that the Trustee or such Paying Agent,
before being required to make any payment, may at the expense of the Company
cause to be published once in a newspaper of general circulation in The City of
New York or mail to each Holder entitled to such money notice that such money
remains unclaimed and that after a date specified therein which shall be at
least 30 days from the date of such publication or mailing any unclaimed balance
of such money then remaining will be repaid to the Company. After payment to the
Company, Holders entitled to such money must look to the Company for payment as
general creditors unless an applicable law designates another Person.
SECTION 8.06. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any U.S.
Legal Tender or U.S. Government Obligations in accordance with this Article
Eight by reason of any legal proceeding or by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company's obligations under this Indenture and
the Securities shall be revived and reinstated as though no deposit had occurred
pursuant to this Article Eight until such time as the Trustee or Paying Agent is
permitted to apply all such U.S. Legal Tender or U.S. Government Obligations in
accordance with this Article Eight; PROVIDED that if the Company has made any
payment of interest on or principal of any Securities because of the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the U.S. Legal
Tender or U.S. Government Obligations held by the Trustee or Paying Agent.
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ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. WITHOUT CONSENT OF HOLDERS.
Subject to Section 9.03, the Company, the Guarantors and the
Trustee, together, may amend or supplement this Indenture, the Securities or the
Guarantees without notice to or consent of any Securityholder:
(1) to cure any ambiguity, defect or inconsistency, so long
as such change does not, in the opinion of the Trustee, adversely
affect the rights of any of the Holders in any material respect. In
formulating its opinion on such matters, the Trustee will be entitled
to rely on such evidence as it deems appropriate, including, without
limitation, solely an Opinion of Counsel;
(2) to evidence the succession in accordance with Article
Five hereof of another Person to the Company and the assumption by any
such successor of the covenants of the Company herein and in the
Securities;
(3) to comply with any requirements of the Commission in
connection with the qualification of this Indenture under the TIA;
(4) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee;
(5) to provide for uncertificated Securities in addition to
or in place of certificated Securities; or
(6) to make any other change that does not materially
adversely affect the rights of any Securityholders hereunder;
PROVIDED that the Company has delivered to the Trustee an Opinion of Counsel and
an Officers' Certificate, each stating that such amendment or supplement
complies with the provisions of this Section 9.01.
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SECTION 9.02. WITH CONSENT OF HOLDERS.
Subject to Sections 6.07 and 9.03, the Company, the Guarantors
and the Trustee, together, with the written consent of the Holder or Holders of
at least a majority in aggregate principal amount of the outstanding Securities,
may amend or supplement this Indenture, the Securities or the Guarantees,
without notice to any other Securityholders. Subject to Sections 6.07 and 9.03,
the Holder or Holders of a majority in aggregate principal amount of the
outstanding Securities may waive compliance by the Company with any provision of
this Indenture, the Securities or the Guarantees without notice to any other
Securityholder. Without the consent of each Securityholder affected, however, no
amendment, supplement or waiver, including a waiver pursuant to Section 6.04,
may:
(1) change the stated maturity of the principal of, or any
installment of interest on, any Security;
(2) reduce the principal amount of, or premium, if any, or
interest on, any Security;
(3) change the place or currency of payment of principal of,
or premium, if any, or interest on, any Security,
(4) impair the right to institute suit for the enforcement
of any payment on or after the Stated Maturity (or, in the case of a
redemption, on or after the redemption date) of any Security;
(5) reduce the above-stated percentage of outstanding
Securities the consent of whose Holders is necessary to modify or amend
this Indenture;
(6) waive a default in the payment of principal of, premium,
if any, or interest on the Securities;
(7) reduce the percentage or aggregate principal amount of
an outstanding Security the consent of whose Holders is necessary for
waiver of compliance with certain provisions of this Indenture or for
waiver of certain defaults;
(8) after the Company's obligation to purchase Securities
arises thereunder, amend, change or modify in any
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material respect the obligation of the Company to make and consummate a
Change of Control Offer in the event of a Change of Control or make and
consummate an Excess Proceeds Offer with respect to any Asset Sale that
has been consummated or, after such Change of Control has occurred or
such Asset Sale has been consummated, modify any of the provisions or
definitions with respect thereto; or
(9) modify or change any provision of this Indenture or the
related definitions affecting the subordination or ranking of the
Securities or any Guarantee in a manner which adversely affects the
Holders.
It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section
9.02 becomes effective, the Company shall give to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. The Company will
mail supplemental indentures upon request. Any failure of the Company to mail
such notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture.
SECTION 9.03. EFFECT ON SENIOR DEBT.
No amendment of, or supplement or waiver to, this Indenture
shall adversely affect the rights of any holder of Senior Debt or Guarantor
Senior Debt under Article Ten or Article Twelve, as the case may be, of this
Indenture, without the consent of such holder.
SECTION 9.04. COMPLIANCE WITH TIA.
From the date on which this Indenture is qualified under the
TIA, every amendment, waiver or supplement of this Indenture, the Securities or
the Guarantees shall comply with the TIA as then in effect.
SECTION 9.05. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, waiver or supplement becomes effective, a
consent to it by a Holder is a continuing consent by
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the Holder and every subsequent Holder of a Security or portion of a Security
that evidences the same debt as the consenting Holder's Security, even if
notation of the consent is not made on any Security. However, any such Holder or
subsequent Holder may revoke the consent as to his Security or portion of his
Security by notice to the Trustee or the Company received before the date on
which the Trustee receives an Officers' Certificate certifying that the Holders
of the requisite principal amount of Securities have consented (and not
theretofore revoked such consent) to the amendment, supplement or waiver.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to consent to any
amendment, supplement or waiver. If a record date is fixed, then notwithstanding
the last sentence of the immediately preceding paragraph, those Persons who were
Holders at such record date (or their duly designated proxies), and only those
Persons, shall be entitled to revoke any consent previously given, whether or
not such Persons continue to be Holders after such record date. No such consent
shall be valid or effective for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it
shall bind every Securityholder, unless it makes a change described in any of
clauses (1) through (9) of Section 9.02, in which case, the amendment,
supplement or waiver shall bind only each Holder of a Security who has consented
to it and every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder's Security; PROVIDED that any
such waiver shall not impair or affect the right of any Holder to receive
payment of principal of and interest on a Security, on or after the respective
due dates expressed in such Security, or to bring suit for the enforcement of
any such payment on or after such respective dates without the consent of such
Holder.
SECTION 9.06. NOTATION ON OR EXCHANGE OF SECURITIES.
If an amendment, supplement or waiver changes the terms of a
Security, the Company may require the Holder of the Security to deliver it to
the Trustee. The Company shall provide the Trustee with an appropriate notation
on the Security about the changed terms and cause the Trustee to return it to
the Holder at the Company's expense. Alternatively, if the Company or the
Trustee so determines, the Company in exchange
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for the Security shall issue and the Trustee shall authenticate a new Security
that reflects the changed terms. Failure to make the appropriate notation or
issue a new Security shall not affect the validity and effect of such amendment,
supplement or waiver.
SECTION 9.07. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article Nine; PROVIDED that the Trustee may, but
shall not be obligated to, execute any such amendment, supplement or waiver
which affects the Trustee's own rights, duties or immunities under this
Indenture. The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel and an Officers' Certificate
each complying with Sections 13.04 and 13.05 and stating that the execution of
any amendment, supplement or waiver authorized pursuant to this Article Nine is
authorized or permitted by this Indenture and constitutes the legal, valid and
binding obligations of the Company enforceable in accordance with its terms.
Such Opinion of Counsel shall be at the expense of the Company.
ARTICLE TEN
SUBORDINATION OF SECURITIES
SECTION 10.01. SECURITIES SUBORDINATED TO SENIOR DEBT.
Anything herein to the contrary notwithstanding, the Company,
for itself and its successors, and each Holder, by his or her acceptance of
Securities, agrees that the payment of all Obligations owing to the Holders in
respect of the Securities is subordinated, to the extent and in the manner
provided in this Article Ten, to the prior payment in full in cash or Cash
Equivalents, or such payment duly provided for to the satisfaction of the
holders of Senior Debt, of all Obligations on Senior Debt (including the
Obligations with respect to the Credit Agreement).
This Article Ten shall constitute a continuing offer to all
Persons who become holders of, or continue to hold, Senior Debt, and such
provisions are made for the benefit of the holders of Senior Debt and such
holders are made obligees
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hereunder and any one or more of them may enforce such provisions.
SECTION 10.02. SUSPENSION OF PAYMENT WHEN SENIOR DEBT IS IN DEFAULT.
(a) Unless Section 10.03 shall be applicable, if any
default occurs and is continuing in the payment when due, whether at maturity,
upon any redemption, by declaration or otherwise, of any principal of, interest
on, unpaid drawings for letters of credit issued in respect of, or regularly
accruing fees with respect to, any Senior Debt (a "PAYMENT DEFAULT"), then no
payment or distribution of any kind or character shall be made by or on behalf
of the Company or any other Person on its or their behalf with respect to any
Obligations on the Securities or to acquire any of the Securities for cash or
property or otherwise and until such Payment Default shall have been cured or
waived or shall have ceased to exist or such Senior Debt as to which such
Payment Default relates shall have been paid in full in cash or Cash
Equivalents, after which the Company shall (subject to other provisions of this
Article Ten) resume making any and all required payments in respect of the
Securities, including any missed payments.
(b) Unless Section 10.03 shall be applicable, if any
other event of default (other than a Payment Default) occurs and is continuing
with respect to any Designated Senior Debt (as such event of default is defined
in the instrument creating or evidencing such Designated Senior Debt) permitting
the holders of such Designated Senior Debt then outstanding to accelerate the
maturity thereof (a "NON-PAYMENT DEFAULT") and if the Representative for the
respective issue of Designated Senior Debt gives written notice of the event of
default to the Trustee (a "DEFAULT NOTICE"), then, unless and until all events
of default have been cured or waived or have ceased to exist or the Trustee
receives notice thereof from the Representative for the respective issue of
Designated Senior Debt terminating the Payment Blockage Period, during the 180
days after the delivery of such Default Notice (the "PAYMENT BLOCKAGE PERIOD"),
neither the Company nor any other Person on its behalf shall (x) make any
payment of any kind or character with respect to any Obligations on or with the
respect to the Securities or (y) acquire any of the Securities for cash or
property or otherwise. Notwithstanding anything herein to the contrary, (x) in
no event will a Payment Blockage Period extend beyond 180 days from the
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date the applicable Default Notice is received by the Trustee and (y) only one
such Payment Blockage Period may be commenced within any 360 consecutive days.
For all purposes of this Section 10.02(b), no event of default which existed or
was continuing on the date of the commencement of any Payment Blockage Period
with respect to the Designated Senior Debt shall be, or be made, the basis for
the commencement of a second Payment Blockage Period by the Representative of
such Designated Senior Debt whether or not within a period of 360 consecutive
days, unless such event of default shall have been cured or waived for a period
of not less than 90 consecutive days (it being acknowledged that any subsequent
action, or any breach of any financial covenants for a period commencing after
the date of commencement of such Payment Blockage Period that, in either case,
would give rise to an event of default pursuant to any provisions under which an
event of default previously existed or was continuing shall constitute a new
event of default for this purpose). The Company shall promptly notify holders of
Senior Debt if payment of the Notes is accelerated because of an Event of
Default.
(c) In the event that, notwithstanding the foregoing, any
payment shall be received by the Trustee or any Holder when such payment is
prohibited by the foregoing provisions of this Section 10.02, such payment shall
be held in trust for the benefit of, and shall be paid over or delivered to, the
holders of Senior Debt (PRO RATA to such holders on the basis of the respective
amount of Senior Debt held by such holders) or their respective Representatives,
as their respective interests may appear. The Trustee shall be entitled to rely
on information regarding amounts then due and owing on the Senior Debt, if any,
received from the holders of Senior Debt (or their Representatives) or, if such
information is not received from such holders or their Representatives, from the
Company and only amounts included in the information provided to the Trustee
shall be paid to the holders of Senior Debt.
Nothing contained in this Article Ten shall limit the right of
the Trustee or the Holders of Securities to take any action to accelerate the
maturity of the Securities pursuant to Section 6.02 or to pursue any rights or
remedies hereunder; PROVIDED that all Senior Debt thereafter due or declared to
be due shall first be paid in full in cash or Cash Equivalents before the
Holders are entitled to receive any payment of any
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kind or character with respect to Obligations on the Securities.
SECTION 10.03. SECURITIES SUBORDINATED TO PRIOR PAYMENT OF
ALL SENIOR DEBT ON DISSOLUTION, LIQUIDATION OR
REORGANIZATION OF COMPANY.
