Exhibit 4.2
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BIG FLOWER PRESS HOLDINGS, INC.
as Issuer
and
FLEET NATIONAL BANK
as Trustee
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INDENTURE
Dated as of June 20, 1997
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up to $350,000,000
8-7/8% Senior Subordinated Notes due 2007
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CROSS-REFERENCE TABLE
TIA Section Indenture Section
Section 310(a)(1) . . . . . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . . . . . N.A.
(a)(5) . . . . . . . . . . . . . . . . . . . . 7.10
(b) . . . . . . . . . . . . . . . . . . . . . . 7.8; 7.10; 11.2
(c) . . . . . . . . . . . . . . . . . . . . . . N.A.
Section 311(a) . . . . . . . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . . . . . . . . . N.A.
Section 312(a) . . . . . . . . . . . . . . . . . . . . . . 2.5
(b) . . . . . . . . . . . . . . . . . . . . . . 11.3
(c) . . . . . . . . . . . . . . . . . . . . . . 11.3
Section 313(a) . . . . . . . . . . . . . . . . . . . . . . 7.6
(b)(1). . . . . . . . . . . . . . . . . . . . . 7.6
(b)(2). . . . . . . . . . . . . . . . . . . . . 7.6
(c) . . . . . . . . . . . . . . . . . . . . . . 7.6; 11.2
(d) . . . . . . . . . . . . . . . . . . . . . . 7.6
Section 314(a) . . . . . . . . . . . . . . . . . . . . . . 4.6; 4.7; 11.2
(b) . . . . . . . . . . . . . . . . . . . . . . N.A.
(c)(1). . . . . . . . . . . . . . . . . . . . . 11.4
(c)(2). . . . . . . . . . . . . . . . . . . . . 11.4
(c)(3). . . . . . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . . . . . . . . . . . 11.5
(f) . . . . . . . . . . . . . . . . . . . . . . N.A.
Section 315(a) . . . . . . . . . . . . . . . . . . . . . . 7.1(b)
(b) . . . . . . . . . . . . . . . . . . . . . . 7.5; 11.2
(c) . . . . . . . . . . . . . . . . . . . . . . 7.1(a)
(d) . . . . . . . . . . . . . . . . . . . . . . 7.1(c)
(e) . . . . . . . . . . . . . . . . . . . . . . 6.11
Section 316(a) (last sentence) . . . . . . . . . . . . . . 2.9
(a)(1)(A) . . . . . . . . . . . . . . . . . . . 6.5
(a)(1)(B) . . . . . . . . . . . . . . . . . . . 6.4
(a)(2). . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . 6.7
(c) . . . . . . . . . . . . . . . . . . . . . . 9.4
Section 317(a)(1) . . . . . . . . . . . . . . . . . . . . 6.8
(a)(2). . . . . . . . . . . . . . . . . . . . . 6.9
(b) . . . . . . . . . . . . . . . . . . . . . . 2.4
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . 11.1
(c) . . . . . . . . . . . . . . . . . . . . . . 11.1
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N.A. means Not Applicable.
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to
be a part of this Indenture.
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions..................................................1
SECTION 1.2 Incorporation by Reference of Trust Indenture Act...........23
SECTION 1.3 Rules of Construction.......................................23
ARTICLE II
THE SECURITIES
SECTION 2.1 Form and Dating.............................................24
SECTION 2.2 Execution and Authentication................................24
SECTION 2.3 Registrar and Paying Agent..................................26
SECTION 2.4 Paying Agent To Hold Money in Trust.........................27
SECTION 2.5 Securityholder Lists........................................27
SECTION 2.6 Transfer and Exchange.......................................27
SECTION 2.7 Replacement Securities......................................28
SECTION 2.8 Outstanding Securities......................................28
SECTION 2.9 Treasury Securities.........................................29
SECTION 2.10 Temporary Securities........................................29
SECTION 2.11 Cancellation................................................30
SECTION 2.12 Defaulted Interest..........................................30
SECTION 2.13 CUSIP Number................................................30
SECTION 2.14 Book-Entry Provisions for Global Securities.................31
SECTION 2.15 Special Transfer Provisions.................................32
ARTICLE III
REDEMPTION
SECTION 3.1 Notices to Trustee..........................................34
SECTION 3.2 Selection of Securities To Be Redeemed......................35
SECTION 3.3 Notice of Redemption........................................35
SECTION 3.4 Effect of Notice of Redemption..............................36
SECTION 3.5 Deposit of Redemption Price.................................37
SECTION 3.6 Securities Redeemed in Part.................................37
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Page
ARTICLE IV
COVENANTS
SECTION 4.1 Payment of Securities.......................................37
SECTION 4.2 Maintenance of Office or Agency.............................38
SECTION 4.3 Corporate Existence.........................................38
SECTION 4.4 Payment of Taxes and Other Claims...........................39
SECTION 4.5 Maintenance of Properties; Books and Records; Compliance
with Law....................................................39
SECTION 4.6 Compliance Certificates; Notice of Default..................40
SECTION 4.7 Reports.....................................................41
SECTION 4.8 Limitation on Restricted Payments...........................42
SECTION 4.9 Limitation on Additional Indebtedness.......................44
SECTION 4.10 Dividends and Payment Restrictions..........................46
SECTION 4.11 Limitation on Liens.........................................47
SECTION 4.12 Limitation on Asset Sales...................................48
SECTION 4.13 Transactions With Affiliates................................52
SECTION 4.14 Limitation on Creation of Senior Subordinated Debt..........53
SECTION 4.15 Change of Control...........................................53
SECTION 4.16 Waiver of Stay; Extension of Usury Laws.....................55
SECTION 4.17 Maintenance of Insurance....................................56
ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.1 Limitation on Mergers, Consolidations or Sales of Assets....56
SECTION 5.2 Successor Entity Substituted................................57
ARTICLE VI
DEFAULT AND REMEDIES
SECTION 6.1 Events of Default...........................................57
SECTION 6.2 Acceleration................................................60
SECTION 6.3 Other Remedies..............................................61
SECTION 6.4 Waiver of Past Default......................................62
SECTION 6.5 Control by Majority.........................................62
SECTION 6.6 Limitation on Suits.........................................62
SECTION 6.7 Rights of Holders To Receive Payment........................63
SECTION 6.8 Collection Suit by Trustee..................................63
SECTION 6.9 Trustee May File Proofs of Claim............................63
SECTION 6.10 Priorities..................................................64
SECTION 6.11 Undertaking for Costs.......................................64
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Page
SECTION 6.12 Rights and Remedies Cumulative..............................65
SECTION 6.13 Delay or Omission Not Waiver................................65
ARTICLE VII
TRUSTEE
SECTION 7.1 Duties of Trustee...........................................65
SECTION 7.2 Rights of Trustee...........................................67
SECTION 7.3 Individual Rights of Trustee................................68
SECTION 7.4 Trustee's Disclaimer........................................68
SECTION 7.5 Notice of Defaults..........................................68
SECTION 7.6 Reports by Trustee to Holders...............................68
SECTION 7.7 Compensation and Indemnity..................................69
SECTION 7.8 Replacement of Trustee......................................70
SECTION 7.9 Successor Trustee by Merger, Etc............................71
SECTION 7.10 Eligibility; Disqualification...............................71
SECTION 7.11 Preferential Collection of Claims Against Company...........71
ARTICLE VIII
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.1 Termination of the Company's Obligations....................72
SECTION 8.2 Legal Defeasance and Covenant Defeasance....................73
SECTION 8.3 Conditions to Legal Defeasance or Covenant Defeasance.......75
SECTION 8.4 Application of Trust Money..................................77
SECTION 8.5 Repayment to the Company....................................78
SECTION 8.6 Reinstatement...............................................78
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 Without Consent of Holders..................................79
SECTION 9.2 With Consent of Holders.....................................79
SECTION 9.3 Compliance with Trust Indenture Act.........................81
SECTION 9.4 Revocation and Effect of Consents...........................81
SECTION 9.5 Notation on or Exchange of Securities.......................82
SECTION 9.6 Trustee To Sign Amendments, Etc.............................82
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Page
ARTICLE X
SUBORDINATION
SECTION 10.1 Securities Subordinated to Senior Indebtedness..............83
SECTION 10.2 No Payment on Securities in Certain Circumstances...........83
SECTION 10.3 Securities Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation or Reorganization
of Company..................................................85
SECTION 10.4 Holders To Be Subrogated to Rights of Holders of Senior
Indebtedness................................................86
SECTION 10.5 Obligations of the Company Unconditional....................87
SECTION 10.6 Trustee Entitled to Assume Payments Not Prohibited in
Absence of Notice...........................................88
SECTION 10.7 Subordination Rights Not Impaired by Acts or Omissions of
Company or Holders of Senior Indebtedness...................88
SECTION 10.8 Holders Authorize Trustee to Effectuate Subordination of
Securities..................................................89
SECTION 10.9 Right of Trustee to Hold Senior Indebtedness................90
SECTION 10.10 Article X Not to Prevent Events of Default..................90
SECTION 10.11 No Fiduciary Duty of Trustee to Holders of Senior
Indebtedness................................................90
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Trust Indenture Act Controls................................90
SECTION 11.2 Notices.....................................................91
SECTION 11.3 Communications by Holders with Other Holders................92
SECTION 11.4 Certificate and Opinion of Counsel as to Conditions
Precedent...................................................92
SECTION 11.5 Statements Required in Certificate and Opinion of Counsel...93
SECTION 11.6 Rules by Trustee, Paying Agent, Registrar...................93
SECTION 11.7 Legal Holidays..............................................93
SECTION 11.8 Governing Law...............................................93
SECTION 11.9 No Recourse Against Others..................................94
SECTION 11.10 Successors..................................................94
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Page
SECTION 11.11 Counterparts................................................94
SECTION 11.12 Severability................................................94
SECTION 11.13 Table of Contents, Headings, Etc............................94
SECTION 11.14 No Adverse Interpretation of Other Agreements...............94
SECTION 11.15 Benefits of Indenture.......................................95
SECTION 11.16 Independence of Covenants...................................95
Exhibit A-1 - Form of Series A Security
Exhibit A-2 - Form of Series B Security
Exhibit B - Form of Legend for Global Securities
Exhibit C - Transferee Certificate for Non-QIB Accredited Investors
Exhibit D - Transferee Certificate for Transfers Pursuant Regulation S
Note: This Table of Contents shall not, for any purpose, be deemed to be
part of the Indenture.
vi
INDENTURE dated as of June 20, 1997, between BIG FLOWER PRESS HOLDINGS,
INC., a corporation duly organized and existing under the laws of the State
of Delaware, as Issuer (the "Company"), and FLEET NATIONAL BANK, a national
banking association duly organized and existing under the laws of the United
States, as Trustee (the "Trustee").
The parties hereto agree as follows for the benefit of each other
and for the equal and ratable benefit of the Holders:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions.
"Accrued Bankruptcy Interest" means all interest accruing subsequent
to the occurrence of any events specified in Section 6.1(vi) or (vii) or
which would have accrued but for any such event.
"Adjusted Consolidated Net Income" means, with respect to any Person
for any period, (i) the Consolidated Net Income of such Person for such
period plus (ii) in the case of the Company and its Restricted Subsidiaries,
(A) all cash received during such period by the Company or any Restricted
Subsidiary from its Unrestricted Subsidiaries but only to the extent that the
Company elects to so include such cash payments (in whole or in part) in
Adjusted Consolidated Net Income and not as a reduction in the carrying value
of the Investment in such Unrestricted Subsidiary (whether or not in
accordance with GAAP), such election to be made prior to the making of a
Restricted Payment based upon such cash received and (B) amortization,
depreciation and other non-cash charges relating to acquisitions by the
Company since its formation, including goodwill, non-compete agreements, the
stepped-up basis on assets acquired and deferred financing costs, in each
case to the extent such items reduced Consolidated Net Income. Each item of
Adjusted Consolidated Net Income will be determined in conformity with GAAP,
except as set forth in this definition and except that, for purposes of the
application of Accounting Principles Board Opinions Nos. 16 and 17, such
Person may select an amortization practice allowable by GAAP up to 40 years,
notwithstanding the use of a different amortization in such Person's
consolidated financial statements. Any designation of a Subsidiary of the
Company as a Restricted Subsidiary or Unrestricted Subsidiary at or prior to
the time of the calculation
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of Adjusted Consolidated Net Income of a Subsidiary will be treated as if it
had occurred at the beginning of the applicable period.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. A Person shall be deemed to "control"
(including the correlative meanings, the terms "controlling," "controlled
by," and "under common control with") another Person if the controlling
Person possesses, directly or indirectly, the power to direct or cause the
direction of the management or policies, of the controlled Person, whether
through ownership of voting securities, by agreement or otherwise.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Agent Bank" means Bankers Trust Company and/or any successor agent or
agents pursuant to the Credit Agreement.
"Agent Members" has the meaning provided in Section 2.14.
"Asset Sale" means, with respect to any Person, in one or a series
of related transactions, the sale, lease, conveyance, disposition or other
transfer by the referent Person of any of its assets (including by way of
sale and leaseback and including the sale or other transfer or issuance of
any of the Capital Stock of any Subsidiary of the referent Person); provided
that notwithstanding the foregoing, the term "Asset Sale" shall not include
the sale, lease, conveyance, disposition or other transfer of (i) all or
substantially all of the assets of the Company, as permitted pursuant to
Section 5.1, (ii) any assets between the Company and any Restricted
Subsidiary, (iii)(A) cash and cash equivalents, (B) inventory and (C) any
other tangible or intangible asset, in each case in the ordinary course of
business of the Company or the Restricted Subsidiaries, (iv) the sale of
accounts receivable pursuant to the Receivables Financing or (v) the sale or
discount, in each case without recourse, of accounts receivable arising in
the ordinary course of business, but only in connection with the compromise
or collection thereof.
"Asset Sale Payment Date" has the meaning provided in Section 4.12.
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"Average Life" means, as of the date of determination, with respect
to any security or instrument, the quotient obtained by dividing (i) the sum
of the products of the numbers of years from the date of determination to the
dates of each successive scheduled principal payment or, in the case of
Redeemable Stock, each successive scheduled mandatory redemption payment of
such security or instrument multiplied by the amount of such principal
payment or, in the case of Redeemable Stock, mandatory redemption payment by
(ii) the sum of all such principal payments or, in the case of Redeemable
Stock, mandatory redemption payments.
"Bankruptcy Law" means Title 11 of the U.S. Code or any similar
federal or state law for the relief of debtors.
"Board of Directors" means with respect to the Company or any Person,
the board of directors of the Company or such Person or any committee of such
board of directors duly authorized to act for it hereunder.
"Board Resolution" means with respect to the Company or any Person, a
copy of a resolution certified by the Secretary or an Assistant Secretary of the
Company or such Person to have been duly adopted by the Board of Directors of
the Company or 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 except a Saturday, a Sunday or any day on
which banking institutions in New York, New York, Hartford, Connecticut or any
city in which the principal trust office of the Trustee is located are required
or authorized by law, regulation or other governmental action to be closed.
"Capital Lease Obligation" means, with respect to any Person, at the
time any determination thereof is to be made, the amount of the liability in
respect of a capital lease which would at such time be required to be
capitalized on the balance sheet of such Person in accordance with GAAP.
"Capital Stock" means any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock.
"Cash Equivalents" means, at any time, (i) any evidence of
Indebtedness with a maturity of one year or less from the date of acquisition
issued or directly and fully guaranteed or insured by the United States of
America or any agency or instrumentality thereof; provided that the full faith
and credit of the United States of America or any agency or instrumentality
-4-
thereof is pledged in support thereof; (ii) bank deposits of, or certificates of
deposit or acceptances with a maturity of one year or less from the date of
acquisition of, any financial institution that is a member of the Federal
Reserve System having combined capital and surplus and undivided profits of not
less than $500,000,000; (iii) commercial paper with a maturity of one year or
less from the date of acquisition issued by a corporation (except an Affiliate
of the Company) organized under the laws of any state of the United States or
the District of Columbia and rated at least A-1 by Standard & Poor's Corporation
or at least P-1 by Xxxxx'x Investors Service, Inc.; (iv) repurchase agreements
and reverse repurchase agreements relating to marketable direct obligations
issued or unconditionally guaranteed by the United States Government or issued
by any agency thereof and backed by the full faith and credit of the United
States, in each case maturing within one year from the date of acquisition;
provided that the terms of such agreements comply with the guidelines set forth
in the Federal Financial Agreements of Depositary Institutions With Securities
Dealers and Others, as adopted by the Comptroller of the Currency on October 31,
1985; and (v) money market funds and mutual funds, the assets of which are
solely invested in (i) through (iv) above.
"Change of Control" means (i) an event or series of events by which
any Person (as such term is used in Sections 13(d) and 14(d) of the Exchange
Act) is or becomes the beneficial owner (as defined under Rule 13d-3 under the
Exchange Act) directly or indirectly of more than 50% of the combined voting
power of the then outstanding securities of the Company ordinarily (and apart
from rights accruing under certain circumstances) having the right to vote in
the election of directors or (ii) the replacement of a majority of the Board of
Directors over a one-year period from the directors who constituted the Board of
Directors at the beginning of such period, which replacement shall not have been
approved by the Board of Directors as so constituted at the beginning of such
period or (a) by directors whose nomination for election by the stockholders of
the Company was approved by such Board of Directors or (b) by directors elected
by such Board of Directors or (c) by directors approved in the same manner as
(a) or (b) above that were nominated or elected by directors approved as set
forth in (a) or (b) above. Notwithstanding the foregoing, a Change of Control
shall not be deemed to have occurred if one or more of the above events occurs
or
-5-
circumstances exist and, after giving effect to the transaction giving rise
to such events or circumstances, the Company's Fixed Charge Coverage Ratio is
3.0 to 1 or greater.
"Change of Control Date" has the meaning provided in Section 4.15.
"Change of Control Offer" has the meaning provided in Section 4.15.
"Change of Control Payment Date" has the meaning provided in Section
4.15.
"Change of Control Purchase Price" has the meaning provided in Section
4.15.
"Common Stock" means, with respect to any Person, any and all shares,
interests or other participations in, and other equivalents (however designated
and whether voting or non-voting) of, such Person's common stock, whether
outstanding at the Issue Date or issued after the Issue Date, and includes,
without limitation, all series and classes of such common stock.
"Company" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and,
thereafter, means the successor.
"Consolidated EBITDA" means, with respect to any Person for any period
and without duplication, the Adjusted Consolidated Net Income of such Person for
such period plus (a) provision for taxes based on income or profits to the
extent such provision for taxes was included in computing Adjusted Consolidated
Net Income, plus (b) consolidated Interest Expense, whether paid or accrued, to
the extent such expense was deducted in computing Adjusted Consolidated Net
Income (including amortization of original issue discount and non-cash interest
payments), plus (c) depreciation, amortization and other non-cash charges to the
extent such depreciation, amortization and other non-cash charges were deducted
in computing Adjusted Consolidated Net Income (including amortization of
goodwill and other intangibles).
