EXHIBIT 4.07
DIMON INCORPORATED
AND
SUNTRUST BANK,
AS TRUSTEE
7 3/4 % SENIOR NOTES DUE 2013
INDENTURE
DATED AS OF MAY 30, 2003
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1.Definitions.......................................................
Section 1.2.Incorporation by Reference of Trust Indenture Act.................
Section 1.3.Rules of Construction.............................................
ARTICLE II
THE NOTES
Section 2.1.Form and Dating...................................................
Section 2.2.Execution and Authentication......................................
Section 2.3.Registrar and Paying Agent........................................
Section 2.4.Paying Agent to Hold Money in Trust...............................
Section 2.5.Holder Lists......................................................
Section 0.0.Xxxxxx Note Provisions............................................
Section 2.7.Legends...........................................................
Section 2.8.Transfer and Exchange.............................................
Section 2.9.Xxxxxxxxx, Destroyed, Lost or Stolen Notes........................
Section 2.10.Temporary Notes..................................................
Section 2.11.Cancellation.....................................................
Section 2.12.Defaulted Interest...............................................
Section 2.13.Add On Notes.....................................................
Section 2.14.Additional Interest Under Registration Rights
Agreements........................................................
ARTICLE III
COVENANTS
Section 3.1.Payment of Notes..................................................
Section 3.2.Maintenance of Office or Agency...................................
Section 3.3.Corporate Existence...............................................
Section 3.4.Payment of Taxes and Other Claim..................................
Section 3.5.Compliance Certificate............................................
Section 3.6.Further Instruments and Acts......................................
Section 3.7.Waiver of Stay, Extension or Usury Laws...........................
Section 3.8.Investment Grade Ratings Suspension of Covenants..................
Section 3.9.Limitation on Asset Sales.........................................
Section 3.10.Change of Control................................................
Section 3.11.Ownership of and Liens on Capital Stock of
Subsidiaries......................................................
Section 3.12.Limitation on Restricted Payments................................
Section 3.13.Incurrence of Indebtedness and Issuance of Preferred
Stock.............................................................
Section 3.14.Liens............................................................
Section 3.15.Dividend and Other Payment Restrictions Affecting
Subsidiaries......................................................
Section 3.16.Limitation on Sale and Leaseback Transactions....................
Section 3.17.Transactions with Affiliates.....................................
Section 3.18.Reports..........................................................
Section 3.19.Payments for Consent.............................................
ARTICLE IV
SURVIVING ENTITY
Section 4.1.Xxxxxx, Consolidation and Sale of Assets..........................
ARTICLE V
OPTIONAL REDEMPTION OF NOTES; PURCHASES UPON A CHANGE OF CONTROL
Section 5.1.Optional Redemption...............................................
Section 5.2.Election to Redeem................................................
Section 5.3.Notice of Redemption..............................................
Section 5.4.Selection of Notes to Be Redeemed in Part.........................
Section 5.5.Deposit of Redemption Price.......................................
Section 5.6.Notes Payable on Redemption Date..................................
Section 5.7.Unredeemed Portions of Partially Redeemed Note....................
ARTICLE VI
DEFAULTS AND REMEDIES
Section 0.0.Xxxxxx of Default.................................................
Section 6.2.Acceleration......................................................
Section 6.3.Other Remedies....................................................
Section 6.4.Waiver of Past Defaults...........................................
Section 6.5.Control by Majority...............................................
Section 6.6.Limitation on Suits...............................................
Section 6.7.Rights of Holders to Receive Payment..............................
Section 6.8.Collection Suit by Trustee........................................
Section 6.9.Trustee May File Proofs of Claim, etc.............................
Section 6.10.Priorities.......................................................
Section 6.11.Undertaking for Costs............................................
ARTICLE VII
TRUSTEE
Section 7.1.Duties of Trustee.................................................
Section 7.2.Rights of Trustee.................................................
Section 7.3.Individual Rights of Trustee......................................
Section 7.4.Trustee's Disclaimer..............................................
Section 7.5.Notice of Defaults................................................
Section 7.6.Reports by Trustee to Holders.....................................
Section 7.7.Compensation and Indemnity........................................
Section 7.8.Replacement of Trustee............................................
Section 7.9.Successor Trustee by Merger.......................................
Section 7.10.Eligibility; Disqualification....................................
Section 7.11.Preferential Collection of Claims Against Company................
ARTICLE VIII
DEFEASANCE; DISCHARGE OF INDENTURE
Section 0.0.Xxxxx Defeasance and Covenant Defeasance..........................
Section 8.2.Conditions to Defeasance..........................................
Section 8.3.Application of Trust Money........................................
Section 8.4.Repayment to Company..............................................
Section 8.5.Indemnity for U.S. Government Obligations.........................
Section 8.6.Reinstatement.....................................................
Section 8.7.Satisfaction and Discharge........................................
ARTICLE IX
AMENDMENTS, SUPPLEMENT AND WAIVER
Section 9.1.Without Consent of Holders........................................
Section 9.2.With Consent of Holders...........................................
Section 9.3.Compliance with Trust Indenture Act...............................
Section 9.4.Revocation and Effect of Consents and Waivers.....................
Section 9.5.Notation on or Exchange of Notes..................................
Section 9.6.Trustee to Sign Amendments........................................
ARTICLE X
NOTE GUARANTEES
Section 10.1.Note Guarantees..................................................
Section 10.2.Limitation on Liability; Termination, Release and
Discharge.........................................................
Section 10.3.Right of Contribution............................................
Section 00.0.Xx Subrogation...................................................
ARTICLE XI
MISCELLANEOUS
Section 00.0.Xxxxx Indenture Act Controls.....................................
Section 11.2.Notices..........................................................
Section 11.3.Communication by Holders with Other Holders......................
Section 11.4.Certificate and Opinion as to Conditions Precedent...............
Section 11.5.Statements Required in Certificate or Opinion....................
Section 11.6.Rules by Trustee, Paying Agent and Registrar.....................
Section 00.0.Xxxxx Holidays...................................................
Section 11.8.Governing Law, etc...............................................
Section 00.0.Xx Recourse Against Others.......................................
Section 11.10.Successors......................................................
Section 11.11.Duplicate and Counterpart Originals.............................
Section 11.12.Severability....................................................
Section 11.13.Qualification of Indenture......................................
Section 11.14.Table of Contents; Headings.....................................
EXHIBIT A FORM OF NOTE
EXHIBIT B FORM OF TRANSFER CERTIFICATE FOR TRANSFER TO QIB
EXHIBIT C FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH
TRANSFERS TO INSTITUTIONAL ACCREDITED INVESTORS
EXHIBIT D FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH
TRANSFERS PURSUANT TO REGULATION S
EXHIBIT E FORM OF RULE 144 CERTIFICATION
EXHIBIT F FORM OF NOTE GUARANTEE
INDENTURE, dated as of May 30, 2003, between DIMON Incorporated, a
Virginia corporation (the "Company"), the Note Guarantors (if any) party hereto
and SunTrust Bank (the "Trustee"), as Trustee.
Each party agrees as follows for the benefit of the other parties
and for the equal and ratable benefit of the Holders of the Company's 7 3/4 %
Senior Notes Due 2013 issued hereunder.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions.
"2006 Senior Notes" means the $125 million aggregate principal
amount of 8 7/8% Senior Notes due 2006 issued by the Company on May 29, 1996.
"2011 Senior Notes" means the $200 million aggregate principal
amount of 9 5/8% Senior Notes due 2011 issued by the Company on October 30,
2001.
"Add On Note Board Resolutions" means resolutions duly adopted by
the Board of Directors of the Company and delivered to the Trustee in an
Officers' Certificate providing for the issuance of Add On Notes.
"Add On Note Supplemental Indenture" means a supplement to this
Indenture duly executed and delivered by the Company, each Note Guarantor and
the Trustee pursuant to Article IX providing for the issuance of Add On Notes.
"Add On Notes" means the Company's 7 3/4 % Senior Notes Due 2013
originally issued after the Issue Date pursuant to Section 2.13, including any
replacement Notes and any Exchange Notes as specified in the relevant Add On
Note Board Resolutions or Add On Note Supplemental Indenture issued therefor in
accordance with this Indenture.
"Advances on Purchases of Tobacco" means loans, advances and
extensions of credit made by the Company or any of its Subsidiaries to growers
and other suppliers of tobacco (including Affiliates) and tobacco growers'
cooperatives, whether short-term or long-term, in the ordinary course of
business to finance the growing or processing of tobacco.
"Affiliate" of any specified Person means:
(i) any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control with such
specified Person, or
(ii) any other Person who is a director or executive officer of (a)
such specified Person or (b) any Person described in the preceding clause
(i).
For purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling," "controlled by" and "under
common control with"), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided that
beneficial ownership of 10% or more of any class or any series of any class of
equity securities of a Person, whether or not voting, shall be deemed to be
control.
"Affiliate Transaction" has the meaning assigned to it in Section
3.17.
"Agent Members" has the meaning assigned to it in Section 2.6(b).
"Asset Sale" means, with respect to any Person, the sale, lease,
conveyance or other disposition, that does not constitute a Restricted Payment
or an Investment, by such Person of any of its assets (including, without
limitation, by way of a Sale and Leaseback Transaction and including the
issuance, sale or other transfer of any Equity Interests in any Subsidiary)
other than to the Company (including the receipt of proceeds of insurance paid
on account of the loss of or damage to any asset and awards of compensation for
any asset taken by condemnation, eminent domain or similar proceeding, and
including the receipt of proceeds of business interruption insurance), in each
case, in one or a series of related transactions; provided that notwithstanding
the foregoing, the term "Asset Sale" shall not include:
(i) the sale, lease, conveyance, disposition or other transfer of
all or substantially all of the assets of the Company, in accordance with
the terms of Section 4.1,
(ii) the sale or lease of equipment, inventory, accounts receivable
or other assets in the ordinary course of business consistent with past
practice;
(iii) a transfer of assets by the Company to a Wholly Owned
Subsidiary of the Company or by a Wholly Owned Subsidiary of the Company
to the Company or to another Wholly Owned Subsidiary of the Company;
(iv) an issuance of Equity Interests by a Wholly Owned Subsidiary
of the Company to the Company or to another Wholly Owned Subsidiary of
the Company, provided that the consideration paid by the Company or such
Wholly Owned Subsidiary of the Company for such Equity Interests shall be
deemed to be an Investment; or
(v) the sale or other disposition of cash or Cash Equivalents.
"Asset Sale Offer" has the meaning assigned to it in
Section 3.9(c).
"Asset Sale Offer Notice" means notice of an Asset Sale Offer which
shall be mailed first class, postage prepaid, to the record Holders as shown on
the Note Register within 30 days following the 270th day after the receipt of
Net Cash Proceeds of the relevant Asset Sale, with a copy to the Trustee which
notice shall govern the terms of the Asset Sale Offer, and state:
(1) the circumstances of the Asset Sale or Sales, the Net Cash
Proceeds of which are included in the Asset Sale Offer, that an Asset
Sale Offer is being made pursuant to Section 3.9, and that all Notes that
are timely tendered will be accepted for payment;
(2) the Asset Sale Offer amount due and the Asset Sale Offer
Payment Date;
(3) that any Notes or portions thereof not tendered or accepted
for payment will continue to accrue interest;
(4) that, unless the Company defaults in the payment of the Asset
Sale Offer amount due with respect thereto, all Notes or portions thereof
accepted for payment pursuant to the Asset Sale Offer shall cease to
accrue interest from and after the Asset Sale Offer Payment Date;
(5) that any Holder electing to have any Notes or portions thereof
purchased pursuant to the Asset Sale Offer will be required to surrender
such Notes, with the form entitled "Option of Holder to Elect Purchase"
on the reverse of such Notes completed, to the Paying Agent at the
address specified in the notice prior to the close of business on the
third Business Day preceding the Asset Sale Offer Payment Date;
(6) that any Holder shall be entitled to withdraw such election if
the Paying Agent receives, not later than the close of business on the
second Business Day preceding the Asset Sale Offer Payment Date, a
facsimile transmission or letter, setting forth the name of the Holder,
the principal amount of Notes delivered for purchase, and a statement
that such Xxxxxx is withdrawing such Xxxxxx's election to have such Notes
or portions thereof purchased pursuant to the Asset Sale Offer;
(7) that any Holder electing to have Notes purchased pursuant to
the Asset Sale Offer must specify the principal amount that is being
tendered for purchase, which principal amount must be $1,000 or an
integral multiple thereof;
(8) that any Holder of Certificated Notes whose Certificated Notes
are being purchased only in part will be issued new Certificated Notes
equal in principal amount to the unpurchased portion of the Certificated
Note or Notes surrendered, which unpurchased portion will be equal in
principal amount to $1,000 or an integral multiple thereof;
(9) that the Trustee will return to the Holder of a Global Note
that is being purchased in part, such Global Note with a notation on the
schedule of increases or decreases thereof adjusting the principal amount
thereof to be equal to the unpurchased portion of such Global Note; and
(10) any other information necessary to enable any Holder to
tender Notes and to have such Notes purchased pursuant to Section 3.9.
"Asset Sale Offer Payment Date" means a Business Day which is no
earlier than 30 days nor later than 60 days from the date the Asset Sale Offer
Notice is mailed (other than as may be required by law).
"Attributable Indebtedness" means, in respect of a Sale and
Leaseback Transaction at the time of determination thereof, the greater of:
(i) the capitalized amount in respect of such transaction that
would appear on the face of a balance sheet of the lessee in accordance
with GAAP; and
(ii) the present value (discounted at the interest rate borne by
the Notes, compounded annually) of the total obligations of the lessee
for rental payments during the remaining term of the lease included in
such Sale and Leaseback Transaction (including any period for which such
lease has been extended).
"Authenticating Agent" has the meaning assigned to it in
Section 2.2(d).
"Bankruptcy Law" means Title 11, U.S. Code or any similar Federal,
state or foreign law for the relief of debtors.
"Bankruptcy Law Event of Default" means:
(1) the entry by a court of competent jurisdiction of: (i) a
decree or order for relief in respect of the Company or any Material
Subsidiary of the Company in an involuntary case or proceeding under any
Bankruptcy Law or (ii) a decree or order (A) adjudging the Company or any
Material Subsidiary of the Company a bankrupt or insolvent, (B) approving
as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of, or in respect of, the Company or any
Material Subsidiary of the Company under any Bankruptcy Law,
(C) appointing a Custodian of the Company or any Material Subsidiary of
the Company or of any substantial part of the property of the Company or
any Material Subsidiary of the Company, or (D) ordering the winding-up or
liquidation of the affairs of the Company or any Material Subsidiary of
the Company, and in each case, the continuance of any such decree or
order for relief or any such other decree or order unstayed and in effect
for a period of 60 consecutive calendar days; or
(2) (i) the commencement by the Company or any Material Subsidiary
of the Company of a voluntary case or proceeding under any Bankruptcy Law
or of any other case or proceeding to be adjudicated bankrupt or
insolvent, (ii) the consent by the Company or any Material Subsidiary of
the Company to the entry of a decree or order for relief in respect of
the Company or any Material Subsidiary of the Company in an involuntary
case or proceeding under any Bankruptcy Law or to the commencement of any
bankruptcy or insolvency case or proceeding against the Company or any
Material Subsidiary of the Company, (iii) the filing by the Company or
any Material Subsidiary of the Company of a petition or answer or consent
seeking reorganization or relief under any Bankruptcy Law, (iv) the
consent by the Company or any Material Subsidiary of the Company to the
filing of such petition or to the appointment of or taking possession by
a Custodian of the Company or any Material Subsidiary of the Company or
of any substantial part of the Property of the Company or any Material
Subsidiary of the Company, (v) the making by the Company or any Material
Subsidiary of the Company of an assignment for the benefit of creditors,
(vi) the admission by the Company or any Material Subsidiary of the
Company in writing of its inability to pay its debts generally as they
become due, (vii) the approval by stockholders of the Company or any
Material Subsidiary of the Company of any plan or proposal for the
liquidation or dissolution of the Company or any Material Subsidiary of
the Company, or (viii) the taking of corporate action by the Company or
any Material Subsidiary of the Company in furtherance of any such action.