(a) Upon any payment or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
creditors upon any liquidation, dissolution, winding-up, reorganization,
assignment for the benefit of creditors or marshaling of assets of the Company
or in a bankruptcy, reorganization, insolvency, receivership or other similar
proceeding relating to the Company or its property, whether voluntary or
involuntary, all Obligations due or to become due upon all Senior Debt shall
first be paid in full in cash or Cash Equivalents, or such payment duly provided
for to the satisfaction of the holders of Senior Debt, before any payment or
distribution of any kind or character is made on account of any Obligations on
the Securities, or for the acquisition of any of the Securities for cash or
property or otherwise. Upon any such dissolution, winding-up, liquidation,
reorganization, receivership or similar proceeding, any payment or distribution
of assets of the Company of any kind or character, whether in cash, property or
securities, to which the Holders of the Securities or the Trustee under this
Indenture would be entitled, except for the provisions hereof, shall be paid by
the Company or by any receiver, trustee in bankruptcy, liquidating trustee,
agent or other Person making such payment or distribution, or by the Holders or
by the Trustee under this Indenture if received by them, directly to the holders
of Senior Debt (PRO RATA to such holders on the basis of the respective amounts
of Senior Debt held by such holders) or their respective Representatives, or to
the trustee or trustees under any indenture pursuant to which any of such Senior
Debt may have been issued, as their respective interests may appear, for
application to the payment of Senior Debt remaining unpaid until all such Senior
Debt has been paid in full in cash or Cash Equivalents after giving effect to
any concurrent payment, distribution or provision therefor to or for the holders
of Senior Debt.
(b) To the extent any payment of Senior Debt (whether by
or on behalf of the Company, as proceeds of security or enforcement of any right
of setoff or otherwise) is declared to be fraudulent or preferential, set aside
or required
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to be paid to any receiver, trustee in bankruptcy, liquidating trustee, agent or
other similar Person under any bankruptcy, insolvency, receivership, fraudulent
conveyance or similar law, then, if such payment is recovered by, or paid over
to, such receiver, trustee in bankruptcy, liquidating trustee, agent or other
similar Person, the Senior Debt or part thereof originally intended to be
satisfied shall be deemed to be reinstated and outstanding as if such payment
had not occurred.
(c) In the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, shall be received by any Holder when
such payment or distribution is prohibited by this Section 10.03, such payment
or distribution shall be held in trust for the benefit of, and shall be paid
over or delivered to, the holders of Senior Debt (PRO RATA to such holders on
the basis of the respective amount of Senior Debt held by such holders) or their
respective Representatives, or to the trustee or trustees under any indenture
pursuant to which any of such Senior Debt may have been issued, as their
respective interests may appear, for application to the payment of Senior Debt
remaining unpaid until all such Senior Debt has been paid in full in cash or
Cash Equivalents, after giving effect to any concurrent payment, distribution or
provision therefor to or for the holders of such Senior Debt.
(d) The consolidation of the Company with, or the merger
of the Company with or into, another corporation or the liquidation or
dissolution of the Company following the conveyance or transfer of all or
substantially all of its assets, to another corporation upon the terms and
conditions provided in Article Five hereof and as long as permitted under the
terms of the Senior Debt shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this Section if such other
corporation shall, as a part of such consolidation, merger, conveyance or
transfer, assume the Company's obligations hereunder in accordance with Article
Five hereof.
SECTION 10.04. PAYMENTS MAY BE PAID PRIOR TO DISSOLUTION.
Nothing contained in this Article Ten or elsewhere in this
Indenture shall prevent (i) the Company, except under the conditions described
in Sections 10.02 and 10.03, from making payments at any time for the purpose of
making payments of
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principal of and interest on the Securities, or from depositing with the Trustee
any moneys for such payments, or (ii) in the absence of actual knowledge by the
Trustee that a given payment would be prohibited by Section 10.02 or 10.03, the
application by the Trustee of any moneys deposited with it for the purpose of
making such payments of principal of, and interest on, the Securities to the
Holders entitled thereto unless at least two Business Days prior to the date
upon which such payment would otherwise become due and payable a Responsible
Officer shall have actually received the written notice provided for in the
first sentence of Section 10.02(b) or in Section 10.07 (PROVIDED that,
notwithstanding the foregoing, the Holders receiving any payments made in
contravention of Section 10.02 and/or 10.03 (and the respective such payments)
shall otherwise be subject to the provisions of Section 10.02 and Section
10.03). The Company shall give prompt written notice to the Trustee of any
dissolution, winding-up, liquidation or reorganization of the Company, although
any delay or failure to give any such notice shall have no effect on the
subordination provisions contained herein.
SECTION 10.05. HOLDERS TO BE SUBROGATED TO RIGHTS OF HOLDERS OF SENIOR DEBT.
Subject to the payment in full in cash or Cash Equivalents of
all Senior Debt, the Holders of the Securities shall be subrogated to the rights
of the holders of Senior Debt to receive payments or distributions of cash,
property or securities of the Company applicable to the Senior Debt until the
Securities shall be paid in full; and, for the purposes of such subrogation, no
such payments or distributions to the holders of the Senior Debt by or on behalf
of the Company, or by or on behalf of the Holders by virtue of this Article Ten,
which otherwise would have been made to the Holders shall, as between the
Company and the Holders, be deemed to be a payment by the Company to or on
account of the Senior Debt, it being understood that the provisions of this
Article Ten are and are intended solely for the purpose of defining the relative
rights of the Holders, on the one hand, and the holders of Senior Debt, on the
other hand.
SECTION 10.06. OBLIGATIONS OF THE COMPANY UNCONDITIONAL.
Nothing contained in this Article Ten or elsewhere in this
Indenture or in the Securities is intended to or shall im-
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pair, as among the Company, its creditors other than the holders of Senior Debt,
and the Holders, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders the principal of and any interest on the
Securities as and when the same shall become due and payable in accordance with
their terms, or is intended to or shall affect the relative rights of the
Holders and creditors of the Company other than the holders of the Senior Debt,
nor shall anything herein or therein prevent the Holder of any Security or the
Trustee on its behalf from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if any,
in respect of cash, property or securities of the Company received upon the
exercise of any such remedy.
SECTION 10.07. NOTICE TO TRUSTEE.
The Company shall give prompt written notice to the Trustee of
any fact known to the Company which would prohibit the making of any payment to
or by the Trustee in respect of the Securities pursuant to the provisions of
this Article Ten, although any delay or failure to give any such notice shall
have no effect on the subordination provisions contained herein. Regardless of
anything to the contrary contained in this Article Ten or elsewhere in this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any default or event of default with respect to any Senior Debt or of any other
facts which would prohibit the making of any payment to or by the Trustee unless
and until the Trustee shall have received notice in writing from the Company, or
from a holder of Senior Debt or a Representative therefor, and, prior to the
receipt of any such written notice, the Trustee shall be entitled to assume (in
the absence of actual knowledge to the contrary) that no such facts exist. The
Trustee shall be entitled to rely on the delivery to it of any notice pursuant
to this Section 10.07 to establish that such notice has been given by a holder
of Senior Debt (or a Representative therefor).
In the event that the Trustee determines in good faith that
any evidence is required with respect to the right of any Person as a holder of
Senior Debt to participate in any payment or distribution pursuant to this
Article Ten, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amounts of Senior Debt held by
such Person, the extent to which such Person is entitled to participate in such
payment or distribution and any
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other facts pertinent to the rights of such Person under this Article Ten, and
if such evidence is not furnished the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to receive
such payment.
SECTION 10.08. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF
LIQUIDATING AGENT.
Upon any payment or distribution of assets of the Company
referred to in this Article Ten, the Trustee, subject to the provisions of
Article Seven hereof, and the Holders of the Securities shall be entitled to
rely upon any order or decree made by any court of competent jurisdiction in
which any insolvency, bankruptcy, receivership, dissolution, winding-up,
liquidation, reorganization or similar case or proceeding is pending, or upon a
certificate of the receiver, trustee in bankruptcy, liquidating trustee,
assignee for the benefit of creditors, agent or other Person making such payment
or distribution, delivered to the Trustee or the Holders of the Securities, for
the purpose of ascertaining the Persons entitled to participate in such payment
or distribution, the holders of the Senior Debt and other Indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article
Ten.
SECTION 10.09. TRUSTEE'S RELATION TO SENIOR DEBT.
The Trustee and any agent of the Company or the Trustee shall
be entitled to all the rights set forth in this Article Ten with respect to any
Senior Debt which may at any time be held by it in its individual or any other
capacity to the same extent as any other holder of Senior Debt and nothing in
this Indenture shall deprive the Trustee or any such agent of any of its rights
as such holder.
With respect to the holders of Senior Debt, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article Ten, and no implied covenants or
obligations with respect to the holders of Senior Debt shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt.
Whenever a distribution is to be made or a notice given to
holders or owners of Senior Debt, the distribution may
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be made and the notice may be given to their Representative, if any.
SECTION 10.10. SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR
OMISSIONS OF THE COMPANY OR HOLDERS OF SENIOR DEBT.
No right of any present or future holders of any Senior Debt
to enforce subordination as provided herein shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms of this Indenture, regardless of any
knowledge thereof which any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Debt may, at any time and from time to time,
without the consent of or notice to the Trustee, without incurring
responsibility to the Trustee or the Holders of the Securities and without
impairing or releasing the subordination provided in this Article Ten or the
obligations hereunder of the Holders of the Securities to the holders of the
Senior Debt, do any one or more of the following: (i) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter, Senior
Debt, or otherwise amend or supplement in any manner Senior Debt, or any
instrument evidencing the same or any agreement under which Senior Debt is
outstanding; (ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Debt; (iii) release any Person
liable in any manner for the payment or collection of Senior Debt; and (iv)
exercise or refrain from exercising any rights against the Company and any other
Person.
SECTION 10.11. SECURITYHOLDERS AUTHORIZE TRUSTEE TO EFFECTUATE
SUBORDINATION OF SECURITIES.
Each Holder of Securities by its acceptance of them authorizes
and expressly directs the Trustee on its behalf to take such action as may be
necessary or appropriate to effectuate, as between the holders of Senior Debt
and the Holders of Securities, the subordination provided in this Article Ten,
and appoints the Trustee its attorney-in-fact for such purposes, including, in
the event of any dissolution, winding-up, liqui-
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dation or reorganization of the Company (whether in bankruptcy, insolvency,
receivership, reorganization or similar proceedings or upon an assignment for
the benefit of creditors or otherwise) tending towards liquidation of the
business and/or assets of the Company, the filing of a claim for the unpaid
balance of its Securities and accrued interest in the form required in those
proceedings.
If the Trustee does not file a proper claim or proof of debt
in the form required in such proceeding prior to 30 days before the expiration
of the time to file such claim or claims, then the holders of the Senior Debt or
their Representative are or is hereby authorized to have the right to file and
are or is hereby authorized to file an appropriate claim for and on behalf of
the Holders of said Securities. Nothing herein contained shall be deemed to
authorize the Trustee or the holders of Senior Debt or their Representative to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee or the holders
of Senior Debt or their Representative to vote in respect of the claim of any
Holder in any such proceeding.
SECTION 10.12. THIS ARTICLE TEN NOT TO PREVENT EVENTS OF DEFAULT.
The failure to make a payment on account of principal of or
interest on the Securities by reason of any provision of this Article Ten will
not be construed as preventing the occurrence of an Event of Default.
SECTION 10.13. TRUSTEE'S COMPENSATION NOT PREJUDICED.
Nothing in this Article Ten will apply to amounts due to the
Trustee pursuant to other sections of this Indenture.
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ARTICLE ELEVEN
GUARANTEE OF SECURITIES
SECTION 11.01. UNCONDITIONAL GUARANTEE.
Subject to the provisions of this Article Eleven, each of the
Guarantors hereby, jointly and severally, unconditionally and irrevocably
guarantees, on a senior subordinated basis (such guarantees to be referred to
herein as a "GUARANTEE") to each Holder of a Security authenticated and
delivered by the Trustee and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of this Indenture, the
Securities or the obligations of the Company or any other Guarantors to the
Holders or the Trustee hereunder or thereunder, that: (a) the principal of,
premium, if any, and interest on the Securities shall be duly and punctually
paid in full when due, whether at maturity, upon redemption at the option of
Holders pursuant to the provisions of the Securities relating thereto, by
acceleration or otherwise, and interest on the overdue principal and (to the
extent permitted by law) interest, if any, on the Securities and all other
obligations of the Company or the Guarantors to the Holders or the Trustee
hereunder or thereunder (including amounts due the Trustee under Section 7.07
hereof) and all other obligations shall be promptly paid in full or performed,
all in accordance with the terms hereof and thereof; and (b) in case of any
extension of time of payment or renewal of any Securities or any of such other
obligations, the same shall be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at maturity, by
acceleration or otherwise. Failing payment when due of any amount so guaranteed,
or failing performance of any other obligation of the Company to the Holders
under this Indenture or under the Securities, for whatever reason, each
Guarantor shall be obligated to pay, or to perform or cause the performance of,
the same immediately. An Event of Default under this Indenture or the Securities
shall constitute an event of default under the Guarantees, and shall entitle the
Holders of Securities to accelerate the obligations of the Guarantors hereunder
in the same manner and to the same extent as the obligations of the Company.