"Consolidated Fixed Charges" means, with respect to any Person for any
period, the (a) consolidated Interest Expense, whether paid or accrued, to the
extent such expense was deducted in computing Adjusted Consolidated Net Income
(including amortization of original issue discount and non-cash
-6-
interest payments) and (b) aggregate amount of all dividends paid or
accumulated by such Person during such period on Qualified Preferred Stock
and all cash dividend payments by such Person during such period on all
series of other preferred stock of such Person and its Subsidiaries, other
than dividends paid by such Person during such period on preferred stock of
Unrestricted Subsidiaries and dividends paid to such Person or its
Subsidiaries (other than in the case of the Company and its Restricted
Subsidiaries, Unrestricted Subsidiaries) times a fraction, the numerator of
which is one and the denominator of which is one minus the then Current
Effective Consolidated Tax Rate of such Person during such period.
"Consolidated Net Income" means, with respect to any Person for any
period, the aggregate net income (or loss) of such Person and its
Subsidiaries (other than, in the case of the Company and its Subsidiaries,
Unrestricted Subsidiaries) for such period, on a consolidated basis,
determined in accordance with GAAP; provided that (i) the net income (or
loss) of any Person which is not a Subsidiary of the referent Person or is
accounted for by the equity method of accounting by such referent Person
shall be included only to the extent of the amount of cash dividends or
distributions (including tax sharing payments) paid to the referent Person
during such period or a Subsidiary of the referent Person (other than, in the
case of the Company and its Restricted Subsidiaries, Unrestricted
Subsidiaries), (ii) except to the extent includible pursuant to the foregoing
clause (i), the income (or loss) of any Person accrued prior to the date it
becomes a Subsidiary of such Person or is merged into or consolidated with
such Person or any of its Subsidiaries or that Person's assets are acquired
by such Person or any of its Subsidiaries shall be excluded, (iii) any gains
or losses of such Person for such period attributable to Asset Sales net of
related tax costs or tax benefits, as the case may be, shall be excluded and
(iv) all extraordinary gains or losses of such Person for such period shall
be excluded.
"Consolidated Net Worth" means, with respect to any Person, at any
date of determination, the sum of the Capital Stock and additional paid-in
capital plus retained earnings (or minus accumulated deficit) of such Person
and its Subsidiaries on a consolidated basis, less amounts attributable to
Redeemable Stock of such Person, each item to be determined in conformity
with GAAP (excluding the effects of (i) foreign currency exchange adjustments
under Financial Accounting Standards Board Statement of Financial Accounting
Standards No. 52 and
-7-
(ii) the application of Accounting Principles Board Opinions Nos. 16 and 17
and related interpretations).
"Consolidated Tangible Assets" means, with respect to any Person, at
any time, the total consolidated assets of such Person less the consolidated
assets of such Person which constitute goodwill, in each case as set forth on
such Person's most recent balance sheet.
"Covenant Defeasance" has the meaning provided in Section 8.2.
"Credit Agreement" means that certain credit agreement dated as of
June 12, 1997, as amended as of the Issue Date, by and among the Company,
certain financial institutions parties thereto and Bankers Trust Company and
Credit Suisse First Boston, as agents, initially providing for up to a $475.0
million revolving credit facility, including any related notes, guarantees,
collateral documents, instruments and agreements executed in connection
therewith, and in each case as amended, modified, supplemented, extended,
renewed, refunded, refinanced, restructured or replaced from time to time
(including, without limitation, any extension of maturity thereof, or the
inclusion of additional borrowers or guarantors thereunder), in each case in
whole or in part, whether by the same or any other lender or group of lenders.
"Currency Agreement" means the obligations of any Person pursuant to
any foreign exchange contract, currency swap agreement or other similar
agreement or arrangement designed to protect such Person or any of its
Subsidiaries against fluctuations in currency values.
"Current Effective Consolidated Tax Rate" means, with respect to any
Person for any period, cash income taxes paid or payable by such Person for
such period divided by the amount of income used in determining the amount of
such cash income taxes paid or payable, in each case without giving effect to
any gains on Asset Sales.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official charged with maintaining possession or
control over property for one or more creditors.
"Default" means any event that is, or after notice or passage of
time or both would be, an Event of Default.
-8-
"Depository" means The Depositary Trust Company, its nominees and
successors.
"Designated Senior Indebtedness" means (i) all Senior Indebtedness
under the Credit Agreement and (ii) any Senior Indebtedness permitted under
this Indenture having a principal amount of at least $15.0 million that is
designated as "Designated Senior Indebtedness" by written notice from the
Company to the Trustee.
"Equity Interests" means Capital Stock, warrants, options or other
rights to acquire Capital Stock (but excluding any debt security which is
convertible into, or exchangeable for, Capital Stock).
"Event of Default" has the meaning provided in Section 6.1.
"Excess Proceeds" has the meaning provided in Section 4.12.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Existing Indebtedness" means Indebtedness of the Company and the
Restricted Subsidiaries (other than Indebtedness under the Credit Agreement) in
existence on the Issue Date.
"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, in the case of
any assets or property the fair market value of which exceeds $1.5 million,
be evidenced by a Board Resolution (certified by the Secretary or Assistant
Secretary of the Company) delivered to the Trustee.
"Fixed Charge Coverage Ratio" means, with respect to any Person for
any period, the ratio of Consolidated EBITDA for such Person for such period
to Consolidated Fixed Charges for such Person for such period. For purposes
of the foregoing computation, in calculating Consolidated EBITDA and
Consolidated Fixed Charges, (a) the transaction giving rise to the need to
calculate the Fixed Charge Coverage Ratio shall be
-9-
assumed to have occurred on the first day of the four-quarter period for
which the Fixed Charge Coverage Ratio is being determined (the "Reference
Period"), (b) any acquisition or divestiture of assets or the Capital Stock
of any Subsidiary of such Person (Restricted Subsidiary, in the case of the
Company) which occurred during the Reference Period or subsequent to the
Reference Period and prior to the date of the transaction referenced in
clause (a) above (the "Transaction Date") shall be assumed to have occurred
on the first day of the Reference Period, excluding, in the case of an
acquisition of assets or Capital Stock, any operating expense or cost
reduction of such Person or the Person to be acquired which, in the good
faith estimate of management, will be eliminated or realized, as the case may
be, as a result of such acquisition, as if such acquisition of assets or
Capital Stock (including the incurrence of any Indebtedness in connection
with any such acquisition and the application of the proceeds thereof) took
place on the first day of the Reference Period and as if the elimination of
such operating expense and the realization of such cost reductions were
achieved on the first day of the Reference Period; provided that the
foregoing eliminations of operating expenses and realizations of cost
reductions shall be of the types permitted to be given effect to in
accordance with Article 11 of Regulation S-X under the Exchange Act as in
effect on the Issue Date, (c) the incurrence of any Indebtedness during the
Reference Period or subsequent to the Reference Period and on or prior to the
Transaction Date and the application of the proceeds therefrom shall be
assumed to have occurred on the first day of the Reference Period, (d)
Consolidated Fixed Charges attributable to 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 had been the applicable rate for the entire period, unless such Person
or any of its Subsidiaries (Restricted Subsidiaries, in the case of the
Company) is party to an Interest Rate Agreement which will remain in effect
for the twelve-month period after the Transaction Date and which has the
effect of fixing the interest rate on the date of computation, in which case
such rate (whether higher or lower) shall be used and (e) there shall be
excluded from Consolidated Fixed Charges any portion of such Consolidated
Fixed Charges related to any amount of Indebtedness that was outstanding
during or subsequent to the Reference Period but is not outstanding on the
Transaction Date, except for Consolidated Fixed Charges actually incurred
with respect to Indebtedness borrowed (as adjusted pursuant to clause (d))
under a revolving credit or similar arrangement to the extent the commitment
thereunder remains in effect on the Transaction Date.
-10-
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board ("FASB") or in
such other statements by such other entity as approved by a significant
segment of the accounting profession which are in effect in the United States
at the time and for the period as to which such accounting principles are to
be applied; provided, however, that, for purposes of determining compliance
with covenants in this Indenture, "GAAP" means such generally accepted
accounting principles as in effect as of the Issue Date.
"Global Security" has the meaning provided in Section 2.2.
"guarantee" means, as applied to any obligation, (i) a guarantee
(other than by endorsement of negotiable instruments for collection in the
ordinary course of business), direct or indirect, in any manner, of any part
of all of such obligation and (ii) an agreement, direct or indirect,
contingent or otherwise, the practical or legal effect of which is to assure
in any way the payment or performance (or payment of damages in the event of
a non-performance) of all or any part of such obligation, including, without
limitation, the payment of amounts drawn down by letters of credit.
"Holder" or "Securityholder" means a Person in whose name a Security
is registered. The Holder of a Security will be treated as the owner of such
Security for all purposes.
"incur" means, with respect to any Indebtedness or other obligation
of any Person, to create, issue, incur (by conversion, exchange or
otherwise), assume, guarantee or otherwise become directly or indirectly
liable in respect of such Indebtedness or other obligation or the recording,
as required pursuant to generally accepted accounting principles or
otherwise, of any such Indebtedness or other obligation on the balance sheet
of such Person (and "incurrence," "incurred," "incurrable" and "incurring"
shall have meanings correlative to the foregoing).
"Indebtedness" means, with respect to any Person, any indebtedness
in respect of borrowed money (whether or not the recourse of the lender is to
the whole of the assets of such Person or only to a portion thereof), or
evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement obligations with respect thereto) or
-11-
representing the balance deferred and unpaid of the purchase price of any
property (including pursuant to financing leases), if and to the extent any
of the foregoing indebtedness would appear as a liability upon a balance
sheet of such Person prepared in accordance with GAAP (except that any such
balance that constitutes a trade payable and/or an accrued liability arising
in the ordinary course of business shall not be considered Indebtedness), and
shall also include, to the extent not otherwise included, any Capital Lease
Obligations, the maximum fixed repurchase price of any Redeemable Stock or
preferred stock of any Subsidiary (Restricted Subsidiary, in the case of the
Company) of such Person (except, with respect to the Company, to the extent
such Restricted Subsidiary guarantees the obligations under the Securities),
indebtedness secured by a Lien to which the property or assets owned or held
by such Person are subject, whether or not the obligations secured thereby
shall have been assumed and guarantees of items that would be included within
this definition to the extent of such guarantees (exclusive of whether such
items would appear upon such balance sheet). For purposes of the preceding
sentence, the maximum fixed repurchase price of any Redeemable Stock or
preferred stock of any Restricted Subsidiary of such Person which does not
have a fixed repurchase price shall be calculated in accordance with the
terms of such Redeemable Stock or such preferred stock as if such Redeemable
Stock or such preferred stock were repurchased on any date on which
Indebtedness shall be required to be determined pursuant to this Indenture;
provided that if such Redeemable Stock or such preferred stock is not then
permitted to be repurchased, the repurchase price shall be the book value of
such Redeemable Stock or such preferred stock. The amount of Indebtedness of
any Person at any date shall be, in the case of Indebtedness of others
secured by a Lien to which the property or assets owned or held by such
Person are subject, the lesser of the fair market value at such date of any
asset subject to a Lien securing the Indebtedness of others and the amount of
the Indebtedness secured.
"Indenture" means this Indenture as amended or supplemented from time
to time pursuant to the terms hereof.
"Independent Financial Advisor" means an accounting, appraisal,
investment banking or consulting firm of nationally recognized standing that
is, in the reasonable and good faith judgment of the Board of Directors of
the Company, qualified to perform the task for which such firm has been
engaged and disinterested and independent with respect to the Company and its
Affiliates.
-12-
"Initial Purchasers" means BT Securities Corporation, Credit Suisse
First Boston Corporation and Xxxxxxx, Xxxxx & Co.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act.
"interest," when used with respect to any Security, means the amount
of all interest accruing on such Security, including all interest accruing
subsequent to the occurrence of any events specified in Sections 6.1(a)(vi)
and (vii) or which would have accrued but for any such event.
"Interest Expense" means, with respect to any Person, for any
period, the aggregate amount of interest in respect of Indebtedness
(including all commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance financing and the net
cost (benefit) associated with Interest Rate Agreements, and excluding
amortization of deferred finance fees) and all but the principal component of
rentals in respect of Capital Lease Obligations, paid, accrued or scheduled
to be paid or accrued by such Person during such period.
"Interest Payment Date," when used with respect to any Security,
means the stated maturity of an installment of interest specified in such
Security.
"Interest Rate Agreements" means the obligations of any Person
pursuant to any interest rate swap agreement, interest rate collar agreement
or other similar agreement or arrangement designed to protect such Person or
any of its Subsidiaries against fluctuations in interest rates.
"Investment" means any direct or indirect advance, loan (other than
advances to customers in the ordinary course of business which are recorded
as accounts receivable on the balance sheet of any Person or its
Subsidiaries) or other extension of credit 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 securities
issued by any other Person; in each case, other than as a result of the
issuance of Capital Stock of such Person or the delivery of Capital Stock of
such Person's direct or indirect parent. For the purpose of Section 4.8, (i)
"Investment" shall include and be valued at the fair market value of the net
assets of any Restricted
-13-
Subsidiary at the time that such Restricted Subsidiary is designated an
Unrestricted Subsidiary and shall exclude the fair market value of the net
assets of any Unrestricted Subsidiary at the time that such Unrestricted
Subsidiary is designated a Restricted Subsidiary and (ii) the amount of any
Investment shall be the original cost of such Investment plus the cost of all
additional Investments by the Company or any of its Restricted Subsidiaries,
without any adjustments for increases or decreases in value, or write-ups,
write-downs or write-offs with respect to such Investment, reduced by the
payment of dividends or distributions (including tax sharing payments) in
connection with such Investment to the extent such distribution constitutes a
return on capital in accordance with GAAP; provided, however, that in the
case of an Investment in an Unrestricted Subsidiary, the Company may elect to
include such cash payments (in whole or in part) in Adjusted Consolidated Net
Income and not as a reduction in the carrying value of the Investment in such
Unrestricted Subsidiary (whether or not in accordance with GAAP), such
election to be made prior to the making of a Restricted Payment based upon
such dividend or distribution.
"Issue Date" means June 20, 1997.
"Legal Defeasance" has the meaning provided in Section 8.2.
"Legal Holiday" means any day other than a Business Day.
"Lien" means any mortgage, lien, pledge, charge, security interest
or encumbrance of any kind, whether or not filed, recorded or otherwise
perfected under applicable law (including any conditional sale or other title
retention agreement, any lease in the nature thereof, any option or other
agreement to sell or give any security interest in and any filing or other
agreement to give any financing statement under the Uniform Commercial Code
(or equivalent statutes) of any jurisdiction).
"Maturity Date" means, when used with respect to any Security, the
date specified in such Security as the fixed date on which the final
installment of principal of such Security is due and payable (in the absence
of any acceleration thereof pursuant to Section 6.2 or any Net Proceeds Offer
or Change of Control Offer).
"Net Proceeds" means, with respect to any Asset Sale, the aggregate
amount of U.S. Legal Tender (including any cash
-14-
received by way of deferred payment pursuant to a note receivable issued in
connection with such Asset Sale, other than the portion of such deferred
payment constituting interest, and including any amounts received as
disbursements or withdrawals from any escrow or similar account established
in connection with any such Asset Sale, but, in each such case, only as and
when so received) received by the Company or any of its Restricted
Subsidiaries in respect of such Asset Sale, net of (i) the cash expenses of
such sale (including, without limitation, the payment of principal, premium,
if any, and interest on Indebtedness required to be paid as a result of such
Asset Sale (other than pursuant to Section 4.12) and legal, accounting and
investment banking fees and sales commissions), (ii) taxes paid or payable as
a result thereof, (iii) any portion of cash proceeds which the Company
determines in good faith should be reserved for post-closing adjustments, it
being understood and agreed that on the day that all such post-closing
adjustments have been determined, the amount (if any) by which the reserved
amount in respect of such Asset Sale exceeds the actual post-closing
adjustments payable by the Company or any of its Subsidiaries shall
constitute Net Proceeds on such date and (iv) any relocation expenses and
pension, severance and shutdown costs incurred as a result thereof.
"Net Proceeds Offer" has the meaning provided in Section 4.12.
"Net Proceeds Payment Date" has the meaning provided in Section 4.12.
"Non-U.S. Person" means a Person who is not a U.S. Person, as defined
in Regulation S.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Offering Memorandum" means the Offering Memorandum dated June 16,
1997 pursuant to which $250.0 million of the Securities were offered, and any
supplement thereto.
"Officer" means the Chairman, the President, any Vice President, the
Chief Financial Officer, the Chief Executive Officer, the Chief Operating
Officer, the Treasurer, the Secretary or the Controller of the Company.
-15-
"Officers' Certificate" means a certificate signed by two Officers or
by an Officer and an Assistant Treasurer or Assistant Secretary of the Company.
"Offshore Physical Securities" has the meaning provided in Section
2.2.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee, which may include outside or in-house
counsel to the Company.
"Outstanding Notes" means the Company's 10-3/4% Senior Subordinated
Notes due 2003 outstanding on the Issue Date.
"Paying Agent" has the meaning provided in Section 2.3.
"Payment Blockage Period" has the meaning provided in Section 10.2.
"Permitted Investments" means (i) cash or Cash Equivalents, (ii)
Investments that are in Persons (including Unrestricted Subsidiaries) who
derive substantial revenues from operations similar or ancillary to the
business of the Company or its Restricted Subsidiaries as conducted at the
time of such Investment and that have the purpose of furthering the
operations of the Company and its Restricted Subsidiaries; provided that
Investments of the type described in this clause (ii) shall not exceed $25.0
million at any one time outstanding in the case of Persons which are not
Restricted Subsidiaries or which do not in connection with such Investment
become a Restricted Subsidiary, (iii) advances to employees and officers of
the Company and its Subsidiaries not in excess of $1.0 million at any one
time outstanding, (iv) loans to employees, officers and directors of the
Company and its Subsidiaries to finance the purchase of Equity Interests in
the Company, (v) accounts receivable created or acquired in the ordinary
course of business, (vi) obligations or shares of Capital Stock received in
connection with any good faith settlement or bankruptcy proceeding involving
a claim relating to a Permitted Investment, (vii) Currency Agreements and
Interest Rate Agreements and other similar agreements designed to hedge
against fluctuations in foreign exchange rates and interest rates entered
into in the ordinary course of business in connection with the
-16-
operation of the Company's or its Restricted Subsidiaries' businesses and
(viii) agreements designed to hedge against fluctuations in the cost of raw
materials entered into in the ordinary course of business in connection with
the operation of the Company's and the Restricted Subsidiaries' business
("Raw Material Hedge Agreements").