"Board of Directors" means, as to any Person, the board of
directors, management committee or similar governing body of such Person or any
duly authorized committee thereof.
"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day" means a day other than a Saturday, Sunday or other
day on which commercial banking institutions are authorized or required by law
to close in New York City.
"Capital Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital
lease that would at such time be required to be capitalized on a balance sheet
in accordance with GAAP.
"Capital Stock" means
(i)in the case of a corporation, capital stock;
(ii)in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of capital stock;
(iii)in the case of a partnership, partnership interests (whether
general or limited); and
(iv)any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or
distributi ons of assets of, the issuing Person.
"Cash Equivalent" means
(i) securities 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 is pledged
in support thereof) having maturities not more than twelve months from
the date of acquisition;
(ii) U.S. dollar denominated (or foreign currency fully hedged)
time deposits, certificates of deposit, Eurodollar time deposits or
Eurodollar certificates of deposit of (i) any domestic commercial bank of
recognized standing having capital and surplus in excess of $500 million
or (ii) any bank whose short-term commercial paper rating from S&P is at
least A-1 or the equivalent thereof or from Xxxxx'x is at least P-1 or
the equivalent thereof (any such bank being an "Approved Lender"), in
each case with maturities of not more than twelve months from the date of
acquisition;
(iii) commercial paper issued by any Approved Lender (or by the
parent company thereof) or any variable rate notes issued by, or
guaranteed by, any domestic corporation rated A-1 (or the equivalent
thereof) or better by S&P or P-1 (or the equivalent thereof) or better by
Xxxxx'x and maturing within twelve months of the date of acquisition;
(iv) shares of money market mutual funds having assets in excess
of $2 billion; and
(v) deposits, including interest-bearing deposits, maintained in
the ordinary course of business in banks.
"Certificated Note" means any Note issued in fully-registered
certificated form (other than a Global Note), which shall be substantially in
the form of Exhibit A, with appropriate legends as specified in Section 2.7 and
Exhibit A.
"Change of Control" means such time as:
(i) any Person or group (within the meaning of Section 13(d) or
14(d) of the Exchange Act) has become, directly or indirectly, the
beneficial owner, by way of merger, consolidation or otherwise, of 30% or
more of the voting power of the Voting Stock of the Company on a fully-
diluted basis, after giving effect to the conversion and exercise of all
outstanding warrants, options and other securities of the Company
convertible into or exercisable for Voting Stock of the Company (whether
or not such securities are then currently convertible or exercisable);
(ii) the sale, lease or transfer of all or substantially all of
the consolidated assets of the Company to any Person or group (other than
a Wholly Owned Subsidiary of the Company);
(iii) during any period of two consecutive calendar years,
individuals who at the beginning of such period constituted the Board of
Directors of the Company, together with any new members of such Board of
Directors whose election by such Board of Directors or whose nomination
for election by the stockholders of the Company was approved by a vote of
a majority of the members of such Board of Directors then still in office
who either were directors at the beginning of such period or whose
election or nomination for election was previously so approved, cease for
any reason to constitute a majority of the directors of the Company then
in office; or
(iv) the Company consolidates with or merges with or into another
Person or any Person consolidates with, or merges with or into, the
Company (in each case, whether or not in compliance with the terms of the
Indenture), in any such event pursuant to a transaction in which
immediately after the consummation thereof Persons owning a majority of
the Voting Stock of the Company immediately prior to such consummation
shall cease to own a majority of the Voting Stock of the Company or the
surviving entity if other than the Company.
"Change of Control Offer" has the meaning assigned to it in Section
3.10(a).
"Change of Control Offer Notice" means a notice sent pursuant to
Section 3.10(b), which notice shall govern the terms of the Change of Control
Offer and shall state:
(1) that a Change of Control has occurred, the circumstances or
events causing such Change of Control and that a Change of Control Offer
is being made pursuant to Section 3.10, and that all Notes that are
timely tendered will be accepted for payment;
(2) the Change of Control Purchase Price, and the Change of
Control Payment Date, which date shall be determined as set forth in
Section 3.10(c);
(3) that any Notes or portions thereof not tendered or accepted
for payment will continue to accrue interest;
(4) that, unless the Company defaults in the payment of the Change
of Control Purchase Price with respect thereto, all Notes or portions
thereof accepted for payment pursuant to the Change of Control Offer
shall cease to accrue interest from and after the Change of Control
Payment Date;
(5) that any Holder electing to have any Notes or portions thereof
purchased pursuant to a Change of Control Offer will be required to
tender such Notes, with the form entitled "Option of Holder to Elect
Purchase" on the reverse of such Notes completed, to the Paying Agent at
the address specified in the notice prior to the close of business on the
third Business Day preceding the Change of Control Payment Date;
(6) that any Holder shall be entitled to withdraw such election if
the Paying Agent receives, not later than the close of business on the
second Business Day preceding the Change of Control Payment Date, a
facsimile transmission or letter, setting forth the name of the Holder,
the principal amount of Notes delivered for purchase, and a statement
that such Xxxxxx is withdrawing such Xxxxxx's election to have such Notes
or portions thereof purchased pursuant to the Change of Control Offer;
(7) that any Holder electing to have Notes purchased pursuant to
the Change of Control Offer must specify the principal amount that is
being tendered for purchase, which principal amount must be $1,000 or an
integral multiple thereof;
(8) that any Holder of Certificated Notes whose Certificated Notes
are being purchased only in part will be issued new Certificated Notes
equal in principal amount to the unpurchased portion of the Certificated
Note or Notes surrendered, which unpurchased portion will be equal in
principal amount to $1,000 or an integral multiple thereof;
(9) that the Trustee will return to the Holder of a Global Note
that is being purchased in part, such Global Note with a notation on
Schedule A thereof adjusting the principal amount thereof to be equal to
the unpurchased portion of such Global Note; and
(10) any other information necessary to enable any Holder to
tender Notes and to have such Notes purchased pursuant to Section 3.10.
"Change of Control Payment Date" has the meaning assigned to it in
Section 3.10(a).
"Change of Control Purchase Price" has the meaning assigned to it
in Section 3.10(a).
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means the party named as such in the introductory
paragraph to this Indenture and its successors and assigns, including any
Surviving Entity that becomes such in accordance with Article IV.
"Company Order" has the meaning assigned to it in Section 2.2(c).
"Consolidated EBITDA" means, with respect to any Person for any
period, the sum, without duplication, of
(i) the Consolidated Net Income for such period; plus
(ii) the Consolidated Interest Expense for such period; plus
(iii) amortization of deferred financing charges for such period;
plus
(iv) provision for taxes based on income or profits for such
period (to the extent such income or profits were included in computing
Consolidated Net Income for such period); plus
(v) consolidated depreciation, amortization and other noncash
charges of such Person and its Subsidiaries required to be reflected as
expenses on the books and records of such Person; minus
(vi) cash payments with respect to any nonrecurring, noncash
charges previously added back pursuant to clause (v); and excluding
(vii) the impact of foreign currency translations
Notwithstanding the foregoing, the provision for taxes based on the
income or profits of, and the depreciation and amortization and other noncash
charges of, a Subsidiary of a Person shall be added to Consolidated Net Income
to compute Consolidated EBITDA only to the extent (and in the same proportion)
that the Net Income of such Subsidiary was included in calculating the
Consolidated Net Income of such Person and only if a corresponding amount would
be permitted at the date of determination to be dividended to such Person by
such Subsidiary without prior approval (unless such approval has been
obtained), pursuant to the terms of its charter and all agreements,
instruments, judgments, decrees, orders, statutes, rules and governmental
regulations applicable to that Subsidiary or its stockholders.
"Consolidated Interest Coverage Ratio" means with respect to any
Person for any period, the ratio of the Consolidated EBITDA of such Person and
its Subsidiaries for such period to the Consolidated Interest Expense of such
Person and its Subsidiaries for such period. If the Company or any of its
Subsidiaries incurs, assumes, guarantees or repays or redeems any Indebtedness
(other than revolving credit borrowings) or issues or redeems preferred stock
subsequent to the commencement of the four-quarter reference period for which
the Consolidated Interest Coverage Ratio is being calculated but on or prior to
the date on which the event for which the calculation of the Consolidated
Interest Coverage Ratio is made (the "Calculation Date"), then the Consolidated
Interest Coverage Ratio shall be calculated giving pro forma effect to such
incurrence, assumption, guarantee, repayment or redemption of Indebtedness, or
such issuance or redemption of preferred stock, as if the same had occurred at
the beginning of the applicable four-quarter reference period, provided,
however, that in making such computation on a pro forma basis, the Consolidated
Interest Expense of such Person attributable to interest on any Indebtedness
bearing a floating interest rate and which was not actually outstanding during
all or any part of such four-quarter reference period shall be computed on a
pro forma basis as if the rate in effect on the date of computation (after
giving effect to any hedge in respect of such Indebtedness that will, by its
terms, remain in effect until the earlier of the maturity of such Indebtedness
or the date one year after the date of such determination) had been the
applicable rate during that portion of such four-quarter reference period when
such Indebtedness was not actually outstanding. For purposes of making the
computation referred to above:
(i) acquisitions that have been made by the Company or any of its
Subsidiaries, including through mergers or consolidations and including
any related financing transactions, during the four-quarter reference
period, or subsequent to such reference period and on or prior to the
Calculation Date shall be deemed to have occurred on the first day of the
four-quarter reference period;
(ii) the Consolidated EBITDA attributable to discontinued
operations, as determined in accordance with GAAP, and operations or
businesses disposed of prior to the Calculation Date, shall be excluded;
and
(iii) the Consolidated Interest Expense attributable to
discontinued operations, as determined in accordance with GAAP, and
operations or businesses disposed of prior to the Calculation Date, shall
be excluded, but only to the extent that the obligations giving rise to
such Consolidated Interest Expense will not be obligations of the
referent Person or any of its Subsidiaries following the Calculation
Date.
"Consolidated Interest Expense" means, with respect to any Person
for any period the consolidated interest expense of such Person and its
Subsidiaries for such period determined in accordance with GAAP (net of any
interest income), plus, to the extent not included in such interest expense:
(i) amortization of original issue discount, noncash interest
payments, the interest component of any deferred payment obligations, the
interest component of all payments associated with Capital Lease
Obligations and any Attributable Indebtedness, commissions, discounts and
other fees and charges incurred in respect of letter of credit or
bankers' acceptance financings, and net payments (if any) pursuant to
Hedging Obligations, but excluding amortization of deferred financing
charges for such period;
(ii) the consolidated interest expense of such Person and its
Subsidiaries that was capitalized during such period;
(iii) any interest expense on Indebtedness of another Person that
is guaranteed by such Person or one of its Subsidiaries or secured by a
Lien on assets of such Person or one of its Subsidiaries (whether or not
such guarantee or Lien is called upon); and
(iv) the product of (a) all cash dividend payments (and noncash
dividend payments in the case of a Person that is a Subsidiary) on any
series of preferred stock of such Person payable to a party other than
the Company or a Wholly Owned Subsidiary, multiplied by (b) a fraction,
the numerator of which is one and the denominator of which is one minus
the then current combined federal, state and local statutory tax rate of
such Person, expressed as a decimal.
"Consolidated Net Income" means, with respect to any Person for any
period, the aggregate of the Net Income of such Person and its Subsidiaries for
such period, on a consolidated basis, determined in accordance with GAAP;
provided that:
(i) the Net Income (but not loss) of any Person that is not a
Subsidiary or that is accounted for by the equity method of accounting
shall be included only to the extent of the amount of dividends or
distributions paid in cash to the referent Person or a Wholly Owned
Subsidiary thereof;
(ii) the Net Income of any Subsidiary shall be excluded to the
extent that the declaration or payment of dividends or similar
distributions by that Subsidiary of that Net Income is not at the date of
determination permitted without any prior governmental approval (unless
such approval has been obtained) or, directly or indirectly, by operation
of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to
that Subsidiary or its stockholders;
(iii) the Net Income of any Person acquired in a pooling of
interests transaction for any periods ending on or prior to the date of
such acquisition shall be excluded; and
(iv) the cumulative effect of a change in accounting principles
shall be excluded.
"Consolidated Net Worth" means, with respect to any Person as of
any date, the sum of (i) the consolidated equity of the common stockholders of
such Person and its consolidated Subsidiaries as of such date plus (ii) the
respective amounts reported on such Person's balance sheet as of such date with
respect to any series of preferred stock (other than Disqualified Stock) that
by its terms is not entitled to the payment of dividends unless such dividends
may be declared and paid only out of net earnings in respect of the year of
such declaration and payment, but only to the extent of any cash received by
such Person upon issuance of such preferred stock, less (a) all write-ups
subsequent to the date of the Indenture in the book value of any asset owned by
such Person or a consolidated Subsidiary of such Person (other than purchase
accounting adjustments made, in connection with any acquisition of any entity
that becomes a consolidated Subsidiary of such Person after the date of the
Indenture, to the book value of the assets of such entity), (b) all investments
as of such date in unconsolidated Subsidiaries and in Persons that are not
Subsidiaries (except, in each case, Permitted Investments), and (c) all
unamortized debt discount and expense and unamortized deferred charges as of
such date, all of the foregoing determined on a consolidated basis in
accordance with GAAP.
"Consolidated Tangible Net Worth" means, with respect to any Person
as of any date, the sum of (i) Consolidated Net Worth, minus (ii) the amount of
such Person's intangible assets at such date, including, without limitation,
goodwill (whether representing the excess of cost over book value of assets
acquired or otherwise), capitalized expenses, patents, trademarks, tradenames,
copyrights, franchises, licenses and deferred charges (such as, without
limitation, unamortized costs and costs of research and development), all
determined for such Person on a consolidated basis in accordance with GAAP.
"Corporate Trust Office" has the meaning assigned to it in
Section 2.3(c).
"Covenant Defeasance" has the meaning assigned to it in
Section 8.1(c).
"Credit Facility" means the Credit Agreement, dated as of October
31, 2001, among the Company as borrower thereunder, Wachovia Bank, National
Association (f/k/a First Union National Bank), as administrative agent, and the
lenders party thereto, including any related notes, guarantees, collateral
documents, instruments and agreements executed in connection therewith, and in
each case as amended, modified, renewed, refunded, replaced, restated or
refinanced from time to time.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Debentures" means the $73.3 million aggregate principal amount of
6 1/4% Convertible Subordinated Debentures due March 31, 2007 issued by the
Company on April 1, 1997.
"Default" any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"Defaulted Interest" has the meaning assigned to it in Exhibit A.
"Disqualified Stock" means:
(i) with respect to any Person, Capital Stock of such Person
that, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening of
any event, matures or is mandatorily redeemable, pursuant to a sinking
fund obligation or otherwise, or is redeemable at the option of the
Holder thereof, in whole or in part, on or prior to the date which is one
year after the latest date on which the Notes mature; and
(ii) with respect to any Subsidiary of such Person, any Capital
Stock other than any common stock with no preference, privileges, or
redemption or repayment provisions.
"Distribution Compliance Period" means, in respect of any
Regulation S Global Note, the 40 consecutive days beginning on and including
the later of (a) the day on which any Notes represented thereby are offered to
persons other than distributors (as defined in Regulation S under the
Securities Act) pursuant to Regulation S and (b) the issue date for such
Notes.
"DTC" means The Depository Trust Company, its nominees and their
respective successors and assigns, or such other depositary institution
hereinafter appointed by the Company that is a clearing agency registered under
the Exchange Act.
"Eligible Inventory" means, as of any date, all inventory of the
Company and any of its Subsidiaries, wherever located, valued in accordance
with GAAP and shown on the balance sheet of the Company for the quarterly
period most recently ended prior to such date for which financial statements of
the Company are available.
"Eligible Receivables" means, as of any date, all accounts
receivable of the Company and any of its Subsidiaries arising out of the sale
of inventory in the ordinary course of business, valued in accordance with GAAP
and shown on the balance sheet of the Company for the quarterly period most
recently ended prior to such date for which financial statements of the Company
are available.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock), whether outstanding
prior to, on or after the date of the Indenture.