Each of the Guarantors hereby agrees that its obligations
hereunder shall be unconditional, irrespective of the validity,
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regularity or enforceability of the Securities or this Indenture, the absence of
any action to enforce the same, any waiver or consent by any Holder of the
Securities with respect to any provisions hereof or thereof, any release of any
other Guarantor, the recovery of any judgment against the Company, any action to
enforce the same, whether or not a Guarantee is affixed to any particular
Security, or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a Guarantor. Each of the Guarantors hereby
waives the benefit of diligence, presentment, demand of payment, filing of
claims with a court in the event of insolvency or bankruptcy of the Company, any
right to require a proceeding first against the Company, protest, notice and all
demands whatsoever and covenants that its Guarantee shall not be discharged
except by complete performance of the obligations contained in the Securities,
this Indenture and the Guarantees. Each Guarantee is a guarantee of payment and
not of collection. If any Holder or the Trustee is required by any court or
otherwise to return to the Company or to any Guarantor, or any custodian,
trustee, liquidator or other similar official acting in relation to the Company
or such Guarantor, any amount paid by the Company or such Guarantor to the
Trustee or such Holder, each Guarantee, to the extent theretofore discharged,
shall be reinstated in full force and effect. Each Guarantor further agrees
that, as between it, on the one hand, and the Holders of Securities and the
Trustee, on the other hand, (a) subject to this Article Eleven, the maturity of
the obligations guaranteed hereby may be accelerated as provided in Article Six
hereof for the purposes of the Guarantees, notwithstanding any stay, injunction
or other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (b) in the event of any acceleration of such obligations
as provided in Article Six hereof, such obligations (whether or not due and
payable) shall forthwith become due and payable by the Guarantors for the
purpose of the Guarantees.
No stockholder, officer, director or employee, past, present
or future, of any Guarantor, as such, shall have any personal liability under
such Guarantor's Guarantee by reason of his, her or its status as such
stockholder, officer, director or employee.
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SECTION 11.02. LIMITATIONS ON GUARANTEES.
The obligations of each Guarantor under its Guarantee are
limited to the maximum amount which, 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, will 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 an amount PRO RATA,
based on the net assets of each Guarantor, determined in accordance with GAAP.
SECTION 11.03. EXECUTION AND DELIVERY OF GUARANTEE.
To further evidence the Guarantees set forth in Section 11.01,
each Guarantor hereby agrees that a notation of its Guarantee, substantially in
the form of EXHIBIT C hereto, shall be endorsed on each Security authenticated
and delivered by the Trustee. The Guarantee of any Guarantor shall be executed
on behalf of such Guarantor by either manual or facsimile signature of one
Officer of such Guarantor who shall have been duly authorized to so execute by
all requisite corporate action. The validity and enforceability of any Guarantee
shall not be affected by the fact that it is not affixed to any particular
Security.
Each of the Guarantors hereby agrees that its Guarantee set
forth in Section 11.01 shall remain in full force and effect notwithstanding any
failure to endorse on each Security a notation of such Guarantee.
If an Officer of a Guarantor whose signature is on this
Indenture or a Guarantee no longer holds that office at the time the Trustee
authenticates the Security on which such Guarantee is endorsed or at any time
thereafter, such Guarantor's Guarantee of such Security shall nevertheless be
valid.
The delivery of any Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of any Guarantee
set forth in this Indenture on behalf of each Guarantor.
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SECTION 11.04. RELEASE OF A GUARANTOR.
(a) If no Default or Event of Default exists or would
exist under this Indenture, upon the sale or disposition of all of the Capital
Stock of a Guarantor by the Company, in a transaction or series of related
transactions that either (i) does not constitute an Asset Sale or (ii)
constitutes an Asset Sale the Net Cash Proceeds of which are applied in
accordance with Section 4.16, or upon the consolidation or merger of a Guarantor
with or into any Person in compliance with Article Five (in each case, other
than to the Company or an Affiliate of the Company), or if any Guarantor is
dissolved or liquidated in accordance with this Indenture, such Guarantor's
Guarantee will be automatically discharged and such Guarantor shall be released
from all obligations under this Article Eleven without any further action
required on the part of the Trustee or any Holder. Any Guarantor not so released
or the entity surviving such Guarantor, as applicable, shall remain or be liable
under its Guarantee as provided in this Article Eleven.
(b) The Trustee shall deliver an appropriate instrument
evidencing the release of a Guarantor upon receipt of a written request by the
Company or such Guarantor accompanied by an Officers' Certificate and an Opinion
of Counsel certifying as to the compliance with this Section 11.04; PROVIDED,
HOWEVER, that the legal counsel delivering such Opinion of Counsel may rely as
to matters of fact on one or more Officers' Certificates of the Company.
The Trustee shall execute any documents reasonably requested
by the Company or a Guarantor in order to evidence the release of such Guarantor
from its obligations under its Guarantee endorsed on the Securities and under
this Article Eleven.
Except as set forth in Articles Four and Five and this Section
11.04, nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of a Guarantor with or into the Company or
another Guarantor or shall prevent any sale or conveyance of the property of a
Guarantor as an entirety or substantially as an entirety to the Company or
another Guarantor.
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SECTION 11.05. WAIVER OF SUBROGATION.
Until this Indenture is discharged and all of the Securities
are discharged and paid in full, each Guarantor hereby irrevocably waives and
agrees not to exercise any claim or other rights which it may now or hereafter
acquire against the Company that arise from the existence, payment, performance
or enforcement of the Company's obligations under the Securities or this
Indenture and such Guarantor's obligations under its Guarantee and this
Indenture, in any such instance, including, without limitation, any right of
subrogation, reimbursement, exoneration, contribution, indemnification, and any
right to participate in any claim or remedy of the Holders against the Company,
whether or not such claim, remedy or right arises in equity, or under contract,
statute or common law, including, without limitation, the right to take or
receive from the Company, directly or indirectly, in cash or other property or
by set-off or in any other manner, payment or security on account of such claim
or other rights. If any amount shall be paid to any Guarantor in violation of
the preceding sentence and any amounts owing to the Trustee or the Holders of
Securities under the Securities, this Indenture, or any other document or
instrument delivered under or in connection with such agreements or instruments,
shall not have been paid in full, such amount shall have been deemed to have
been paid to such Guarantor for the benefit of, and held in trust for the
benefit of, the Trustee or the Holders and shall forthwith be paid to the
Trustee for the benefit of itself or such Holders to be credited and applied to
the obligations in favor of the Trustee or the Holders, as the case may be,
whether matured or unmatured, in accordance with the terms of this Indenture.
Each Guarantor acknowledges that it will receive direct and indirect benefits
from the financing arrangements contemplated by this Indenture and that the
waiver set forth in this Section 11.05 is knowingly made in contemplation of
such benefits.
SECTION 11.06. IMMEDIATE PAYMENT.
Each Guarantor agrees to make immediate payment to the
Trustee, on behalf of the Holders or itself, of all Obligations due and owing or
payable to the respective Holders or the Trustee upon receipt of a demand for
payment therefor by the Trustee to such Guarantor in writing.
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SECTION 11.07. NO SET-OFF.
Each payment to be made by a Guarantor hereunder in respect of
the Obligations shall be payable in the currency or currencies in which such
Obligations are denominated, and shall be made without set-off, counterclaim,
reduction or diminution of any kind or nature.
SECTION 11.08. OBLIGATIONS ABSOLUTE.
The obligations of each Guarantor hereunder are and shall be
absolute and unconditional and any monies or amounts expressed to be owing or
payable by each Guarantor hereunder which may not be recoverable from such
Guarantor on the basis of a Guarantee shall be recoverable from such Guarantor
as a primary obligor and principal debtor in respect thereof.
SECTION 11.09. OBLIGATIONS CONTINUING.
The obligations of each Guarantor hereunder shall be
continuing and shall remain in full force and effect until all the obligations
have been paid and satisfied in full. Each Guarantor agrees with the Trustee
that it will from time to time deliver to the Trustee suitable acknowledgments
of its continued liability hereunder and under any other instrument or
instruments in such form as counsel to the Trustee may advise and as will
prevent any action brought against it in respect of any default hereunder being
barred by any statute of limitations now or hereafter in force and, in the event
of the failure of a Guarantor so to do, it hereby irrevocably appoints the
Trustee the attorney and agent of such Guarantor to make, execute and deliver
such written acknowledgment or acknowledgments or other instruments as may from
time to time become necessary or advisable, in the judgment of the Trustee on
the advice of counsel, to fully maintain and keep in force the liability of such
Guarantor hereunder and under its Guarantee.
SECTION 11.10. OBLIGATIONS NOT REDUCED.
The obligations of each Guarantor hereunder shall not be
satisfied, reduced or discharged solely by the payment of such principal,
premium, if any, interest, fees and other monies or amounts as may at any time
prior to discharge of this Indenture pursuant to Article Eight be or become
owing or payable under or by virtue of or otherwise in connection with the
Securities or this Indenture.
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SECTION 11.11. OBLIGATIONS REINSTATED.
The obligations of each Guarantor hereunder shall continue to
be effective or shall be reinstated, as the case may be, if at any time any
payment which would otherwise have reduced the obligations of any Guarantor
hereunder (whether such payment shall have been made by or on behalf of the
Company or by or on behalf of a Guarantor) is rescinded or reclaimed from any of
the Holders upon the insolvency, bankruptcy, liquidation or reorganization of
the Company or any Guarantor or otherwise, all as though such payment had not
been made. If demand for, or acceleration of the time for, payment by the
Company is stayed upon the insolvency, bankruptcy, liquidation or reorganization
of the Company, all such Indebtedness otherwise subject to demand for payment or
acceleration shall nonetheless be payable by each Guarantor as provided herein.
SECTION 11.12. OBLIGATIONS NOT AFFECTED.
The obligations of each Guarantor hereunder shall not be
affected, impaired or diminished in any way by any act, omission, matter or
thing whatsoever, occurring before, upon or after any demand for payment
hereunder (and whether or not known or consented to by any Guarantor or any of
the Holders) which, but for this provision, might constitute a whole or partial
defense to a claim against any Guarantor hereunder or might operate to release
or otherwise exonerate any Guarantor from any of its obligations hereunder or
otherwise affect such obligations, whether occasioned by default of any of the
Holders or otherwise, including, without limitation:
(a) any limitation of status or power, disability, incapacity
or other circumstance relating to the Company or any other Person,
including any insolvency, bankruptcy, liquidation, reorganization,
readjustment, composition, dissolution, winding-up or other proceeding
involving or affecting the Company or any other Person;
(b) any irregularity, defect, unenforceability or invalidity
in respect of any indebtedness or other obligation of the Company or
any other Person under this Indenture, the Securities or any other
document or instrument;
(c) any failure of the Company, whether or not without fault
on its part, to perform or comply with any of
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the provisions of this Indenture or the Securities, or to give notice
thereof to a Guarantor;
(d) the taking or enforcing or exercising or the refusal or
neglect to take or enforce or exercise any right or remedy from or
against the Company or any other Person or their respective assets or
the release or discharge of any such right or remedy;
(e) the granting of time, renewals, extensions, compromises,
concessions, waivers, releases, discharges and other indulgences to the
Company or any other Person;
(f) any change in the time, manner or place of payment of, or
in any other term of, any of the Securities, or any other amendment,
variation, supplement, replacement or waiver of, or any consent to
departure from, any of the Securities or this Indenture, including,
without limitation, any increase or decrease in the principal amount of
or premium, if any, or interest on any of the Securities;
(g) any change in the ownership, control, name, objects,
businesses, assets, capital structure or constitution of the Company or
a Guarantor;
(h) any merger or amalgamation of the Company or a Guarantor
with any Person or Persons;
(i) the occurrence of any change in the laws, rules,
regulations or ordinances of any jurisdiction by any present or future
action of any governmental authority or court amending, varying,
reducing or otherwise affecting, or purporting to amend, vary, reduce
or otherwise affect, any of the Obligations or the obligations of a
Guarantor under its Guarantee; and
(j) any other circumstance, including release of a Guarantor
pursuant to Section 11.04 (other than by complete, irrevocable payment)
that might otherwise constitute a legal or equitable discharge or
defense of the Company under this Indenture or the Securities or of
another Guarantor in respect of its Guarantee hereunder;
PROVIDED, that the provisions of this Section 11.12 are not intended to affect
in any way any release of a Guarantor in accordance with the provisions of
Section 11.04.
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SECTION 11.13. WAIVER.
Without in any way limiting the provisions of Section 11.01
hereof, each Guarantor hereby waives notice of acceptance hereof, notice of any
liability of any Guarantor hereunder, notice or proof of reliance by the Holders
upon the obligations of any Guarantor hereunder, and diligence, presentment,
demand for payment on the Company, protest, notice of dishonor or non-payment of
any of the Obligations, or other notice or formalities to the Company or any
Guarantor of any kind whatsoever.
SECTION 11.14. NO OBLIGATION TO TAKE ACTION AGAINST THE COMPANY.
Neither the Trustee nor any other Person shall have any
obligation to enforce or exhaust any rights or remedies or to take any other
steps under any security for the Obligations or against the Company or any other
Person or any property of the Company or any other Person before the Trustee is
entitled to demand payment and performance by any or all Guarantors of their
liabilities and obligations under their Guarantees or under this Indenture.
SECTION 11.15. DEALING WITH THE COMPANY AND OTHERS.