"Permitted Liens" means (i) Liens for taxes, assessments,
governmental charges or claims not yet due or which are being contested in
good faith by appropriate proceedings promptly instituted and diligently
conducted and if a reserve or other appropriate provision, if any, as shall
be required in conformity with GAAP shall have been made therefor; (ii)
statutory Liens of landlords and carriers', warehousemen's, mechanics',
suppliers', materialmen's, repairmen's or other like Liens arising in the
ordinary course of business, deposits made to obtain the release of such
Liens, and with respect to amounts not yet delinquent for a period of more
than 60 days or being contested in good faith by appropriate proceedings, if
a reserve or other appropriate provision, if any, as shall be required in
conformity with GAAP shall have been made therefor; (iii) Liens incurred or
deposits made in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of social security; (iv)
Liens incurred or deposits made to secure the performance of tenders, bids,
leases, statutory obligations, surety and appeal bonds, government contracts,
performance and return of money bonds and other obligations of a like nature
incurred in the ordinary course of business (exclusive of obligations for the
payment of borrowed money); (v) easements, rights-of-way, zoning or other
restrictions, minor defects or irregularities in title and other similar
charges or encumbrances not interfering in any material respect with the
business of the Company or any of the Restricted Subsidiaries incurred in the
ordinary course of business; (vi) Liens (including extensions, renewals and
replacements thereof) upon real or tangible personal property acquired after
the date of this Indenture whether or not such Liens existed on the date of
acquisition of such property; provided that (a) any such Lien is created
solely for the purpose of securing Indebtedness representing, or incurred to
finance, refinance or refund, the cost (including the cost of construction)
of the item of property subject thereto, (b) the principal amount of the
Indebtedness secured by such Lien does not exceed 100% of such cost, (c) such
Lien does not extend to or cover any other property other than such item of
property and any improvements on such item and (d) the incurrence of such
Indebtedness is permitted by Section 4.9; (vii) Liens securing reimbursement
obligations with respect to letters of credit which encumber documents and
other property relating to such letters of credit and the products and
proceeds thereof; (viii) Liens in favor of customs and revenue authorities
arising as a matter of law to secure
-17-
payment of customs duties in connection with the importation of goods; (ix)
judgment and attachment Liens not giving rise to an Event of Default; (x)
leases or subleases granted to others not interfering in any material respect
with the business of the Company or any of its Restricted Subsidiaries; (xi)
Liens encumbering customary initial deposits and margin deposits, and other
Liens incurred in the ordinary course of business and which are within the
general parameters customary in the industry, in each case securing
Indebtedness under Interest Rate Agreements, Currency Agreements and Raw
Material Hedge Agreements; (xii) Liens encumbering deposits made to secure
obligations arising from statutory, regulatory, contractual or warranty
requirements of the Company or its Subsidiaries, (xiii) Liens arising out of
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 of the Company and its Restricted Subsidiaries; (xiv) any interest
or title of a lessor in the property subject to any Capital Lease Obligations
or operating lease; (xv) Liens arising from filing Uniform Commercial Code
financing statements regarding leases; (xvi) Liens permitted or required by
the Credit Agreement as in effect on the Issue Date; (xvii) Liens securing
Senior Indebtedness and Liens on assets of Restricted Subsidiaries securing
Indebtedness of such Restricted Subsidiaries; (xviii) Liens between the
Company and any Restricted Subsidiary or between Restricted Subsidiaries;
(xix) Liens on assets of Restricted Subsidiaries securing letters of credit
issued in the ordinary course of business of such Restricted Subsidiaries;
(xx) additional Liens at any one time outstanding with respect to assets of
the Company and its Restricted Subsidiaries the fair market value of which
does not exceed $15.0 million on the date of determination; (xxi) Liens
existing on the Issue Date and any extensions, renewals or replacements
thereof; (xxii) Liens deemed to arise from the Receivables Financing; and
(xxiii) the Lien granted to the Trustee under this Indenture and any
substantially equivalent Lien granted to any trustee or similar institution
under any indenture for Indebtedness permitted by the terms of this Indenture.
"Person" means any individual, corporation, partnership, joint
venture, incorporated or unincorporated association, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof or other entity of any kind.
"Physical Security" means, collectively, the Offshore Physical
Securities and the U.S. Physical Securities.
-18-
"principal" of a debt security means the principal amount of the
security plus, when appropriate, the premium, if any, on the security.
"preferred stock," as applied to the Capital Stock of any Person,
means Capital Stock of such Person (other than Common Stock of such Person)
of any class or classes (however designated) that ranks prior, as to the
payment of dividends or as to the distribution of assets upon any voluntary
or involuntary liquidation, dissolution or winding up of such Person, to
shares of Capital Stock of any other class of such Person.
"Private Placement Legend" means the legend initially set forth on
the Series A Securities in the form set forth on Exhibit A-1.
"pro forma" means, with respect to any calculation made or required
to be made pursuant to the terms of this Indenture, a calculation in
accordance with Article 11 of Regulation S-X under the Securities Act.
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A under the Securities Act.
"Qualified Preferred Stock" means preferred stock of the Company
that is designated as such pursuant to clause (ii) or (iv) of the second
paragraph of Section 4.8.
"Raw Material Hedge Agreements" has the meaning provided in the
definition of "Permitted Investments."
"Receivables Financing" means the receivables facility in effect on
the Issue Date in the amount of $150.0 million, pursuant to which (x) the
Company's Subsidiaries from time to time sell or otherwise transfer accounts
receivable and related assets to a special-purpose corporation (the
"Receivables Subsidiary") and (y) the Receivables Subsidiary sells or
otherwise transfers accounts receivable and related assets (or interests
therein) to the purchasers, as the same may be amended, modified,
supplemented, extended, renewed, refunded, refinanced, restructured or
replaced from time to time (including, without limitation, any extension of
maturity thereof, or the inclusion of additional purchasers thereunder).
"Redeemable Stock" means any Equity Interest which, by its terms (or
by terms of any security into which it is convertible or for which it is
exchangeable before the Stated Maturity of the Securities) or upon the
happening of any event,
-19-
matures or is mandatorily redeemable (other than for Capital Stock not
constituting Redeemable Stock), in whole or in part, prior to the Maturity
Date, or is, by its terms or upon the happening of any event, redeemable at
the option of the holder thereof, in whole or in part, at any time prior to
the Maturity Date, except for Equity Interests of the Company issued to
employees, officers and directors of the Company and its Subsidiaries
pursuant to agreements containing provisions for the repurchase of such
Equity Interest upon death, disability or termination of employment or
directorship of such Persons; provided that any Equity Interest that is
considered to be Redeemable Stock solely because it is redeemable upon the
occurrence of the same events that would require a redemption or repurchase
of the Securities shall not be deemed to be Redeemable Stock; provided,
further, that such Equity Interest is not convertible or exchangeable into
debt.
"Redemption Date" means, with respect to any Security, the Maturity
Date of such Security or the date on which such Security is to be redeemed by
the Company pursuant to the terms of the Securities.
"Refinancing Indebtedness" has the meaning provided in clause (ix)
of the second paragraph of Section 4.9.
"Refunding Equity Interests" has the meaning provided in clause
(ii)(A) of the second paragraph of Section 4.8.
"Registered Exchange Offer" means the offer to exchange the Series B
Securities for all of the outstanding Series A Securities in accordance with
the Registration Rights Agreement.
"Registrar" has the meaning provided in Section 2.3.
"Registration Rights Agreement" means the Registration Rights
Agreement by and among the Company and the Initial Purchasers, relating to
$250.0 million of the Securities and dated the Issue Date, as the same may be
amended, supplemented or otherwise modified from time to time in accordance
with the terms thereof.
"Regulation S" means Regulation S under the Securities Act.
"Representative" means the indenture trustee or other trustee, agent
or representative for any Senior Indebtedness.
-20-
"Restricted Payment" has the meaning provided in Section 4.8.
"Restricted Security" has the meaning set forth in Rule 144(a)(3)
under the Securities Act; provided that the Trustee shall be entitled to
request and conclusively rely upon an Opinion of Counsel with respect to
whether any Security is a Restricted Security.
"Restricted Subsidiary" means any Subsidiary of the Company which at
the time of determination is not an Unrestricted Subsidiary. The Board of
Directors may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary only if, immediately after giving effect to such designation, the
Company could incur at least $1.00 of additional Indebtedness pursuant to the
first paragraph of Section 4.9 (without giving effect to clauses (i) through
(xvi) of the second paragraph thereof), on a pro forma basis taking into
account such designation.
"Retired Equity Interests" has the meaning provided in clause
(ii)(A) of the second paragraph of Section 4.8.
"Rule 144A" means Rule 144A under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Securities" means the Series A Securities and Series B Securities
as amended or supplemented from time to time in accordance with the terms
hereof that are issued pursuant to this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Securityholder" means Holder.
"Senior Indebtedness" means any Indebtedness permitted to be
incurred under the terms of this Indenture, unless the instrument under which
such Indebtedness is incurred expressly provides that it is on a parity with
or subordinated in right of payment to the Securities. Notwithstanding
anything to the contrary in the foregoing, Senior Indebtedness shall not
include (a) Indebtedness that is expressly subordinate or junior in right of
payment to any Indebtedness of the Company, (b) Indebtedness that is
represented by Redeemable Stock, (c) any liability for Federal, state, local
or other taxes owed or owing by the Company, (d) Indebtedness of the Company
to any
-21-
Subsidiary of the Company, (e) trade payables and (f) Indebtedness that is
incurred in violation of this Indenture (but, as to any such Indebtedness, no
such violation shall be deemed to exist for purposes of this definition if
the holder(s) of such obligation or their representative or the Company shall
have furnished to the Trustee an opinion of counsel unqualified in all
material respects, addressed to the Trustee (which legal counsel may, as to
matters of fact, rely upon an officers' certificate of the Company) to the
effect that the incurrence of such Indebtedness does not violate the
provisions of this Indenture).
"Series A Securities" means the 8-7/8% Senior Subordinated Notes due
2007, Series A, issued, authenticated and delivered under this Indenture, as
amended or supplemented from time to time pursuant to the terms of this
Indenture substantially in the form set forth in Exhibit A-1.
"Series B Securities" means the 8-7/8% Senior Subordinated Notes due
2007, Series B (the terms of which are identical to the Series A Securities
except that the Series B Securities shall be registered under the Securities
Act, and shall not contain the restrictive legend on the face of the form of
the Series A Securities), to be issued in exchange for the Series A
Securities pursuant to the Registered Exchange Offer and this Indenture
substantially in the form set forth in Exhibit A-2.
"Significant Restricted Subsidiary" means any Restricted Subsidiary
which accounted for more than 10% of the Company's Consolidated Tangible
Assets or more than 10% of the Company's consolidated revenues or more than
10% of the Company's Consolidated EBITDA, in each case as of the end of, or
for, the Company's most recent fiscal year.
"Stated Maturity" means, with respect to any security or
Indebtedness, the date specified in such security or Indebtedness as the
fixed date on which the principal of such security or Indebtedness is due and
payable, including pursuant to any mandatory redemption provision (other than
pursuant to any provision providing for the repurchase of such security at
the option of the holder thereof).
"Subsidiary" with respect to any Person, means (i) any corporation
of which the outstanding Capital Stock having at least a majority of the
votes entitled to be cast in the election of directors under ordinary
circumstances shall at the time be owned, directly or indirectly, by such
Person or
-22-
(ii) any other Person of which at least a majority of the voting interest
under ordinary circumstances is at such time, directly or indirectly, owned
by such Person.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb) as in effect on the date of this Indenture.
"Trustee" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"Trust Officer" means an officer of the Trustee assigned to the
Corporate Trustee Administration Department or similar department performing
corporate trust work, or any successor to such department or, in the case of
a successor trustee, an officer assigned to the department, division or group
performing the corporate trust work of such successor.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Company
which at the time of determination is an Unrestricted Subsidiary (as
designated by the Board of Directors, as provided below) and (ii) any
Subsidiary of an Unrestricted Subsidiary. The Board of Directors may
designate any Subsidiary of the Company (including any newly acquired or
newly formed Subsidiary) to be an Unrestricted Subsidiary, unless such
Subsidiary owns any Capital Stock of, or owns, or holds any Lien on, any
property of, any other Subsidiary of the Company which is not a Subsidiary of
the Subsidiary to be so designated; provided that (a) the Company certifies
that such designation complies with Section 4.8 and (b) each Subsidiary to be
so designated and each of its Subsidiaries has not at the time of
designation, and does not thereafter, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable with respect to any
Indebtedness pursuant to which the lender has recourse to any of the assets
of the Company or any of its Restricted Subsidiaries. The Board of Directors
may designate any Unrestricted Subsidiary to be a Restricted Subsidiary only
if, immediately after giving effect to such designation, the Company could
incur at least $1.00 of additional Indebtedness pursuant to the first
paragraph of Section 4.9 (without giving effect to clauses (i) through (xvi)
of the second paragraph thereof) on a pro forma basis taking into account
such designation.
"U.S. Government Obligations" means direct non-callable obligations
of, or non-callable obligations guaranteed
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by, the United States of America for the payment of which guarantee or
obligation the full faith and credit of the United States is pledged.
"U.S. Legal Tender" means such coin or currency of the United States
of America as at the time of payment shall be legal tender for the payment of
public and private debts.
"U.S. Physical Securities" means Securities issued in the form of
certificated Securities in registered form in substantially the form set
forth in Exhibit A-1 or Exhibit A-2.
SECTION 1.2 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision shall be deemed incorporated by reference in and made a part of
this Indenture. The following TIA terms used in this Indenture have the
following meanings:
(a) "Commission" means the SEC;
(b) "indenture securities" means the Securities;
(c) "indenture security holder" means a Securityholder;
(d) "indenture to be qualified" means this Indenture;
(e) "indenture trustee" or "institutional trustee" means the Trustee;
and
(f) "obligor" on the indenture securities means the Company 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 SEC rule and
not otherwise defined herein have the meanings so assigned to them therein.
SECTION 1.3 Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) "or" is exclusive;
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(c) words in the singular include the plural, and words in the
plural include the singular;
(d) provisions apply to successive events and transactions;
(e) "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; and
(f) unless otherwise specified herein, all accounting terms used
herein shall be interpreted, all accounting determinations hereunder shall be
made, and all financial statements required to be delivered hereunder shall
be prepared in accordance with GAAP as in effect from time to time, applied
on a basis consistent with the most recent audited consolidated financial
statements of the Company.
ARTICLE II
THE SECURITIES
SECTION 2.1 Form and Dating.
The Series A Securities and the Series B Securities and the
Trustee's certificate of authentication with respect thereto shall be
substantially in the form set forth in Exhibits A-1 and A-2 annexed hereto,
which is hereby incorporated in and expressly made a part of this Indenture.
The Securities may have notations, legends or endorsements required by law,
rule, usage or agreement to which the Company is subject. Each Security
shall be dated the date of its issuance and shall show the date of its
authentication. The terms and provisions contained in the Securities shall
constitute, and are expressly made, a part of this Indenture.
SECTION 2.2 Execution and Authentication.
Two Officers shall execute the Securities on behalf of the Company
by either manual or facsimile signature.
If a Person whose signature is on a Security as an Officer no longer
holds that office at the time the Trustee authenticates the Security, the
Security shall be valid nevertheless.
A Security shall not be valid until the Trustee manually signs the
certificate of authentication on the Security.
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The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
The Trustee shall authenticate Series A Securities for original
issue on the Issue Date in the aggregate principal amount not to exceed
$250,000,000, upon receipt of an Officers' Certificate. In addition, on or
prior to the date of consummation of the Registered Exchange Offer, the
Trustee or an authenticating agent shall authenticate Series B Securities
and, if required by the Registration Rights Agreement, Private Exchange Notes
(as defined in the Registration Rights Agreement) to be issued at the time of
consummation of the Registered Exchange Offer in the aggregate principal
amount of up to $250,000,000 upon receipt of an Officers' Certificate. In
addition, the Trustee shall authenticate Securities issued in one or more
series (such Securities to be substantially in the form of Exhibit A-1 or
Exhibit A-2 (and if in the form of Exhibit A-1, the same principal amount of
Securities in the form of Exhibit A-2 in exchange therefor upon consummation
of a registered exchange offer)) in an aggregate principal amount not to
exceed $100,000,000 upon receipt of an Officers' Certificate. In each case,
the Officers' Certificate shall specify the amount of Securities to be
authenticated and the date on which the Securities are to be authenticated
and shall be signed by two Officers directing the Trustee to authenticate the
Securities and certifying that all conditions precedent to the issuance of
the Securities contained herein have been complied with. The aggregate
principal amount of Securities outstanding at any time may not exceed
$350,000,000 except as provided in Section 2.7.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. Such authenticating agent
shall have the same authenticating rights and duties as the Trustee in any
dealings hereunder with the Company or with any Affiliate of the Company.
The Securities shall be issuable only in registered form without
coupons and only in denominations of $1,000 and any integral multiple thereof.
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
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set forth in Exhibit A-1 ("Global Securities"), deposited with the Trustee,
as custodian for the Depository, and shall bear the legend set forth on
Exhibit B. The aggregate principal amount of any Global Security may from
time to time be increased or decreased by adjustments made on the records of
the Trustee, as custodian for the Depository, as hereinafter provided.
Securities offered and sold in offshore transactions in reliance on
Regulation S shall be issued in the form of certificated Securities in
registered form set forth in Exhibit A-1 ("Offshore Physical Securities").
SECTION 2.3 Registrar and Paying Agent.
The Company shall maintain an office or agency (which shall be
located in the Borough of Manhattan in the City of New York, State of New
York) where Securities may be presented for registration of transfer or for
exchange (the "Registrar"), an office or agency (which shall be located in
the Borough of Manhattan, City of New York, State of New York) where
Securities may be presented for payment (the "Paying Agent") and an office or
agency where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Registrar shall keep a
register of the Securities and of their transfer and exchange. The Company
may have one or more co-registrars and one or more additional paying agents.
The term "Paying Agent" includes any additional paying agent. The Company
may act as its own Paying Agent, except that for the purposes of payments on
account of principal on the Securities pursuant to Sections 4.12 and 4.15,
neither the Company nor any Affiliate of the Company may act as Paying Agent.
The Company shall enter into an appropriate agency agreement with
any Agent not a party to this Indenture, which shall incorporate the
provisions of the TIA. The agreement shall implement the provisions of this
Indenture that relate to such Agent. The Company shall notify the Trustee of
the name and address of any such Agent. If the Company fails to maintain a
Registrar or Paying Agent, or fails to give the foregoing notice, the Trustee
shall act as such and shall be entitled to appropriate compensation in
accordance with Section 7.7.
The Company initially appoints the Trustee as Registrar and Paying
Agent and agent for service of notices and demands in connection with the
Securities.
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SECTION 2.4 Paying Agent To Hold Money in Trust.
Each Paying Agent shall hold in trust for the benefit of the
Securityholders or the Trustee all money held by the Paying Agent for the
payment of principal of or interest on the Securities, and shall notify the
Trustee of any default by the Company in making any such payment. Money held
in trust by the Paying Agent need not be segregated except as required by law
and in no event shall the Paying Agent be liable for any interest on any
money received by it hereunder. The Company at any time may require the
Paying Agent to pay all money held by it to the Trustee and account for any
funds disbursed and the Trustee may at any time during the continuance of any
Event of Default specified in Section 6.1(i) or (ii), upon written request to
the Paying Agent, require such Paying Agent to pay forthwith all money so
held by it to the Trustee and to account for any funds disbursed. Upon
making such payment, the Paying Agent shall have no further liability for the
money delivered to the Trustee.
SECTION 2.5 Securityholder 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 the Securityholders and otherwise comply with TIA Section 312(a). If the
Trustee is not the Registrar, the Company shall furnish or cause the
Registrar to furnish to the Trustee 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 the Securityholders.
SECTION 2.6 Transfer and Exchange.