"Event of Default" has the meaning assigned to it in Section 6.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Notes" means Notes issued in a Registered Exchange Offer
in exchange for a like principal amount of Notes originally issued pursuant to
an exemption from registration under the Securities Act, and replacement Notes
issued therefor in accordance with this Indenture.
"Exempt Affiliate Transactions" means:
(i) transactions between or among the Company and/or its Wholly
Owned Subsidiaries;
(ii) advances to officers of the Company or any of its
Subsidiaries in the ordinary course of business to provide for the payment
of reasonable expenses incurred by such persons in the performance of their
responsibilities to the Company or such Subsidiary or in connection with
any relocation;
(iii) fees and compensation paid to and indemnity provided on
behalf of directors, officers or employees of the Company or any of its
Subsidiaries in the ordinary course of business;
(iv) any employment agreement that is in effect on the date of the
Indenture in the ordinary course of business and any such agreement entered
into by the Company or any of its Subsidiaries after the date of the
Indenture in the ordinary course of business of the Company or such
Subsidiary; and
(v) any Restricted Payment that is not prohibited by the covenant
"Restricted Payments."
"Exempt Asset Sale" has the meaning assigned to it in Section
3.9(a).
"Existing Indebtedness" means the Indebtedness of the Company and
its Subsidiaries other than Indebtedness under the Credit Facility in existence
on the date of the Indenture, until such amounts are repaid.
"GAAP" means United States generally accepted accounting
principles, consistently applied, as set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board, or in such other statements by such other entity as
may be approved by a significant segment of the accounting profession of the
United States, that are applicable to the circumstances as of the date of
determination, provided that, except as specifically provided in the Indenture,
all calculations made for purposes of determining compliance with the covenants
set forth in Articles III and IV of the Indenture shall use GAAP, as in effect
as of October 30, 2001 for financial statements for fiscal years ending on or
after October 30, 2001, but that for such purposes of determining compliance,
GAAP shall not include (i) the requirement to recognize any impairment losses
pursuant to Statement of Financial Accounting Standards No. 142 and (ii) the
effects of Statements of Financial Accounting Standards Nos. 121 and 133.
"Global Note" means any Note issued in fully-registered
certificated form to DTC (or its nominee), as depositary for the beneficial
owners thereof, which shall be substantially in the form of Exhibit A, with
appropriate legends as specified in Section 2.7 and Exhibit A.
"Guarantee" means any obligation, contingent or otherwise, of any
Person, directly or indirectly guaranteeing any Indebtedness of any other
Person, including any such obligation, direct or indirect, contingent or
otherwise, of such Person:
(i) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or other obligation of such other
Person (whether arising by agreement to purchase assets, goods, securities or
services, to take-or-pay, or to maintain financial statement conditions or
otherwise); or
(ii) entered into for purposes of assuring in any other manner the
obligee of such Indebtedness or other obligation of the payment thereof or to
protect such obligee against loss in respect thereof (in whole or in part);
provided, however, that the term "guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "guarantee"
used as a verb shall have a correlative meaning.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person entered into in the ordinary course of business
under (i) interest rate swap agreements, interest rate cap agreements and
interest rate collar agreements and other similar financial agreements or
arrangements designed to protect such Person against, or manage the exposure of
such Person to, fluctuations in interest rates, (ii) forward exchange
agreements, currency swap, currency option and other similar financial
agreements or arrangements designed to protect such Person against, or manage
the exposure of such Person to, fluctuations in foreign currency exchange
rates, and (iii) forward contracts, commodity swap, commodity option and other
similar financial agreements or arrangements designed to protect such Person
against, or manage the exposure of such Person to, fluctuations in commodity
prices.
"Holder" means the Person in whose name a Note is registered in the
Note Register.
"IAI" means an institutional "accredited investor," as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act, other than a QIB.
"IAI Note" means a Certificated Note that is a Restricted Note held
by an IAI.
"Indebtedness" means, with respect to any Person, any indebtedness
of such Person, whether or not contingent, in respect of borrowed money or
evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereof) or banker's acceptances
or representing Capital Lease Obligations or Attributable Indebtedness with
respect to Sale and Leaseback Transactions, or the balance deferred and unpaid
of the purchase price of any property or representing any Hedging Obligations,
except any such balance that constitutes an accrued expense or trade payable
incurred in the ordinary course of business, if and to the extent any of the
foregoing indebtedness (other than letters of credit and Hedging Obligations)
would appear as a liability upon a balance sheet of such Person prepared in
accordance with GAAP, as well as all indebtedness of others secured by a Lien
on any asset of such Person (whether or not such indebtedness is assumed by
such Person) and, to the extent not otherwise included, the guarantee by such
Person of any indebtedness of any other Person.
"Indenture" means this Indenture as amended or supplemented from
time to time.
"Independent financial advisor" has the meaning assigned to it in
Section 3.17.
"Interest Payment Date" means the stated due date of an installment
of interest on the Notes as specified in Exhibit A.
"Investment Grade Rating" means an assigned rating of (i) BBB- or
higher by Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc. or its successor ("S&P") and (ii) Baa3 or higher by Xxxxx'x
Investor Service, Inc. or its successor ("Moody's").
"Investments" means, with respect to any Person, all investments
by such Person in other Persons (including Affiliates) in the form of direct or
indirect loans (including guarantees of Indebtedness or other obligations),
advances or capital contributions (excluding advances to officers and employees
of the type specified in clause (ii) of the definition of Exempt Affiliate
Transactions), purchases or other acquisitions for consideration of
Indebtedness, Equity Interests or other securities and all other items that are
or would be classified as investments on a balance sheet prepared in accordance
with GAAP; provided that an acquisition of assets, Equity Interests or other
securities by the Company for consideration consisting of common equity
securities of the Company shall not be deemed to be an Investment.
"Issue Date" means May 30, 2003.
"Issue Date Notes" means the $125,000,000 aggregate principal
amount of Notes originally issued on the Issue Date, and any replacement Notes,
Private Exchange Notes and Exchange Notes issued therefor in accordance with
this Indenture.
"Issue Date Registration Rights Agreement" means the Registration
Rights Agreement, dated as of the Issue Date, between the Company and Wachovia
Securities, Inc., as the Initial Purchaser.
"Joint Venture" means a single-purpose corporation, partnership or
other legal arrangement hereafter formed by the Company or any of its
Subsidiaries with another Person in order to conduct a common venture or
enterprise with such Person through a separate legal entity.
"Legal Defeasance" has the meaning assigned to it in
Section 8.1(b).
"Legal Holiday" has the meaning assigned to it in Section 11.7.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset, 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 a
security interest in and any filing of or agreement to give any financing
statement under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction).
"Material Domestic Subsidiary" means any of its Subsidiaries which
is organized under the laws of the United States of America, any state thereof
or the District of Columbia and would constitute a "significant subsidiary" of
the Company as defined in Rule 1.02 of Regulation S-X promulgated by the SEC
except that for purposes of this definition all reference therein to ten (10)
percent shall be deemed to be references to five (5) percent.
"Material Foreign Subsidiary" means any of its Subsidiaries, other
than any Subsidiary which is organized under the laws of the United States of
America, any state thereof or the District of Columbia, which constitutes a
"significant subsidiary" of the Company as defined in Rule 1.02 of Regulation
S-X promulgated by the SEC.
"Material Subsidiary" means any Material Domestic Subsidiary or any
Material Foreign Subsidiary.
"Maturity Date" means June 1, 2013.
"Net Income" means, with respect to any Person for any period, the
net income (loss) of such Person for such period, determined in accordance with
GAAP and before any reduction in respect of preferred stock dividends,
excluding, however:
(i) any gain (but not loss), together with any related provision
for taxes on such gain (but not loss), realized in connection with (a)
any Asset Sale (including, without limitation, dispositions pursuant to
any Sale and Leaseback Transaction) or (b) the disposition of any
securities by such Person or any of its Subsidiaries; or the
extinguishment of any Indebtedness of such Person or any of its
Subsidiaries; and
(ii) any extraordinary gain or loss or any non-cash charge approved
by the Company's Board of Directors, together with any related provision
for taxes on such extraordinary gain or loss.
Notwithstanding anything to the contrary contained herein, in
calculating net income for the period from April 1, 1996 to October 30, 2001,
the restructuring charges incurred in connection with the merger of Dibrell
Brothers, Incorporated and Xxxx-Xxxxxx, Inc. on April 1, 1995, shall be
excluded from such calculation to the extent such charges do not exceed $38.4
million (which is composed of $23.4 million in various charges for the fiscal
year of the Company ended June 30, 1995, additional charges of $5.6 million for
the nine months ended March 31, 1996 and an estimated $9.4 million in
additional anticipated restructuring charges). In addition, notwithstanding
anything to the contrary herein, net income for the period from November 1,
2001 to the Issue Date shall be calculated in accordance with the indenture
dated as of October 30, 2001, between the Company and SunTrust Bank, as
trustee.
"Net Proceeds" means the aggregate cash proceeds received by the
Company or any of its Subsidiaries in respect of any Asset Sale (including,
without limitation, any cash received upon the sale or other disposition of any
noncash consideration received in any Asset Sale), net of the direct costs
relating to such Asset Sale (including, without limitation, legal, accounting
and investment banking fees, and sales commissions), taxes paid or payable as a
result thereof, and any reserve for adjustment in respect of the sale price of
such asset or assets established in accordance with GAAP.
"Non-U.S. Person" means a person who is not a U.S. person, as
defined in Regulation S.
"Note Custodian" means the custodian with respect to any Global
Note appointed by DTC, or any successor Person thereto, and shall initially be
the Trustee.
"Note Guarantee" means any guarantee of the Company's Obligations
under the Notes and the Indenture provided by a Material Domestic Subsidiary
pursuant to the Indenture.
"Note Guarantor" means any Material Domestic Subsidiary which
provides a Note Guarantee pursuant to the Indenture until such time as its Note
Guarantee is released in accordance with the Indenture.
"Note Register" has the meaning assigned to it in Section 2.3(a).
"Notes" means any of the Company's 7 3/4 % Senior Notes Due 2013
issued and authenticated pursuant to this Indenture.
"Obligations" means any principal, premiums, interest, penalties,
fees, indemnifications, reimbursements, damages and other liabilities payable
under the documentation governing any Indebtedness.
"Officer" means, when used in connection with any action to be
taken by the Company or a Note Guarantor, as the case may be, the Chairman of
the Board, the Chief Executive Officer, the President, the Chief Financial
Officer, any Vice President, the Treasurer, the Controller or the Secretary of
the Company or such Note Guarantor, as the case may be.
"Officers' Certificate" means, when used in connection with any
action to be taken by the Company or a Note Guarantor, as the case may be, a
certificate signed by two Officers or by an Officer and either an Assistant
Treasurer or an Assistant Secretary of the Company or such Note Guarantor, as
the case may be and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
an employee of or counsel for the Company or any Note Guarantor, and who shall
be reasonably acceptable to the Trustee.
"Outstanding Notes" means, as of the date of determination, all
Notes theretofore authenticated and delivered under this Indenture, except:
(i) Notes theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Notes, or portions thereof, for whose payment or redemption
money in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company, a Note Guarantor or
an Affiliate of the Company) in trust or set aside and segregated in
trust by the Company (if the Company, a Note Guarantor or an Affiliate of
the Company is acting as Paying Agent) for the Holders of such Notes;
provided that, if the Notes are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(iii) Notes which have been surrendered pursuant to Section 2.9 or
in exchange for or in lieu of which other Notes have been authenticated
and delivered pursuant to this Indenture, other than any such Notes in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Notes are held by a bona fide purchaser in
whose hands such Notes are valid obligations of the Company; and
(iv) solely to the extent provided in Article VIII, Notes which
are subject to Legal Defeasance or Covenant Defeasance as provided in
Article VIII;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Notes owned by
the Company or any other obligor upon the Notes or any Affiliate of the Company
or of such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Notes which a Trust Officer of the Trustee actually knows to be so
owned shall be so disregarded. Notes so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Notes and that the pledgee is not the Company or any other obligor upon the
Notes or any Affiliate of the Company or of such other obligor.
"Paying Agent" has the meaning assigned to it in Section 2.3(a).
"Payment Default" has the meaning assigned to it in Section 6.1(a).
"Permitted Investments" means:
(i) any Investments in the Company
(ii) any Investments in Cash Equivalents;
(iii) Investments made as a result of the receipt of noncash
consideration from an Asset Sale that was made pursuant to and
in compliance with Section 3.9;
(iv) Investments (other than Advances on Purchases of Tobacco)
outstanding as of the date of the Indenture;
(v) Investments in Wholly Owned Subsidiaries of the Company and
entity that:
(a) is engaged in the same or a similar line of business as
the Company or any of its Subsidiaries was engaged in on the date
of the Indenture and which has not been discontinued on or prior to
the date of such Investment or any reasonable extensions or
expansions thereof; and
(b) as a result of such Investment, is a Wholly Owned
Subsidiary of the Company;
(vi) investments made in the ordinary course of business in export
notes, trade credit assignments, bankers' acceptances, guarantees and
instruments of a similar nature issued in connection with the financing
of international trading transactions by:
(a) any commercial bank or trust company (or any Affiliate
thereof) organized under the laws of the United States of America,
any state thereof, or the District of Columbia having capital and
surplus in excess of $100 million; or
(b) any international bank of recognized standing ranking
among the world's 100 largest commercial banks in terms of total
assets; and
(vii) any Advances on Purchases of Tobacco, but only to the extent
that the aggregate principal amount of such advances outstanding at any time,
including Advances outstanding on the Issue Date, to any Person and such
Person's Affiliates does not exceed 15% of the Consolidated Tangible Net Worth
of the Company for the most recently ended fiscal quarter for which internal
financial statements are available.
"Permitted Refinancing Indebtedness" means any Indebtedness of the
Company or any of its Subsidiaries issued in exchange for, or the net proceeds
of which are used to extend, refinance, renew, replace, defease or refund other
Indebtedness of the Company or any of its Subsidiaries; provided that: (i) the
principal amount of such Permitted Refinancing Indebtedness does not exceed the
principal amount of the Indebtedness so extended, refinanced, renewed,
replaced, defeased or refunded (plus the amount of reasonable expenses incurred
in connection therewith); (ii) such Permitted Refinancing Indebtedness (a) has
a Weighted Average Life to Maturity equal to or greater than the Weighted
Average Life to Maturity of, the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded, (b) does not have a stated maturity
earlier than the stated maturity of the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded, and (c) does not permit
redemption or other retirement (including pursuant to any required offer to
purchase to be made by the Company or any of its Subsidiaries) of such
Indebtedness at the option of the holder thereof prior to the final stated
maturity of the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded, other than a redemption or other retirement at the option
of the holder of such Indebtedness (including pursuant to a required offer to
purchase made by the Company or any of its Subsidiaries) which is conditioned
upon a change of control of the Company pursuant to provisions substantially
similar to those contained in the Indenture in Section 3.10; (iii) if the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded is subordinated in right of payment to the Notes, such Permitted
Refinancing Indebtedness has a final maturity date later than the final
maturity date of, and is subordinated in right of payment to, the Notes on
terms at least as favorable to the Holders of Notes as those contained in the
documentation governing the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; and (iv) such Indebtedness is incurred either
by the Company or by any of its Subsidiaries who is the obligor on the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded.
"Person" means any individual, corporation, limited or general
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Private Exchange Notes" means any Notes issued pursuant to Section
2(f) of the Issue Date Registration Rights Agreement.
"Private Placement Legend" has the meaning assigned to it in
Section 2.7(b).
"Purchase Money Obligation" of any Person means any obligation of
such Person to any seller or any other Person incurred or assumed to finance
the construction and/or acquisition of real or personal property constituting
plant or equipment to be used in the business of such Person or any of its
Subsidiaries (excluding accounts payable to trade creditors incurred in the
ordinary course of business), which obligation is secured by a Lien on such
property constructed or acquired.
"QIB" means any "qualified institutional buyer" (as defined in
Rule 144A).
"Record Date" has the meaning assigned to it in Exhibit A.