The Holders, without releasing, discharging, limiting or
otherwise affecting in whole or in part the obligations and liabilities of any
Guarantor hereunder and without the consent of or notice to any Guarantor, may
(a) grant time, renewals, extensions, compromises,
concessions, waivers, releases, discharges and other indulgences to the
Company or any other Person;
(b) take or abstain from taking security or collateral from
the Company or from perfecting security or collateral of the Company;
(c) release, discharge, compromise, realize, enforce or
otherwise deal with or do any act or thing in respect of (with or
without consideration) any and all collateral, mortgages or other
security given by the Company or any third party with respect to the
obligations or matters contemplated by this Indenture or the
Securities;
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(d) accept compromises or arrangements from the Company;
(e) apply all monies at any time received from the Company or
from any security upon such part of the Obligations as the Holders may
see fit or change any such application in whole or in part from time to
time as the Holders may see fit; and
(f) otherwise deal with, or waive or modify their right to
deal with, the Company and all other Persons and any security as the
Holders or the Trustee may see fit.
SECTION 11.16. DEFAULT AND ENFORCEMENT.
If any Guarantor fails to pay in accordance with Section 11.06
hereof, the Trustee may proceed in its name as trustee hereunder in the
enforcement of the Guarantee of any such Guarantor and such Guarantor's
obligations thereunder and hereunder by any remedy provided by law, whether by
legal proceedings or otherwise, and to recover from such Guarantor the
obligations.
SECTION 11.17. AMENDMENT, ETC.
No amendment, modification or waiver of any provision of this
Indenture relating to any Guarantor or consent to any departure by any Guarantor
or any other Person from any such provision will in any event be effective
unless it is signed by such Guarantor and the Trustee.
SECTION 11.18. ACKNOWLEDGMENT.
Each Guarantor hereby acknowledges communication of the terms
of this Indenture and the Securities and consents to and approves of the same.
SECTION 11.19. COSTS AND EXPENSES.
Each Guarantor shall pay on demand by the Trustee any and all
costs, fees and expenses (including, without limitation, legal fees on a
solicitor and client basis) incurred by the Trustee, its agents, advisors and
counsel or any of the Holders in enforcing any of their rights under any
Guarantee.
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SECTION 11.20. NO MERGER OR WAIVER; CUMULATIVE REMEDIES.
No Guarantee shall operate by way of merger of any of the
obligations of a Guarantor under any other agreement, including, without
limitation, this Indenture. No failure to exercise and no delay in exercising,
on the part of the Trustee or the Holders, any right, remedy, power or privilege
hereunder or under this Indenture or the Securities, shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder or under this Indenture or the Securities preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges in the Guarantee and
under this Indenture, the Securities and any other document or instrument
between a Guarantor and/or the Company and the Trustee are cumulative and not
exclusive of any rights, remedies, powers and privilege provided by law.
SECTION 11.21. SURVIVAL OF OBLIGATIONS.
Without prejudice to the survival of any of the other
obligations of each Guarantor hereunder, the obligations of each Guarantor under
Section 11.01 shall survive the payment in full of the Obligations under the
Securities, but only if and to the extent such payment is avoided, and in such
case shall be enforceable against such Guarantor to the same extent as prior to
any such payment and without regard to and without giving effect to any defense,
right of offset or counterclaim available to or which may be asserted by the
Company or any Guarantor.
SECTION 11.22. GUARANTEE IN ADDITION TO OTHER OBLIGATIONS.
The Obligations of each Guarantor under its Guarantee and this
Indenture are in addition to and not in substitution for any other Obligations
to the Trustee or to any of the Holders in relation to this Indenture or the
Securities and any guarantees or security at any time held by or for the benefit
of any of them.
SECTION 11.23. SEVERABILITY.
Any provision of this Article Eleven which is prohibited or
unenforceable in any jurisdiction shall not invalidate
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the remaining provisions and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction unless its removal would substantially defeat the basic
intent, spirit and purpose of this Indenture and this Article Eleven.
SECTION 11.24. SUCCESSORS AND ASSIGNS.
Each Guarantee shall be binding upon and inure to the benefit
of each Guarantor and the Trustee and the other Holders and their respective
successors and permitted assigns, except that no Guarantor may assign any of its
obligations hereunder or thereunder.
ARTICLE TWELVE
SUBORDINATION OF GUARANTEE
SECTION 12.01. GUARANTEE OBLIGATIONS SUBORDINATED TO GUARANTOR
SENIOR DEBT.
Anything herein to the contrary notwithstanding, each of the
Guarantors, for itself and its successors, and each Holder, by his or her
acceptance of Guarantees, agrees that the payment of all Obligations owing to
the Holders in respect of its Guarantee (collectively, as to any Guarantor, its
"GUARANTEE OBLIGATIONS") is subordinated, to the extent and in the manner
provided in this Article Twelve, to the prior payment in full in cash or Cash
Equivalents, or such payment duly provided for to the satisfaction of the
holders of Guarantor Senior Debt, of all Obligations on Guarantor Senior Debt of
such Guarantor.
This Article Twelve shall constitute a continuing offer to all
Persons who become holders of, or continue to hold, Guarantor Senior Debt, and
such provisions are made for the benefit of the holders of Guarantor Senior Debt
and such holders are made obligees hereunder and any one or more of them may
enforce such provisions.
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SECTION 12.02. SUSPENSION OF GUARANTEE OBLIGATIONS WHEN GUARANTOR
SENIOR DEBT IS IN DEFAULT.
(a) Unless Section 12.03 shall be applicable, if any
payment default occurs and is continuing with respect to any Guarantor Senior
Debt, then no payment of any kind or character shall be made by or on behalf of
such Guarantor or any other Person on its behalf with respect to any Guarantee
Obligations or to acquire any of the Securities for cash or property or
otherwise and until such payment default shall have been cured or waived or
shall have ceased to exist or such Guarantor Senior Debt shall have been
discharged or paid in full in cash or Cash Equivalents, after which such
Guarantor shall (subject to the other provisions of this Article Twelve) resume
making any and all required payments in respect of its obligations under this
Guarantee, including any missed payments.
(b) At any time while any Payment Blockage Period is in
existence, neither any Guarantor nor any other Person on any Guarantor's behalf
shall (x) make any payment of any kind or character with respect to any
Obligations on its Guarantee or (y) acquire any of the Securities for cash or
otherwise.
(c) In the event that, notwithstanding the foregoing, any
payment shall be received by the Trustee or any Holder when such payment is
prohibited by the foregoing provisions of this Section 12.02, such payment shall
be held in trust for the benefit of, and shall be paid over or delivered to, the
holders of Guarantor Senior Debt (PRO RATA to such holders on the basis of the
respective amount of Guarantor Senior Debt held by such holders) or their
respective Representatives, as their respective interests may appear. The
Trustee shall be entitled to rely on information regarding amounts then due and
owing on the Guarantor Senior Debt, if any, received from the holders of
Guarantor Senior Debt (or their Representatives) or, if such information is not
received from such holders or their Representatives, from a Guarantor and only
amounts included in the information provided to the Trustee shall be paid to the
holders of Guarantor Senior Debt.
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SECTION 12.03. GUARANTEE OBLIGATIONS SUBORDINATED TO PRIOR PAYMENT
OF ALL GUARANTOR SENIOR DEBT ON DISSOLUTION,
LIQUIDATION OR REORGANIZATION OF SUCH GUARANTOR.
(a) Upon any payment or distribution of assets of any
Guarantor of any kind or character, whether in cash, property or securities, to
creditors upon any liquidation, dissolution, winding-up, reorganization,
assignment for the benefit of creditors or marshaling of assets of such
Guarantor or in a bankruptcy, reorganization, insolvency, receivership or other
similar proceeding relating to such Guarantor or its property, whether voluntary
or involuntary, all Obligations due or to become due upon all Guarantor Senior
Debt shall first be paid in full in cash or Cash Equivalents, or such payment
duly provided for to the satisfaction of the holders of Guarantor Senior Debt,
before any payment or distribution of any kind or character is made on account
of any Guarantee Obligations or for the acquisition of any of the Securities for
cash or property or otherwise. Upon any such dissolution, winding-up,
liquidation, reorganization, receivership or similar proceeding, any payment or
distribution of assets of such Guarantor of any kind or character, whether in
cash, property or securities, to which the Holders or the Trustee under this
Indenture would be entitled, except for the provisions hereof, shall be paid by
such Guarantor or by any receiver, trustee in bankruptcy, liquidating trustee,
agent or other Person making such payment or distribution, or by the Holders or
by the Trustee under this Indenture if received by them, directly to the holders
of Guarantor Senior Debt (PRO RATA to such holders on the basis of the
respective amounts of Guarantor Senior Debt held by such holders) or their
respective Representatives, or to the trustee or trustees under any indenture
pursuant to which any of such Guarantor Senior Debt may have been issued, as
their respective interests may appear, for application to the payment of
Guarantor Senior Debt remaining unpaid until all such Guarantor Senior Debt has
been paid in full in cash or Cash Equivalents after giving effect to any
concurrent payment, distribution or provision therefor to or for the holders of
Guarantor Senior Debt.
(b) To the extent any payment of Guarantor Senior Debt
(whether by or on behalf of a Guarantor, as proceeds of security or enforcement
of any right of setoff or otherwise) is declared to be fraudulent or
preferential, set aside or
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required to be paid to any receiver, trustee in bankruptcy, liquidating trustee,
agent or other similar Person under any bankruptcy, insolvency, receivership,
fraudulent conveyance or similar law, then, if such payment is recovered by, or
paid over to, such receiver, trustee in bankruptcy, liquidating trustee, agent
or other similar Person, the Guarantor Senior Debt or part thereof originally
intended to be satisfied shall be deemed to be reinstated and outstanding as if
such payment had not occurred.
(c) In the event that, notwithstanding the foregoing, any
payment or distribution of assets of any Guarantor of any kind or character,
whether in cash, property or securities, shall be received by any Holder when
such payment or distribution is prohibited by this Section 12.03(c), such
payment or distribution shall be held in trust for the benefit of, and shall be
paid over or delivered to, the holders of Guarantor Senior Debt (PRO RATA to
such holders on the basis of the respective amount of Guarantor Senior Debt held
by such holders) or their respective Representatives, or to the trustee or
trustees under any indenture pursuant to which any of such Guarantor Senior Debt
may have been issued, as their respective interests may appear, for application
to the payment of Guarantor Senior Debt remaining unpaid until all such
Guarantor Senior Debt has been paid in full in cash or Cash Equivalents, after
giving effect to any concurrent payment, distribution or provision therefor to
or for the holders of such Guarantor Senior Debt.
(d) The consolidation of any Guarantor with, or the
merger of any Guarantor with or into, another corporation or the liquidation or
dissolution of a Guarantor following the conveyance or transfer of all or
substantially all of its assets, to another corporation upon the terms and
conditions provided in Article Five hereof and as long as permitted under the
terms of the Guarantor Senior Debt shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of this Section if
such other corporation shall, as a part of such consolidation, merger,
conveyance or transfer, assumes the Guarantee of such Guarantor hereunder in
accordance with Article Five hereof.
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SECTION 12.04. PAYMENTS MAY BE PAID PRIOR TO DISSOLUTION.
Nothing contained in this Article Twelve or elsewhere in this
Indenture shall prevent (i) any Guarantor, except under the conditions described
in Sections 12.02 and 12.03, from making payments at any time for the purpose of
making payments on Guarantee Obligations, or from depositing with the Trustee
any moneys for such payments, or (ii) in the absence of actual knowledge by the
Trustee that a given payment would be prohibited by Section 12.02 or 12.03, the
application by the Trustee of any moneys deposited with it for the purpose of
making such payments on Guarantee Obligations to the Holders entitled thereto
unless at least two Business Days prior to the date upon which such payment
would otherwise become due and payable a Responsible Officer shall have actually
received the written notice provided for in the first sentence of Section
10.02(b) or in Section 12.07 (PROVIDED that, notwithstanding the foregoing, the
Holders receiving any payments made in contravention of Sections 12.02 and/or
12.03 (and the respective such payments) shall otherwise be subject to the
provisions of Section 12.02(a) and Section 12.03). Each Guarantor shall give
prompt written notice to the Trustee of any dissolution, winding-up, liquidation
or reorganization of such Guarantor, although any delay or failure to give any
such notice shall have no effect on the subordination provisions contained
herein.
SECTION 12.05. HOLDERS OF GUARANTEE OBLIGATIONS TO BE SUBROGATED TO
RIGHTS OF HOLDERS OF GUARANTOR SENIOR DEBT.
Subject to the payment in full in cash or Cash Equivalents of
all Guarantor Senior Debt, the Holders of Guarantee Obligations of any Guarantor
shall be subrogated to the rights of the holders of Guarantor Senior Debt of
such Guarantor to receive payments or distributions of cash, property or
securities of such Guarantor applicable to such Guarantor Senior Debt until all
amounts owing on or in respect of the Guarantee Obligations shall be paid in
full; and, for the purposes of such subrogation, no such payments or
distributions to the holders of such Guarantor Senior Debt by or on behalf of
such Guarantor, or by or on behalf of the Holders by virtue of this Article
Twelve, which otherwise would have been made to the Holders shall, as between
such Guarantor and the Holders, be deemed to be a payment by such Guarantor to
or on account of
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such Guarantor Senior Debt, it being understood that the provisions of this
Article Twelve are and are intended solely for the purpose of defining the
relative rights of the Holders, on the one hand, and the holders of Guarantor
Senior Debt, on the other hand.
SECTION 12.06. OBLIGATIONS OF THE GUARANTORS UNCONDITIONAL.