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 from the
Holder of such Securities to register the transfer or to exchange them for an
equal principal amount of Securities of other authorized denominations, the
Registrar shall register the transfer or make the exchange as requested;
provided that every Security presented or surrendered for registration of
transfer or exchange shall be duly endorsed or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Registrar,
duly executed by the Holder thereof or his attorneys duly authorized in
writing. To permit registrations of transfers and exchanges, the Company
shall issue and execute and the Trustee shall authenticate new Securities
evidencing such transfer or
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exchange. No service charge shall be made to the Securityholder for any
registration of transfer or exchange. The Company may require from the
Securityholder payment of a sum sufficient to cover any transfer taxes or
other governmental charge that may be imposed in relation to a transfer or
exchange, but this provision shall not apply to any exchange pursuant to
Sections 2.10, 4.12, 4.15 or 9.5 (in which events the Company will be
responsible for the payment of such taxes). The Registrar or co-Registrar
shall not be required to register the transfer of or exchange of any Security
(i) during a period beginning at the opening of business 15 days before the
mailing of a notice of redemption of Securities and ending at the close of
business on the day of such mailing and (ii) selected for redemption in whole
or in part pursuant to Article III, except the unredeemed portion of any
Security being redeemed in part.
SECTION 2.7 Replacement Securities.
If a mutilated Security is surrendered to the Registrar or the
Trustee or if the Holder of a Security of any series 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 Holder of such
Security furnishes to the Company and to the Trustee evidence reasonably
acceptable to them of the ownership and the destruction, loss or theft of
such Security. If required by the Trustee or the Company, an indemnity bond
shall be posted, sufficient in the judgment of the Company or the Trustee, as
the case may be, to protect the Company, the Trustee or any Agent from any
loss that any of them may suffer if such Security is replaced. The Company
may charge such Holder for the Company's expenses in replacing such Security
and the Trustee may charge the Company for the Trustee's expenses in
replacing such Security. Every replacement Security shall constitute an
additional obligation of the Company and shall be entitled to the benefits of
this Indenture.
SECTION 2.8 Outstanding Securities.
The Securities outstanding at any time are all Securities that have
been authenticated by the Trustee except for (a) those canceled by it, (b)
those delivered to it for cancellation, (c) those described in this Section
2.8 as not outstanding. A Security does not cease to be outstanding because
the Company or one of its Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.7, it ceases to be
outstanding unless the Trustee receives proof sat-
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isfactory to it that the replaced Security is held by a bona fide purchaser
in whose hands such Security is a legal, valid and binding obligation of the
Company.
If the Paying Agent holds, in its capacity as such, on any Maturity
Date or on any optional redemption date money sufficient to pay all accrued
interest and principal with respect to such Securities payable on that date
and is not prohibited from paying such money to the Holders thereof pursuant
to the terms of this Indenture, then on and after that date such Securities
cease to be outstanding and interest on them ceases to accrue.
SECTION 2.9 Treasury Securities.
In determining whether the Holders of the required principal amount
of Securities have concurred in any declaration of acceleration or notice of
default or direction, waiver or consent or any amendment, modification or
other change to this Indenture, Securities owned by the Company or any
Subsidiary or an Affiliate of the Company shall be deemed not to be
outstanding, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent or any
amendment, modification or other change to this Indenture, only Securities
that the Trustee knows are so owned shall be so disregarded. The Company
shall notify the Trustee, in writing, when it or any of its Affiliates
repurchases or otherwise acquires Securities, of the aggregate principal
amount of such Securities so repurchased or otherwise acquired.
SECTION 2.10 Temporary Securities.
Until definitive Securities are prepared and 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 reasonably 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, such temporary
Securities shall be entitled to the same rights, benefits and privileges as
the definitive Securities.
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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 and no one else shall cancel all Securities
surrendered for registration of transfer, exchange, payment, replacement or
cancellation and shall (subject to the record-retention requirements of the
Exchange Act) dispose of canceled Securities unless the Company directs the
Trustee to return such Securities to the Company, and, if so disposed, shall
deliver a certificate of disposition thereof to the Company. The Company may
not reissue or resell, or issue new Securities to replace, Securities that
the Company has redeemed or paid, or that have been delivered to the Trustee
for cancellation.
SECTION 2.12 Defaulted Interest.
If the Company defaults in a payment of interest on the Securities,
it shall pay the defaulted interest, plus, to the extent permitted by law,
any interest payable on the defaulted interest, to the Persons who are
Securityholders on a subsequent special record date. Such record date shall
be the fifteenth day next preceding the date fixed by the Company for the
payment of defaulted interest, whether or not such day is a Business Day. At
least 15 days before the subsequent special record date, the Company shall
mail (or cause to be mailed) to each Securityholder a notice that states the
record date, the payment date and the amount of defaulted interest to be
paid. Notwithstanding the foregoing, any interest which is paid prior to the
expiration of the 30-day period set forth in Section 6.1(i) shall be paid to
Holders of Securities as of the regular record date for the interest payment
date for which interest has not been paid. Notwithstanding the foregoing, the
Company may make payment of any defaulted interest in any other lawful manner
not inconsistent with the requirements of any securities exchange on which
the Securities may be listed, and upon such notice as may be required by such
exchange.
SECTION 2.13 CUSIP Number.
The Company in issuing the Securities may use a "CUSIP" number, and
if so, such CUSIP number shall be included in notices of redemption or
exchange as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness or accuracy of the CUSIP
number printed in the notice or on the Securities, and that re-
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liance may be placed only on the other identification numbers printed on the
Securities. The Company will promptly notify the Trustee of any change in
the CUSIP number.
SECTION 2.14 Book-Entry Provisions for Global Securities.
(a) The Global Securities initially shall (i) be registered in the
name of the Depository or the nominee of such Depository, (ii) be delivered
to the Trustee as custodian for such Depository and (iii) bear legends as set
forth in Exhibit B.
Members of, or participants in, the Depository ("Agent Members")
shall have no rights under this Indenture with respect to any Global Security
held on their behalf by the Depository, or the Trustee as its custodian, or
under the Global Security, and the Depository may be treated by the Company,
the Trustee and any agent of the Company or the Trustee as the absolute owner
of the Global 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. U.S. Physical Securities shall be transferred to all beneficial
owners in exchange for their beneficial interests in Global Securities, in
accordance with the rules and procedures of the Depository, only if (i) the
Depository notifies the Company that it is unwilling or unable to continue as
Depository for any Global Security 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
request from the Depository to issue U.S. Physical Securities.
(c) In connection with the transfer of Global Securities as an
entirety to beneficial owners pursuant to paragraph (b), the Global
Securities 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 the Global Securities, an equal
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aggregate principal amount of U.S. Physical Securities of authorized
denominations.
(d) Any U.S. Physical Security constituting a Restricted Security
delivered in exchange for an interest in a Global Security pursuant to
paragraph (b) shall, except as otherwise provided by paragraphs (a)(i)(x) and
(c) of Section 2.15, bear the legend regarding transfer restrictions
applicable to the U.S. Physical Securities set forth in Exhibit A-1.
(e) The Holder of any 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 2.15 Special Transfer Provisions.
(a) Transfers to Non-QIB Institutional Accredited Investors and
Non-U.S. Persons. The following provisions shall apply with respect to the
registration of any proposed transfer of a Security constituting a Restricted
Security to any Institutional Accredited Investor which is not a QIB or to
any Non-U.S. Person:
(i) the Registrar shall register the transfer of any Security
constituting a Restricted Security, whether or not such Security bears
the Private Placement Legend, if (x) the requested transfer is after
June 20, 1999 or (y) (1) in the case of a transfer to an Institutional
Accredited Investor which is not a QIB (excluding Non-U.S. Persons), the
proposed transferee has delivered to the Registrar a certificate
substantially in the form of Exhibit C hereto or (2) in the case of a
transfer to a Non-U.S. Person, the proposed transferee has delivered to
the Registrar a certificate substantially in the form of Exhibit D
hereto, together, in the case of clause (i)(x) with such other
certifications, legal opinions or other information as the Company or
the Trustee 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; and
(ii) if the proposed transferor is an Agent Member holding a
beneficial interest in a Global Security, upon receipt by the Registrar
of (x) the certificate, if any, required by paragraph (i) above and (y)
instructions given
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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 a Global Security in an
amount equal to the principal amount of the beneficial interest in a 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 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 the 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 Global Security in an amount equal to the principal amount
of the Physical
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Securities to be transferred, and the Trustee shall cancel the Physical
Securities so transferred.
(c) Private Placement Legend. Upon the 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 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 circumstances contemplated
by paragraph (a)(i)(x) of this Section 2.15 exist, (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 or (iii) such Security has been sold
pursuant to an effective registration statement under the Securities Act.
(d) General. By its acceptance of any Security bearing the Private
Placement Legend, each Holder of such a 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 2.14 or this Section
2.15. 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.
ARTICLE III
REDEMPTION
SECTION 3.1 Notices to Trustee.
If the Company elects to redeem Securities pursuant to Section 5 of
the Securities, it shall notify the Trustee and the Paying Agent in writing
of the Redemption Date and the principal amount of Securities to be redeemed.
The Company shall give each notice provided for in this Section 3.1
at least 45 days before the Redemption Date (unless a shorter notice shall be
satisfactory to the Trustee), together with an Officers' Certificate stating
that such re-
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demption will comply with the conditions contained herein and in the Securities.
SECTION 3.2 Selection of Securities To Be Redeemed.
If less than all of the Securities are to be redeemed, the Trustee
shall select Securities to be so redeemed in compliance with applicable legal
requirements and the requirements of the principal national securities
exchange, if any, on which the Securities are listed or, if the Securities
are not listed on a national securities exchange, by lot, pro rata or in such
other fair and reasonable manner chosen at the discretion of the Trustee;
provided that, with respect to redemptions made with net proceeds of
issuances of Equity Interests of the Company as described in the second
paragraph of Section 5 of each of the Securities, such redemptions shall be
made on a pro rata basis (to the extent permitted by the Depository).
The Trustee shall make the selection from the Securities outstanding
and not previously called for redemption. Securities in denominations of
$1,000 may only be redeemed 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. Provisions of this
Indenture that apply to Securities called for redemption also apply to
portions of Securities called for redemption. The Trustee shall promptly
notify the Company in writing of the Securities selected for redemption and,
in the case of any Security selected for partial redemption, the principal
amount of each certificate selected for redemption.
SECTION 3.3 Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption Date,
the Company shall mail or cause the mailing of a notice of redemption by
first-class mail, postage prepaid, to each Holder of Securities to be
redeemed at such Holder's address as it appears on the Securities register
maintained by the Registrar with a copy to the Trustee and any Paying Agent.
The notice shall identify the Securities to be redeemed and shall
state:
(a) the Redemption Date;
(b) the redemption price to be paid;
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(c) the name and address of the Paying Agent;
(d) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price and accrued interest, if any;
(e) 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 to be redeemed;
(f) if any Security is to be redeemed in part, the portion of the
principal amount (equal to $1,000 or any integral multiple thereof) of
such Security to be redeemed and that, on or after the Redemption Date,
upon surrender of such Security, a new Security or Securities in
aggregate principal amount equal to the unredeemed portion thereof will
be issued without charge to the Securityholder;
(g) if less than all of 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
(h) the CUSIP number, if any.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense.
SECTION 3.4 Effect of Notice of Redemption.
Once notice of redemption is mailed, Securities called for
redemption become due and payable on the Redemption Date and at the
redemption price. Upon surrender to the Paying Agent, such Securities shall
be paid at the redemption price plus accrued interest to the Redemption Date,
but interest installments whose Interest Payment Date is on or prior to such
Redemption Date will be payable on the relevant Interest Payment Dates to the
Holders of record at the close of business on the relevant record dates
referred to in the Securities.
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SECTION 3.5 Deposit of Redemption Price.
On or prior to the Redemption Date, the Company shall deposit with
the Paying Agent in immediately available funds U.S. Legal Tender sufficient
to pay the redemption price of and accrued interest on all Securities or
portions thereof to be redeemed on that date.
If any Security surrendered for redemption in the manner provided in
the Securities shall not be so paid on the Redemption Date due to the failure
of the Company to deposit sufficient funds with the Paying Agent, interest
will continue to accrue from and including the Redemption Date until such
payment is made on the unpaid principal and, to the extent lawful, on any
interest not paid on such unpaid principal, in each case at the date and in
the manner provided in the Securities.
SECTION 3.6 Securities Redeemed in Part.
Upon surrender to the Paying Agent of a Security that is redeemed in
part, the Company shall execute and the Trustee shall authenticate for the
Holder a new Security equal in principal amount to the unredeemed portion of
the Security surrendered.
ARTICLE IV
COVENANTS
SECTION 4.1 Payment of Securities.
The Company shall pay the principal of and interest on the
Securities on the dates and in the manner provided in the Securities and this
Indenture.
An installment of principal or interest shall be considered paid on
the date due if the Trustee or Paying Agent (other than the Company or any
Subsidiary of the Company or any Affiliate of any thereof) holds on such date
immediately available funds designated for and sufficient to pay such
installment.
The Company shall pay interest (including Accrued Bankruptcy
Interest) on overdue principal and on overdue installments of interest, in
each case at the rate per annum specified in the Securities, to the extent
lawful.
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SECTION 4.2 Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, the City of
New York, an office or agency, where Securities may be surrendered for
registration of transfer or exchange or for presentation for payment and
where notices and demands to or upon the Company in respect of the Securities
and this Indenture may be served. The Company will 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 11.2.
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 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 will give
prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
The Company hereby initially designates the corporate trust office
of the Trustee set forth in Section 11.2 as an agency of the Company in
accordance with Section 2.3.
SECTION 4.3 Corporate Existence.
Subject to Article V hereof, the Company shall do or cause to be
done, at its own cost and expense, all things necessary to, and will cause
each of its Restricted Subsidiaries to, preserve and keep in full force and
effect the corporate existence and rights (charter and statutory), licenses
and/or franchises of the Company and each of its Restricted Subsidiaries;
provided that the Company shall not be required to preserve any such right,
license or franchise, or the corporate existence of any of its Restricted
Subsidiaries, if in the judgment of the Board of Directors or management of
the Company (i) such preservation or existence is not desirable in the
conduct of business of the Company or such Restricted Subsidiary and (ii) the
loss of such right, license or franchise or the dissolution of such
Restricted Subsidiary is not adverse in any material respect to the Holders.
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SECTION 4.4 Payment of Taxes and Other Claims.
The Company shall and shall cause each of its Subsidiaries to 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 its or its Subsidiaries' income, profits or property
and (b) all material lawful claims for labor, materials and supplies which,
if unpaid, would be reasonably likely to by law become a Lien upon its
property or the property of any of its Subsidiaries; provided 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,
applicability or validity is being contested in good faith by appropriate
negotiations or proceedings and for which disputed amounts adequate reserves
(in the good faith judgment of the Board of Directors or management of the
Company) have been made in accordance with GAAP.
SECTION 4.5 Maintenance of Properties; Books and Records;
Compliance with Law.
(a) The Company shall and shall cause each of its Restricted
Subsidiaries to, at all times cause all properties used or useful in the
conduct of its business to be maintained and kept in good condition, repair
and working order (reasonable wear and tear excepted) and supplied with all
necessary equipment, and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereto; provided that
nothing in this Section 4.5 shall prevent the Company or any Restricted
Subsidiary from discontinuing the operation or maintenance of any of such
properties, or disposing of any of them, if such discontinuance or disposal
is either (i) in the ordinary course of business, (ii) in the reasonable and
good faith judgment of the Board of Directors or management of the Company or
the Restricted Subsidiary concerned, as the case may be, desirable in the
conduct of the business of the Company or such Restricted Subsidiary, as the
case may be, or (iii) otherwise permitted by this Indenture.
(b) The Company shall and shall cause each of its Restricted
Subsidiaries to keep proper and true books of record and account, in which
full and correct entries shall be made of all financial transactions and the
assets and business of the Company and each Restricted Subsidiary, and reflect
on its financial statements adequate accruals and appropriations to re-
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serves, all in accordance with GAAP consistently applied to the Company and
its Subsidiaries taken as a whole.
(c) The Company shall and shall cause each of its Subsidiaries to
comply in all material respects with all statutes, laws, ordinances, or
government rules and regulations to which it is subject, non-compliance with
which would materially adversely affect the business, earnings, properties,
assets or condition (financial or otherwise) of the Company and its
Subsidiaries taken as a whole.
SECTION 4.6 Compliance Certificates; Notice of Default.
(a) The Company shall deliver to the Trustee, within 120 days after
the end of its fiscal year, an Officers' Certificate complying with Section
314(a)(4) of the TIA stating (i) that a review of the activities of the
Company and the activities of its Subsidiaries during the preceding fiscal
year has been made under the supervision of the signing Officers with a view
to determining whether the Company has kept, observed, performed and
fulfilled its obligations under this Indenture and the Securities and (ii)
that, to the best knowledge of such Officer after due inquiry, the Company
has kept, observed, performed and fulfilled, in each case in all material
respects, each and every covenant and other obligation contained in this
Indenture and the Securities and is not in default in the performance or
observance of any of the terms, provisions and conditions hereof and has not
failed to comply with any other obligation hereunder (or, if a Default, Event
of Default or failure to comply with any other obligation hereunder shall
have occurred, describing with particularity all such Defaults, Events of
Default or failures to comply with any other obligation hereunder of which
such Officer may have knowledge, including, but not limited to, their status
and what action the Company is taking or proposes to take with respect
thereto).
(b) So long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, the Company shall
deliver to the Trustee within 120 days after the end of each fiscal year a
written statement by the Company's independent certified public accountants
stating (A) that their audit examination has included a reading of the
relevant provisions of this Indenture and the Securities as they relate to
accounting matters, and (B) whether, in connection with their audit
examination, any Default or Event of Default has come to their attention as
they relate to accounting
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matters and if such a Default or Event of Default has come to their
attention, specifying the nature and period of existence thereof; provided
that, without any restriction as to the scope of the audit examination, such
independent certified public accountants shall not be liable by reason of any
failure to obtain knowledge of any such Default or Event of Default that
would not be disclosed in the course of an audit examination conducted in
accordance with generally accepted auditing standards.
(c) The Company shall, so long as any of the Securities are
outstanding, deliver to the Trustee, forthwith upon becoming aware of any
Default or Event of Default, an Officers' Certificate specifying such Default
or Event of Default and what action the Company is taking or proposes to take
with respect thereto.
SECTION 4.7 Reports.
(a) The Company shall deliver to the Trustee and mail to each
Holder, within 15 days after the filing of the same with the SEC, copies of
its annual report and of the information, documents and other reports, if
any, which the Company is required to file with the SEC pursuant to Section
13 or 15(d) of the Exchange Act. The Company shall also comply with the
other provisions of TIA Section 314(a).
(b) If the Company ceases to be subject to the requirements of such
Section 13 or 15(d) of the Exchange Act, the Company shall file with the SEC,
to the extent permitted, and distribute to the Trustee and to each Holder
copies of the quarterly and annual financial information that would have been
required to be filed with the SEC pursuant to the Exchange Act had the
Company been subject to the reporting requirements of Section 13 or 15(d) of
the Exchange Act. All such financial information shall include consolidated
financial statements (including footnotes) prepared in accordance with GAAP.