"Redemption Date" means, with respect to any redemption of Notes,
the date of redemption with respect thereto.
"Registered Exchange Offer" means an exchange offer by the Company
registered under the Securities Act pursuant to which Notes originally issued
pursuant to an exemption from registration under the Securities Act are
exchanged for Notes of like principal amount not bearing the Private Placement
Legend.
"Registrar" has the meaning assigned to it in Section 2.3(a).
"Registration Rights Agreement" means any registration rights
agreement between the Company, the Note Guarantors and one or more investment
banks acting as initial purchasers in connection with any issuance of Notes
under this Indenture, including the Issue Date Registration Rights Agreement.
"Registration Statement" means an effective shelf registration
statement under the Securities Act that registers the resale by Holders (and
beneficial owners) of Notes (or beneficial interests therein) originally issued
pursuant to an exemption from registration under the Securities Act.
"Regulation S" means Regulation S under the Securities Act or any
successor regulation.
"Regulation S Global Note" has the meaning assigned to it in
Section 2.1(e).
"Resale Restriction Termination Date" means, for any Restricted
Note (or beneficial interest therein), two years (or such other period
specified in Rule 144(k)) from the Issue Date or, if any Add On Notes that are
Restricted Notes have been issued before the Resale Registration Termination
Date for any Restricted Notes, from the latest such original issue date of such
Add On Notes.
"Restricted Note" means any Issue Date Note (or beneficial interest
therein) or any Add On Note (or beneficial interest therein) not originally
issued and sold pursuant to an effective registration statement under the
Securities Act or any Exchange Note, until such time as:
(i) such Issue Date Note (or beneficial interest therein) or Add
On Note (or beneficial interest therein) has been transferred pursuant to
a Registration Statement;
(ii) the Resale Restriction Termination Date therefor has passed;
(iii) such Note is a Regulation S Global Note and the Distribution
Compliance Period therefor has terminated; or
(iv) the Private Placement Legend therefor has otherwise been
removed pursuant to or, in the case of a beneficial interest in a Global
Note, such beneficial interest has been exchanged for an interest in a
Global Note not bearing a Private Placement Legend.
"Rule 144" means Rule 144 under the Securities Act (or any
successor rule).
"Rule 144A" means Rule 144A under the Securities Act (or any
successor rule).
"Rule 144A Global Note" has the meaning assigned to it in
Section 2.1(d).
"Sale and Leaseback Transaction" of any Person means an arrangement
with any lender or investor or to which such lender or investor is a party
providing for the leasing by such Person of any property or asset of such
Person which has been or is being sold or transferred by such Person more than
180 days after the acquisition thereof or the completion of construction or
commencement of operation thereof to such lender or investor or to any Person
to whom funds have been or are to be advanced by such lender or investor on the
security of such property or asset. The stated maturity of such arrangement
shall be the date of the last payment of rent or any other amount due under
such arrangement prior to the first date on which such arrangement may be
terminated by the lessee without payment of a penalty.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Special Record Date" has the meaning assigned to it in
Section 2.12(A).
"Subsidiary" means, with respect to any Person, (i) any
corporation, association or other business entity of which more than 50% of the
total voting power of shares of Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers
or trustees thereof is at the time owned or controlled, directly or indirectly,
by such Person or one or more of the other Subsidiaries of that Person (or a
combination thereof) and (ii) any partnership (a) the sole general partner or
the managing general partner of which is such Person or a Subsidiary of such
Person or (b) the only general partners of which are such Person or of one or
more Subsidiaries of such Person (or any combination thereof).
"Surviving Entity" has the meaning assigned to it in
Section 4.1(a)(i).
"TIA" or "Trust Indenture Act" means the Trust Indenture Act of
1939, as amended, as in effect on the date of this Indenture (except as
otherwise provided in this Indenture).
"Trustee" means the party named as such in the introductory
paragraph of this Indenture until a successor replaces it in accordance with
the terms of this Indenture and, thereafter, means the successor.
"Trust Officer" means, when used with respect to the Trustee, any
officer within the corporate trust department of the Trustee, including any
vice president, assistant vice president, assistant secretary, assistant
treasurer, trust officer or any other officer of the Trustee who customarily
performs functions similar to those performed by the Persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of such person's knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the
administration of this Indenture.
"U.S. Government Obligations" means (i) securities that are (a)
direct obligations of the United States of America for the payment of which the
full faith and credit of the United States of America is pledged or (b)
obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, which, in either case, are not callable or redeemable at the
option of the issuer thereof; and (ii) depositary receipts issued by a bank (as
defined in Section 3(a)(2) of the Securities Act) as custodian with respect to
any U.S. Government Obligation which is specified in clause (i) above and held
by such bank for the account of the holder of such depositary receipt, or with
respect to any specific payment of principal or interest on any U.S. Government
Obligation which is so specified and held, provided that (except as required by
law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depositary receipt from any amount received by
the custodian in respect of the U.S. Government Obligation or the specific
payment of principal or interest of the U.S. Government Obligation evidenced by
such depositary receipt.
"U.S. Legal Tender" means such coin or currency of the United
States of America as at the time of payment shall be legal tender for the
payment of public and private debts.
"Voting Stock" of a corporation means all classes of Capital Stock
of such corporation then outstanding and normally entitled to vote in the
election of directors.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the product obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payments at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment, by (ii) the then outstanding
principal amount of such Indebtedness.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such
Person all of the outstanding Capital Stock or other ownership interests of
which (other than directors' qualifying shares) shall at the time be owned by
such Person or by one or more Wholly Owned Subsidiaries of such Person or, in
the case of Subsidiaries that are not organized under the laws of the United
States of America, any state thereof or the District of Columbia, by one or
more nominees of such Person.
Section 1.2. Incorporation by Reference of Trust Indenture Act.
If any provision of this Indenture limits, qualifies or conflicts with the
duties that would be imposed by any of Sections 310 to 317 of the TIA through
operation of Section 318(c) thereof on any person if this Indenture were
qualified under the TIA, such imposed duties shall control.
"obligor" on the indenture securities means the Company and any
other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined in the TIA by reference to another statute or defined by SEC Rule
have the meanings assigned to them by such definitions.
Section 1.3. Rules of Construction. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in the
plural include the singular; and
(6) references to the payment of principal of the Notes shall
include applicable premium, if any.
ARTICLE II
THE NOTES
Section 2.1. Form and Dating.
(a)The Issue Date Notes are being originally offered and sold by the
Company pursuant to a Purchase Agreement, dated as of May 27, 2003, between the
Company and Wachovia Securities, Inc. The Notes will be issued in fully-
registered certificated form without coupons, and only in denominations of
$1,000 and any integral multiple thereof. The Notes and the Trustee's
certificate of authentication shall be substantially in the form of Exhibit A.
(b)The terms and provisions of the Notes, the form of which is in
Exhibit A, shall constitute, and are hereby expressly made, a part of this
Indenture, and, to the extent applicable, the Company, the Note Guarantors and
the Trustee, by their execution and delivery of this Indenture expressly agree
to such terms and provisions and to be bound thereby. Except as otherwise
expressly permitted in this Indenture, all Notes shall be identical in all
respects. Notwithstanding any differences among them, all Notes issued under
this Indenture shall vote and consent together on all matters as one class.
(c)The Notes may have notations, legends or endorsements as
specified in Section 2.7 or as otherwise required by law, stock exchange rule
or DTC rule or usage. The Company and the Trustee shall approve the form of
the Notes and any notation, legend or endorsement on them. Each Note shall be
dated the date of its authentication.
(d)Notes originally offered and sold to QIBs in reliance on
Rule 144A will be issued in the form of one or more permanent Global Notes
(each, a "Rule 144A Global Note").
(e)Notes originally offered and sold outside the United States of
America will be issued in the form of one or more permanent Global Notes (each,
a "Regulation S Global Note").
(f)Each Issue Date Note originally offered and sold to an IAI and
each Add On Note originally offered and sold to an IAI not pursuant to an
effective registration statement under the Securities Act and not in reliance
on Regulation S will be issued in the form of a IAI Note. Upon such issuance,
the Registrar shall register such IAI Note in the name of the beneficial owner
or owners of such note (or the nominee of such beneficial owner or owners) and
deliver the certificates for such IAI Notes to the respective beneficial owner
or owners. IAI Notes shall be purchased in a minimum principal amount of
$500,000, except as provided in Sections 3.9, 3.10 or 5.7.
Section 2.2. Execution and Authentication.
(a) Two Officers, one of whom shall be the Chairman of the Board,
the President, the Chief Executive Officer or the Chief Financial Officer of
the Company, shall sign the Notes for the Company by manual or facsimile
signature. If an Officer whose signature is on a Note no longer holds that
office at the time the Trustee authenticates the Note, the Note shall be valid
nevertheless.
(b) A Note shall not be valid until an authorized signatory of the
Trustee manually authenticates the Note. The signature of the Trustee on a
Note shall be conclusive evidence that such Note has been duly and validly
authenticated and issued under this Indenture.
(c) At any time and from time to time after the execution and
delivery of this Indenture, the Trustee shall authenticate and make available
for delivery Notes upon a written order of the Company signed by two Officers
or by an Officer and either an Assistant Treasurer or an Assistant Secretary of
the Company (the "Company Order"). A Company Order shall specify the amount of
the Notes to be authenticated and the date on which the original issue of Notes
is to be authenticated. Subject to the conditions set forth herein and without
the consent of the Holders, the Company may authenticate and deliver an
unlimited amount of Notes under this Indenture.
(d) The Trustee may appoint an agent (the "Authenticating Agent")
reasonably acceptable to the Company to authenticate the Notes. Unless limited
by the terms of such appointment, any such Authenticating Agent may
authenticate Notes whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by the
Authenticating Agent.
(e) In case a Surviving Entity shall have executed an indenture
supplemental hereto with the Trustee pursuant to Article IV, any of the Notes
authenticated or delivered prior to such transaction may, from time to time, at
the request of the Surviving Entity, be exchanged for other Notes executed in
the name of the Surviving Entity with such changes in phraseology and form as
may be appropriate, but otherwise identical to the Notes surrendered for such
exchange and of like principal amount; and the Trustee, upon Company Order of
the Surviving Entity, shall authenticate and deliver Notes as specified in such
order for the purpose of such exchange. If Notes shall at any time be
authenticated and delivered in any new name of a Surviving Entity pursuant to
this Section 2.2 in exchange or substitution for or upon registration of
transfer of any Notes, such Surviving Entity, at the option of the Holders but
without expense to them, shall provide for the exchange of all Notes at the
time Outstanding for Notes authenticated and delivered in such new name.
Section 2.3. Registrar and Paying Agent.
(a) The Company shall maintain an office or agency in the Borough
of Manhattan, City of New York, where Notes may be presented for registration
of transfer or for exchange (the "Registrar"), where Notes may be presented for
payment (the "Paying Agent") and for the service of notices and demands to or
upon the Company in respect of the Notes and this Indenture. The Registrar
shall keep a register of the Notes and of their transfer and exchange (the
"Note Register"). 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.
(b) The Company shall enter into an appropriate agency agreement
with any Registrar, Paying Agent or co-Registrar not a party to this Indenture,
which shall incorporate the terms of the TIA. The agreement shall implement
the provisions of this Indenture that relate to such agent. The Company shall
notify the Trustee of the name and address of each such agent. If the Company
fails to maintain a Registrar or Paying Agent, the Trustee shall act as such
and shall be entitled to appropriate compensation therefor pursuant to
Section 7.7. The Company or any Note Guarantor may act as Paying Agent,
Registrar, co-Registrar or transfer agent.
(c) The Company initially appoints the Trustee at its principal
corporate trust office in the City of Richmond, Virginia (the "Corporate Trust
Office") as Registrar, Paying Agent and agent for service of demands and
notices in connection with the Notes and this Indenture, until such time as
another Person is appointed as such.
Section 2.4. Paying Agent to Hold Money in Trust. The Company
shall require each Paying Agent (other than the Trustee) to agree in writing
that such Paying Agent shall hold in trust for the benefit of Holders or the
Trustee all money held by such Paying Agent for the payment of principal of or
interest on the Notes and shall notify the Trustee in writing of any default
by the Company or any Note Guarantor in making any such payment. If the
Company or any Note Guarantor or an Affiliate of the Company or any Note
Guarantor acts as Paying Agent, it shall segregate the money held by it as
Paying Agent and hold it as a separate trust fund. The Company at any time
may require a Paying Agent (other than the Trustee) to pay all money held by
it to the Trustee and to account for any funds disbursed by such Paying Agent.
Upon complying with this Section 2.4, the Paying Agent (if other than the
Company or a Note Guarantor) shall have no further liability for the money
delivered to the Trustee. Upon any proceeding under any Bankruptcy Law with
respect to the Company or any Note Guarantor or any Affiliate of the Company
or any Note Guarantor, if the Company, a Note Guarantor or such Affiliate
is then acting as Paying Agent, the Trustee shall replace the Company, such
Note Guarantor or such Affiliate as Paying Agent.
Section 2.5. Holder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to
it of the names and addresses of Holders. If the Trustee is not the Registrar,
or to the extent otherwise required under the TIA, the Company shall furnish
to the Trustee, in writing at least seven Business Days before each Interest
Payment Date and at such other times as the Trustee may request in writing,
a list in such form and as of such date as the Trustee may reasonably require
of the names and addresses of Holders.
Section 2.6. Global Note Provisions.
(a) Each Global Note initially shall: (i) be registered in the
name of DTC or the nominee of DTC, (ii) be delivered to the Note Custodian, and
(iii) bear the appropriate legend, as set forth in Section 2.7 and Exhibit A.
Any Global Note may be represented by more than one certificate. The aggregate
principal amount of each Global Note may from time to time be increased or
decreased by adjustments made on the records of the Note Custodian, as provided
in this Indenture.
(b) Members of, or participants in, DTC ("Agent Members") shall
have no rights under this Indenture with respect to any Global Note held on
their behalf by DTC or by the Note Custodian under such Global Note, and DTC
may be treated by the Company, the Trustee, the Paying Agent and the Registrar
and any of their agents as the absolute owner of such Global Note for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee, the Paying Agent or the Registrar or any of
their agents from giving effect to any written certification, proxy or other
authorization furnished by DTC or impair, as between DTC and its Agent Members,
the operation of customary practices of DTC governing the exercise of the
rights of an owner of a beneficial interest in any Global Note. The registered
Holder of a Global Note may grant proxies and otherwise authorize any person,
including Agent Members and persons that may hold interests through Agent
Members, to take any action that a Holder is entitled to take under this
Indenture or the Notes.
(c) Except as provided below, owners of beneficial interests in
Global Notes will not be entitled to receive Certificated Notes. Certificated
Notes shall be issued to all owners of beneficial interests in a Global Note in
exchange for such interests if:
(i) DTC notifies the Company that it is unwilling or unable to
continue as depositary for such Global Note or DTC ceases to be a
clearing agency registered under the Exchange Act, at a time when DTC is
required to be so registered in order to act as depositary, and in each
case a successor depositary is not appointed by the Company within
90 days of such notice,
(ii) the Company executes and delivers to the Trustee and
Registrar an Officers' Certificate stating that such Global Note shall be
so exchangeable, or
(iii) an Event of Default has occurred and is continuing and the
Registrar has received a request from DTC.
In connection with the exchange of an entire Global Note for Certificated Notes
pursuant to this paragraph (c), such Global Note shall be deemed to be
surrendered to the Trustee for cancellation, and the Company shall execute, and
upon Company Order the Trustee shall authenticate and deliver, to each
beneficial owner identified by DTC in exchange for its beneficial interest in
such Global Note, an equal aggregate principal amount of Certificated Notes of
authorized denominations.
(d) In connection with the exchange of a portion of a Certificated
Note for a beneficial interest in a Global Note, the Trustee shall cancel such
Certificated Note, and the Company shall execute, and the Trustee shall
authenticate and deliver to the exchanging Holder, a new Certificated Note
representing the principal amount not so exchanged.
Section 2.7. Legends.
(a) Each Global Note shall bear the legend specified therefor in
Exhibit A on the face thereof.