Nothing contained in this Article Twelve or elsewhere in this
Indenture or in the Guarantees is intended to or shall impair, as among the
Guarantors, their creditors other than the holders of Guarantor Senior Debt, and
the Holders, the obligation of the Guarantors, which is absolute and
unconditional, to pay to the Holders all amounts due and payable under the
Guarantees as and when the same shall become due and payable in accordance with
their terms, or is intended to or shall affect the relative rights of the
Holders and creditors of the Guarantors other than the holders of the Guarantor
Senior Debt, nor shall anything herein or therein prevent any Holder or the
Trustee on its behalf from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if any,
in respect of cash, property or securities of the Guarantors received upon the
exercise of any such remedy.
SECTION 12.07. NOTICE TO TRUSTEE.
Each Guarantor shall give prompt written notice to the Trustee
of any fact known to such Guarantor which would prohibit the making of any
payment to or by the Trustee in respect of the Guarantees pursuant to the
provisions of this Article Twelve, although any delay or failure to give any
such notice shall have no effect on the subordination provisions contained
herein. Regardless of anything to the contrary contained in this Article Twelve
or elsewhere in this Indenture, the Trustee shall not be charged with knowledge
of the existence of any default or event of default with respect to any
Guarantor Senior Debt or of any other facts which would prohibit the making of
any payment to or by the Trustee unless and until the Trustee shall have
received notice in writing from a Guarantor, or from a holder of Guarantor
Senior Debt or a Representative therefor, and, prior to the receipt of any such
written notice, the Trustee shall be entitled to assume (in the absence of
actual knowledge to the contrary) that no such facts
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exist. The Trustee shall be entitled to rely on the delivery to it of any notice
pursuant to this Section 12.07 to establish that such notice has been given by a
holder of Guarantor Senior Debt (or a Representative therefor).
In the event that the Trustee determines in good faith that
any evidence is required with respect to the right of any Person as a holder of
Guarantor Senior Debt to participate in any payment or distribution pursuant to
this Article Twelve, the Trustee may request such Person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amounts of Guarantor Senior
Debt held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to the
rights of such Person under this Article Twelve, and if such evidence is not
furnished the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
SECTION 12.08. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF
LIQUIDATING AGENT.
Upon any payment or distribution of assets of a Guarantor
referred to in this Article Twelve, the Trustee, subject to the provisions of
Article Seven hereof, and the Holders shall be entitled to rely upon any order
or decree made by any court of competent jurisdiction in which any insolvency,
bankruptcy, receivership, dissolution, winding-up, liquidation, reorganization
or similar case or proceeding is pending, or upon a certificate of the trustee
in bankruptcy, liquidating trustee, receiver, assignee for the benefit of
creditors, agent or other Person making such payment or distribution, delivered
to the Trustee or the Holders, for the purpose of ascertaining the Persons
entitled to participate in such payment or distribution, the holders of the
Guarantor Senior Debt and other Indebtedness of such Guarantor, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article Twelve.
SECTION 12.09. TRUSTEE'S RELATION TO GUARANTOR SENIOR DEBT.
The Trustee and any agent of a Guarantor or the Trustee shall
be entitled to all the rights set forth in this Article Twelve with respect to
any Guarantor Senior Debt which may
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at any time be held by it in its individual or any other capacity to the same
extent as any other holder of Guarantor Senior Debt and nothing in this
Indenture shall deprive the Trustee or any such agent of any of its rights as
such holder.
With respect to the holders of Guarantor Senior Debt, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article Twelve, and no implied
covenants or obligations with respect to the holders of Guarantor Senior Debt
shall be read into this Indenture against the Trustee. The Trustee shall not be
deemed to owe any fiduciary duty to the holders of Guarantor Senior Debt.
Whenever a distribution is to be made or a notice given to
holders or owners of Guarantor Senior Debt, the distribution may be made and the
notice may be given to their Representative, if any.
SECTION 12.10. SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR
OMISSIONS OF THE GUARANTORS OR HOLDERS OF GUARANTOR
SENIOR DEBT.
No right of any present or future holders of any Guarantor
Senior Debt to enforce subordination as provided herein shall at any time in any
way be prejudiced or impaired by any act or failure to act on the part of any
Guarantor or by any act or failure to act, in good faith, by any such holder, or
by any noncompliance by any Guarantor with the terms of this Indenture,
regardless of any knowledge thereof which any such holder may have or otherwise
be charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Guarantor Senior Debt may, at any time and from time
to time, without the consent of or notice to the Trustee, without incurring
responsibility to the Trustee or the Holders of the Securities and without
impairing or releasing the subordination provided in this Article Twelve or the
obligations hereunder of the Holders of the Securities to the holders of
Guarantor Senior Debt, do any one or more of the following: (i) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, Guarantor Senior Debt, or otherwise amend or supplement in any manner
Guarantor Senior Debt, or any instrument evidencing the same or any agreement
under which Guarantor Senior Debt is
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outstanding; (ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Guarantor Senior Debt; (iii) release
any Person liable in any manner for the payment or collection of Guarantor
Senior Debt; and (iv) exercise or refrain from exercising any rights against the
Guarantors and any other Person.
SECTION 12.11. HOLDERS AUTHORIZE TRUSTEE TO EFFECTUATE SUBORDINATION
OF GUARANTEE OBLIGATIONS.
Each Holder of Guarantee Obligations by its acceptance of them
authorizes and expressly directs the Trustee on its behalf to take such action
as may be necessary or appropriate to effectuate, as between the holders of
Guarantor Senior Debt and the Holders, the subordination provided in this
Article Twelve, and appoints the Trustee its attorney-in-fact for such purposes,
including, in the event of any dissolution, winding-up, liquidation or
reorganization of any Guarantor (whether in bankruptcy, insolvency,
receivership, reorganization or similar proceedings or upon an assignment for
the benefit of credits or otherwise) tending towards liquidation of the business
and assets of any Guarantor, the filing of a claim for the unpaid balance under
its Guarantee Obligations and accrued interest in the form required in those
proceedings.
If the Trustee does not file a proper claim or proof of debt
in the form required in such proceeding prior to 30 days before the expiration
of the time to file such claim or claims, then the holders of the Guarantor
Senior Debt or their Representative are or is hereby authorized to have the
right to file and are or is hereby authorized to file an appropriate claim for
and on behalf of the Holders of said Guarantee Obligations. Nothing herein
contained shall be deemed to authorize the Trustee or the holders of Guarantor
Senior Debt or their Representative to authorize or consent to or accept or
adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Guarantee Obligations or the rights of
any Holder thereof, or to authorize the Trustee or the holders of Guarantor
Senior Debt or their Representative to vote in respect of the claim of any
Holder in any such proceeding.
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SECTION 12.12. THIS ARTICLE TWELVE NOT TO PREVENT EVENTS OF DEFAULT.
The failure to make a payment on account of principal of or
interest on the Guarantees by reason of any provision of this Article Twelve
will not be construed as preventing the occurrence of an Event of Default.
SECTION 12.13. TRUSTEE'S COMPENSATION NOT PREJUDICED.
Nothing in this Article Twelve will apply to amounts due to
the Trustee pursuant to other sections of this Indenture.
ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01. TIA 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 13.02. NOTICES.
Any notices or other communications required or permitted
hereunder shall be in writing, and shall be sufficiently given if made by hand
delivery, by telex, by telecopier or registered or certified mail, postage
prepaid, return receipt requested, addressed as follows:
if to the Company or a Guarantor:
Avado Brands, Inc.
Xxxxxxx at Xxxxxxxxxx
Xxxxxxx, XX 00000
Attention: Chief Financial Officer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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with a copy to:
Xxxxxxxxxx Xxxxxxxx LLP
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
if to the Trustee:
SunTrust Bank, Atlanta
00 Xxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000-0000
Attention: Corporate Trust Division
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Each of the Company and the Trustee by written notice to each
other such Person may designate additional or different addresses for notices to
such Person. Any notice or communication to the Company and the Trustee, shall
be deemed to have been given or made as of the date so delivered if personally
delivered; when answered back, if telexed; when receipt is acknowledged, if
telecopied; and five (5) calendar days after mailing if sent by registered or
certified mail, postage prepaid (except that a notice of change of address shall
not be deemed to have been given until actually received by the addressee).
Any notice or communication mailed to a Securityholder shall
be mailed to him by first class mail or other equivalent means at his address as
it appears on the registration books of the Registrar and shall be sufficiently
given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder
or any defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
-137-
SECTION 13.03. COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA ss. 312(b)
with other Securityholders with respect to their rights under this Indenture,
the Securities or the Guarantees. The Company, the Trustee, the Registrar and
any other Person shall have the protection of TIA ss. 312(c).
SECTION 13.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee
to take any action under this Indenture, the Company shall furnish to the
Trustee at the request of the Trustee:
(1) an Officers' Certificate, in form and substance
satisfactory to the Trustee, stating that, in the opinion of the
signers, all conditions precedent to be performed or effected by the
Company, if any, provided for in this Indenture relating to the
proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of
such counsel, any and all such conditions precedent have been complied
with.
SECTION 13.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture, other than the Officers'
Certificate required by Section 4.08, shall include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to
-138-
whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of each
such Person, such condition or covenant has been complied with;
PROVIDED, HOWEVER, that with respect to matters of fact an Opinion of
Counsel may rely on an Officers' Certificate or certificates of public
officials.
SECTION 13.06. RULES BY TRUSTEE, PAYING AGENT, REGISTRAR.
The Trustee, Paying Agent or Registrar may make reasonable
rules for its functions.
SECTION 13.07. LEGAL HOLIDAYS.
If a payment date is not a Business Day, payment may be made
on the next succeeding day that is a Business Day.
SECTION 13.08. GOVERNING LAW.
THIS INDENTURE, THE SECURITIES AND THE GUARANTEES WILL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW. Each of the parties hereto agrees to
submit to the jurisdiction of the courts of the State of New York in any action
or proceeding arising out of or relating to this Indenture, the Securities or
the Guarantees.
SECTION 13.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of any of the Company or any of its Subsidiaries. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
SECTION 13.10. NO RECOURSE AGAINST OTHERS.
No director, officer, employee, incorporator or stockholder of
the Company or any Subsidiary, as such, shall have any liability for any
obligations of the Company under the Securities, this Indenture or the
Guarantees or for any claim based on, in respect of, or by reason of, such
obligations or
-139-
their creation. Each Securityholder by accepting a Security waives and releases
all such liability. Such waiver and release are part of the consideration for
the issuance of the Securities.
SECTION 13.11. SUCCESSORS.
All agreements of the Company and the Guarantors in this
Indenture, the Securities and the Guarantees shall bind their respective
successors. All agreements of the Trustee in this Indenture shall bind its
successor.
SECTION 13.12. DUPLICATE ORIGINALS.
All parties may sign any number of copies of this Indenture.
Each signed copy or counterpart shall be an original, but all of them together
shall represent the same agreement.
SECTION 13.13. SEVERABILITY.
In case any one or more of the provisions in this Indenture,
in the Securities or in the Guarantees shall be held invalid, illegal or
unenforceable, in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions shall not in any way be affected or impaired thereby, it being
intended that all of the provisions hereof shall be enforceable to the full
extent permitted by law.
S-1
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the date first written above.
ISSUER
AVADO BRANDS, INC.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Xxxxx X. Xxxxxxx,
Senior Vice President
S-2
GUARANTORS
DON PABLO'S HOLDING CORP.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Xxxxx X. Xxxxxxx,
Senior Vice President
DON PABLO'S OPERATING CORP.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Xxxxx X. Xxxxxxx,
Senior Vice President
DON PABLO'S LIMITED, INC.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Xxxxx X. Xxxxxxx, President
DON PABLO'S OF TEXAS, LP
By: Don Pablo's Operating Corp.,
general partner
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Xxxxx X. Xxxxxxx,
Senior Vice President
CANYON CAFE OPERATING CORP.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Xxxxx X. Xxxxxxx,
Senior Vice President
S-3
CANYON CAFE TX GENERAL, INC.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Xxxxx X. Xxxxxxx,
Senior Vice President
CANYON CAFE LIMITED, INC.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Xxxxx X. Xxxxxxx, President
CANYON CAFE OF TEXAS, LP
By: Canyon Cafe TX General,
Inc., general partner
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Xxxxx X. Xxxxxxx,
Senior Vice President
AVADO VENTURES, INC.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Xxxxx X. Xxxxxxx, President
AVADO PROPERTIES, INC.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Xxxxx X. Xxxxxxx, President
XXXXXXXXX & XXXXXXX
HOLDING CORP.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Xxxxx X. Xxxxxxx,
S-4
Senior Vice President
XXXXXXXXX & XXXXXXX
OPERATING CORP.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Xxxxx X. Xxxxxxx,
Senior Vice President
XXXXXXXXX & XXXXXXX TX
GENERAL, INC.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Xxxxx X. Xxxxxxx,
Senior Vice President
XXXXXXXXX & XXXXXXX LIMITED, INC.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Xxxxx X. Xxxxxxx,
Senior Vice President
XXXXXXXXX & XXXXXXX OF TEXAS, LP
By: XxXxxxxxx & Xxxxxxx TX
General, Inc., general partner
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Xxxxx X. Xxxxxxx,
Senior Vice President
XXXXXXXXX & XXXXXXX'X
SCP VIII, INC.