Such annual financial information shall also include an opinion thereon
expressed by an independent accounting firm of established national
reputation. All such consolidated financial statements shall be accompanied
by a "Management's Discussion and Analysis of Financial Condition and Results
of Operations." The financial information to be distributed to Holders shall
be filed with the Trustee and mailed to the Holders at their respective
addresses appearing in the register of the Securities maintained by the
Registrar, within 120 days after the end of the Company's fiscal year and
within 60 days after the end of each of the first three quarters of each such
fiscal year.
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SECTION 4.8 Limitation on Restricted Payments.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, (i) declare or pay any dividend or
make any distribution on account of the Company's Capital Stock or other
Equity Interests (other than dividends or distributions payable in Equity
Interests (other than Redeemable Stock) of the Company), (ii) purchase,
redeem or otherwise acquire or retire for value any Equity Interests of the
Company or (iii) make any Investment (other than a Permitted Investment) (the
foregoing actions set forth in clauses (i) through (iii) being referred to as
"Restricted Payments"), if:
(a) a Default or Event of Default shall have occurred and be
continuing at the time of such Restricted Payment or shall occur
immediately after giving effect thereto; or
(b) immediately after such Restricted Payment and after giving
effect thereto on a pro forma basis, the Company could not incur at
least $1.00 of additional Indebtedness pursuant to the first paragraph
of Section 4.9 (without giving effect to clauses (i) through (xvi) of
the second paragraph thereof); or
(c) such Restricted Payment, together with the aggregate of all
other Restricted Payments made after the Issue Date, exceeds the sum of
(1) 50% of the amount of the Adjusted Consolidated Net Income of the
Company for the period (taken as one accounting period) from January 1,
1997 through the end of the Company's fiscal quarter ending immediately
prior to the time of such Restricted Payment (or, if Adjusted
Consolidated Net Income for such period is a deficit, 100% of such
deficit) plus (2) 100% of the aggregate amounts contributed to the
capital of the Company from and after the Issue Date plus (3) 100% of
the aggregate net cash proceeds and the fair market value, as determined
in good faith by the Board of Directors of the Company, of property
other than cash received by the Company from and after the Issue Date
from the issue or sale of Equity Interests of the Company (other than
such Equity Interests issued or sold to a Restricted Subsidiary and
other than Redeemable Stock) or any Indebtedness or security convertible
into or exchangeable for any such Equity Interest that has been so
converted or exchanged (excluding the net cash proceeds from
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issuances and sales of Equity Interests financed, directly or
indirectly, using borrowed funds from the Company or any Restricted
Subsidiary until and to the extent such borrowing is repaid) plus (4)
$75.0 million.
The foregoing provisions will not prohibit (i) the payment of any
dividend within 60 days after the date of declaration thereof, if at the date
of declaration thereof such payment would have complied with the provisions
of this Indenture; (ii)(A) the retirement of any Equity Interests of the
Company (the "Retired Equity Interests") either in exchange for or out of the
net proceeds of the substantially concurrent sale (other than to a Restricted
Subsidiary) of other Equity Interests of the Company (the "Refunding Equity
Interests") other than any Redeemable Stock and (B) if the Retired Equity
Interest constituted Qualified Preferred Stock, the declaration and payment
of dividends on the Refunding Equity Interest in an aggregate amount per year
no greater than the aggregate amount of dividends per year that was
declarable and payable on such Retired Equity Interest immediately prior to
such retirement to the extent such Refunding Equity Interest is designated to
be Qualified Preferred Stock by the Company at the time of its issuance;
(iii) the repurchase, redemption or other acquisition or retirement for value
of any Equity Interests of the Company issued to employees, officers or
directors of the Company and its Subsidiaries pursuant to agreements
containing provisions for the repurchase of such Equity Interests upon death,
disability or termination of employment or directorship of such Persons, or
in accordance with the Company's xxxxxxx xxxxxxx policy, not to exceed $5.0
million in any fiscal year plus the aggregate cash proceeds from any
reissuance during such fiscal year of Equity Interests by the Company to
employees, officers or directors of the Company and its Subsidiaries plus the
aggregate cash proceeds from any payments on life insurance policies with
respect to any employees, officers or directors of the Company and its
Subsidiaries which proceeds are used to purchase the Equity Interests of the
Company held by any such employees, officers or directors; (iv) the
declaration and payment of dividends to holders of any class or series of the
Company's preferred stock issued after the Issue Date (including, without
limitation, the declaration and payment of dividends on Refunding Equity
Interests in excess of the dividends declarable and payable thereon pursuant
to clause (ii) of this paragraph); provided that at the time of such issuance
the Company's Fixed Charge Coverage Ratio for the four full fiscal quarters
ending immediately prior to the date of such issuance would have been at
least 1.25 to 1, determined on a pro forma basis as if such issuance was at
the beginning of such four-quarter period, and
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at the time of issuance, such preferred stock is designated by the Company to
be Qualified Preferred Stock; and (v) an Investment in any Unrestricted
Subsidiary either in exchange for Equity Interests of the Company (other than
Redeemable Stock) or out of the proceeds of the sale (other than to a
Restricted Subsidiary) of Equity Interests of the Company (other than
Redeemable Stock) received by the Company not more than 12 months prior to
the date of such Investment (to the extent such sale of Equity Interests has
not previously been included in any calculation under clause (c) above for
purposes of permitting a Restricted Payment); provided that, in the cases of
clauses (iii) (other than with respect to the repurchase of Equity Interests
with insurance proceeds), (iv) and (v), no Default or Event of Default shall
have occurred and be continuing at the time of such Restricted Payment or
shall occur immediately after giving effect thereto.
In determining the aggregate amount expended for Restricted Payments
in accordance with clause (c) above, (1) no amounts expended under clause
(iii) (only with respect to the use of insurance proceeds to repurchase
Equity Interests) of the immediately preceding paragraph shall be included
and (2) 100% of the amounts expended under clauses (i), (ii), (iii) (other
than with respect to the repurchase of Equity Interests with insurance
proceeds), (iv) and (v) of the immediately preceding paragraph shall be
included.
SECTION 4.9 Limitation on Additional Indebtedness.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume,
guarantee or otherwise become directly or indirectly liable with respect to
any Indebtedness unless the Company's Fixed Charge Coverage Ratio for its
four full fiscal quarters ending immediately prior to the date such
additional Indebtedness is created, incurred, issued, assumed or guaranteed
would have been at least 2.25 to 1, determined on a pro forma basis
(including a pro forma application of the net proceeds of such Indebtedness)
as if the additional Indebtedness had been created, incurred, issued, assumed
or guaranteed at the beginning of such four-quarter period.
The foregoing limitations will not apply to the incurrence of (i)
Indebtedness pursuant to the Credit Agreement in an amount equal to $475.0
million; (ii) Existing Indebtedness, including any Outstanding Notes; (iii)
Indebtedness represented by $250.0 million aggregate principal amount of the
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Securities issued on the Issue Date; (iv) Capital Lease Obligations; (v)
Indebtedness constituting purchase money obligations for property acquired in
the ordinary course of business or other similar financing transactions; (vi)
Indebtedness incurred in connection with capital expenditures not to exceed
6% of the Company's consolidated net sales (as set forth in the Company's
consolidated statement of operations, as determined in accordance with GAAP)
in any fiscal year; (vii) Indebtedness constituting reimbursement obligations
with respect to letters of credit, including, without limitation, letters of
credit in respect of workers' compensation claims, issued for the account of
the Company or a Restricted Subsidiary in the ordinary course of business, or
other Indebtedness with respect to reimbursement-type obligations regarding
workers' compensation claims; (viii) additional Indebtedness in an aggregate
principal amount up to $45.0 million at any one time outstanding for the
Company and its Restricted Subsidiaries; (ix) Indebtedness created, incurred,
issued, assumed or given in exchange for, or the proceeds of which are used,
to extend, refinance, renew, replace, substitute or refund any Indebtedness
permitted under this Indenture or any Indebtedness issued to so extend,
refinance, renew, replace, substitute or refund such Indebtedness, including
any additional Indebtedness incurred to pay premiums and fees in connection
therewith (the "Refinancing Indebtedness"); provided that (A) the principal
amount of such Refinancing Indebtedness shall not exceed the outstanding
principal amount of Indebtedness (including unused commitments) so extended,
refinanced, renewed, replaced, substituted or refunded plus any amounts
incurred to pay premiums and fees in connection therewith, (B) in the case of
Refinancing Indebtedness for Indebtedness permitted under clause (ii) of this
paragraph (other than Senior Indebtedness), the Refinancing Indebtedness
shall have an Average Life equal to or greater than the Average Life of the
Indebtedness being extended, refinanced, renewed, replaced, substituted or
refunded and (C) to the extent such Refinancing Indebtedness refinances
Indebtedness subordinated to the Securities, such Refinancing Indebtedness is
subordinated to the Securities at least to the same extent as the
Indebtedness being extended, refinanced, renewed, replaced, substituted or
refunded; (x) intercompany Indebtedness incurred in connection with
Investments in Unrestricted Subsidiaries; provided that such Investments are
permitted by Section 4.8; (xi) Indebtedness under Raw Material Hedge
Agreements; (xii) Indebtedness under Currency Agreements and Interest Rate
Agreements; provided that in the case of Currency Agreements which relate to
other Indebtedness, such Currency Agreements do not increase the Indebtedness
of the Company outstanding other than as a result of fluctuations in foreign
currency exchange rates; (xiii)
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Indebtedness arising from the honoring by a bank or other financial
institution of a check, draft or similar instrument inadvertently drawn
against insufficient funds in the ordinary course of business; (xiv)
Indebtedness between the Company and any Restricted Subsidiary or between
Restricted Subsidiaries; (xv) guarantees by Restricted Subsidiaries of
Indebtedness of the Company or any Restricted Subsidiary if the Indebtedness
so guaranteed is permitted under this Indenture; and (xvi) the Company's
Obligations arising from the repurchase, redemption or other acquisition of
Equity Interests from employees, officers or directors of the Company and its
Subsidiaries to the extent permitted by Section 4.8.
Notwithstanding anything in this Indenture to the contrary, the
consummation of the transactions contemplated by the Receivables Financing
shall not be deemed to be the incurrence of Indebtedness by the Company or by
any Restricted Subsidiary.
SECTION 4.10 Dividends and Payment Restrictions.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer
to exist or become effective any encumbrance or restriction on the ability of
any Restricted Subsidiary to (i) pay dividends or make any other
distributions on its Capital Stock, or any other interest or participation
in, or measured by, its profits, owned by the Company or any of its
Restricted Subsidiaries, or pay any Indebtedness owed to the Company or any
of its Restricted Subsidiaries, (ii) make loans or advances to the Company or
any of its Restricted Subsidiaries or (iii) transfer any of its properties or
assets to the Company or any of its Restricted Subsidiaries, except for such
encumbrances or restrictions existing under or by reason of: (A) the terms
(as in effect on the Issue Date) of Existing Indebtedness, (B) the terms (as
in effect on the Issue Date) of the Credit Agreement, (C) the terms of
Indebtedness of the Company or any of its Restricted Subsidiaries incurred in
accordance with Section 4.9; provided that the terms of any such Indebtedness
constitute no greater encumbrance or restriction on the ability of any
Restricted Subsidiary to pay dividends or make distributions, make loans or
advances or transfer properties or assets than the encumbrances or
restrictions imposed by the terms of the Credit Agreement as in effect on the
Issue Date, (D) the terms of the indentures governing the Outstanding Notes,
the Outstanding Notes, this Indenture and the Securities, (E) applicable law,
(F) customary non-assignment provi-
-47-
sions entered into in the ordinary course of business and consistent with
past practices, (G) the terms of purchase money obligations for property
acquired in the ordinary course of business, but only to the extent that such
purchase money obligations restrict or prohibit the transfer of the property
so acquired, (H) any encumbrance or restriction with respect to a Restricted
Subsidiary that was not a Restricted Subsidiary on the Issue Date, which
encumbrance or restriction is in existence at the time such Person becomes a
Restricted Subsidiary or is created on the date it becomes a Restricted
Subsidiary, (I) any encumbrance or restriction with respect to a Restricted
Subsidiary imposed pursuant to an agreement which has been entered into for
the sale or disposition of all or substantially all the Capital Stock or
assets of such Restricted Subsidiary, (J) the terms of the Receivables
Financing or (K) any encumbrance or restriction existing under any amendment
to, and any agreement which refinances or replaces, the agreements described
in clauses (A), (B), (C), (D), (H) and (J); provided that the terms and
conditions of any such encumbrances or restrictions contained in any such
amendment or agreement as determined in good faith by the Board of Directors
constitute no greater encumbrance or restriction on the ability of any
Restricted Subsidiary to pay dividends or make distributions, make loans or
advances or transfer properties or assets than those under or pursuant to the
agreement evidencing the Indebtedness or obligations so amended, refinanced
or replaced. Nothing contained in this covenant shall prevent the Company or
a Restricted Subsidiary from entering into any agreement permitting or
providing for the incurrence of Liens otherwise permitted by Section 4.11.
SECTION 4.11 Limitation on Liens.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Lien (other than Permitted Liens) upon any asset now owned or
hereafter acquired by it, or any income or profits therefrom or assign or
convey any right to receive income therefrom. Notwithstanding the foregoing,
the Company or any Restricted Subsidiary may create or assume any Lien upon
its properties or assets if the Company shall cause the Securities to be
equally and ratably secured with all other Indebtedness secured by such Lien
for so long as such other Indebtedness shall be so secured.
-48-
SECTION 4.12 Limitation on Asset Sales.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, consummate any Asset Sale that
results in Net Proceeds in excess of $1.5 million (including the sale of any
of the Capital Stock of any Restricted Subsidiary) unless such Asset Sale is
for fair market value as determined by the Board of Directors acting
reasonably and in good faith and the Company or any Restricted Subsidiary
applies the Net Proceeds from such Asset Sale to one or more of the following
in such combination as it shall choose: (a) an investment in assets
(including Capital Stock or other securities purchased in connection with the
acquisition of Capital Stock or property of another Person) used or useful in
businesses similar or ancillary to the business of the Company or its
Restricted Subsidiaries as conducted at the time of such Asset Sale; provided
that such investment occurs on or prior to the 366th day following the date
of such Asset Sale (the "Asset Sale Payment Date"); (b) a Net Proceeds Offer
(as defined below) expiring on or prior to the Asset Sale Payment Date; or
(c) in the case of an Asset Sale by the Company, the purchase, redemption or
other prepayment or repayment of outstanding Senior Indebtedness on or prior
to the Asset Sale Payment Date and, in the case of an Asset Sale by any
Restricted Subsidiary, the purchase, redemption or other prepayment or
repayment of any Indebtedness of such Restricted Subsidiary on or prior to
the Asset Sale Payment Date; provided that any prepayment or repayment of
amounts outstanding under the Credit Agreement in excess of $20.0 million in
the aggregate after the Issue Date shall be a permanent reduction in the
commitment thereunder in the amount of such excess. Notwithstanding the
foregoing, in the event such Net Proceeds, after giving effect to any
investment or payment permitted by clause (a) or (c) above (the "Excess
Proceeds"), are less than $15.0 million, the application of the Excess
Proceeds to a Net Proceeds Offer may be deferred until such time as the
Excess Proceeds, plus the aggregate amount of any subsequent Net Proceeds not
otherwise invested or applied to repay amounts outstanding under the Senior
Indebtedness of the Company or under the Indebtedness of any Restricted
Subsidiary, as the case may be, as permitted by clause (a) or (c) above, are
at least equal to $15.0 million, at which time the Company shall apply all
the Excess Proceeds to a Net Proceeds Offer. Upon completion of a Net
Proceeds Offer, the amount of Excess Proceeds shall be reset at zero.
For purposes of clause (b) of the preceding paragraph, the Company
will apply that portion of the Net Proceeds
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of the Asset Sale required to make a tender offer in accordance with
applicable law (a "Net Proceeds Offer") to repurchase Securities at a price
not less than 100% of the principal amount thereof plus accrued and unpaid
interest to the date of repurchase, which date shall be no earlier than 30
days nor later than 45 days after the date of mailing of the Net Proceeds
Offer (the "Net Proceeds Payment Date"). The Company may, at its option,
receive credit against any Net Proceeds Offer for the principal amount of
Securities acquired by the Company or any of its Subsidiaries and surrendered
for cancellation within six months prior to or at any time after the date of
such Asset Sale relating to such Net Proceeds Offer and before the Net
Proceeds Payment Date. Any Net Proceeds Offer will be made by the Company
only if and to the extent permitted under, and subject to prior compliance
with, the terms of any agreement governing Senior Indebtedness of the Company
or Indebtedness of a Restricted Subsidiary, as the case may be. If the
Company commences a Net Proceeds Offer and securities of the Company ranking
pari passu in right of payment with the Securities are outstanding at the
commencement of such Net Proceeds Offer and the terms of such securities
provide that a similar offer must be made with respect thereto, then the Net
Proceeds Offer for the Securities shall be made concurrently with such other
offer and securities of each issue will be accepted pro rata in proportion to
the aggregate principal amount of securities of each issue which the holders
of securities of such issue elect to have purchased. After the last date on
which Holders are permitted to tender their Securities in a Net Proceeds
Offer, the Company will not be restricted under this Section 4.12 as to its
use of any remaining Net Proceeds available to make such Net Proceeds Offer
but not used to redeem Securities pursuant hereto.
Notwithstanding the foregoing, if, at the time of an Asset Sale by
the Company or any Restricted Subsidiary, the Company's Fixed Charge Coverage
Ratio for the four fiscal quarter period ending immediately prior to the date
of such Asset Sale would have been at least 2.75 to 1, determined on a pro
forma basis as if such Asset Sale occurred at the beginning of such
four-quarter period, then any Net Proceeds received will not be subject to
this Section 4.12.
At such time as the Company determines to make a Net Proceeds Offer,
it shall so notify the Trustee in writing. Within 15 days thereafter, it
shall mail or cause the Trustee to mail (in the Company's name and at its
expense) notice of a Net Proceeds Offer to the Holders of the Securities at
their last registered addresses with a copy to the Trustee and the
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Paying Agent. The Net Proceeds Offer shall remain open from the time of
mailing for at least 20 Business Days and until the close of business on the
third Business Day prior to the Net Proceeds Payment Date. The notice shall
contain all instructions and materials necessary to enable such Holders to
tender Securities pursuant to the Net Proceeds Offer. The notice, which
shall govern the terms of the Net Proceeds Offer, shall state:
(i) that the Net Proceeds Offer is being made pursuant to this
Section 4.12;
(ii) the purchase price (including the amount of accrued and unpaid
interest, if any) for each Security and the Net Proceeds Payment Date;
(iii) that any Security not tendered or accepted for payment
will continue to accrue interest in accordance with the terms thereof;
(iv) that any Security accepted for payment pursuant to the Net
Proceeds Offer shall cease to accrue interest after the Net Proceeds
Payment Date unless the Company shall fail to make payment therefor;
(v) that Holders electing to have Securities purchased pursuant
to a Net Proceeds Offer will be required to surrender their Securities to
the Paying Agent at the address specified in the notice prior to 5:00
p.m., New York City time, on the third Business Day immediately preceding
the Net Proceeds Payment Date and must complete any form letter of
transmittal proposed by the Company and acceptable to the Trustee and the
Paying Agent;
(vi) that Holders will be entitled to withdraw their election if
the Paying Agent receives, not later than 5:00 p.m., New York City time,
on the third Business Day immediately preceding the Net Proceeds Payment
Date, a telex or facsimile transmission (confirmed by overnight delivery
of the original thereof) or letter setting forth the name of the Holder,
the principal amount of Securities the Holder delivered for purchase, the
Security certificate number (if any) and a statement that such Holder is
withdrawing his election to have such Securities purchased;
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(vii) that if Securities in a principal amount in excess of the
Holders' pro rata share of the Net Proceeds are tendered pursuant to a
Net Proceeds Offer, the Company shall purchase Securities on a pro rata
basis among the Securities tendered (with such adjustments as may be
deemed appropriate by the Company so that only Securities in
denominations of $1,000 or integral multiples of $1,000 shall be
acquired);
(viii) that Holders whose Securities are purchased only in part will
be issued new Securities equal in principal amount to the unpurchased
portion of the Securities surrendered; and
(ix) the instructions that Holders must follow in order to tender
their Securities.