(b) Each Restricted Note shall bear the private placement legend
specified therefor in Exhibit A on the face thereof (together with, if
applicable, the legend specified in paragraph of this Section 2.7 (the
"Private Placement Legend")).
(c) Each Certificated Note that is a Restricted Note shall bear the
legend specified therefor in Exhibit A on the face thereof.
Section 2.8. Transfer and Exchange.
(a) The following provisions shall apply with respect to any
proposed transfer of an interest in a Rule 144A Global Note that is a
Restricted Note:
(i) If the owner of a beneficial interest in a Rule 144A Global
Note wishes to transfer such interest (or a portion thereof) to an IAI,
(x) upon receipt by the Note Custodian and Registrar of:
(A) instructions from the Holder of the Rule 144A Global
Note directing the Note Custodian and Registrar to issue one or
more IAI Notes in the amounts specified to the transferee IAI and,
debit or cause to be debited an equivalent amount of beneficial
interest in the Rule 144A Global Note, and
(B) a certificate in the form of Exhibit C from the IAI
transferee,
and (y) subject to the rules and procedures of DTC, the Note Custodian
and Registrar shall:
(A) authenticate and deliver to the IAI transferee IAI
Note(s) in an equivalent amount to the beneficial interest in the
Rule 144A Global Note being transferred in accordance with the
foregoing, and
(B) decrease the Rule 144A Global Note by such amount in
accordance with the foregoing.
(ii) If (1) the owner of a beneficial interest in a Rule 144A
Global Note wishes to transfer such interest (or portion thereof) to a
Non-U.S. Person pursuant to Regulation S and (2) such Non-U.S. Person
wishes to hold its interest in the Notes through a beneficial interest in
the Regulation S Global Note, (x) upon receipt by the Note Custodian and
Registrar of:
(A) instructions from the Holder of the Rule 144A Global
Note directing the Note Custodian and Registrar to credit or cause
to be credited a beneficial interest in the Regulation S Global
Note equal to the principal amount of the beneficial interest in
the Rule 144A Global Note to be transferred, and
(B) a certificate in the form of Exhibit D from the
transferor,
and (y) subject to the rules and procedures of DTC, the Note Custodian
and Registrar shall increase the Regulation S Global Note and decrease
the Rule 144A Global Note by such amount in accordance with the
foregoing.
(b) The following provisions shall apply with respect to any
proposed transfer of an interest in a Regulation S Global Note prior to the
expiration of the Distribution Compliance Period therefor:
(i) If the owner of a beneficial interest in a Regulation S
Global Note wishes to transfer such interest (or a portion thereof) to an IAI,
(x) upon receipt by the Note Custodian and Registrar of:
(A) instructions from the Holder of the Regulation S Global
Note directing the Note Custodian and Registrar to issue one or
more IAI Notes in specified amounts in the name of the transferee
IAI, and debit or cause to be debited an equivalent amount of
beneficial interest in the Regulation S Global Note, and
(B) a certificate in the form of Exhibit C from the IAI
transferee,
and (y) subject to the rules and procedures of DTC, the Note Custodian
and Registrar shall:
(1) authenticate and deliver to the IAI transferee IAI
Note(s) in an equivalent amount to the beneficial interest in the
Regulation S Global Note being transferred in accordance with the
foregoing, and
(2) decrease the Regulation S Global Note for such amount in
accordance with the foregoing.
(ii) If the owner of an interest in a Regulation S Global Note
wishes to transfer such interest (or any portion thereof) to a QIB pursuant to
Rule 144A, (x) upon receipt by the Note Custodian and Registrar of:
(A) instructions from the Holder of the Regulation S Global
Note directing the Note Custodian and Registrar to credit or cause
to be credited a beneficial interest in the Rule 144A Global Note
equal to the principal amount of the beneficial interest in the
Regulation S Global Note to be transferred, and
(B) a certificate in the form of Exhibit B duly executed by
the transferor,
and (y) in accordance with the rules and procedures of DTC, the Note
Custodian and Registrar shall increase the Rule 144A Global Note and
decrease the Regulation S Global Note by such amount in accordance with
the foregoing.
(c) The following provisions shall apply with respect to any
proposed transfer of an IAI Note (or portion thereof) that is a Restricted Note:
(i) If the Holder of an IAI Note wishes to transfer such IAI Note
(or a portion thereof) to a QIB pursuant to Rule 144A, (x) upon receipt
by the Note Custodian and Registrar of:
(A) such IAI Note, duly endorsed as provided herein,
(B) instructions from such Holder directing the Note
Custodian and Registrar to credit or cause to be credited a
beneficial interest in the Rule 144A Global Note equal to the
principal amount (or portion thereof) of such IAI Note to be
transferred, and, if the entire principal amount of such IAI Note
is not being transferred to issue one or more IAI Notes to the
transferor IAI in an amount equal to the principal amount not
transferred, and
(C) a certificate in the form of Exhibit B duly executed by
the transferor,
and (y) subject to the rules and procedures of DTC, the Note Custodian
and Registrar shall:
(1) cancel the IAI Note delivered to it,
(2) increase the Rule 144A Global Note in accordance with
the foregoing, and
(3) if applicable, issue to the IAI transferor one or more
IAI Note(s) in accordance with the foregoing;
(ii) If the Holder of an IAI Note wishes to transfer such IAI Note
(or any portion thereof) to an IAI, the Registrar shall authenticate and
deliver IAI Note(s) to the appropriate IAI(s) upon receipt by Registrar
of:
(A) such IAI Note, duly endorsed as provided herein,
(B) instructions from such Holder directing the Registrar to
issue one or more IAI Notes in the amounts specified to the
transferee IAI and, if the entire principal amount of such IAI Note
is not being transferred, the transferor IAI in an amount equal to
the principal amount not transferred, and
(C) a certificate in the form of Exhibit C duly executed by
the transferee.
(iii) If (1) the Holder of an IAI Note wishes to transfer such IAI
Note (or a portion thereof) to a Non-U.S. Person pursuant to Regulation S
and (2) such Non-U.S. Person wishes to hold its interest in the Notes
through a beneficial interest in the Regulation S Global Note, (x) upon
receipt by the Note Custodian and Registrar of:
(A) such IAI Note, duly endorsed as provided herein,
(B) instructions from the Holder of such IAI Note directing
the Registrar to credit or cause to be credited a beneficial
interest in the Regulation S Global Note equal to the principal
amount of the IAI Note (or portion thereof) to be transferred, and,
if the entire principal amount of such IAI Note is not being
transferred to issue one or more IAI Notes to the transferor IAI in
an amount equal to the principal amount not transferred, and
(C) a certificate in the form of Exhibit D from the
transferor,
and (y) subject to the rules and procedures of DTC, the Note Custodian
and Registrar shall:
(1) cancel the IAI Note delivered to it,
(2) increase the Regulation S Global Note for such amount in
accordance with the foregoing, and
(3) if applicable, issue to the IAI transferor one or more
IAI Note(s) in accordance with the foregoing.
(d) Other Transfers. Any transfer of Restricted Notes not described
above (other than a transfer of a beneficial interest in a Global Note that
does not involve an exchange of such interest for a Certificated Note or a
beneficial interest in another Global Note, which must be effected in
accordance with applicable law and the rules and procedures of DTC, but is not
subject to any procedure required by this Indenture) shall be made only upon
receipt by the Registrar of such opinions of counsel, certificates and/or other
information reasonably required by and satisfactory to it in order to ensure
compliance with the Securities Act or in accordance with paragraph (e) of this
Section 2.8.
(e) Use and Removal of Private Placement Legends. Upon the
transfer,exchange or replacement of Notes (or beneficial interests in a Global
Note) not bearing a Private Placement Legend, the Note Custodian and Registrar
shall exchange such Notes (or beneficial interests) for beneficial interests in
a Global Note (or Certificated Notes if they have been issued pursuant to
Section 2.6(c)) that does not bear a Private Placement Legend. Upon the
transfer, exchange or replacement of Notes (or beneficial interests in a Global
Note) bearing a Private Placement Legend, the Note Custodian and Registrar
shall deliver only Notes (or beneficial interests in a Global Note) that bear a
Private Placement Legend unless:
(i) such Notes (or beneficial interests) are exchanged in a
Registered Exchange Offer;
(ii) such Notes (or beneficial interests) are transferred pursuant
to a Registration Statement;
(iii) such Notes (or beneficial interests) are transferred
pursuant to Rule 144 upon delivery to the Registrar of a certificate of
the transferor in the form of Exhibit and an Opinion of Counsel
reasonably satisfactory to the Registrar;
(iv) such Notes (or beneficial interests) are transferred,
replaced or exchanged after the Resale Restriction Termination Date
therefor; or
(v) in connection with such transfer, exchange or replacement the
Registrar shall have received an Opinion of Counsel or other evidence
reasonably satisfactory to it to the effect that neither such Private
Placement Legend nor the related restrictions on transfer are required in
order to maintain compliance with the provisions of the Securities Act.
The Private Placement Legend on any Note shall be removed at the request of the
Holder on or after the Resale Restriction Termination Date therefor. The
Holder of a Global Note may exchange an interest therein for an equivalent
interest in a Global Note not bearing a Private Placement Legend (other than a
Regulation S Global Note) upon transfer of such interest pursuant to any of
clauses (i) through (v) of this paragraph (e). The Company shall deliver to
the Trustee an Officers' Certificate promptly upon effectiveness, withdrawal or
suspension of any Registration Statement.
(f) Consolidation of Global Notes and Exchange of Certificated
Notes for Beneficial Interests in Global Notes.
(i) If a Global Note not bearing a Private Placement Legend
(other than a Regulation S Global Note) is Outstanding at the time of a
Registered Exchange Offer, any interests in a Global Note exchanged in
such Registered Exchange Offer shall be exchanged for interests in such
Outstanding Global Note.
(ii) Upon the transfer or exchange (including pursuant to a
Registered Exchange Offer) of any Certificated Note for which a Private
Placement Legend would not be required pursuant to Section 2.8(e)
following such transfer or exchange, such Certificated Note shall be
exchanged for an interest in a Global Note (other than a Regulation S
Global Note) not bearing a Private Placement Legend and, if no such
Global Note is Outstanding at such time, Company shall execute and
upon Company Order the Trustee shall authenticate a Global Note not
bearing a Private Placement Legend.
(iii) Nothing in this Indenture shall provide for the
consolidation of any Notes with any other Notes to the extent that they
constitute, as determined pursuant to an Opinion of Counsel, different
classes of securities for U.S. federal income tax purposes.
(g) Retention of Documents. The Registrar shall retain copies of all
letters, notices and other written communications received pursuant to this
Article II. 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.
(h) Execution, Authentication of Notes, etc.
(i) Subject to the other provisions of this Section 2.8,
when Notes are presented to the Registrar or a co-Registrar with a
request to register the transfer of such Notes or to exchange such Notes
for an equal principal amount of Notes of other authorized denominations,
the Registrar or co-Registrar shall register the transfer or make the
exchange as requested if its requirements for such transaction are met;
provided that any Notes presented or surrendered for registration of
transfer or exchange shall be duly endorsed or accompanied by a written
instrument of transfer in form satisfactory to the Registrar or co-
Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing. To permit registrations of transfers and
exchanges and subject to the other terms and conditions of this
Article II, the Company will execute and upon Company Order the Trustee
will authenticate Certificated Notes and Global Notes at the Registrar's
or co-Registrar's request. In accordance with the Issue Date
Registration Rights Agreement, Company will execute and upon Company
Order the Trustee will authenticate Exchange Notes or Private Exchange
Notes, as the case may be, in exchange for Issue Date Notes.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any transfer tax, assessments, or similar governmental
charge payable in connection therewith (other than any such transfer taxes,
assessments or similar governmental charges payable upon exchange or transfer
pursuant to a Registered Exchange Offer or to Sections 3.9, 3.10, 5.1 or 9.5).
(iii) The Registrar or co-Registrar shall not be required to
register the transfer of or exchange of any Note for a period beginning:
(1) 15 days before the mailing of a notice of an offer to repurchase or redeem
Notes and ending at the close of business on the day of such mailing or (2) 15
days before an Interest Payment Date and ending on such Interest Payment Date.
(iv) Prior to the due presentation for registration of transfer of
any Note, the Company, the Trustee, the Paying Agent, the Registrar or any co-
Registrar may deem and treat the person in whose name a Note is registered as
the absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Note and for all other purposes whatsoever,
whether or not such Note is overdue, and none of the Company, the Trustee, the
Paying Agent, the Registrar or any co-Registrar shall be affected by notice to
the contrary.
(v) All Notes issued upon any transfer or exchange pursuant to the
terms of this Indenture shall evidence the same debt and shall be entitled to
the same benefits under this Indenture as the Notes surrendered upon such
transfer or exchange.
(i) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or obligation
to any beneficial owner of an interest in a Global Note, a member of, or
a participant in, DTC or other Person with respect to the accuracy of the
records of DTC or its nominee or of any participant or member thereof,
with respect to any ownership interest in the Notes or with respect to
the delivery to any participant, member, beneficial owner or other Person
(other than DTC) of any notice (including any notice of redemption) or
the payment of any amount or delivery of any Notes (or other security or
property) under or with respect to such Notes. All notices and
communications to be given to the Holders and all payments to be made to
Holders in respect of the Notes shall be given or made only to or upon
the order of the registered Holders (which shall be DTC or its nominee in
the case of a Global Note). The Trustee may rely and shall be fully
protected in relying upon information furnished by DTC with respect to
its members, participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to
monitor, determine or inquire as to compliance with any restrictions on
transfer imposed under this Indenture or under applicable law with
respect to any transfer of any interest in any Note (including any
transfers between or among DTC participants, members or beneficial owners
in any Global Note) other than to require delivery of such certificates
and other documentation or evidence as are expressly required by, and to
do so if and when expressly required by, the terms of this Indenture, and
to examine the same to determine substantial compliance as to form with
the express requirements hereof.
Section 2.9. Mutilated, Destroyed, Lost or Stolen Notes.
(a) If a mutilated Note is surrendered to the Registrar or if the
Holder of a Note claims that the Note has been lost, destroyed or wrongfully
taken, the Company shall execute and upon Company Order the Trustee shall
authenticate a replacement Note if the requirements of Section 8-405 of the
Uniform Commercial Code are met and the Holder satisfies any other reasonable
requirements of the Trustee. If required by the Trustee or the Company, such
Holder shall furnish an affidavit of loss and indemnity bond sufficient in the
judgment of the Company and the Trustee to protect the Company, the Trustee,
the Paying Agent, the Registrar and any co-Registrar from any loss that any of
them may suffer if a Note is replaced, and, in the absence of notice to the
Company or the Trustee that such Note has been acquired by a bona fide
purchaser, the Company shall execute and upon Company Order the Trustee shall
authenticate and make available for delivery, in exchange for any such
mutilated Note or in lieu of any such destroyed, lost or stolen Note, a new
Note of like tenor and principal amount, bearing a number not contemporaneously
Outstanding.
(b) Upon the issuance of any new Note under this Section 2.9, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) in connection
therewith.
(c) Every new Note issued pursuant to this Section 2.9 in exchange
for any mutilated Note, or in lieu of any destroyed, lost or stolen Note, shall
constitute an original additional contractual obligation of the Company, any
Note Guarantor and any other obligor upon the Notes, whether or not the
mutilated, destroyed, lost or stolen Note shall be at any time enforceable by
anyone, and shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
Section 2.10. Temporary Notes. Until definitive Notes are ready
for delivery, the Company may execute and upon Company Order the Trustee will
authenticate temporary Notes. Temporary Notes will be substantially in the form
of definitive Notes but may have variations that the Company considers
appropriate for temporary Notes. Without unreasonable delay, the Company will
prepare and execute and upon Company Order the Trustee will authenticate
definitive Notes. After the preparation of definitive Notes, the temporary
Notes will be exchangeable for definitive Notes upon surrender of the temporary
Notes at any office or agency maintained by the Company for that purpose and
such exchange shall be without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Notes, the Company will execute and
upon Company Order the Trustee will authenticate and make available for delivery
in exchange therefor one or more definitive Notes representing an equal
principal amount of Notes. Until so exchanged, the Holder of temporary Notes
shall in all respects be entitled to the same benefits under this Indenture as
a Holder of definitive Notes.