By: /s/ Xxxxx X. Xxxxx
------------------------------
Xxxxx X. Xxxxx,
Vice President of Finance
S-5
XXXXXXXXX & XXXXXXX'X
RMP III, INC.
By: /s/ Xxxxx X. Xxxxx
------------------------------
Xxxxx X. Xxxxx,
Vice President of Finance
HOPS GRILL & BAR, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxx,
Vice President-Finance
CYPRESS COAST CONSTRUCTION
CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxx,
Vice President-Finance
HOPS MARKETING, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxx,
Vice President-Finance
HOPS OF SOUTHWEST FLORIDA, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxx,
Vice President-Finance
S-6
HOPS OF SOUTHWEST FLORIDA, LTD.
By: Hops of Southwest Florida,
Inc., general partner
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxx,
Vice President-Finance
HOPS OF BRADENTON, LTD.
By: Hops of Southwest Florida,
Inc., general partner
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxx,
Vice President-Finance
S-7
SUNTRUST BANK, ATLANTA,
as Trustee
By: /s/ Xxxxxxxx Xxxxx
------------------------------
Name: Xxxxxxxx Xxxxx
Title: Trust Officer
By: /s/ Xxxxxx X. DeMovey
------------------------------
Name: Xxxxxx X. DeMovey
Title: Vice President
EXHIBIT A
[FORM OF NOTE]
[FACE OF SECURITY]
AVADO BRANDS, INC.
11 3/4% Senior Subordinated Note
due June 15, 2009
CUSIP No.
No. $
AVADO BRANDS, INC., a Georgia corporation (the "Company",
which term includes any successor corporation), for value received promises
to pay to CEDE & CO. or registered assigns, the principal sum of $
Dollars, on June 15, 2009.
Interest Payment Dates: June 15 and December 15, commencing
December 15, 1999.
Record Dates: June 1 and December 1.
Reference is made to the further provisions of this Security
contained herein, which will for all purposes have the same effect as if set
forth at this place.
IN WITNESS WHEREOF, the Company has caused this Security to be
signed manually or by facsimile by its duly authorized officers.
Dated: June 22, 1999
AVADO BRANDS, INC.
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
-2-
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the 11 3/4% Senior Subordinated Notes due 2009
described in the within-mentioned Indenture.
SUNTRUST BANK, ATLANTA,
as Trustee
By:
------------------------
Authorized Signatory
Dated: June 22, 1999
-3-
[REVERSE OF SECURITY]
AVADO BRANDS, INC.
11 3/4% Senior Subordinated Note
due June 15, 2009
1. INTEREST.
AVADO BRANDS, INC., a Georgia corporation (the "Company"),
promises to pay interest on the principal amount of this Security at the rate
per annum shown above. The Company will pay interest semi-annually on June 15
and December 15 of each year (the "Interest Payment Date"), commencing December
15, 1999. Interest on this Security will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from and
including June 22, 1999. Interest on this Security will be computed on the basis
of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal from time
to time on demand at the rate borne by this Security plus 2% and on overdue
installments of interest (without regard to any applicable grace periods) to the
extent lawful.
2. METHOD OF PAYMENT.
The Company shall pay interest on the Securities (except
defaulted interest) to the Persons who are the registered Holders at the close
of business on the Record Date immediately preceding the Interest Payment Date
even if the Securities are canceled on registration of transfer or registration
of exchange (including pursuant to an Exchange Offer (as defined in the
Indenture)) after such Record Date. Holders must surrender Securities to a
Paying Agent to collect principal payments. The Company shall pay principal and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts ("U.S. Legal Tender"). However,
the Company may pay principal and interest by wire transfer of federal funds, or
interest by check payable in such U.S. Legal Tender. The Company may deliver any
such interest payment to the Paying Agent or to a Holder at the Holder's
registered address.
-4-
3. PAYING AGENT AND REGISTRAR.
Initially, SunTrust Bank, Atlanta (the "Trustee") will act as
Paying Agent and Registrar. The Company may change any Paying Agent, Registrar
or co-Registrar without notice to the Holders. The Company or any of its
Subsidiaries may, subject to certain exceptions, act as Registrar or
co-Registrar.
4. INDENTURE.
The Company issued the Securities under an Indenture, dated as
of June 22, 1999 (the "Indenture"), among the Company, the Guarantors named
therein and the Trustee. This Security is one of a duly authorized issue of
Securities of the Company designated as its 11 3/4% Senior Subordinated Notes
due 2009 (the "Securities"). Capitalized terms herein are used as defined in the
Indenture unless otherwise defined herein. The terms of the Securities include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act of 1939 (15 U.S.C. xx.xx. 77aaa-77bbbb) (the "TIA"),
as in effect on the date of the Indenture until such time as the Indenture is
qualified under the TIA, and thereafter as in effect on the date on which the
Indenture is qualified under the TIA. Notwithstanding anything to the contrary
herein, the Securities are subject to all such terms, and Holders of Securities
are referred to the Indenture and the TIA for a statement of them. The
Securities are general unsecured obligations of the Company limited in aggregate
principal amount to $100,000,000.
5. SUBORDINATION.
The Securities are subordinated in right of payment, in the
manner and to the extent set forth in the Indenture, to the prior payment in
full in cash or Cash Equivalents of all Senior Debt of the Company, whether
outstanding on the date of the Indenture or thereafter created, incurred,
assumed or guaranteed. Each Holder by his acceptance hereof agrees to be bound
by such provisions and authorizes and expressly directs the Trustee, on his
behalf, to take such action as may be necessary or appropriate to effectuate the
subordination provided for in the Indenture and appoints the Trustee his
attorney-in-fact for such purposes.
-5-
6. OPTIONAL REDEMPTION.
The Company may redeem the Securities, in whole at any time or
in part from time to time, on and after June 15, 2004, upon not less than 30 nor
more than 60 days notice, at the following redemption prices (expressed as
percentages of the principal amount thereof) if redeemed during the twelve-month
period commencing on June 15 of the years set forth below, plus, in each case,
accrued and unpaid interest thereon, if any, to the date of redemption:
YEAR PERCENTAGE
---- ----------
2004............................................ 105.875%
2005............................................ 103.917%
2006............................................ 101.959%
2007 and thereafter............................. 100.000%
7. OPTIONAL REDEMPTION UPON PUBLIC EQUITY OFFERINGS.
At any time, or from time to time, on or prior to June 15,
2002, the Company may, at its option, use the net cash proceeds of one or more
Public Equity Offerings to redeem up to 35% in aggregate principal amount of the
Securities issued under the Indenture at a redemption price equal to 111.75% of
the principal amount thereof, plus accrued and unpaid interest thereon, if any,
to the date of redemption; PROVIDED, HOWEVER, that after any such redemption the
aggregate principal amount of the Securities outstanding must equal at least 65%
of the aggregate amount of the Securities issued under the Indenture. In order
to effect the foregoing redemption with the net cash proceeds of any Public
Equity Offering, the Company shall make such redemption not more than 90 days
after the consummation of any such Public Equity Offering.
As used in the preceding paragraph, "Public Equity Offering"
means an underwritten public offering of Capital Stock of the Company (other
than Redeemable Stock) pursuant to a registration statement filed with the
Commission in accordance with the Securities Act.
8. NOTICE OF REDEMPTION.
Notice of redemption shall be mailed by first-class mail at
least 30 days but not more than 60 days before the Redemption Date to each
Holder of Securities to be redeemed at
-6-
such Holder's registered address. Securities in denominations of $1,000 may be
redeemed only in whole. The Trustee may select for redemption portions (equal to
$1,000 or any integral multiple thereof) of the principal of Securities that
have denominations larger than $1,000.
If any Security is to be redeemed in part only, the notice of
redemption that relates to such Security shall state the portion of the
principal amount thereof to be redeemed. A new Security in a principal amount
equal to the unredeemed portion thereof will be issued in the name of the Holder
thereof upon cancellation of the original Security. On and after the Redemption
Date, interest will cease to accrue on Securities or portions thereof called for
redemption, subject to the provisions of the Indenture.
9. CHANGE OF CONTROL OFFER.
Upon the occurrence of a Change of Control, the Company will
be required to offer to purchase all of the outstanding Securities at a purchase
price equal to 101% of the principal amount thereof, plus accrued and unpaid
interest, if any, thereon to the date of repurchase.
10. LIMITATION ON ASSET SALES.
The Company is, subject to certain conditions, obligated to
make an offer to purchase Securities at 100% of their principal amount, plus
accrued and unpaid interest, if any, thereon to the date of repurchase with
certain net cash proceeds of certain sales or other dispositions of assets in
accordance with the Indenture.
11. REGISTRATION RIGHTS.
Pursuant to the Registration Rights Agreement, the Company
will be obligated to consummate an exchange offer pursuant to which the Holder
of this Security shall have the right to exchange this Security for the
Company's 11 3/4% Senior Subordinated Notes due 2009, which shall have been
registered under the Securities Act, in like principal amount and having terms
identical in all material respects to the Securities. The Holders of the
Securities shall be entitled to receive certain additional interest payments in
the event such exchange offer is not consummated and upon certain other
conditions, all
-7-
pursuant to and in accordance with the terms of the Registration Rights
Agreement.
12. DENOMINATIONS; TRANSFER; EXCHANGE.
The Securities are in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder shall
register the transfer of or exchange Securities in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay certain transfer
taxes or similar governmental charges payable in connection therewith as
permitted by the Indenture. The Registrar need not register the transfer of or
exchange any Securities or portions thereof selected for redemption, except the
unredeemed portion of any security being redeemed in part.
13. PERSONS DEEMED OWNERS.
The registered Holder of a Security shall be treated as the
owner of it for all purposes.
14. UNCLAIMED FUNDS.
If funds for the payment of principal or interest remain
unclaimed for two years, the Trustee and the Paying Agent will repay the funds
to the Company at its request. After that, all liability of the Trustee and such
Paying Agent with respect to such funds shall cease.
15. DISCHARGE PRIOR TO REDEMPTION OR MATURITY.
The Company and the Guarantors may be discharged from their
obligations under the Indenture, the Securities and the Guarantees except for
certain provisions thereof, and may be discharged from obligations to comply
with certain covenants contained in the Indenture, the Securities and the
Guarantees, in each case upon satisfaction of certain conditions specified in
the Indenture.
16. AMENDMENT; SUPPLEMENT; WAIVER.
Subject to certain exceptions, the Indenture, the Securities
and the Guarantees may be amended or supplemented with the written consent of
the Holders of at least a majority in aggregate principal amount of the
Securities then outstanding,
-8-
and any existing Default or Event of Default or compliance with any provision
may be waived with the consent of the Holders of a majority in aggregate
principal amount of the Securities then outstanding. Without notice to or
consent of any Holder, the parties thereto may amend or supplement the
Indenture, the Securities and the Guarantees to, among other things, cure any
ambiguity, defect or inconsistency, provide for uncertificated Securities in
addition to or in place of certificated Securities or comply with any
requirements of the Commission in connection with the qualification of the
Indenture under the TIA, or make any other change that does not materially
adversely affect the rights of any Holder of a Security.
17. RESTRICTIVE COVENANTS.
The Indenture contains certain covenants that, among other
things, limit the ability of the Company and its Restricted Subsidiaries to make
restricted payments, to incur indebtedness, to create liens, to sell assets, to
permit restrictions on dividends and other payments by Restricted Subsidiaries
of the Company to the Company, to consolidate, merge or sell all or
substantially all of its assets or to engage in transactions with affiliates.
The limitations are subject to a number of important qualifications and
exceptions. The Company must annually report to the Trustee on compliance with
such limitations.
18. DEFAULTS AND REMEDIES.
If an Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in aggregate principal amount of Securities then
outstanding may declare all the Securities to be due and payable immediately in
the manner and with the effect provided in the Indenture. Holders of Securities
may not enforce the Indenture, the Securities or the Guarantees except as
provided in the Indenture. The Trustee is not obligated to enforce the
Indenture, the Securities or the Guarantees unless it has received indemnity
satisfactory to it. The Indenture permits, subject to certain limitations
therein provided, Holders of a majority in aggregate principal amount of the
Securities then outstanding to direct the Trustee in its exercise of any trust
or power. The Trustee may withhold from Holders of Securities notice of certain
continuing Defaults or Events of Default if it determines that withholding
notice is in their interest.
-9-
19. TRUSTEE DEALINGS WITH COMPANY.
The Trustee under the Indenture, in its individual or any
other capacity, may become the owner or pledgee of Securities and may otherwise
deal with the Company, its Subsidiaries or their respective Affiliates as if it
were not the Trustee.
20. NO RECOURSE AGAINST OTHERS.
No stockholder, director, officer or employee, as such, of the
Company shall have any liability for any obligation of the Company under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of, such obligations or their creation. Each Holder of a Security by
accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Securities.
21. AUTHENTICATION.
This Security shall not be valid until the Trustee or
authenticating agent manually signs the certificate of authentication on this
Security.
22. ABBREVIATIONS AND DEFINED TERMS.
Customary abbreviations may be used in the name of a Holder of
a Security or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A
(= Uniform Gifts to Minors Act).
23. GOVERNING LAW.
This Security shall be governed by, and construed in
accordance with, the laws of the State of New York without giving effect to
applicable principles of conflicts of laws to the extent that the application of
the laws of another jurisdiction would be required thereby.