On or before the Net Proceeds Payment Date, the Company shall (i)
accept for payment, on a pro rata basis among the Securities, Securities or
portions thereof tendered pursuant to the Net Proceeds Offer, (ii) deposit
with the Paying Agent money, in immediately available funds, in an amount
sufficient to pay the purchase price of all Securities or portions thereof so
tendered and accepted and (iii) deliver to the Paying Agent the Securities so
accepted together with an Officers' Certificate setting forth the Securities
or portions thereof tendered to and accepted for payment by the Company. The
Paying Agent shall promptly mail or deliver to Holders of Securities so
accepted payment in an amount equal to the purchase price, and the Trustee
shall promptly authenticate and mail or deliver to such Holders a new
Security equal in principal amount to any unpurchased portion of the Security
surrendered. Any Securities not so accepted shall be promptly mailed or
delivered by the Company to the Holder thereof. The Company will publicly
announce the results of the Net Proceeds Offer on the first Business Day
following the Net Proceeds Payment Date. To the extent the Holders' pro rata
portion of a Net Proceeds Offer is not fully subscribed to by such Holders,
the Company may retain such unutilized portion of the Net Proceeds. The
Paying Agent shall promptly deliver to the Company the balance of any moneys
held by the Paying Agent after payment to the Holders of Securities as
aforesaid.
The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations (including Rule 14e-1 under the Exchange Act) in
connection with the repurchase of
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Securities pursuant to a Net Proceeds Offer. To the extent that the
provisions of any securities laws or regulations conflict with the provisions
of this Section 4.12, the Company shall comply with the applicable securities
laws and regulations and shall not be deemed to have breached its obligations
under this Section 4.12 by virtue thereof.
SECTION 4.13 Transactions With Affiliates.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, enter into any transaction
(including, without limitation, the purchase, sale, lease or exchange of any
property or the rendering of any service) with any Affiliate, except for (i)
transactions (including any investments, loans or advances by or to any
Affiliate) the terms of which in good faith are fair and reasonable to the
Company or such Restricted Subsidiary, as the case may be, and are at least
as favorable as the terms that could be obtained by the Company or such
Restricted Subsidiary, as the case may be, in a comparable transaction made
on an arm's length basis between unaffiliated parties (as determined by the
Board of Directors of the Company acting reasonably and in good faith, as
evidenced by a resolution of such Board of Directors); provided that, in the
case of any transaction with an Affiliate involving aggregate consideration
in excess of $10.0 million, either (A) such transaction is entered into in
the ordinary course of the business of the Company or its Restricted
Subsidiaries, (B) a majority of the directors of the Company unaffiliated
with such Affiliate or, if there are no such directors, a majority of the
directors of the Company approve such transaction or (C) the Company or such
Restricted Subsidiary, as the case may be, delivers to the Trustee and the
Holders a written opinion of a nationally recognized investment banking firm
stating that such transaction is fair to the Company or such Restricted
Subsidiary from a financial point of view, (ii) payments by the Company or
any of its Restricted Subsidiaries made pursuant to any financial advisory,
financing, underwriting or placement agreement; provided that the terms of
any such arrangement or agreement shall be on terms which in good faith are
fair and reasonable to the Company or such Restricted Subsidiary, as the case
may be (as determined by the Board of Directors of the Company acting
reasonably and in good faith, as evidenced by a resolution of such Board of
Directors), (iii) any Restricted Payment not otherwise prohibited under
Section 4.8, (iv) the payment of reasonable and customary regular fees to
directors of the Company and its Subsidiaries who are not employees of the
Company or its Subsidiaries, (v) advances or loans to employees, officers and
direc-
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tors of the Company and its Subsidiaries permitted by clauses (iii) and (iv)
of the definition of Permitted Investments and (vi) transactions between or
among any of the Company and its Restricted Subsidiaries.
SECTION 4.14 Limitation on Creation of Senior Subordinated Debt.
The Company shall not incur, create, issue, assume, guarantee or
otherwise become liable for any Indebtedness that is expressly by its terms
subordinate or junior in right of payment to any Senior Indebtedness and
senior in any respect in right of payment to the Securities.
SECTION 4.15 Change of Control.
In the event of a Change of Control (the date of such occurrence
being the "Change of Control Date"), if either (i) the Company does not
redeem Securities pursuant to the third paragraph of Paragraph 5 of the
Securities or (ii) such Change of Control occurs after July 1, 2002, the
Company shall notify the Holders in writing of such occurrence and shall make
an offer to purchase (the "Change of Control Offer"), on a Business Day (the
"Change of Control Payment Date") not later than 60 days following the Change
of Control Date, all Securities then outstanding at a purchase price (the
"Change of Control Purchase Price") equal to 101% of the principal amount
thereof plus accrued and unpaid interest, if any, to the Change of Control
Payment Date.
Notice of a Change of Control Offer shall be mailed by the Company
not less than 30 days nor more than 45 days before the Change of Control
Payment Date to the Holders of Securities at their last registered addresses
with a copy to the Trustee and the Paying Agent. The Change of Control Offer
shall remain open from the time of mailing for at least 20 Business Days and
until 5:00 p.m., New York City time, on the third Business Day prior to the
Change of Control Payment Date. The notice, which shall govern the terms of
the Change of Control Offer, shall include such disclosures as are required
by law and shall state:
(a) that the Change of Control Offer is being made pursuant to this
Section 4.15 and that all Securities will be accepted for payment;
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(b) the purchase price (including the amount of accrued and unpaid
interest, if any) for each Security and the Change of Control Payment
Date;
(c) that any Security not tendered for payment will continue to
accrue interest in accordance with the terms thereof;
(d) that any Security accepted for payment pursuant to the Change
of Control Offer shall cease to accrue interest after the Change of
Control Payment Date unless the Company shall fail to make payment
therefor;
(e) that Holders electing to have Securities purchased pursuant to
a Change of Control Offer will be required to surrender their Securities
to the Paying Agent at the address specified in the notice prior to 5:00
p.m., New York City time, on the third Business Day prior to the Change
of Control Payment Date and must complete any form letter of transmittal
proposed by the Company and acceptable to the Trustee and the Paying
Agent;
(f) that Holders of Securities will be entitled to withdraw their
election if the Paying Agent receives, not later than 5:00 p.m., New York
City time, on the third Business Day prior to the Change of Control
Payment Date, a telex or facsimile transmission (confirmed by overnight
delivery of the original thereof) or letter setting forth the name of the
Holder, the principal amount of Securities the Holder delivered for
purchase, the Security certificate number (if any) and a statement that
such Holder is withdrawing his election to have such Securities purchased;
(g) that Holders whose Securities are purchased only in part will
be issued Securities equal in principal amount to the unpurchased portion
of the Securities surrendered;
(h) the instructions that Holders must follow in order to tender
their Securities; and
(i) a brief description of the events resulting in such Change of
Control (including, but not limited to, information with respect to pro
forma historical financial information after giving effect to such Change
of Control, information regarding the Persons acquiring control and such
Person's business plans going forward, in each such
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case to the extent available and not subject to confidentiality
restrictions).
On the Change of Control Payment Date, the Company shall (i) accept
for payment Securities or portions thereof tendered pursuant to the Change of
Control Offer, (ii) deposit with the Paying Agent money sufficient to pay the
purchase price of all Securities or portions thereof so tendered and accepted
and (iii) deliver to the Trustee the Securities so accepted together with an
Officers' Certificate setting forth the Securities or portions thereof
tendered to and accepted for payment by the Company. The Paying Agent shall
promptly mail or deliver to the Holders of Securities so accepted payment in
an amount equal to the purchase price, and the Trustee shall promptly
authenticate and mail or deliver to such Holders a new Security equal in
principal amount to any unpurchased portion of the Security surrendered. Any
Securities not so accepted shall be promptly mailed or delivered by the
Company to the Holder thereof. The Company will publicly announce the
results of the Change of Control Offer not later than the first Business Day
following the Change of Control Payment Date.
The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act, and any other securities
laws or regulations (including Rule 14e-1 under the Exchange Act) in
connection with the purchase of Securities pursuant to a Change of Control
Offer. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section 4.15, the Company shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this Section 4.15 by virtue
thereof.
SECTION 4.16 Waiver of Stay; Extension of Usury Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law or any
usury law or other law that would prohibit or forgive the Company from paying
all or any portion of the principal of or interest on the Securities as
contemplated herein or in the Securities, wherever enacted, now or at any
time hereafter in force, or that may affect the covenants or the performance
of this Indenture; and (to the extent that it may lawfully do so) the Company
hereby expressly waives all benefit or advantage of any such law, and
covenants that it will not hinder, delay or impede the execu-
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tion 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 4.17 Maintenance of Insurance.
The Company shall, and shall cause each of its Subsidiaries to, keep
at all times all of their respective properties and assets which are of an
insurable nature (as determined by reference to industry standards) insured
reasonably and appropriately as prudent business judgment would require
against loss or damage and shall obtain such other reasonable and appropriate
insurance as is required or so appropriate for the nature of the business and
other risks encountered by the Company and its Subsidiaries, in each case
with insurers reasonably and in good faith believed by the Company to be
responsible and financially sound, to the extent that insurance of a similar
character and nature is usually so obtained by corporations similarly
situated and that are at any such time conducting business substantially
similar to that of the Company and its Subsidiaries in accordance with
prudent business practices.
ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.1 Limitation on Mergers, Consolidations
or Sales of Assets.
The Company shall not in a single transaction or a series of related
transactions consolidate with or merge with or into another Person, or
directly or indirectly sell, transfer, lease or convey substantially all of
its properties and assets to another Person (except any Restricted
Subsidiary; provided that in connection with any merger of the Company with
any such Restricted Subsidiary, no consideration (other than common stock in
the surviving corporation or the Company) shall be issued or distributed to
the stockholders of the Company), or permit any Person to merge with or into
it unless: (i) the Company shall be the continuing Person, or the Person (if
other than the Company) formed by such consolidation or into which the
Company is merged or to which the properties and assets of the Company are
transferred shall be a corporation or partnership organized and existing
under the laws of the United States or any State thereof or the District of
Columbia and shall expressly assume, by a supplemental indenture, executed
and delivered to the Trustee, in form reasonably satisfactory to the
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Trustee, all of the obligations of the Company under the Securities and this
Indenture; (ii) immediately before and immediately after giving effect to
such transaction or series of transactions, no Default or Event of Default
under this Indenture shall have occurred and be continuing; and (iii)
immediately before and immediately after giving effect to such transaction or
series of transactions on a pro forma basis (including, without limitation,
any Indebtedness incurred or assumed in anticipation of or in connection with
such transaction or series of transactions), the Company could incur $1.00 of
additional Indebtedness under the first paragraph of Section 4.9 (without
giving effect to clauses (i) through (xvi) of the second paragraph thereof).
SECTION 5.2 Successor Entity Substituted.
Upon any consolidation or merger, or any transfer of all or
substantially all of the assets of the Company in accordance with Section
5.1, the successor Person formed by such consolidation or into which the
Company is merged or to which such transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been
named as the Company herein; and thereafter, except in the case of a lease,
the Company shall be discharged from all obligations and covenants under this
Indenture and the Securities.
ARTICLE VI
DEFAULT AND REMEDIES
SECTION 6.1 Events of Default.
"Event of Default", whenever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether
or not it shall be occasioned or prohibited by the provisions of Article X
and whether it shall be voluntary or involuntary or be effected by operation
of law or pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental body):
(i) a default in the payment of interest on any Security when the
same shall become due and payable and the continuance of such default for
a period of 30 days or more; or
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(ii) a default in the payment of all or any part of the principal of
any Security when and as the same shall become due and payable at
maturity, or upon acceleration, redemption, or otherwise, including
default in the payment of the purchase price required to be offered in a
Net Proceeds Offer and a Change of Control Offer; or
(iii) a failure by the Company and its Subsidiaries to comply
with any of the other agreements or covenants in or provisions of the
Securities or this Indenture which failure continues for the period and
after the notice specified below;
(iv) a default under any mortgage, indenture or instrument under
which there may be issued or evidenced any Indebtedness for borrowed
money by the Company or any of its Restricted Subsidiaries (or the
payment of which is guaranteed by the Company or any of its Restricted
Subsidiaries) whether such Indebtedness or guarantee is now existing or
hereafter created if either (x) such default results from the failure to
pay the final scheduled principal installment in an amount of at least
$15.0 million in respect of any such Indebtedness on the stated maturity
date thereof (after giving effect to any applicable grace periods) or (y)
as a result of such default the maturity of such Indebtedness has been
accelerated prior to its express maturity, and the principal amount of
such Indebtedness, together with the principal amount of any other such
Indebtedness with respect to which the principal amount remains unpaid
upon its final maturity (after giving effect to any extension of such
maturity date by the holder of such Indebtedness and the expiration of
any applicable grace period) or the maturity of which has been so
accelerated, aggregates $15.0 million or more;
(v) a final judgment or final judgments for the payment of money,
or the issuance of any warrant of attachment against any portion of the
property or the assets of the Company or any of its Restricted
Subsidiaries, that in the aggregate, equal or exceed $15.0 million at any
one time shall be entered against the Company or any of its Restricted
Subsidiaries and such judgment or judgments or warrant of attachment
shall not be discharged, satisfied,
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stayed, annulled or rescinded within 60 days of being entered, or in the
case of any final judgment which provides for payment over time, from any
applicable payment date;
(vi) the Company or any Significant Restricted
Subsidiary pursuant to or within the meaning of any
Bankruptcy Law:
(A) commences a voluntary case or proceeding;
(B) consents to the entry of an order for relief
against it in an involuntary case or proceeding;
(C) consents to the appointment of a Custodian of
it or for all or substantially all of its property;
(D) makes a general assignment for the benefit of
its creditors;
(E) files an answer or consent seeking
reorganization or relief; or
(F) shall generally not pay its debts as such
debts become due or shall admit in writing its inability
to pay its debts generally; or
(vii) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company or any Significant
Restricted Subsidiary as a debtor in an involuntary case or
proceeding;
(B) appoints a Custodian of the Company or any Significant
Restricted Subsidiary or a Custodian for all or substantially all
of their respective properties; or
(C) orders the liquidation of the Company or any Significant
Restricted Subsidiary;
and in each case the order or decree remains unstayed and in effect for
60 days.
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A Default under clause (iii) is not an Event of Default until the
Trustee notifies the Company, or the Holders of at least 25% in principal
amount of the then outstanding Securities notify the Company and the Trustee,
in writing of the Default and the Company does not cure the Default within 45
days after receipt of the notice. The notice must specify the Default,
demand that it be remedied and state that the notice is a "Notice of Default."
SECTION 6.2 Acceleration.
If an Event of Default (other than an Event of Default specified in
Section 6.1(vi) or (vii) above with respect to the Company) occurs and is
continuing, then, and in every such case, unless the principal of all the
Securities shall have already become due and payable, either the Trustee or
the Holders of not less than 25% in aggregate principal amount of the then
outstanding Securities, by notice in writing to the Company (and to the
Trustee if given by Holders), may declare all of the unpaid principal of and
accrued interest thereon to be due and payable immediately. In the event of
a declaration of acceleration because of an Event of Default described in
clause (iv) of Section 6.1 above has occurred and is continuing, such
declaration of acceleration shall be automatically annulled if such payment
default is cured or waived or the holders of the Indebtedness which is the
subject of such event of default have rescinded their declaration of
acceleration in respect of such Indebtedness within 60 days thereof and the
Trustee has received written notice of such cure, waiver or rescission and no
other Event of Default described in clause (iv) of Section 6.1 above has
occurred that has not been cured or waived within 60 days of the declaration
of such acceleration in respect thereof and if (i) the repayment of
Indebtedness or annulment of such acceleration, as the case may be, would not
conflict with any judgment or decree of a court of competent jurisdiction and
(ii) all existing Events of Default, except non-payment of principal or
interest which have become due solely due to such acceleration, have been
cured or waived. If an Event of Default specified in Section 6.1(vi) or
(vii) with respect to the Company occurs, all unpaid principal of and accrued
interest due and payable on all the outstanding Securities shall ipso facto
become and be immediately due and payable without any declaration, notice or
other act on the part of the Trustee or any Holder.
At any time after a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained,
the Holders of a majority in ag-
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gregate principal amount of the then outstanding Securities, by written
notice to the Company and the Trustee, may waive, on behalf of all Holders, a
Default or an Event of Default if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay (i) all overdue interest on all Securities,
(ii) the principal of any Securities which would become due
otherwise than by such declaration of acceleration, and interest
thereon at the rate borne by the Securities, (iii) to the extent
that payment of such interest is lawful, interest on overdue
interest at the rate borne by the Securities and (iv) all sums
paid or advanced by the Trustee under this Indenture and the
compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel; and
(b) all Events of Default, other than the nonpayment of the
principal of the Securities which have become due solely by such
declaration of acceleration, have been cured or waived.
Notwithstanding the previous sentence, no waiver shall be
effective for any Default or Event of Default in the payment of
the principal of or interest on any Security held by a
nonconsenting Holder or any Default or Event of Default with
respect to any covenant or provision which cannot be modified or
amended without the consent of the Holder of each then outstanding
Security, unless all such affected Holders agree, in writing, to
waive such Default or Event of Default. No such waiver shall cure
or waive any subsequent default or impair any right consequent
thereon.
In the event that the maturity of the Securities is accelerated
pursuant to this Section 6.2, 100% of the principal amount thereof plus
accrued interest to the date of payment shall become due and payable.
SECTION 6.3 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Securities or does not produce any of them in the proceeding, and
any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an
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express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel, be for the ratable benefit of the
Holders of the Securities in respect of which such judgment has been
recovered.
SECTION 6.4 Waiver of Past Default.
Subject to Sections 6.7 and 9.2, prior to the declaration of
acceleration of the maturity of the Securities, the Holder or Holders of not
less than a majority in aggregate principal amount of the Securities at the
time outstanding by written notice to the Company and the Trustee may waive
on behalf of all the Holders any past default under this Indenture and its
consequence, except a default in the payment of principal of or interest on
any Security or a default with respect to any covenant or provision which
cannot be modified or amended without the consent of the Holder of each
outstanding Security affected pursuant to Section 9.2.