Section 2.11. Cancellation. The Company at any time may deliver
Notes to the Trustee for cancellation. The Registrar and the Paying Agent shall
forward to the Trustee any Notes surrendered to them for registration of
transfer, exchange or payment. The Trustee and no one else shall cancel and
dispose of cancelled Notes in accordance with its policy of disposal or return
to the Company all Notes surrendered for registration of transfer, exchange,
payment or cancellation. The Company may not issue new Notes to replace Notes
it has paid or delivered to the Trustee for cancellation for any reason other
than in connection with a transfer or exchange upon Company Order.
Section 2.12. Defaulted Interest. When any installment of interest
becomes Defaulted Interest, such installment shall forthwith cease to be payable
to the Holders in whose names the Notes were registered on the Record Date
applicable to such installment of interest. Defaulted Interest (including any
interest on such Defaulted Interest) may be paid by the Company, at its
election, as provided in clause (A) or (B) below.
(A) The Company may elect to make payment of any Defaulted
Interest (including any interest on such Defaulted Interest) to the
Holders in whose names the Notes are registered at the close of business
on a special record date for the payment of such Defaulted Interest (a
"Special Record Date"), which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid and the date of the proposed
payment, and at the same time the Company shall deposit with the Trustee
an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Holders entitled to such Defaulted Interest as provided in
this clause (A). Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest, which shall be not more than
15 calendar days and not less than ten calendar days prior to the date of
the proposed payment and not less than ten calendar days after the
receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record
Date therefor to be sent, first-class mail, postage prepaid, to each
Holder at such Holder's address as it appears in the registration books
of the Registrar, not less than ten calendar days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been mailed as aforesaid,
such Defaulted Interest shall be paid to the Holders in whose names the
Notes are registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following clause (B).
(B) Alternatively, the Company may make payment of any Defaulted
Interest (including any interest on such Defaulted Interest) in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which the Notes may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this clause (B), such manner
of payment shall be deemed practicable by the Trustee.
Section 2.13. Add On Notes. The Company may, from time to time,
subject to compliance with any other applicable provisions of this Indenture,
without the consent of the Holders, create and issue pursuant to this Indenture
an unlimited principal amount of Add On Notes having terms and conditions set
forth in Exhibit A identical to those of the other Outstanding Notes, except
that Add On Notes:
(i) may have a different issue date from other Outstanding Notes;
(ii) may have a different amount of interest payable on the first
Interest Payment Date after issuance than is payable on other Outstanding
Notes;
(iii) may have terms specified in the Add On Note Board Resolution
or Add On Note Supplemental Indenture for such Add On Notes making
appropriate adjustments to this Article II and Exhibit A (and related
definitions) applicable to such Add On Notes in order to conform to and
ensure compliance with the Securities Act (or other applicable securities
laws) and any registration rights or similar agreement applicable to such
Add On Notes, which are not adverse in any material respect to the Holder
of any Outstanding Notes (other than such Add On Notes); and
(iv) may be entitled to additional interest or liquidated damages
as provided in Section 2.14 not applicable to other Outstanding Notes and
may not be entitled to such additional interest or liquidated damages
applicable to other Outstanding Notes.
Section 2.14. Additional Interest Under Registration Rights
Agreements. Under certain circumstances, the Company may be obligated to pay
additional interest or liquidated damages to Holders, all as and to the extent
set forth in the Issue Date Registration Rights Agreement or any Registration
Rights Agreement applicable to Add On Notes. The terms thereof are hereby
incorporated herein by reference and such additional interest or liquidated
damages is deemed to be interest for purposes of this Indenture.
ARTICLE III
COVENANTS
Section 3.1. Payment of Notes.
(a) The Company shall pay the principal of and interest (including
Defaulted Interest) on the Notes in U.S. Legal Tender on the dates and in the
manner provided in the Notes and in this Indenture. Prior to 10:00 a.m. New
York City time on each Interest Payment Date and the Maturity Date, the Company
shall deposit with the Paying Agent in immediately available funds U.S. Legal
Tender sufficient to make cash payments due on such Interest Payment Date or
Maturity Date, as the case may be. If the Company, a Note Guarantor or an
Affiliate of the Company or a Note Guarantor is acting as Paying Agent, the
Company, such Note Guarantor or such Affiliate shall, prior to 10:00 a.m. New
York City time on each Interest Payment Date and the Maturity Date, segregate
and hold in trust U.S. Legal Tender sufficient to make cash payments due on
such Interest Payment Date or Maturity Date, as the case may be. Principal and
interest shall be considered paid on the date due if on such date the Trustee
or the Paying Agent (other than the Company, a Note Guarantor or an Affiliate
of the Company or a Note Guarantor) holds in accordance with this Indenture
U.S. Legal Tender designated for and sufficient to pay all principal and
interest then due and the Trustee or the Paying Agent, as the case may be, is
not prohibited from paying such money to the Holders on that date pursuant to
the terms of this Indenture.
(b) Notwithstanding anything to the contrary contained in this
Indenture, the Company may, to the extent it is required to do so by law,
deduct or withhold income or other similar taxes imposed by the United States
of America from principal or interest payments hereunder.
Section 3.2. Maintenance of Office or Agency.
(a) The Company shall maintain each office or agency required
under Section 2.3. The Company will give prompt written notice to the Trustee
of any change in the location of any 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 Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
(b) The Company may also from time to time designate one or more
other offices or agencies (in or outside of The City of New York) where the
Notes may be presented or surrendered for any or all such purposes and may from
time to time rescind any such designation; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in The City of New York for such
purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and any change in the location of any such other
office or agency.
Section 3.3. Corporate Existence. Subject to Article IV, the
Company will do or cause to be done all things necessary to preserve and keep
in full force and effect its corporate existence.
Section 3.4. Payment of Taxes and Other Claim. The Company will
pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (i) all taxes, assessments and governmental charges levied
or imposed upon the Company or any Subsidiary or for which it or any of them is
otherwise liable, or upon the income, profits or property of the Company or any
Subsidiary and (ii) all lawful claims for labor, materials and supplies, which,
if unpaid, might by law become a liability or Lien upon the property of the
Company or any Subsidiary; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings and for which appropriate
reserves, if necessary (in the good faith judgment of management of the
Company), are being maintained in accordance with GAAP or where the failure to
effect such payment will not be disadvantageous to the Holders.
Section 3.5. Compliance Certificate. (a) The Company shall
deliver to the Trustee within 120 calendar days after the end of each fiscal
year of the Company an Officers' Certificate that complies with TIA
{section} 314(a)(4) stating that in the course of the performance by the
signers of their duties as Officers of the Company they would normally have
knowledge of any Default or Event of Default and whether or not the signers
know of any Default or Event of Default that occurred during such period. If
they do, the certificate shall describe the Default or Event of Default, its
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 year-end
financial statements delivered pursuant to Section 3.18 hereof shall be
accompanied by a written statement of the Company's independent public
accountants (who shall be a firm of established national reputation) that in
making the examination necessary for certification of such financial
statements, nothing has come to their attention that would lead them to believe
that the Company has violated any provisions of Article III or Article IV
hereof or, if any such violation has occurred, specifying the nature and period
of existence thereof, it being understood that such accountants shall not be
liable directly or indirectly to any Person for any failure to obtain knowledge
of any such violation.
Section 3.6. Further Instruments and Acts. The Company and each
Note Guarantor will execute and deliver such further instruments and do such
further acts as may be reasonably necessary or proper or as the Trustee may
reasonably request to carry out more effectively the purpose of this Indenture.
Section 3.7. Waiver of Stay, Extension or Usury Laws. The Company
and each Note Guarantor covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law or any
usury law or other law that would prohibit or forgive the Company or such Note
Guarantor from paying all or any portion of the principal of or interest on the
Notes as contemplated herein, wherever enacted, now or at any time hereafter in
force, or which may affect the covenants or the performance of this Indenture.
The Company and each Note Guarantor hereby expressly waives (to the extent that
it may lawfully do so) all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
Section 3.8. Investment Grade Ratings Suspension of Covenants.
(a) During any period of time that (i) the Notes have an
Investment Grade Rating and (ii) no Default or Event of Default has occurred
and is continuing under the Indenture with respect to the Notes, the Company
and its Subsidiaries will not be subject to Sections 3.9, 3.12., 3.13, 3.15 and
4.1(a)(iii) (collectively, the "Suspended Covenants").
(b) In the event that the Company and its Subsidiaries are not
subject to the Suspended Covenants for any period of time as a result of the
preceding paragraph and, subsequently, either S&P or Xxxxx'x withdraws its
rating or assigns the Notes a rating below an Investment Grade Rating, the
Company and Subsidiaries will thereafter again be subject to the Suspended
Covenants, and compliance with the Suspended Covenants with respect to
Restricted Payments made after the time of such withdrawal or assignment will
be calculated in accordance with the terms of Section 3.12, as if such
provisions had been in effect continuously from the Issue Date.
Section 3.9. Limitation on Asset Sales.
(a) The Company will not, and will not permit any of the
Subsidiaries to, directly or indirectly, make an Asset Sale (except an Exempt
Asset Sale, as defined below) unless:
(i) the Company (or such Subsidiary of the Company) receives
consideration at the time of such Asset Sale at least equal to the fair
market value of the assets sold or otherwise disposed of, and in the case
of a lease of assets, a lease providing for rent and other conditions
which are no less favorable to the Company (or such Subsidiary) in any
material respect than the then prevailing market conditions, evidenced in
each case by a resolution of the Board of Directors of such entity set
forth in an officers' certificate delivered to the Trustee, and
(ii) at least 75% (100% in the case of lease payments) of the
consideration therefor received by the Company or such Subsidiary is in
the form of cash or Cash Equivalents.
An "Exempt Asset Sale" means an Asset Sale on or after the date of the
Indenture (i) the Net Proceeds of which plus the Net Proceeds of all other
Asset Sales concurrently or previously made on or after the date of the
Indenture do not exceed $25.0 million and (ii) the Net Proceeds of which plus
the Net Proceeds of all other Asset Sales concurrently or previously made in
the same fiscal year do not exceed $10.0 million.
(b) The Company may apply, and may permit its Subsidiaries to
apply, Net Proceeds of an Asset Sale (other than an Exempt Asset Sale), at the
Company's option, within 270 days after the consummation of such an Asset Sale:
(i) to permanently reduce any of the Company's outstanding
Indebtedness (and to correspondingly reduce the commitments, if any) that
ranks equal in right of payment with the Notes or, in the case of Net
Proceeds of an Asset Sale by any Subsidiary of the Company, to
permanently reduce (i) any of the Company's outstanding Indebtedness (and
to correspondingly reduce the commitments, if any) that ranks equal in
right of payment with the Notes or (ii) any outstanding Indebtedness
(which in the case of Note Guarantors ranks equal in right of payment to
the relevant Note Guarantees) of such Subsidiary (and to correspondingly
reduce the commitments, if any, with respect thereto);
(ii) to acquire another business or other long-term assets, in
each case, in, or used or useful in, the same or a similar line of
business as the Company or any of its Subsidiaries was engaged in on the
date of the Indenture and which has not been discontinued on or prior to
the date of such acquisition or any reasonable extensions or expansions
thereof (including the Capital Stock of another Person engaged in such
business, provided that such other Person is, or immediately after giving
effect to any such acquisition shall become, a Wholly Owned Subsidiary of
the Company or the Investment in such Person otherwise constitutes an
Investment in a Joint Venture permitted by the provisions described in
the next to the last paragraph in Section 3.12); or
(iii) to reimburse the Company or its Subsidiaries for expenditures
made, and costs incurred, to repair, rebuild, replace or restore property
subject to loss, damage or taking to the extent that the Net Proceeds
consist of insurance proceeds received on account of such loss, damage or
taking.
Pending the final application of any such Net Proceeds, the Company
may (a) use such Net Proceeds to reduce temporarily any of its outstanding
Indebtedness that ranks equal in right of payment with the Notes or, in the
case of Net Proceeds of an Asset Sale by any Subsidiary of the Company, to
reduce temporarily (i) any of the Company's outstanding Indebtedness that ranks
equal in right of payment with the Notes or (ii) any outstanding Indebtedness
of such Subsidiary or (b) otherwise invest such Net Proceeds temporarily in
Cash Equivalents.
(c) Any Net Proceeds from Asset Sales (other than Exempt Asset
Sales) that are not applied as provided in Section 3.9(b) within 270 days after
the consummation of such an Asset Sale will be deemed to constitute "Excess
Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 million,
the Company will be required to make an offer to all Holders of Notes, 2006
Senior Notes and 2011 Senior Notes then outstanding (an "Asset Sale Offer") to
purchase, on a pro rata basis, the principal amount of Notes, 2006 Senior Notes
and 2011 Senior Notes equal in amount to the Excess Proceeds (and not just the
amount thereof that exceeds $10.0 million), at a purchase price in cash in an
amount equal to 100% of the principal amount thereof plus accrued and unpaid
interest thereon to the date of purchase, in accordance with the procedures set
forth in the applicable indenture. If the aggregate principal amount of Notes,
2006 Senior Notes and 2011 Senior Notes surrendered by Holders thereof exceeds
the amount of Excess Proceeds, the Trustee shall first select 2006 Senior Notes
to be purchased and, if any Excess Proceeds remain, shall then select 2011
Senior Notes to be purchased and, if any Excess Proceeds remain, shall then
select Notes to be purchased, in each case, on a pro rata basis. If the
aggregate principal amount of Notes, 2006 Seniors Notes and 2011 Senior Notes
tendered pursuant to such Asset Sale Offer is less than the Excess Proceeds,
the Company may use any remaining Excess Proceeds following the completion of
the Asset Sale Offer for general corporate purposes (subject to the other
provisions of the Indenture), and the amount of Excess Proceeds then required
to be otherwise applied in accordance with this covenant shall be reset to
zero, subject to any subsequent Asset Sale. These provisions will not apply to
a transaction consummated in compliance with the provisions of the Indenture
pursuant to Section 4.1.
(d) In the event of the transfer of substantially all (but not
all) of the Company's property and assets and its Subsidiaries as an entirety
to a Person in a transaction permitted in Section 4.1, the successor
corporation shall be deemed to have sold the Company's properties and assets
and those of the Subsidiaries not so transferred for purposes of this covenant,
and shall comply with the provisions of this covenant with respect to such
deemed sale as if it were an Asset Sale. In addition, the fair market value of
such properties and assets of the Company or its Subsidiaries deemed to be sold
shall be deemed to be Net Proceeds for purposes of this Section 3.9.
(e) If at any time any non-cash consideration received by the
Company or any Subsidiary in connection with any Asset Sale is converted into
or sold or otherwise disposed of for cash, then such conversion or disposition
shall be deemed to constitute an Asset Sale hereunder and the Net Proceeds
thereof shall be applied in accordance with this covenant.
(f) The Company will comply with the requirements of Section
14(e) of, and Rule 14e-1 under, the Exchange Act and any other securities laws
and regulations thereunder to the extent such laws and regulations are
applicable in connection with the repurchase of Notes as a result of a Change
of Control or an Asset Sale.
(g) The Company may use Net Proceeds from Exempt Asset Sales for
general corporate purposes (subject to the other provisions of this Indenture).
Section 3.10. Change of Control.
(a) Upon the occurrence of a Change of Control, each Holder of
Notes will have the right to require the Company to repurchase all or any part
(equal to $1,000 or an integral multiple thereof) of such Holder's Notes
pursuant to the offer described below (the "Change of Control Offer") at a
purchase price (the "Change of Control Purchase Price") in cash equal to 101%
of the aggregate principal amount thereof plus accrued and unpaid interest
thereon to the date of purchase (the "Change of Control Payment Date").
(b) Within 30 days after the date of any Change of Control, the
Company, or the Trustee at the Company's request and expense, will mail by
first-class mail, postage prepaid, a Change of Control Offer Notice to each
Holder (with a copy to the Trustee, if sent by the Company) describing the
transaction or transactions that constitute the Change of Control and offering
to repurchase Notes at the Change in Control Purchase Price and pursuant to the
procedures required by this Indenture and described in such notice.