24. 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 Securities
-10-
as a convenience to the Holders of the Securities. No representation is made as
to the accuracy of such numbers as printed on the Securities and reliance may be
placed only on the other identification numbers printed hereon.
25. INDENTURE.
Each Holder, by accepting a Security, agrees to be bound by
all of the terms and provisions of the Indenture, as the same may be amended
from time to time.
The Company will furnish to any Holder of a Security upon
written request and without charge a copy of the Indenture. Requests may be made
to: Avado Brands, Inc., Xxxxxxx at Xxxxxxxxxx, Xxxxxxx, XX 00000, Attn: Chief
Financial Officer.
ASSIGNMENT FORM
I or we assign and transfer this Security to
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee or
transferee)
--------------------------------------------------------------------------------
(Insert Social Security or other identifying number of assignee or transferee)
and irrevocably appoint agent to
---------------------------------------
transfer this Security on the books of the Company. The agent may substitute
another to act for him.
Dated: Signed:
----------------- -------------------------
(Sign exactly as name appears on the other
side of this Security)
Signature Guarantee:
----------------------------------
Participant in a recognized
Signature Guarantee Medallion
Program (or other signature
guarantor program reasonably
acceptable to the Trustee)
In connection with any transfer of this Security occurring
prior to the date which is the earlier of (i) the date of the declaration by the
Commission of the effectiveness of a registration statement under the Securities
Act of 1933, as amended (the "Securities Act"), covering resales of this
Security (which effectiveness shall not have been suspended or terminated at the
date of the transfer) and (ii) June 22, 2001, the undersigned confirms that it
has not utilized any general solicitation or general advertising in connection
with the transfer and that this Security is being transferred:
-2-
[CHECK ONE]
(1) __ to the Company or a subsidiary thereof; or
(2) __ pursuant to and in compliance with Rule 144A under
the Securities Act; or
(3) __ to an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act)
that has furnished to the Trustee a signed letter
containing certain representations and agreements (the form
of which letter can be obtained from the Trustee); or
(4) __ outside the United States to a "foreign person" in
compliance with Rule 904 of Regulation S under the
Securities Act; or
(5) __ pursuant to the exemption from registration provided by
Rule 144 under the Securities Act; or
(6) __ pursuant to an effective registration statement under the
Securities Act; or
(7) __ pursuant to another available exemption from the
registration requirements of the Securities Act;
and unless the box below is checked, the undersigned confirms that such Security
is not being transferred to an "affiliate" of the Company as defined in Rule 144
under the Securities Act (an "Affiliate"):
/_/ The transferee is an Affiliate of the Company.
Unless one of the items is checked, the Trustee will refuse to
register any of the Securities evidenced by this certificate in the name of any
person other than the registered Holder thereof; PROVIDED that if box (3), (4),
(5) or (7) is checked, the Company or the Trustee may require, prior to
registering any such transfer of the Securities, in its sole discretion, such
legal opinions, certifications (including an investment letter in the case of
box (3) or (4)) and other information as the Trustee or the Company has
reasonably requested to confirm that such transfer is being made pursuant to an
ex-
-3-
emption from, or in a transaction not subject to, the registration requirements
of the Securities Act.
-4-
If none of the foregoing boxes is checked, the Trustee or Registrar shall not be
obligated to register this Security in the name of any person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.16 of the Indenture shall have
been satisfied.
Dated: Signed:
------------------ ------------------------
(Sign exactly as name appears on the
other side of this Security)
Signature Guarantee:
-----------------------------------------
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing
this Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated:
------------------ --------------------------------
NOTICE: To be executed by
an executive officer
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.15 or Section 4.16 of the Indenture, check the
appropriate box:
Section 4.15 [ ] Section 4.16 [ ]
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 4.15 or Section 4.16 of the
Indenture, state the amount: $
-----------
Dated: Signed:
----------------- -----------------------------------------
(Sign exactly as name appears on the other
side of this Security)
Signature Guarantee:
------------------------------------
Participant in a recognized
Signature Guarantee Medallion
Program (or other signature
guarantor program reasonably
acceptable to the Trustee)
EXHIBIT B
[FORM OF EXCHANGE NOTE]
[FACE OF SECURITY]
AVADO BRANDS, INC.
11 3/4% Senior Subordinated Note
due June 15, 2009
CUSIP No.
No. $
AVADO BRANDS, INC., a Georgia 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
June 15, 2009.
Interest Payment Dates: June 15 and December 15, commencing
December 15, 1999.
Record Dates: June 1 and December 1.
Reference is made to the further provisions of this Security
contained herein, which will for all purposes have the same effect as if set
forth at this place.
IN WITNESS WHEREOF, the Company has caused this Security to be
signed manually or by facsimile by its duly authorized officers.
Dated: June 22, 1999
AVADO BRANDS, INC.
By:
-----------------------------
Name:
Title:
By:
-----------------------------
Name:
Title:
-2-
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the 11 3/4% Senior Subordinated Notes due 2009
described in the within-mentioned Indenture.
SUNTRUST BANK, ATLANTA,
as Trustee
By:
---------------------
Authorized Signatory
Dated: June 22, 1999
-3-
[REVERSE OF SECURITY]
AVADO BRANDS, INC.
11 3/4% Senior Subordinated Note
due June 15, 2009
1. INTEREST.
AVADO BRANDS, INC., a Georgia corporation (the "Company"),
promises to pay interest on the principal amount of this Security at the rate
per annum shown above. The Company will pay interest semi-annually on June 15
and December 15 of each year (the "Interest Payment Date"), commencing December
15, 1999. Interest on this Security will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from and
including June 22, 1999. Interest on this Security will be computed on the basis
of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal from time
to time on demand at the rate borne by this Security plus 2% and on overdue
installments of interest (without regard to any applicable grace periods) to the
extent lawful.
2. METHOD OF PAYMENT.
The Company shall pay interest on the Securities (except
defaulted interest) to the persons who are the registered Holders at the close
of business on the Record Date immediately preceding the Interest Payment Date
even if the Securities are canceled on registration of transfer or registration
of exchange after such Record Date. Holders must surrender Securities to a
Paying Agent to collect principal payments. The Company shall pay principal and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts ("U.S. Legal Tender"). However,
the Company may pay principal and interest by wire transfer of federal funds, or
interest by check payable in such U.S. Legal Tender. The Company may deliver any
such interest payment to the Paying Agent or to a Holder at the Holder's
registered address.
-4-
3. PAYING AGENT AND REGISTRAR.
Initially, SunTrust Bank, Atlanta (the "Trustee") will act as
Paying Agent and Registrar. The Company may change any Paying Agent, Registrar
or co-Registrar without notice to the Holders. The Company or any of its
Subsidiaries may, subject to certain exceptions, act as Registrar or
co-Registrar.
4. INDENTURE.
The Company issued the Securities under an Indenture, dated as
of June 22, 1999 (the "Indenture"), among the Company, the Guarantors named
therein and the Trustee. This Security is one of a duly authorized issue of
Exchange Notes of the Company designated as its 11 3/4% Senior Subordinated
Notes due 2009 (the "Securities"). Capitalized terms herein are used as defined
in the Indenture unless otherwise defined herein. The terms of the Securities
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939 (15 U.S.C. xx.xx. 77aaa-77bbbb)
(the "TIA"), as in effect on the date of the Indenture until such time as the
Indenture is qualified under the TIA, and thereafter as in effect on the date on
which the Indenture is qualified under the TIA. Notwithstanding anything to the
contrary herein, the Securities are subject to all such terms, and Holders of
Securities are referred to the Indenture and the TIA for a statement of them.
The Securities are general unsecured obligations of the Company limited in
aggregate principal amount to $100,000,000.
5. SUBORDINATION.
The Securities are subordinated in right of payment, in the
manner and to the extent set forth in the Indenture, to the prior payment in
full in cash or Cash Equivalents of all Senior Debt of the Company, whether
outstanding on the date of the Indenture or thereafter created, incurred,
assumed or guaranteed. Each Holder by his acceptance hereof agrees to be bound
by such provisions and authorizes and expressly directs the Trustee, on his
behalf, to take such action as may be necessary or appropriate to effectuate the
subordination provided for in the Indenture and appoints the Trustee his
attorney-in-fact for such purposes.
-5-
6. OPTIONAL REDEMPTION.
The Company may redeem the Securities, in whole at any time or
in part from time to time, on and after June 15, 2004, upon not less than 30 nor
more than 60 days notice, at the following redemption prices (expressed as
percentages of the principal amount thereof) if redeemed during the twelve-month
period commencing on June 15 of the years set forth below, plus, in each case,
accrued and unpaid interest thereon, if any, to the date of redemption:
YEAR PERCENTAGE
---- ----------
2004............................................ 105.875%
2005............................................ 103.917%
2006............................................ 101.959%
2007 and thereafter............................. 100.000%
7. OPTIONAL REDEMPTION UPON PUBLIC EQUITY OFFERINGS.
At any time, or from time to time, on or prior to June 15,
2002, the Company may, at its option, use the net cash proceeds of one or more
Public Equity Offerings to redeem up to 35% in aggregate principal amount of the
Securities issued under the Indenture at a redemption price equal to 111.75% of
the principal amount thereof plus accrued and unpaid interest thereon, if any,
to the date of REDEMPTION; provided, HOWEVER, that after any such redemption the
aggregate principal amount of the Securities outstanding must equal at least 65%
of the aggregate amount of the Securities issued under the Indenture. In order
to effect the foregoing redemption with the net cash proceeds of any Public
Equity Offering, the Company shall make such redemption not more than 90 days
after the consummation of any such Public Equity Offering.
As used in the preceding paragraph, "Public Equity Offering"
means an underwritten public offering of Capital Stock of the Company (other
than Redeemable Stock) pursuant to a registration statement filed with the
Commission in accordance with the Securities Act.
8. NOTICE OF REDEMPTION.
Notice of redemption shall be mailed by first-class mail at
least 30 days but not more than 60 days before the Redemption Date to each
Holder of Securities to be redeemed at
-6-
such Holder's registered address. Securities in denominations of $1,000 may be
redeemed only in whole. The Trustee may select for redemption portions (equal to
$1,000 or any integral multiple thereof) of the principal of Securities that
have denominations larger than $1,000.
If any Security is to be redeemed in part only, the notice of
redemption that relates to such Security shall state the portion of the
principal amount thereof to be redeemed. A new Security in a principal amount
equal to the unredeemed portion thereof will be issued in the name of the Holder
thereof upon cancellation of the original Security. On and after the Redemption
Date, interest will cease to accrue on Securities or portions thereof called for
redemption, subject to the provisions of the Indenture.
9. CHANGE OF CONTROL OFFER.
Upon the occurrence of a Change of Control, the Company will
be required to offer to purchase all of the outstanding Securities at a purchase
price equal to 101% of the principal amount thereof, plus accrued and unpaid
interest, if any, thereon to the date of repurchase.
10. LIMITATION ON ASSET SALES.
The Company is, subject to certain conditions, obligated to
make an offer to purchase Securities at 100% of their principal amount, plus
accrued and unpaid interest, if any, thereon to the date of repurchase with
certain net cash proceeds of certain sales or other dispositions of assets in
accordance with the Indenture.
11. DENOMINATIONS; TRANSFER; EXCHANGE.
The Securities are in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder shall
register the transfer of or exchange Securities in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay certain transfer
taxes or similar governmental charges payable in connection therewith as
permitted by the Indenture. The Registrar need not register the transfer of or
exchange any Securities or portions thereof selected for redemption, except the
unredeemed portion of any security being redeemed in part.
-7-
12. PERSONS DEEMED OWNERS.
The registered Holder of a Security shall be treated as the
owner of it for all purposes.
13. UNCLAIMED FUNDS.
If funds for the payment of principal or interest remain
unclaimed for two years, the Trustee and the Paying Agent will repay the funds
to the Company at its request. After that, all liability of the Trustee and such
Paying Agent with respect to such funds shall cease.
14. DISCHARGE PRIOR TO REDEMPTION OR MATURITY.
The Company and the Guarantors may be discharged from their
obligations under the Indenture, the Securities and the Guarantees except for
certain provisions thereof, and may be discharged from obligations to comply
with certain covenants contained in the Indenture, the Securities and the
Guarantees, in each case upon satisfaction of certain conditions specified in
the Indenture.
15. AMENDMENT; SUPPLEMENT; WAIVER.
Subject to certain exceptions, the Indenture, the Securities
and the Guarantees may be amended or supplemented with the written consent of
the Holders of at least a majority in aggregate principal amount of the
Securities then outstanding, and any existing Default or Event of Default or
compliance with any provision may be waived with the consent of the Holders of a
majority in aggregate principal amount of the Securities then outstanding.
Without notice to or consent of any Holder, the parties thereto may amend or
supplement the Indenture, the Securities and the Guarantees to, among other
things, cure any ambiguity, defect or inconsistency, provide for uncertificated
Securities in addition to or in place of certificated Securities or comply with
any requirements of the Commission in connection with the qualification of the
Indenture under the TIA, or make any other change that does not materially
adversely affect the rights of any Holder of a Security.