SECTION 6.5 Control by Majority.
The Holders of a majority in aggregate principal amount of the then
outstanding Securities may direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or exercising any
trust or power conferred on it, including, without limitation, any remedies
provided for in Section 6.3. However, the Trustee may refuse to follow any
direction that conflicts with law, the Securities or this Indenture, or that
the Trustee determines may be unduly prejudicial to the rights of another
Securityholder or that may involve the Trustee in personal liability.
SECTION 6.6 Limitation on Suits.
A Securityholder may not pursue any remedy with respect to this
Indenture or the Securities unless:
(a) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the
then outstanding Securities make a written request to the Trustee
to pursue a remedy;
(c) such Holder or Holders offer and, if requested, provide
to the Trustee indemnity reasonably satisfactory to the Trustee
against any loss, liability or expense;
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(d) the Trustee does not comply with the request within 30
days after receipt of the request and the offer of indemnity; and
(e) during such 30-day period the Holders of at least a
majority in principal amount of the then outstanding Securities do
not give the Trustee a direction which 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 6.7 Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder to receive payment of principal of and interest on a Security, on
or after the respective due dates expressed in the Security, or to bring suit
for the enforcement of any such payment on or after such respective dates, is
absolute and unconditional and shall not be impaired or affected without the
consent of such Holder.
SECTION 6.8 Collection Suit by Trustee.
If an Event of Default specified in Section 6.1(i) or (ii) occurs
and is continuing, the Trustee may recover judgment in its own name and as
trustee of an express trust against the Company or any other obligor on the
Securities for the whole amount of principal and accrued interest remaining
unpaid, together with interest overdue on principal and, to the extent that
payment of such interest is lawful, interest on overdue installments of
interest, in each case at the interest rate and such further amount as shall
be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
SECTION 6.9 Trustee May File Proofs of Claim.
The Trustee shall be entitled and empowered to file such proofs of
claim and other papers or documents as may be necessary or advisable in order
to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and the Securityholders allowed in any judicial proceedings
relative to the Company or any of its Subsidiaries (or any other obligor upon
the Securities), its creditors or
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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 7.7. 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 pursuant to this Article VI, it
shall pay out such money in the following order:
First: to the Trustee for amounts due under Section
7.7;
Second: to Holders for amounts due and unpaid on the
Securities for principal and interest, ratably, without
preference or priority of any kind, according to the amounts
due and payable on the Securities for principal and interest,
respectively; and
Third: to the Company.
The Trustee, upon prior written notice to the Company, may fix a
record date and payment date for any payment to Securityholders pursuant to
this Article VI.
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
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claims or defenses made by the party litigant. This Section 6.11 does not
apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.7,
or a suit by any Holder, or group of Holders, holding in the aggregate more
than 10% in principal amount of the outstanding Securities.
SECTION 6.12 Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy,
and every remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of
any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 6.13 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security
to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this
Article VI or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by
the Holders, as the case may be.
ARTICLE VII
TRUSTEE
SECTION 7.1 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise as a
prudent Person would exercise or use under the circumstances in the conduct
of his own affairs.
(b) Except during the continuance of an Event of Default:
(i) The Trustee need perform only those duties as are
specifically set forth in this Indenture or the TIA and no
others and no implied covenants or
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obligations shall be read into this Indenture against the Trustee.
(ii) In the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture.
However, in the case of any such certificate or opinions
which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall examine such
certificates and opinions to determine whether or not they
conform to the requirements of this Indenture.
(c) Notwithstanding anything to the contrary herein contained, the
Trustee may not be relieved from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
(i) This paragraph does not limit the effect of
paragraph (b) of this Section 7.1.
(ii) The Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it is
proved that the Trustee was negligent in ascertaining the
pertinent facts.
(iii) The Trustee shall not be liable with respect
to any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to
Sections 6.4 and 6.5.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder or in the exercise of any of
its rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(e) Every provision of this Indenture that in any way relates to
the Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section
7.1.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in
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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.
SECTION 7.2 Rights of Trustee.
Subject to Section 7.1:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any document reasonably believed by it
to be genuine and to have been signed or presented by the proper
Person. The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence
of indebtedness 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.
(b) Before the Trustee acts or refrains from acting with
respect to any matter contemplated by this Indenture, it may
require an Officers' Certificate or an Opinion of Counsel, which
shall conform to the provisions of Section 11.5. 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 the negligence or willful misconduct of 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 and without negligence which it
reasonably believes to be authorized or within its rights or
powers conferred upon it by this Indenture or the TIA.
(e) 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.
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SECTION 7.3 Individual Rights of Trustee.
The Trustee in its individual capacity or any other capacity may
become the owner or pledgee of Securities and may otherwise deal with the
Company, or its Subsidiaries and 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 is subject to Sections 7.10 and 7.11.
SECTION 7.4 Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy
of this Indenture or the Securities, and 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
statement in the Securities other than the Trustee's certificate of
authentication.
SECTION 7.5 Notice of Defaults.
If a Default or an Event of Default with respect to the Securities
occurs and is continuing and is known to a Trust Officer, the Trustee shall
mail to each Holder a notice of the Default or Event of Default within 30
days after it occurs or, if later, within 10 days after such Default or Event
of Default becomes known to the Trustee, unless such Default or Event of
Default has been cured. Except in the case of a Default or Event of Default
in the payment of principal of or interest on any Security, including an
acceleration, and the failure to make payment when required by Sections 4.12
and 4.15, the Trustee may withhold the notice to the Holders if and so long
as a committee of its Trust Officers determines in good faith that
withholding the notice is in the interest of the Holders.
SECTION 7.6 Reports by Trustee to Holders.
Within 60 days after each May 15 beginning with May 15, 1998, the
Trustee shall transmit to each Securityholder a report dated as of May 15 of
the relevant year that complies with the requirements of TIA Section 313(a).
The Trustee also shall comply with TIA Section 313(b) and TIA Section
313(c) and (d). A copy of such report at the time of its transmission to
Securityholders shall be filed with the SEC, if required, with each stock
exchange, if any, on which the Securities are listed and with the Company.
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The Company shall promptly notify the Trustee if the Securities
become listed on any stock exchange and the Trustee shall comply with TIA
Section 313(d).
SECTION 7.7 Compensation and Indemnity.
The Company shall pay to the Trustee, the Paying Agent and the
Registrar from time to time reasonable compensation for their respective
services rendered 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 out-of-pocket
disbursements, expenses and advances (including reasonable fees and expenses
of counsel) incurred or made by each of them in connection with the
performance of its duties under this Indenture. Such expenses shall include
the reasonable compensation, reasonable out-of-pocket disbursements and
reasonable expenses of the Trustee's agents and counsel.
The Company shall indemnify and hold harmless the Trustee and its
agents, employees, officers, directors and shareholders against any claim,
demand, expense (including but not limited to attorneys' fees and expenses),
loss or liability incurred by it arising out of or in connection with the
administration of its duties under this Indenture. The Trustee shall notify
the Company promptly of any claim asserted against it for which it may seek
indemnity. The Company shall defend the claim and the Trustee shall provide
reasonable cooperation at the Company's expense in the defense. The Trustee
may have separate counsel and the Company shall pay the reasonable fees and
expenses of such counsel; provided that the Company will not be required to
pay such fees and expenses if it assumes the Trustee's defense and there is
no conflict of interest between the Company and the Trustee in connection
with such defense. The Company need not pay for any settlement made without
its written consent. The Company need not reimburse any expense or indemnify
against any loss or liability incurred by the Trustee through the Trustee's
own willful misconduct, negligence or bad faith.
To secure the Company's payment obligations in this Section 7.7, the
Trustee shall have a lien prior to the Securities on all money or property
held or collected by it in its capacity as Trustee, except money or property
held in trust to pay principal of or interest on particular Securities.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.1(vi) or (vii)
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occurs, the expenses and the compensation for the services are intended to
constitute expenses of administration under any Bankruptcy Law.
SECTION 7.8 Replacement of Trustee.
The Trustee may resign at any time by so notifying the Company in
writing, such resignation to be effective upon the appointment of a successor
Trustee. The Holders of a majority in principal amount of the outstanding
Securities may remove the Trustee by so notifying the Trustee in writing and
may appoint a successor Trustee with the Company's consent which consent
shall not be unreasonably withheld. The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent;
(c) a receiver or other public officer takes charge of the
Trustee or its property; or
(d) 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 Trustee in such event being referred to
herein as the retiring Trustee), the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office,
the Holders of a majority in principal amount of the Securities may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after
that, the retiring Trustee shall transfer all property held by it as Trustee
to the successor Trustee (subject to the lien provided in Section 7.7), the
resignation or removal of the retiring Trustee shall become effective, and
the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. A successor Trustee shall mail notice of its
succession to each 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 25% in
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principal amount of then outstanding Securities may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any 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
7.8, the Company's obligations under Section 7.7 shall continue for the
benefit of the retiring Trustee.
SECTION 7.9 Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to,
another corporation or national banking association, the resulting, surviving
or transferee corporation or national banking association without any further
act shall be the successor Trustee; provided such corporation shall be
otherwise qualified and eligible under this Article VII.
SECTION 7.10 Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1) and (2). The Trustee shall have a
combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition. The Trustee shall comply with
TIA Section 310(b); provided 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, as obligor of the Securities.
SECTION 7.11 Preferential Collection of Claims Against
Company.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the
extent indicated therein.
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ARTICLE VIII
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.1 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 8.1, 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 8.5) have been delivered to the Trustee for
cancellation and the Company has paid all sums payable by it hereunder, or if:
(a) either (i) pursuant to Article III, 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 under arrangements satisfactory to
the Trustee for the giving of such notice 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 for that purpose, U.S. Legal Tender in such amount as is
sufficient without consideration of reinvestment of 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
Indebtedness pursuant to the provisions of Article X;
(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
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immediately after giving effect to such deposit and such deposit will not
result in a breach or violation of, or constitute a default under, any
other instrument 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
with. Such Opinion of Counsel shall also state that such satisfaction and
discharge does not result in a default under the Credit Agreement (if then
in effect) or any other material agreement or material instrument then
known to such counsel that binds or affects the Company.
Notwithstanding the foregoing paragraph, the Company's obligations
in Sections 2.5, 2.6, 2.7, 4.1, 4.2, 7.7, 8.5 and 8.6 shall survive until the
Securities are no longer outstanding pursuant to the last paragraph of
Section 2.8. After the Securities are no longer outstanding, the Company's
obligations in Sections 7.7, 8.5 and 8.6 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 8.2 Legal Defeasance and Covenant Defeasance.
(a) The Company may, at its option by Board Resolution of the Board
of Directors, at any time, elect to have either paragraph (b) or (c) below be
applied to all outstanding Securities upon compliance with the conditions set
forth in Section 8.3.
(b) Upon the Company's exercise under paragraph (a) hereof of the
option applicable to this paragraph (b), the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.3, be deemed to have
been discharged from its obligations with respect to all outstanding
Securities on the date the conditions set forth below are satisfied
(hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance means
that the Company shall be deemed to have paid
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and discharged the entire Indebtedness represented by the outstanding
Securities, which shall thereafter be deemed to be "outstanding" only for the
purposes of Section 8.4 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 8.3 hereof shall cease to be subject to any
obligations to, or the rights of, any holder of Senior Indebtedness under
Article X 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 8.4 hereof, and as more fully set forth in such Section,
payments in respect of the principal of and interest on such Securities when
and to the extent such payments are due, (ii) the Company's obligations with
respect to such Securities under Article II and Section 4.2 hereof, (iii) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and
the Company's obligations in connection therewith, including Section 7.7
hereof and (iv) this Article VIII. Subject to compliance with this Article
VIII, 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 shall, subject to the
satisfaction of the conditions set forth in Section 8.3 hereof, be released
from its obligations under the covenants contained in Sections 4.8 through
4.15 and Article V hereof with respect to the outstanding Securities on and
after the date the conditions set forth below are satisfied (hereinafter,
"Covenant Defeasance"), and the Securities shall thereafter be deemed 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 8.3 hereof shall cease to
be subject to any obligations to, or the rights of, any holder of Senior
Indebtedness under Article X 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
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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 or
Default under Section 6.1(iii) 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 8.3 hereof, Sections 6.1(iii), 6.1(iv) and
6.1(v) shall not constitute Events of Default.
SECTION 8.3 Conditions to Legal Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of either
Section 8.2(b) or 8.2(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, U.S. Legal Tender or U.S. Government
Obligations which through the scheduled payment of principal and interest
in respect thereof in accordance with their terms, will provide, not later
than 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, of such principal or
installment of principal of or interest on the Securities; provided that
the Trustee shall have received an irrevocable written order from the
Company instructing the Trustee to apply such U.S. Legal Tender or the
proceeds of such U.S. Government Obligations to said payments with respect
to the Securities;
(b) in the case of an election under Section 8.2(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 Inter-
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nal Revenue Service a ruling or (B) since the date of this Indenture, there
has been a change in the applicable federal income tax law, in either case
to the effect that, and based thereon such Opinion of Counsel shall confirm
that, the Holders of the Securities will not recognize income, gain or loss
for federal income tax purposes as a result of such Legal Defeasance and
will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such Legal
Defeasance had not occurred;
(c) in the case of an election under Section 8.2(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 or event which with notice or
lapse of time or both would become a Default or an Event of Default with
respect to the Securities 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 VIII
concurrently with such incurrence) or insofar as Sections 6.1(vi) and
6.1(vii) 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 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;
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(g) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the Covenant
Defeasance have been complied with; and
(h) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that (i) the trust funds will not be subject to any
rights of any holders of Senior Indebtedness, including, without
limitation, those arising under this Indenture, and (ii) assuming no
intervening bankruptcy or insolvency 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 8.3 need not be delivered if all Securities
not theretofore delivered to the Trustee for cancellation (i) have become due
and payable, (ii) will become due and payable on the Maturity Date within one
year or (iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company.
SECTION 8.4 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 VIII,
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 Trustee shall be under no
obligation to invest said U.S. Legal Tender or U.S. Government Obligations
except as it may agree with the Company.
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 8.3 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 VIII to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company
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from time to time upon the Company's request any U.S. Legal Tender or U. S.
Government Obligations held by it as provided in Section 8.3 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.
SECTION 8.5 Repayment to the Company.
Subject to this Article VIII, the Trustee and the Paying Agent shall
promptly pay to the Company upon request any excess U.S. Legal Tender or U.S.
Government Obligations held by them at any time and thereupon shall be
relieved from all liability with respect to such money. 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 8.6 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 VIII 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 VIII 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 VIII; 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
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U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by
resolutions of its Board of Directors (copies of which shall be delivered to
the Trustee) and the Trustee may amend or supplement this Indenture or the
Securities without notice to any Holder for any of the following purposes:
(a) to cure any ambiguity, defect or inconsistency herein;
(b) to add to the covenants of the Company for the benefit of the
Holders, or surrender any right or power herein conferred upon the Company;
(c) to provide for collateral for the Securities;
(d) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
(e) to effect or maintain the qualification of this Indenture under
the TIA;
(f) to evidence the succession in accordance with Article V 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; or
(g) to make any other change that does not adversely affect the
rights of any Holder; provided that in making such change, the Trustee may
rely upon an Opinion of Counsel stating that such change does not adversely
affect the rights of any Holder.
SECTION 9.2 With Consent of Holders.
Subject to Section 6.7 and the provisions of this Section 9.2, the
Company, when authorized by resolution of its Board of Directors (copies of
which shall be delivered to the Trustee), and the Trustee may amend or
supplement this Indenture with the written consent of the Holders of at least
a ma-
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jority in aggregate principal amount of the Securities then outstanding.
Subject to Section 6.7 and the provisions of this Section 9.2, the Holders
of, in the aggregate, at least a majority in principal amount of the then
outstanding Securities affected may waive compliance by the Company with any
provision of this Indenture without notice to any other Securityholder.
However, without the consent of each Securityholder affected, an amendment,
supplement or waiver, including a waiver pursuant to Section 6.4 may not:
(a) reduce the percentage of principal amount of Securities whose
Holders must consent to an amendment, supplement or waiver of any provision
of this Indenture or the Securities;
(b) reduce the rate or extend the time for payment of interest on any
Security;
(c) reduce the principal amount of any Security, or reduce the
redemption price or the repurchase price pursuant to Section 4.12 or 4.15;
(d) change the Maturity Date, the Net Proceeds Payment Date (other
than in accordance with Section 4.12) or Change of Control Payment Date
(other than in accordance with Section 4.15) of any Security;
(e) alter the redemption provisions of Article III in a manner
adverse to any Holder;
(f) make any changes in the provisions concerning waivers of Defaults
or Events of Default by Holders of the Securities or the rights of Holders
to recover the principal of, interest on, or redemption payment with
respect to, any Security;
(g) make any changes in Section 6.4, 6.7 or this clause (g);
(h) make the principal of, or the interest on, any Security payable
with anything or in any manner other than as provided for in this Indenture
and the Securities as in effect on the Issue Date;
(i) waive a Default or an Event of Default in the payment of
principal of or interest on the Securities or that resulted from failure to
make the payments required by Section 4.12 or 4.15;
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(j) make any change to the subordination provisions of this Indenture
and the Securities in a manner that adversely affects the Holders; or
(k) make any changes relating to (i) the right of the Trustee to file
proof of claim in any bankruptcy or similar proceeding, or (ii) the
limitation on the right of Holders to direct the Trustee to institute legal
proceedings with respect to this Indenture or to such provision.
It shall not be necessary for the consent of the Holders under this
Section 9.2 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
Notwithstanding the foregoing, no amendment shall modify any
provision of Article X of the Indenture without the consent of each holder of
any then outstanding Designated Senior Indebtedness.
After an amendment, supplement or waiver under this Section 9.2
becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure
of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
In connection with any amendment, supplement or waiver under this
Article IX, the Company may, but shall not be obligated to, offer to any
Holder who consents to such amendment, supplement or waiver, or to all
Holders, consideration for such Holder's consent to such amendment,
supplement or waiver.
SECTION 9.3 Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the Securities
shall be set forth in a supplemental indenture that complies with the TIA as
then in effect.
SECTION 9.4 Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of that Security or portion of that Security that evidences
the same debt as the consenting Holder's Security, even if notation of the
consent is
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not made on any Security. However, any such Holder or subsequent Holder may
revoke the consent as to his Security or portion of a Security. Such
revocation shall be effective only if the Trustee receives the notice of
revocation before the date the amendment, supplement or waiver becomes
effective. Notwithstanding the above, nothing in this paragraph shall impair
the right of any Securityholder under Section 316(b) of the TIA.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to consent to any
amendment, supplement or waiver which record date shall be at least 10 days
prior to the first solicitation of such consent. If a record date is fixed,
then notwithstanding the second and third sentences 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
consent to such amendment, supplement or waiver or to revoke any consent
previously given, whether or not such Persons continue to be Holders after
such record date. Such consent shall be effective only for actions taken
within 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 (a) through (k) of Section 9.2. In that case the amendment,
supplement or waiver shall bind each Holder of a Security who has consented
to it.
SECTION 9.5 Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a
Security, the Trustee may (in accordance with the specific direction of the
Company) request the Holder of the Security to deliver it to the Trustee.