(c) The Change of Control Payment Date shall be a Business Day
not less than 30 days nor more than 60 days after such notice is mailed. On
the Change of Control Payment Date, the Company will:
(i) accept for payment all Notes or portions thereof properly
tendered pursuant to the Change of Control Offer;
(ii) deposit with the Paying Agent an amount equal to the
Change of Control Purchase Price in respect of all Notes or
portions thereof so tendered; and
(iii) deliver or cause to be delivered to the Trustee the
Notes so tendered together with an Officers' Certificate stating
the aggregate principal amount of Notes or portions thereof being
purchased by the Company.
(d) The Paying Agent will promptly mail to each Holder of Notes
so tendered the Change of Control Purchase Price for such Notes, and the
Trustee will promptly authenticate and deliver to each Holder a new Note equal
in principal amount to any unpurchased portion of the Notes surrendered, if
any; provided that each such new Note will be in a principal amount of $1,000
or an integral multiple thereof.
(e) The Company will publicly announce the results of the Change
of Control Offer on or as soon as practicable after the Change of Control
Payment Date.
Section 3.11. Ownership of and Liens on Capital Stock of
Subsidiaries.
(a) The Company (i) will not permit any Person (other than the
Company or any Wholly Owned Subsidiary of the Company) to own any Capital Stock
of any Subsidiary of the Company or any Lien thereon;
(ii) will not, and will not permit any Subsidiary of the Company
to, transfer, convey, sell or otherwise dispose of any shares of Capital
Stock of such Subsidiary or any other Subsidiary (except to the Company
or to a Wholly Owned Subsidiary of the Company); and
(iii) will not permit any Subsidiary of the Company to issue
Capital Stock or securities convertible into, or warrants, rights or
options to subscribe for or purchase shares of, its Capital Stock to any
Person (except to the Company or to a Wholly Owned Subsidiary of the
Company) or create, incur, assume or suffer to exist any Lien thereon, in
each case except:
(A) directors' qualifying shares;
(B) shares of Capital Stock issued prior to the time such
Person became a Subsidiary of the Company, provided that such
Capital Stock was not issued in anticipation of such transaction;
(C) if such Subsidiary merges with any other Subsidiary of
the Company;
(D) if such Subsidiary ceases to be a Subsidiary of the
Company as a result of the sale of all of the issued and
outstanding shares of Capital Stock of such Subsidiary owned by the
Company or any Subsidiary of the Company;
(E) for purposes of clause (i) above, shares of Capital
Stock of the Company's Subsidiaries that are not Wholly Owned
Subsidiaries of the Company on the date of the Indenture, which
shares are not owned by the Company or any Wholly Owned Subsidiary
of the Company, as set forth in Schedule A hereof; and
(F) for purposes of clauses (i) and (iii) above, Liens on
Capital Stock of any Subsidiary of the Company granted in
accordance with the first sentence in Section 3.14.
Section 3.12. Limitation on Restricted Payments. (a) The Company
will not, and will not permit any of its Subsidiaries to, directly or
indirectly, take any of the following actions:
(i) declare or pay any dividend or make any distribution of any
kind or character (whether in cash, securities or other property) on
account of any class of the Company's or any of its Subsidiaries' Equity
Interests or to the holders thereof (including, without limitation, any
payment to the Company's stockholders in connection with a merger or
consolidation involving the Company), other than (a) dividends or
distributions payable solely in the Company's Equity Interests (other
than Disqualified Stock) or (b) dividends or distributions payable solely
to the Company or any of its Wholly Owned Subsidiaries and, if such
Subsidiary is not a Wholly Owned Subsidiary of the Company, payable
simultaneously to its minority shareholders on a pro rata basis;
(ii) purchase, repurchase, redeem or otherwise acquire or retire
for value any Equity Interests of the Company or any Subsidiary or other
Affiliate of the Company (other than any such Equity Interests owned by
the Company or any Wholly Owned Subsidiary of the Company);
(iii) make any principal payment on, or purchase, repurchase,
redeem, defease or otherwise acquire or retire for value any Indebtedness
of the Company or any Note Guarantor that is subordinated to the Notes or
the relevant Note Guarantees prior to any scheduled repayment date,
sinking fund payment date or final maturity date, except= the purchase,
redemption or acquisition by the Company of Indebtedness of the Company
or any Note Guarantor through the issuance in exchange therefor of the
Company's Equity Interests (other than Disqualified Stock); or
(iv) make any Investment (other than Permitted Investments) (all
such payments and other actions set forth in clauses (i) through (iv)
being collectively referred to as "Restricted Payments"), unless, at the
time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and
be continuing or would occur as a consequence thereof;
(b) at the time of such Restricted Payment and after giving
pro forma effect thereto as if such Restricted Payment had been
made at the beginning of the applicable four-quarter period, the
Company would have been permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Consolidated Interest
Coverage Ratio test set forth in Section 3.13(a)(i); and
(c) such Restricted Payment, together with the aggregate
amount of all other Restricted Payments declared or made by the
Company and its Subsidiaries on or after April 1, 1996 (excluding
Restricted Payments permitted by clauses (ii), (iii), and (iv) of
the next paragraph and excluding Restricted Payments permitted by
the next to the last paragraph under this caption), is less than
the sum of
(i)$20.0 million, plus
(ii)50% of the Consolidated Net Income of the Company for the
period (taken as one accounting period) from the beginning
of the fiscal quarter commencing April 1, 1996 to the end
of the Company's most recently ended fiscal quarter for
which internal financial statements are available at the
time of such Restricted Payment (or, if such Consolidated
Net Income for such period is a deficit, less 100% of such
deficit), plus
(iii) 100% of the aggregate net cash proceeds received by the
Company from the issue or sale after May 29, 1996 of
Equity Interests of the Company or of debt securities of
the Company that have been converted into such Equity
Interests (other than Equity Interests (or convertible
debt securities) sold to a Subsidiary of the Company's and
other than Disqualified Stock or debt securities that have
been converted into Disqualified Stock).
(b) The foregoing clauses (b) and (c) of Section 3.12(a)(iv),
however, will not prohibit (i) the payment of any dividend on any class of
Capital Stock of the Company or any of its Subsidiaries, within 60 days after
the date of declaration thereof, if on the date when such dividend was declared
such payment would have complied with the provisions of the Indenture; (ii) the
making of any Investment in exchange for, or out of the proceeds of, the
substantially concurrent sale (other than by a subsidiary of the Company) of
other Equity Interests of the Company (other than any Disqualified Stock),
provided that any net cash proceeds that are used for any such Investment, and
any Net Income resulting therefrom, shall be excluded from clause (c) of
Section 3.12(a)(iv) above; (iii) the redemption, repurchase or other
acquisition or retirement of any Equity Interest in the Company in exchange
for, or out of the proceeds of, the substantially concurrent sale (other than a
subsidiary of the Company) of other Equity Interests of the Company (other than
any Disqualified Stock); provided that any net cash proceeds that are used for
such redemption, repurchase retirement or other acquisition, and any Net Income
resulting therefrom, shall be excluded from clause (c) of Section 3.12(a)(iv)
above, or (iv) the defeasance, redemption or repurchase of Indebtedness that is
subordinated to the Notes or any Note Guarantees, as the case may be, with the
net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
provided that any net cash proceeds that are used for any such defeasance,
redemption or repurchase shall be excluded from clause (c) of Section
3.12(a)(iv) above.
(c) The foregoing clause (c) of Section 3.12(a)(iv), however,
will not prohibit the Company or any of its Subsidiaries from making any
Investment in Joint Ventures in the tobacco business on or after the date of
the Indenture, provided that the amount of any such Investment, together with
the aggregate amount of all other such Investments in Joint Ventures made on or
after April 1, 1996, shall not at any time exceed 15% of the Consolidated
Tangible Net Worth of the Company as of the last day of the quarterly period
most recently ended prior to the date of such Investment for which internal
financial statements of the Company are available.
(d) The amount of all Restricted Payments (other than cash) shall
be the fair market value (evidenced by a resolution of the Board of Directors
set forth in an officers' certificate delivered to the Trustee) on the date of
the Restricted Payment of the asset(s) proposed to be transferred by the
Company or such Subsidiary, as the case may be, pursuant to the Restricted
Payment. Not later than the date of making any Restricted Payment, the Company
will deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by this Section 3.12, which calculations may be based
upon the Company's latest available financial statements.
Section 3.13. Incurrence of Indebtedness and Issuance of Preferred
Stock.
(a) The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, create, incur, issue, assume,
guarantee or otherwise become directly or indirectly liable, contingently or
otherwise, with respect to (collectively, "incur") any Indebtedness (including
Acquired Indebtedness) and the Company will not issue any Disqualified Stock
and will not permit any of its Subsidiaries to issue any shares of preferred
stock; provided, however, that the Company and any Note Guarantor may incur
Indebtedness (including Acquired Indebtedness) and the Company may issue shares
of Disqualified Stock if:
(i) the Consolidated Interest Coverage Ratio for the Company's
most recently ended four full fiscal quarters for which internal
financial statements are available immediately preceding the date on
which such additional Indebtedness is incurred or such Disqualified Stock
is issued would have been at least 2.75 to 1.0, determined on a pro forma
basis (including a pro forma application of the net proceeds therefrom),
as if the additional Indebtedness had been incurred, or the Disqualified
Stock had been issued, as the case may be, at the beginning of such four-
quarter period; and
(ii) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof; provided that no
guarantee may be incurred pursuant to this paragraph, unless the
guaranteed Indebtedness is incurred by the Company pursuant to this
paragraph.
(b) The foregoing provisions will not apply to:
(i) the incurrence (a) by the Company of Permitted Refinancing
Indebtedness in exchange for, or the net proceeds of which are used to
extend, refinance, renew, replace, defease or refund, any outstanding
Indebtedness incurred pursuant to the first paragraph of this covenant,
2011 Senior Notes, Debentures or Notes permitted under clause (ii)
below, or (b) by Note Guarantors of Guarantees of Permitted Refinancing
Indebtedness incurred by the Company pursuant to this clause (i) except
in respect of the Debentures;
(ii) the incurrence (a) by the Company of Indebtedness represented
by the Notes issued on the Issue Date and exchange notes issued
therefor, or (b) by Note Guarantors of any Note Guarantees in respect
thereof or in respect of Add On Notes incurred in accordance herewith;
(iii)the incurrence by the Company of Indebtedness under the
Credit Facility in an aggregate principal amount at any time outstanding
(with letters of credit being deemed to have a principal amount equal to
the maximum potential liability of the Company and its Subsidiaries
thereunder) not to exceed $175 million, less the aggregate amount of all
Net Proceeds of Asset Sales applied to permanently reduce the
outstanding amount of such Indebtedness (and to correspondingly reduce
the commitments, if any, with respect thereto) pursuant to Section 3.9,
it being understood that any amounts outstanding under the Credit
Facility on the Issue Date are deemed to be incurred under this clause
(iii);
(iv) the incurrence by the Company or any of its Subsidiaries of
Indebtedness in an aggregate principal amount at any time outstanding
not to exceed the sum of (a) 50% of Eligible Inventory, plus (b) 75% of
Eligible Receivables; provided that (I) the aggregate principal amount
of any such Indebtedness incurred by Subsidiaries of the Company at any
time outstanding shall not exceed the greater of (X) the aggregate
principal amount of Advances on Purchases of Tobacco outstanding at such
time and (Y) the sum of (A) 50% of Eligible Inventory of all such
Subsidiaries, plus (B) 75% of Eligible Receivables of all such
Subsidiaries, (II) no more than $50.0 million of such Indebtedness may
be secured by Liens on assets or property of the Company's Subsidiaries
and (III) none of such Indebtedness may be secured by Liens on assets or
properties of the Company;
(v) the incurrence by the Company or any of its Subsidiaries of
Indebtedness used to fund Advances on Purchases of Tobacco, but only to
the extent that the aggregate principal amount of such advances
outstanding at any time, including Advances outstanding on the Issue
Date, to any Person and such Person's Affiliates does not exceed 15% of
the Consolidated Tangible Net Worth of the Company for the most recently
ended fiscal quarter for which internal financial statements are
available;
(vi) the incurrence by the Company or any of its Subsidiaries of
Indebtedness represented by Purchase Money Obligations or Capital Lease
Obligations, in each case incurred for the purpose of financing all or
any part of the purchase price or cost of construction or improvement of
property used in the business of the Company or such Subsidiary, or any
Permitted Refinancing Indebtedness thereof; provided that (a) the
aggregate principal amount of any such Indebtedness does not exceed 100%
of the purchase price or cost of the property to which such Indebtedness
relates, (b) the Indebtedness is incurred within 180 days (or 360 days,
in the case of such Indebtedness incurred to finance property used in
the business of any of the Company's Subsidiaries that is not organized
under the laws of the United States of America, any state thereof or the
District of Columbia) of the acquisition, construction or improvement of
such property and (c) the aggregate principal amount of such
Indebtedness outstanding, together with the aggregate principal amount
of Attributable Indebtedness with respect to Sale and Leaseback
Transactions permitted under clause (vii) below, at any time shall not
exceed $15.0 million;
(vii)Attributable Indebtedness with respect to Sale and Leaseback
Transactions permitted pursuant to Section 3.16; provided that the
aggregate principal amount of such Indebtedness outstanding, together
with the aggregate principal amount of Indebtedness permitted under
clause (vi) above, at any time shall not exceed $15.0 million;
(viii)(a) the incurrence by the Company or any of its Wholly Owned
Subsidiaries of intercompany Indebtedness owing to the Company or any of
its Subsidiaries, (b) the incurrence by any Subsidiary of the Company
that is not a Wholly Owned Subsidiary of Indebtedness owing to the
Company or any of its Wholly Owned Subsidiaries, or (c) the incurrence
by the Company or any of its Subsidiaries of Indebtedness in an
aggregate principal amount outstanding at any time not to exceed $5.0
million for the purpose of making advances to Subsidiaries that are not
Wholly Owned Subsidiaries of the Company or to Joint Ventures in which
the Company or any of its Subsidiaries owns an interest; provided that
Indebtedness may be incurred pursuant to clauses (b) and (c) only if and
to the extent that the Investment constituting such Indebtedness shall
be permitted pursuant to Section 3.12; and provided further that, for
purposes of clauses (a) and (b), (I) in the case of Indebtedness of the
Company, such obligations and any trade payables owed by the Company to
any of its Subsidiaries shall be unsecured and subordinated in case of
an Event of Default in all respects to the Company's obligations
pursuant to the Notes; and (II)(X) any subsequent issuance or transfer
of Equity Interests that results in any such Indebtedness being held by
a Person other than the Company or a Wholly Owned Subsidiary of the
Company and (Y) any sale or other transfer of any such Indebtedness to a
Person that is not either the Company or a Wholly Owned Subsidiary of
the Company shall be deemed, in each case, to constitute an incurrence
of such Indebtedness by the Company or such Subsidiary, as the case may
be, to which this clause (viii) no longer applies;
(ix) the incurrence by the Company or any of its Subsidiaries of
Hedging Obligations;
(x) the incurrence by the Company or any of its Subsidiaries of
Indebtedness with respect to letters of credit issued to customers to
secure an obligation to deliver tobacco for which the customer has
prepaid the purchase price in cash, but only to the extent of the amount
of such cash prepayment; and
(xi) the incurrence by the Company or any of its Subsidiaries of
Indebtedness (in addition to Indebtedness permitted by any other clause
of this paragraph) in an aggregate principal amount at any time
outstanding not to exceed $15.0 million.
(c) The Company shall not, and shall not permit any Note
Guarantor to, directly or indirectly in any event incur any Indebtedness that
by its terms (or by the terms of any agreement governing such Indebtedness) is
subordinated to any other Indebtedness of the Company, unless such Indebtedness
is also by its terms (or by the terms of any agreement governing such
Indebtedness) made expressly subordinate in right of payment to the Notes or
the relevant Note Guarantee to the same extent and in the same manner as such
Indebtedness is subordinated pursuant to subordination provisions that are most
favorable to the holders of any other Indebtedness of the Company or the
relevant Note Guarantor.