16. RESTRICTIVE COVENANTS.
The Indenture contains certain covenants that, among other
things, limit the ability of the Company and its Restricted Subsidiaries to make
restricted payments, to incur indebtedness, to create liens, to sell assets, to
permit restrictions on dividends and other payments by Restricted
-8-
Subsidiaries of the Company to the Company, to consolidate, merge or sell all
or substantially all of its assets or to engage in transactions with
affiliates. The limitations are subject to a number of important
qualifications and exceptions. The Company must annually report to the
Trustee on compliance with such limitations.
17. DEFAULTS AND REMEDIES.
If an Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in aggregate principal amount of Securities then
outstanding may declare all the Securities to be due and payable immediately in
the manner and with the effect provided in the Indenture. Holders of Securities
may not enforce the Indenture, the Securities or the Guarantees except as
provided in the Indenture. The Trustee is not obligated to enforce the
Indenture, the Securities or the Guarantees unless it has received indemnity
satisfactory to it. The Indenture permits, subject to certain limitations
therein provided, Holders of a majority in aggregate principal amount of the
Securities then outstanding to direct the Trustee in its exercise of any trust
or power. The Trustee may withhold from Holders of Securities notice of certain
continuing Defaults or Events of Default if it determines that withholding
notice is in their interest.
18. TRUSTEE DEALINGS WITH COMPANY.
The Trustee under the Indenture, in its individual or any
other capacity, may become the owner or pledgee of Securities and may otherwise
deal with the Company, its Subsidiaries or their respective Affiliates as if it
were not the Trustee.
19. NO RECOURSE AGAINST OTHERS.
No stockholder, director, officer or employee, as such, of the
Company shall have any liability for any obligation of the Company under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of, such obligations or their creation. Each Holder of a Security by
accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Securities.
-9-
20. AUTHENTICATION.
This Security shall not be valid until the Trustee or
authenticating agent manually signs the certificate of authentication on this
Security.
21. ABBREVIATIONS AND DEFINED TERMS.
Customary abbreviations may be used in the name of a Holder of
a Security or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
22. GOVERNING LAW.
This Security shall be governed by, and construed in
accordance with, the laws of the State of New York without giving effect to
applicable principles of conflicts of laws to the extent that the application of
the laws of another jurisdiction would be required thereby.
23. 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 Securities as a convenience to the Holders of the
Securities. No representation is made as to the accuracy of such numbers as
printed on the Securities and reliance may be placed only on the other
identification numbers printed hereon.
24. INDENTURE.
Each Holder, by accepting a Security, agrees to be bound by
all of the terms and provisions of the Indenture, as the same may be amended
from time to time.
The Company will furnish to any Holder of a Security upon
written request and without charge a copy of the Indenture. Requests may be made
to: Avado Brands, Inc., Xxxxxxx at Xxxxxxxxxx, Xxxxxxx, XX 00000, Attn: Chief
Financial Officer.
ASSIGNMENT FORM
I or we assign and transfer this Security to
---------------------------------------------------------------
---------------------------------------------------------------
(Print or type name, address and zip code of assignee or
transferee)
---------------------------------------------------------------
(Insert Social Security or other identifying number of assignee or transferee)
and irrevocably appoint agent to
---------------------------------------
transfer this Security on the books of the Company. The agent may substitute
another to act for him.
Dated: Signed:
----------------- --------------------------
(Sign exactly as name
appears on the other side
of this Security)
Signature Guarantee:
---------------------------------------
Participant in a recognized
Signature Guarantee Medallion
Program (or other signature
guarantor program reasonably
acceptable to the Trustee)
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.15 or Section 4.16 of the Indenture, check the
appropriate box:
Section 4.15 [ ] Section 4.16 [ ]
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 4.15 or Section 4.16 of the
Indenture, state the amount: $
-----------
Dated: Signed:
----------------- --------------------------
(Sign exactly as name appears on the other
side of this Security)
Signature Guarantee:
------------------------------------
Participant in a recognized
Signature Guarantee Medallion
Program (or other signature
guarantor program reasonably
acceptable to the Trustee)
EXHIBIT C
GUARANTEE
For value received, each of the undersigned hereby
unconditionally guarantees, as principal obligor and not only as a surety, to
the Holder of this Security the cash payments in United States dollars of
principal of, premium, if any, and interest on this Security in the amounts and
at the times when due and interest on the overdue principal, premium, if any,
and interest, if any, of this Security, if lawful, and the payment or
performance of all other obligations of the Company under the Indenture (as
defined below) or the Securities, to the Holder of this Security and the
Trustee, all in accordance with and subject to the terms and limitations of this
Security, Article Eleven of the Indenture and this Guarantee. This Guarantee
will become effective in accordance with Article Eleven of the Indenture and its
terms shall be evidenced therein. The validity and enforceability of any
Guarantee shall not be affected by the fact that it is not affixed to any
particular Security.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Indenture dated as of June 22, 1999, among
Avado Brands, Inc., a Georgia corporation, as issuer (the "Company"), the
Guarantors named therein and SunTrust Bank, Atlanta, as trustee (the "Trustee"),
as amended or supplemented (the "Indenture").
The obligations of the undersigned to the Holders of
Securities and to the Trustee pursuant to this Guarantee and the Indenture are
expressly set forth in Article Eleven of the Indenture and reference is hereby
made to the Indenture for the precise terms of the Guarantee and all of the
other provisions of the Indenture to which this Guarantee relates.
THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO
PRINCIPLES OF CONFLICTS OF LAW. The undersigned Guarantor hereby agrees to
submit to the jurisdiction of the courts of the State of New York in any action
or proceeding arising out of or relating to this Guarantee.
This Guarantee is subject to release upon the terms set forth
in the Indenture.
-2-
IN WITNESS WHEREOF, each Guarantor has caused its Guarantee to
be duly executed.
GUARANTORS
DON PABLO'S HOLDING CORP.
By:
-----------------------
Xxxxx X. Xxxxxxx,
Senior Vice President
DON PABLO'S OPERATING CORP.
By:
-----------------------
Xxxxx X. Xxxxxxx,
Senior Vice President
DON PABLO'S LIMITED, INC.
By:
-----------------------
Xxxxx X. Xxxxxxx, President
DON PABLO'S OF TEXAS, LP
By: Don Pablo's Operating Corp.,
general partner
By:
-----------------------
Xxxxx X. Xxxxxxx,
Senior Vice President
CANYON CAFE OPERATING CORP.
By:
-----------------------
Xxxxx X. Xxxxxxx,
Senior Vice President
-3-
CANYON CAFE TX GENERAL, INC.
By:
-----------------------
Xxxxx X. Xxxxxxx,
Senior Vice President
CANYON CAFE LIMITED, INC.
By:
-----------------------
Xxxxx X. Xxxxxxx, President
CANYON CAFE OF TEXAS, LP
By: Canyon Cafe TX General,
Inc., general partner
By:
-----------------------
Xxxxx X. Xxxxxxx,
Senior Vice President
AVADO VENTURES, INC.
By:
-----------------------
Xxxxx X. Xxxxxxx, President
AVADO PROPERTIES, INC.
By:
-----------------------
Xxxxx X. Xxxxxxx, President
XXXXXXXXX & XXXXXXX
HOLDING CORP.
By:
-----------------------
Xxxxx X. Xxxxxxx,
-4-
Senior Vice President
XXXXXXXXX & XXXXXXX
OPERATING CORP.
By:
-----------------------
Xxxxx X. Xxxxxxx,
Senior Vice President
XXXXXXXXX & XXXXXXX TX
GENERAL, INC.
By:
-----------------------
Xxxxx X. Xxxxxxx,
Senior Vice President
XXXXXXXXX & XXXXXXX LIMITED, INC.
By:
-----------------------
Xxxxx X. Xxxxxxx,
Senior Vice President
XXXXXXXXX & XXXXXXX OF TEXAS, LP
By: XxXxxxxxx & Xxxxxxx TX
General, Inc., general partner
By:
-----------------------
Xxxxx X. Xxxxxxx,
Senior Vice President
XXXXXXXXX & XXXXXXX'X
SCP VIII, INC.
By:
-----------------------
-5-
Xxxxx X. Xxxxx,
Vice President of Finance
XXXXXXXXX & XXXXXXX'X
RMP III, INC.
By:
-----------------------
Xxxxx X. Xxxxx,
Vice President of Finance
HOPS GRILL & BAR, INC.
By:
-----------------------
Xxxxxxx X. Xxxxxxx,
Vice President-Finance
CYPRESS COAST CONSTRUCTION
CORPORATION
By:
-----------------------
Xxxxxxx X. Xxxxxxx,
Vice President-Finance
HOPS MARKETING, INC.
By:
-----------------------
Xxxxxxx X. Xxxxxxx,
Vice President-Finance
-6-
HOPS OF SOUTHWEST FLORIDA, LTD.
By: Hops of Southwest Florida,
Inc., general partner
By:
-----------------------
Xxxxxxx X. Xxxxxxx,
Vice President-Finance
HOPS OF BRADENTON, LTD.
By: Hops of Southwest Florida,
Inc., general partner
By:
-----------------------
Xxxxxxx X. Xxxxxxx,
Vice President-Finance
EXHIBIT D
Form of Certificate To Be
Delivered in Connection with
TRANSFERS TO NON-QIB ACCREDITED INVESTORS
[Date]
Attention:
Re: Avado Brands, Inc.
11 3/4% Senior Subordinated Notes due 2009
(the "Securities")
-------------------------------------------------
Ladies and Gentlemen:
In connection with our proposed purchase of the Securities of
Avado Brands, Inc. (the "Company"), we confirm that:
1. We have received a copy of the Offering Memorandum
(the "Offering Memorandum"), dated June 16, 1999 relating to the Securities and
such other information as we deem necessary in order to make our investment
decision. We acknowledge that we have read and agreed to the matters stated in
the section entitled "Notices to Investors" of the Offering Memorandum,
including the restrictions on duplication and circulation of the Offering
Memorandum.
2. We understand that any subsequent transfer of the
Securities is subject to certain restrictions and conditions set forth in the
Indenture relating to the Securities (as described in the Offering Memorandum)
and the undersigned agrees to be bound by, and not to resell, pledge or
otherwise transfer the Securities except in compliance with, such restrictions
and conditions and the Securities Act of 1933, as amended (the "Securities
Act").
-2-
3. We understand that the offer and sale of the
Securities have not been registered under the Securities Act, and that the
Securities may not be offered or sold except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any accounts for which we
are acting as hereinafter stated, that if we should sell or otherwise transfer
any Securities prior to the date which is two years after the original issuance
of the Securities, we will do so only (i) to the Company or any of its
subsidiaries, (ii) inside the United States in accordance with Rule 144A under
the Securities Act to a "qualified institutional buyer" (as defined in Rule 144A
under the Securities Act), (iii) inside the United States to an institutional
"accredited investor" (as defined below) that, prior to such transfer, furnishes
(or has furnished on its behalf by a U.S. broker-dealer) to the Trustee (as
defined in the Indenture relating to the Securities), a signed letter containing
certain representations and agreements relating to the restrictions on transfer
of the Securities, (iv) outside the United States in accordance with Rule 904 of
Regulation S under the Securities Act, (v) pursuant to the exemption from
registration provided by Rule 144 under the Securities Act (if available), or
(vi) pursuant to an effective registration statement under the Securities Act,
and we further agree to provide to any person purchasing any of the Securities
from us a notice advising such purchaser that resales of the Securities are
restricted as stated herein.
4. We are not acquiring the Securities for or on behalf
of, and will not transfer the Securities to, any pension or welfare plan (as
defined in Section 3 of the Employee Retirement Income Security Act of 1974),
except as permitted in the section entitled "Notices to Investors" of the
Offering Memorandum.
5. We understand that, on any proposed resale of any
Securities, we will be required to furnish to the Trustee and the Company such
certification, legal opinions and other information as the Trustee and the
Company may reasonably require to confirm that the proposed sale complies with
the foregoing restrictions. We further understand that the Securities purchased
by us will bear a legend to the foregoing effect.
6. We are an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities
Act) and have such knowledge and experi-
-3-
ence in financial and business matters as to be capable of evaluating the merits
and risks of our investment in the Securities, and we and any accounts for which
we are acting are each able to bear the economic risk of our or their
investment, as the case may be.
7. We are acquiring the Securities purchased by us for
our account or for one or more accounts (each of which is an institutional
"accredited investor") as to each of which we exercise sole investment
discretion.
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
By:
-------------------------------
Name:
Title:
EXHIBIT E
Form of Certificate To Be Delivered
in Connection with Transfers
PURSUANT TO REGULATION S
[Date]
Attention:
Re: Avado Brands, Inc. (the "Company")
11 3/4% Senior Subordinated Notes due 2009
(the "Securities")
-----------------------------------------------
Ladies and Gentlemen:
In connection with our proposed sale of $ aggregate principal
amount of the Securities, we confirm that such sale has been effected pursuant
to and in accordance with Regulation S under the U.S. Securities Act of 1933, as
amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Securities was not made to a person
in the United States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed that the transferee was outside the
United States, or (b) the transaction was executed in, on or through
the facilities of a designated off-shore securities market and neither
we nor any person acting on our behalf knows that the transaction has
been pre-arranged with a buyer in the United States;
-2-
(3) no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act; and
(5) we have advised the transferee of the transfer
restrictions applicable to the Securities.
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate have
the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
------------------------------
Authorized Signature