The Trustee may (in accordance with the specific direction of the Company)
place an appropriate notation on the Security about the changed terms and
return it to the Holder. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Security shall issue and the
Trustee shall authenticate a new Security that reflects the changed terms.
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 9.6 Trustee To Sign Amendments, Etc.
The Trustee shall sign any amendment, supplement or waiver
authorized pursuant to this Article IX if the amendment,
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supplement or waiver does not adversely affect the rights, duties or
immunities of the Trustee. If it does, the Trustee may, but need not, sign
it. In signing any amendment, supplement or waiver, the Trustee shall be
entitled to receive, if requested, an indemnity reasonably satisfactory to it
and to receive, and shall be fully protected in relying upon, an Officers'
Certificate and an Opinion of Counsel stating that the execution of any
amendment, supplement or waiver authorized pursuant to this Article IX is
authorized or permitted by this Indenture. The Company may not sign an
amendment until its Board of Directors approves it.
ARTICLE X
SUBORDINATION
SECTION 10.1 Securities Subordinated to Senior Indebtedness.
The Company, for itself and its successors, and each Holder, by his
acceptance of Securities, agrees that the payment of the principal of and
interest on the Securities is subordinated, to the extent and in the manner
provided in this Article X, to the prior payment in full in cash or cash
equivalents of all Senior Indebtedness, whether outstanding on the Issue Date
or thereafter incurred, including any interest accruing subsequent to a
bankruptcy or other similar proceeding whether or not such interest is an
allowed claim enforceable against the Company in a bankruptcy case under
Title 11 of the United States Code.
This Article X shall constitute a continuing offer to all Persons
who, in reliance upon such provisions, become holders of, or continue to
hold, Senior Indebtedness, and such provisions are made for the benefit of
the holders of Senior Indebtedness, and such holders are made obligees
hereunder and any one or more of them may enforce such provisions.
SECTION 10.2 No Payment on Securities in Certain Circumstances.
(a) No direct or indirect payment by or on behalf of the Company of
principal of or interest on the Securities whether pursuant to the terms of
the Securities or upon acceleration or otherwise shall be made if, at the
time of such payment, there exists a default in the payment of all or any
portion of principal of or interest on any Senior Indebtedness, and such
default shall not have been cured or waived or the
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benefits of this sentence waived by or on behalf of the holders of the Senior
Indebtedness. In addition, during the continuance of any other event of
default with respect to any Designated Senior Indebtedness pursuant to which
the maturity thereof may be accelerated, upon the occurrence of (a) receipt
by the Trustee of written notice from the holders of a majority of the
outstanding principal amount of the Designated Senior Indebtedness or their
Representative, or (b) if such event of default results from the acceleration
of the Securities, the date of such acceleration, no such payment may be made
by or on behalf of the Company upon or in respect of the Securities for a
period ("Payment Blockage Period") commencing on the earlier of the date of
receipt of such notice or the date of such acceleration and ending 179 days
thereafter (unless such Payment Blockage Period shall be terminated by
written notice to the Trustee from the holders of a majority of the
outstanding principal amount of the Designated Senior Indebtedness or their
Representative who delivered such notice). Notwithstanding anything herein to
the contrary, in no event will a Payment Blockage Period extend beyond 179
days from the date on which such Payment Blockage Period was commenced. Not
more than one Payment Blockage Period may be commenced with respect to the
Securities during any period of 360 consecutive days. For all purposes of
this paragraph, 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 Indebtedness initiating such Payment Blockage Period shall
be, or be made, the basis for the commencement of a second Payment Blockage
Period by the holders of such Designated Senior Indebtedness or their
Representative whether or not within a period of 360 consecutive days unless
such event of default shall have been cured or waived for a period of not
less than 90 consecutive days.
(b) In furtherance of the provisions of Section 10.1, in the event
that, notwithstanding the foregoing provisions of this Section 10.2, any
payment on account of principal of or interest on the Securities or to redeem
(or make a deposit in redemption of), defease or acquire any of the
Securities shall be made by or on behalf of the Company and received by the
Trustee, by any Holder or by any Paying Agent (or, if the Company is acting
as its own Paying Agent, money for any such payment shall be segregated and
held in trust), at a time when such payment was prohibited by the provisions
of this Section 10.2, then, unless and until such payment is no longer
prohibited by this Section 10.2, such payment (subject to the provisions of
Section 10.6) shall be received and held in trust by the Trustee or such
Holder or Paying Agent for the
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benefit of the holders of Senior Indebtedness or their Representative,
ratably according to the respective amounts of the Senior Indebtedness held
or represented by each, and shall be paid over or delivered to the holders
of the Senior Indebtedness remaining unpaid to the extent necessary to enable
payment in full in cash and cash equivalents to the holders of Senior
Indebtedness of all Senior Indebtedness remaining unpaid, after giving effect
to all concurrent payments and such distributions to or for the holders of
Senior Indebtedness.
The Company shall give prompt written notice to the Trustee of any
default or event of default, and any cure or waiver thereof, or any
acceleration under any Senior Indebtedness or under any agreement pursuant to
which Senior Indebtedness may have been issued.
SECTION 10.3 Securities Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation or
Reorganization of Company.
Upon any distribution of assets of the Company of any kind or
character, whether in cash, property or securities upon any dissolution,
winding up, total or partial liquidation or reorganization of the Company
(including, without limitation, in bankruptcy, insolvency or receivership
proceedings or upon any assignment for the benefit of creditors or any other
marshalling of assets and liabilities of the Company):
(a) the holders of all Senior Indebtedness shall first be entitled to
receive payment in full in cash or cash equivalents of all amounts payable
under Senior Indebtedness (including interest after the commencement of any
such proceeding at the rate specified in the applicable Senior Indebtedness
whether or not such interest is an allowed claim against the Company in any
such proceeding), before the Holders or the Trustee on behalf of the
Holders are entitled to receive any payment on account of the principal of
or interest on the Securities;
(b) any payment or distribution of assets or securities of the
Company of any kind or character, whether in cash, property or securities,
to which the Holders or the Trustee on behalf of the Holders would be
entitled except for the provisions of this Article X, shall be paid by the
Company or by any liquidating trustee or agent or other Person making such
a payment or distribution, directly to the holders of Senior Indebtedness
or their Representa-
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tive, ratably according to the respective amounts of Senior Indebtedness
held or represented by each, to the extent necessary to make payment in
full in cash or cash equivalents of all Senior Indebtedness remaining
unpaid after giving effect to all concurrent payments and distributions to
or for the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any payment or
distribution of assets or securities of the Company of any kind or
character, whether in cash, property or securities, shall be received by
the Trustee or the Holders or any Paying Agent (or, if the Company is
acting as its own Paying Agent, money for any such payment or distribution
shall be segregated or held in trust) on account of principal of or
interest on the Securities before all Senior Indebtedness is paid in full
in cash or cash equivalents, such payment or distribution (subject to the
provisions of Section 10.6) shall be received and held in trust by the
Trustee or such Holder or Paying Agent for the benefit of the holders of
the Senior Indebtedness or their Representative, ratably according to the
respective amounts of Senior Indebtedness held or represented by each, and
shall be paid over or delivered to the holders of the Senior Indebtedness
remaining unpaid to the extent necessary to make payment in full of all
Senior Indebtedness remaining unpaid after giving effect to all concurrent
payments and distributions to or for the holders of such Senior
Indebtedness.
The Company shall give prompt written notice to the Trustee of any
dissolution, winding up, liquidation or reorganization of the Company or
assignment for the benefit of creditors by the Company.
SECTION 10.4 Holders To Be Subrogated to Rights of Holders of
Senior Indebtedness.
Subject to the payment in full in cash or cash equivalents of all
Senior Indebtedness, the Holders of Securities shall be subrogated to the
rights of the holders of Senior Indebtedness to receive payments or
distributions of assets of the Company applicable to the Senior Indebtedness
until all amounts owing on the Securities shall be paid in full, and for the
purpose of such subrogation no such payments or distributions to the holders
of Senior Indebtedness by or on behalf of the Company, or by or behalf of the
Holders by virtue of this Article X, which otherwise would have been made to
the Holders,
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shall, as between the Company and the Holders, be deemed to be payment by
the Company to or on account of the Senior Indebtedness, it being understood
that the provisions of this Article X 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 Indebtedness, on the other hand.
If any payment or distribution to which the Holders would otherwise
have been entitled but for the provisions of this Article X shall have been
applied, pursuant to the provisions of this Article X, to the payment of
amounts payable under the Senior Indebtedness, then the Holders shall be
entitled to receive from the holders of such Senior Indebtedness any payments
or distributions received by such holders of Senior Indebtedness in excess of
the amount sufficient to pay all amounts payable under or in respect of the
Senior Indebtedness in full in cash or cash equivalents.
SECTION 10.5 Obligations of the Company Unconditional.
Nothing contained in this Article X or elsewhere in this Indenture
or in the Securities is intended to or shall impair, as between the Company
and the Holders, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders the principal of and interest on the
Securities as and when the same shall become due and payable in accordance
with their terms, or is intended to or shall affect the relative rights of
the Holders and creditors of the Company other than the holders of the Senior
Indebtedness, nor shall anything herein or therein prevent the Trustee or any
Holder from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under this
Article X, of the holders of Senior Indebtedness in respect of cash, property
or securities of the Company received upon the exercise of any such remedy.
Upon any distribution of assets or securities of the Company referred to in
this Article X, the Trustee, subject to the provisions of Sections 7.1 and
7.2, and the Holders shall be entitled to rely upon any order or decree made
by any court of competent jurisdiction in which such dissolution, winding up,
liquidation or reorganization proceedings are pending, or a certificate of
the liquidating trustee or agent or other Person making any distribution to
the Trustee or to the Holders for the purpose of ascertaining the Persons
entitled to participate in such distribution, the holders of the Senior
Indebtedness and other Indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all
other facts per-
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tinent thereto or to this Article X. Nothing in this Section 10.5 shall
apply to the claims of, or payments to, the Trustee under or pursuant to
Section 7.7.
SECTION 10.6 Trustee Entitled to Assume Payments Not Prohibited in
Absence of Notice.
The Trustee or any Paying Agent shall not at any time be charged
with the knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee or Paying Agent, unless and until
the Trustee or Paying Agent shall have received written notice thereof from
the Company or one or more holders of Senior Indebtedness or from any trustee
or agent therefor, and, prior to the receipt of any such written notice, the
Trustee or paying agent shall be entitled to assume conclusively that no such
facts exist. Unless at least three Business Days prior to the date on which
by the terms of this Indenture any moneys are to be deposited by the Company
with the Trustee or any Paying Agent (whether or not in trust) for any
purpose (including, without limitation, the payment of the principal, the
interest or other amounts due on any Security), the Trustee or Paying Agent
shall have received with respect to such moneys the notice provided for in
the preceding sentence, the Trustee or Paying Agent shall have full power and
authority to receive such moneys and to apply the same to the purpose for
which they were received, and shall not be affected by any notice to the
contrary which may be received by it on or after such date. The foregoing
shall not apply to the Paying Agent if the Company is acting as Paying Agent.
Nothing contained in this Section 10.6 shall limit the right of the holders
of Senior Indebtedness to recover payments as contemplated by Section 10.2.
SECTION 10.7 Subordination Rights Not Impaired by Acts or Omissions
of Company or Holders of Senior Indebtedness.
(a) No right of any present or future holders of any Senior
Indebtedness to enforce subordination provisions contained in this Article X
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 be otherwise charged with.
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(b) Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness may, at any time and from time
to time, without the consent of or notice to the holders of any Indebtedness
of the Company, without incurring responsibility to the holders of any
Indebtedness of the Company and without impairing or releasing the
subordination provisions contained in this Article X, or the obligations
hereunder of the holders of the Indebtedness of the Company 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 Indebtedness or any
instrument evidencing the same or any agreement under which Senior
Indebtedness is outstanding; (ii) sell, exchange, release or otherwise deal
with any property pledged, mortgaged or otherwise securing Senior
Indebtedness or fail to perfect or delay the perfection of any such lien;
(iii) release any Person liable in any manner for the collection of Senior
Indebtedness; and (iv) exercise or refrain from exercising any rights against
the Company and any other Person.
SECTION 10.8 Holders Authorize Trustee to Effectuate
Subordination of Securities.
Each Holder of the Securities by his acceptance thereof authorizes
and expressly directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provisions contained
in this Article X and to protect the rights of the Holders pursuant to this
Indenture, and appoints the Trustee his attorney-in-fact for such purpose,
including, in the event of any dissolution, winding up, liquidation or
reorganization of the Company (whether in bankruptcy, insolvency or
receivership proceedings or upon an assignment for the benefit of creditors
or any other marshalling of assets and liabilities of the Company) tending
towards liquidation of the business and assets of the Company, the immediate
filing of a claim for the unpaid balance of his securities in the form
required in said proceedings and cause said claim to be approved. If the
Trustee does not file a proper claim or proof of debt in the form required in
such proceeding prior to 30 days before the expiration of the time to file
such claim or claims, then the holders of the Senior Indebtedness 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 Indebtedness or their
Representative to authorize or consent to or accept or adopt on behalf of
any Holder any plan of reorganization, ar-
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rangement, adjustment or composition affecting the Securities or the rights
of any Holder thereof, or to authorize the Trustee or the holders of Senior
Indebtedness or their Representative to vote in respect of the claim of any
Holder in any such proceeding.
SECTION 10.9 Right of Trustee to Hold Senior Indebtedness.
The Trustee shall be entitled to all of the rights set forth in this
Article X in respect of any Senior Indebtedness at any time held by it to the
same extent as any other holder of Senior Indebtedness, and nothing in this
Indenture shall be construed to deprive the Trustee of any of its rights as
such holder.
SECTION 10.10 Article X 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 X shall not be
construed as preventing the occurrence of a Default or an Event of Default
under Section 6.1.
SECTION 10.11 No Fiduciary Duty of Trustee to Holders of
Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness, and shall not be liable to any such holders
(other than for its willful misconduct or negligence) if it shall in good
faith mistakenly pay over or distribute to the Holders of Securities or the
Company or any other Person, cash, property or securities to which any
holders of Senior Indebtedness shall be entitled by virtue of this Article X
or otherwise. Nothing in this Section 10.11 shall affect the obligation of
any other such Person to hold such payment for the benefit of, and to pay
such payment over to, the holders of Senior Indebtedness or their
Representative.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Trust Indenture Act Controls.
The provisions of TIA Sections 310 through 317 that impose duties
on any Person (including the provisions automatically deemed included unless
expressly excluded by this Indenture)
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are a part of and govern this Indenture, whether or not physically contained
herein.
If any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by the above paragraph, the imposed duties shall
control.
SECTION 11.2 Notices.
Any notice or communication shall be sufficiently given if in
writing and delivered in Person or mailed by first-class mail or by
telecopier, followed by first-class mail, or by overnight service
guaranteeing next-day delivery, addressed as follows:
(a) if to the Company:
BIG FLOWER PRESS HOLDINGS, INC.
0 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Secretary
Telecopier Number: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Xx., Esq.
Telecopier Number: (000) 000-0000
(b) if to the Trustee:
Fleet National Bank
000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Corporate Trust Administration
Telecopier Number: (000) 000-0000
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
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Any notice or communication mailed to a Securityholder, including
any notice delivered in connection with TIA Section 310(b), TIA Section
313(c), TIA Section 314(a) and TIA Section 315(b), shall be mailed to such
Holder, first-class postage prepaid, at his address as it appears on the
registration books of the Registrar and shall be sufficiently given to such
Holder 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. Except for a notice to the Trustee, which is deemed given
only when received, if a notice or communication is mailed in the manner
provided above, it is duly given, whether or not the addressee receives it.
SECTION 11.3 Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with
other Securityholders with respect to their rights under this Indenture or
the Securities. The Company, the Trustee, the Registrar and any other Person
shall have the protection of TIA Section 312(c).
SECTION 11.4 Certificate and Opinion of Counsel 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 (a) an Officers' Certificate in form
and substance reasonably satisfactory to the Trustee stating that, in the
opinion of the signers, all conditions precedent, if any, provided for in
this Indenture relating to the proposed action have been complied with
(which officer signing such certificate may rely, as to matters of law, on an
Opinion of Counsel), (b) an Opinion of Counsel in form and substance
reasonably satisfactory to the Trustee stating that, in the opinion of
counsel, all such conditions have been complied with (which counsel, as to
factual matters, may rely on an Officers' Certificate and certificates of
public officials) and (c) where applicable, a certificate or opinion by an
independent certified public accountant satisfactory to the Trustee that
complies with TIA Section 314(c).
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SECTION 11.5 Statements Required in Certificate and Opinion
of Counsel.
Each certificate and Opinion of Counsel with respect to compliance
with a condition or covenant provided for in this Indenture shall include:
(a) a statement that the Person making such certificate or rendering
such Opinion of Counsel has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements contained in such certificate or
Opinion of Counsel are based;
(c) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been complied with.
SECTION 11.6 Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules in accordance with the
Trustee's customary practices for action by or at a meeting of
Securityholders. The Paying Agent or Registrar may make reasonable rules for
its functions.
SECTION 11.7 Legal Holidays.
If a payment date is a Legal Holiday at a place of payment, payment
may be made at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
SECTION 11.8 Governing Law.
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS INDENTURE AND
THE SECURITIES WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE COMPANY
AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK
IN ANY
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ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE
SECURITIES.
SECTION 11.9 No Recourse Against Others.
No past, present or future director, officer, employee, incorporator
or stockholder of the Company, as such, shall have any liability for any
obligations of the Company under the Securities or this Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder by accepting a Security waives and releases all such
liability. The waiver and release are part of the consideration for issuance
of the Securities.
SECTION 11.10 Successors.
All agreements of the Company in this Indenture and the Securities
shall bind its successor. All agreements of the Trustee in this Indenture
shall bind its successor.
SECTION 11.11 Counterparts.
The parties may sign any number of counterparts of this Indenture.
Each such counterpart shall be an original, but all of them together represent
the same agreement.
SECTION 11.12 Severability.
In case any provision in this Indenture or in the Securities shall
be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby, and a Holder shall have no claim therefor against any
party hereto.
SECTION 11.13 Table of Contents, Headings, Etc.
The table of contents, cross-reference sheet and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, and are not to be considered a part hereof, and shall in no
way modify or restrict any of the terms or provisions hereof.
SECTION 11.14 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan
or debt agreement of the Company or any of its
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Subsidiaries. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
SECTION 11.15 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right,
remedy or claim under this Indenture or the Securities.
SECTION 11.16 Independence of Covenants.
All covenants and agreements in this Indenture shall be given
independent effect so that if any particular action or condition is not
permitted by any of such covenants, the fact that it would be permitted by an
exception to, or otherwise be within the limitations of, another covenant
shall not avoid the occurrence of a Default or an Event of Default if such
action is taken or condition exists.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the date first written above.
BIG FLOWER PRESS HOLDINGS, INC.,
as Issuer
By: /s/ Xxxxx X. Xxxxxx
----------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
FLEET NATIONAL BANK,
as Trustee
By: /s/ Xxxxx Xxxxxxxx
----------------------------
Name: Xxxxx Xxxxxxxx
Title: Assistant Vice President