Section 3.14. Liens.
The Company shall not, and shall not permit any Note Guarantor to,
directly or indirectly, create, incur, assume or suffer to exist any Lien on
any of the Company's assets, now owned or hereafter acquired, securing any
Indebtedness unless the Notes, in the case of the Company, or the Note
Guarantees, in the case of the Note Guarantors, are secured equally and ratably
with such other Indebtedness; provided that, if such Indebtedness is by its
terms subordinate to the Notes or the relevant Note Guarantees, the Lien
securing such subordinate or junior Indebtedness shall be subordinate and
junior to the Lien securing the Notes or the relevant Note Guarantees with the
same relative priority as such subordinated or junior Indebtedness shall have
with respect to the Notes or the relevant Note Guarantees. The foregoing
restrictions shall not apply to the following Liens:
(i) Liens securing only Existing Indebtedness, in an aggregate
principal amount not greater than $3.2 million;
(ii) Liens securing only the Notes or Note Guarantees;
(iii) Liens in favor of the Company;
(iv) Liens to secure Indebtedness incurred for the purpose of
financing all or any part of the purchase price or cost of construction
or improvement of the property subject to such Liens and permitted by the
provisions of the Indenture described above under clause (vi) of the
second sentence of Section 3.13; provided that such Lien does not extend
to or cover any property other than such item of property and any
improvements on such item;
(v) Liens on property existing immediately prior to the time of
acquisition thereof (and not created in anticipation or contemplation of
such acquisition or the financing of such acquisition) and securing
Acquired Indebtedness; provided that such Lien does not extend to or
cover any property other than such item of property and any improvements
on such item;
(vi) Liens on property of a Person existing at the time such
Person is merged with or into or consolidated with the Company or any
Note Guarantor (and not created in anticipation or contemplation thereof)
and securing Acquired Indebtedness; provided that such Lien does not
extend to or cover any property other than such item of property and any
improvements on such item;
(vii) Liens securing Attributable Indebtedness of the Company
incurred with respect to Sale and Leaseback Transactions; provided that
such Lien does not extend to or cover any property other than the
property sold and leased back pursuant to such Sale and Leaseback
Transaction; and
(viii)Liens to secure Permitted Refinancing Indebtedness of any
Indebtedness secured by Xxxxx referred to in the foregoing clause (i),
(iv), (v) or (vi) so long as such Lien does not extend to any other
property.
Section 3.15. Dividend and Other Payment Restrictions Affecting
Subsidiaries.
The Company will not, and will not permit any of its Subsidiaries
to, directly or indirectly, create or otherwise cause or suffer to exist or
become effective any encumbrance or restriction on the ability of any of the
Company's Subsidiaries to
(i) (a) pay dividends or make any other distributions to the
Company or any of its Subsidiaries on its Capital Stock or with respect
to any other interest or participation in, or measured by, its profits,
or (b) pay any Indebtedness or other obligation owed to the Company or
any of its Subsidiaries;
(ii) make loans or advances to the Company or any of its
Subsidiaries;
(iii) sell, lease or transfer any of its properties or assets to
the Company or any of its Subsidiaries; or
(iv) guarantee the obligations of the Company evidenced by the
Notes or any renewals, refinancings, exchanges, refundings or extensions
thereof, except for such encumbrances or restrictions existing under or
by reason of (a) the Indenture and the Notes, (b) applicable law, (c) any
instrument governing Acquired Indebtedness or Capital Stock of a Person
acquired by the Company or any of its Subsidiaries as in effect at the
time of such acquisition (except to the extent such Acquired Indebtedness
was incurred in connection with or in contemplation of such acquisition),
which encumbrance or restriction is not applicable to any Person, or the
properties or assets of any Person, other than the Person, or the
property or assets of the Person, so acquired, provided that the
Consolidated Net Income of such Person is not taken into account in
determining whether such acquisition was permitted by the terms of the
Indenture, (d) any document or instrument governing Indebtedness incurred
pursuant to clause (vi) or (vii) of the second paragraph of Section 3.13,
provided that any such restriction contained therein relates only to the
asset or assets constructed or acquired in connection therewith, or (e)
Permitted Refinancing Indebtedness of Indebtedness described in clause
(c) hereof, provided that the restrictions contained in the agreements
governing such Permitted Refinancing Indebtedness are no more restrictive
than those contained in the agreements governing the Indebtedness being
refinanced.
Section 3.16. Limitation on Sale and Leaseback Transactions.
The Company will not, and will not permit any of its Subsidiaries
to, enter into any Sale and Leaseback Transaction unless
(a) after giving pro forma effect to any such Sale and Leaseback
Transaction, the Company or such Subsidiary, as the case may be, could
incur the Attributable Indebtedness relating to such Sale and Leaseback
Transaction as provided for in Sections 3.13 and 3.14;
(b) the gross cash proceeds of such Sale and Leaseback Transaction
are at least equal to the fair market value of such property, as
determined by the Board of Directors of the Company, such determination
to be evidenced by a resolution of the Board of Directors of the Company;
(c) the aggregate rent payable by the Company or such Subsidiary in
respect of such Sale and Leaseback Transaction is not in excess of the
fair market rental value of the property leased pursuant to such Sale and
Leaseback Transaction; and
(d) the Company applies the Net Proceeds of the property sold
pursuant to the Sale and Leaseback Transaction as provided in Section
3.9.
Section 3.17. Transactions with Affiliates.
The Company will not, and will not permit any of its Subsidiaries
to, directly or indirectly, after the date of the Indenture, in any one
transaction or a series of related transactions, sell, lease, transfer or
otherwise dispose of any of its properties, assets or services to, or make any
payment to, or purchase any property, assets or services from, or enter into or
make any agreement, loan, advance or guarantee with, or for the benefit of, any
Affiliate (each of the foregoing, an "Affiliate Transaction"), other than
Exempt Affiliate Transactions, unless
(i) such Affiliate Transaction is on terms that are no less
favorable to the Company or the relevant Subsidiary than those that would
have been obtained in a comparable arm's length transaction by the
Company or such Subsidiary with a Person that is not an Affiliate and
(ii) the Company delivers to the Trustee (a) with respect to any
Affiliate Transaction entered into after the date of the Indenture
involving aggregate consideration in excess of $1.0 million, a resolution
of the Board of Directors of the Company set forth in an officers'
certificate certifying that such Affiliate Transaction complies with
clause (i) above and that such Affiliate Transaction has been approved by
a majority of the disinterested members of such Board of Directors and
(b) with respect to any Affiliate Transaction involving aggregate
consideration in excess of $5.0 million, a written opinion from an
independent financial advisor (as defined below) that such Affiliate
Transaction is fair to the Company or such Subsidiary, as the case may
be, from a financial point of view.
"Independent financial advisor" means a nationally recognized
accounting, appraisal or investment banking firm that is, in the reasonable
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.
Section 3.18. Reports.
Whether or not required by the rules and regulations of the SEC, so
long as any Notes are outstanding, the Company will furnish to the Holders of
Notes and to broker-dealers making a market in the Notes, and file with the
Trustee, within 15 days after the Company is, or would have been, required to
be filed such with the SEC:
(i) all quarterly and annual financial information that is or would
be required to be contained in a filing with the SEC on Forms 10-Q and
10-K if the Company is or were required to file such Forms, including a
"Management's Discussion and Analysis of Financial Condition and Results
of Operations" and, with respect to the annual information only, a report
thereon by the Company's certified independent accountants; and
(ii) all current reports that are or would be required to be filed
with the SEC on Form 8-K if the Company is or were required to file such
reports. In addition, whether or not required by the rules and
regulations of the SEC, the Company will file a copy of all such
information and reports with the SEC for public availability (unless the
SEC will not accept such a filing) and make such information available to
securities analysts and prospective investors upon written request.
In addition, at any time when the Company is not current in its
reporting obligations, the Company will make available, upon request, to any
holder and prospective purchaser of Notes the information required pursuant to
Rule 144A(d)(4) under the Securities Act.
Section 3.19. Payments for Consent.
Neither the Company nor any of its Subsidiaries shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder of any Notes for or as an inducement
to any consent, waiver or amendment of any terms or provisions of the Notes,
unless such consideration is offered to be paid or agreed to be paid to all
Holders of the Notes which so consent, waive or agree to amend in the time
frame set forth in the solicitation documents relating to such consent, waiver
or agreement.
ARTICLE IV
SURVIVING ENTITY
Section 4.1. Merger, Consolidation and Sale of Assets.
(a) The Company will not, and will not permit any of its
Subsidiaries to, in a single transaction or series of related transactions,
consolidate or merge with or into (other than the consolidation or merger of a
Wholly Owned Subsidiary of the Company with another Wholly Owned Subsidiary of
the Company or into the Company), whether or not the Company or such Subsidiary
is the surviving corporation, or directly and/or indirectly through the
Company's Subsidiaries sell, assign, transfer, lease, convey or otherwise
dispose of all or substantially all of the properties or assets of the Company
and its Subsidiaries (determined on a consolidated basis for the Company and
its Subsidiaries taken as a whole) in one or more related transactions to,
another corporation, Person or entity unless
(i) either (A) the Company, in the case of a transaction involving
the Company, or such Subsidiary, in the case of a transaction involving
any of the Company's Subsidiaries, is the surviving corporation or (B) in
the case of a transaction involving the Company, the entity or the Person
formed by or surviving any such consolidation or merger (if other than
the Company) or to which such sale, assignment, transfer, lease,
conveyance or other disposition shall have been made is a corporation
organized or existing under the laws of the United States of America, any
state thereof or the District of Columbia or Bermuda and expressly
assumes all the obligations of the Company under the Notes and the
Indenture pursuant to a supplemental indenture in a form reasonably
satisfactory to the Trustee (the "Surviving Entity");
(ii) immediately prior to and after such transaction no Default or
Event of Default exists;
(iii) the Company or, if other than the Company, the entity or
Person formed by or surviving any such consolidation or merger, or to
which such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made (A) will have a Consolidated Net Worth
immediately after the transaction equal to or greater than the
Consolidated Net Worth of the Company immediately preceding the
transaction and (B) will, at the time of such transaction and after
giving pro forma effect thereto as if such transaction had occurred at
the beginning of the applicable four-quarter period, be permitted to
incur at least $1.00 of additional Indebtedness pursuant to the
Consolidated Interest Coverage Ratio test set forth in the first
paragraph of Section 3.13;
(iv) if, as a result of any such transaction, property or assets of
the Company would become subject to a Lien securing Indebtedness not
excepted from the provisions of this Indenture pursuant to Section 3.14,
the Company or the Surviving Entity, as the case may be, shall have
secured the Notes as required by such provisions;
(v) each Note Guarantor (including Persons that become Note
Guarantors as a result of the transaction) shall have confirmed by
supplemental indenture that its Note Guarantee shall apply for the
Obligations of the surviving entity in respect of the Indenture and the
Notes; and
(vi) the Company shall have delivered to the Trustee an Officers'
Certificate and, except in the case of a merger of any of the Company's
Subsidiaries into the Company or into a Wholly Owned Subsidiary of the
Company, an opinion of counsel, each stating that such consolidation,
merger, conveyance, lease or disposition and any supplemental indenture
with respect thereto, comply with all of the terms of this covenant and
that all conditions precedent provided for in this provision relating to
such transaction or series of transactions have been complied with.
(b) For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all of the properties or assets of one or
more Subsidiaries of the Company the Capital Stock of which constitutes all or
substantially all of the properties and assets of the Company, shall be deemed
to be the transfer of all or substantially all of the properties and assets of
the Company.
(c) Each Note Guarantor will not, and the Company will not cause
or permit any Note Guarantor to, consolidate with or merge into, or sell or
dispose of all or substantially all of its assets to, any Person (other than
the Company) that is not a Note Guarantor unless:
(i) such Person (if such Person is the surviving entity) assumes
all of the obligations of such Note Guarantor in respect of its Note
Guarantee by executing a supplemental indenture and providing the Trustee
with an Officers' Certificate and Opinion of Counsel, and such
transaction is otherwise in compliance with the Indenture;
(ii) such Note Guarantee is to be released as provided under "Note
Guarantees;" or
(iii) such sale or other disposition of substantially all of such
Note Guarantor's assets is made in accordance with Section 3.9.
(d) In the event that the Surviving Entity under this Section 4.1
is organized or existing under Bermuda law,
(i) each payment by the Company under this Indenture shall,
except as required by law, be made without withholding or deduction for
or on account of any Taxes imposed by Bermuda or any political
subdivision or taxing authority thereof or therein. If any Taxes are
required to be withheld or deducted from any such payment, the Company
shall pay such additional amounts as may be necessary to ensure that the
net amount actually received by a Holder after such withholding or
deduction is equal to the amount that the Holder would have received had
no such withholding or deduction been required, provided, however, that
no such additional amounts shall be payable in respect of any Taxes
imposed by reason of the Holder's failure to comply with the provisions
of Section 4.1(d)(iii) hereof;
(ii) the Company shall pay all Taxes referred to in Section
4.1(d)(i) before penalties are payable or interest accrues thereon, but
if any such penalties are payable or interest accrues, the Company shall
make payment thereof when due to the appropriate governmental authority.
Within 30 days after each such payment of Taxes, the Company shall
deliver to the Holders an official receipt or a certified copy thereof
evidencing such payment, or, if no such receipt is issued to the Company,
such other written evidence of such payment as the Company and the
Trustee agree is appropriate;
(iii) the Holders agree to comply with any certification,
identification, information, documentation or other reporting requirement
if (a) such compliance is required by law, regulation, administrative
practice or an applicable treaty as a precondition to exemption from, or
reduction in the rate of, deduction or withholding of any Taxes for which
the Company is required to pay additional amounts pursuant to Section
4.1(d)(i) hereof and (b) at least 30 days prior to the first payment date
with respect to which the Company shall apply this clause (iii), the
Company shall have notified the Holder that the Holder will be required
to comply with such requirement; and
(iv) for purposes of Section 4.1(d)(i), (ii) and (iii), "Taxes"
means any present or future taxes, levies, imposts, duties, charges,
assessments or fees of any nature (including interest, penalties and
additions thereto) that are imposed by Bermuda or any political
subdivision or taxing authority thereof or therein.
ARTICLE V
OPTIONAL REDEMPTION OF NOTES; PURCHASES UPON A CHANGE OF CONTROL
Section 5.1. Optional Redemption. The Company may redeem the
Notes, as a whole or from time to time in part, subject to the conditions and
at the redemption prices specified in the form of Notes in Exhibit A.
Section 5.2. Election to Redeem. The Company shall evidence its
election to redeem any Notes pursuant to Section 5.1 by a Board Resolution.
Section 5.3. Notice of Redemption.
(a) The Company shall give or cause the Trustee to give notice of
redemption, which shall be mailed by first class mail at least 30 days but not
more than 60 days prior to the Redemption Date, to each Holder of Notes to be
redeemed at its registered address. If the Company itself gives the notice, it
shall also deliver a copy to the Trustee.
(b) If either (i) the Company is not redeeming all Outstanding
Notes, or (ii) the Company elects to have the Trustee give notice of
redemption, then the Company shall deliver to the Trustee, at least 45 days
prior to the Redemption Date (unless the Trustee is satisfied with a shorter
period), an Officers' Certificate requesting that the Trustee select the Notes
to be redeemed and/or give notice of redemption and setting forth the
information required by paragraph (c) of this Section 5.3 (with the exception
of the identification of the particular Notes, or portions of the particular
Notes, to be redeemed in the case of a partial redemption). If the Company
elects to have the Trustee give notice of redemption, the Trustee shall give
the notice in the name of the Company and at the Company's expense.
(c) All notices of redemption shall state:
(1) the Redemption Date,
(2) the redemption price and the amount of any accrued
interest payable as provided in Section 5.6,
(3) whether or not the Company is redeeming all Outstanding
Notes,
(4) if the Company is not redeeming all Outstanding Notes,
the aggregate principal amount of Notes that the Company is redeeming and
the aggregate principal amount of Notes that will be Outstanding after
the partial redemption, as well as the identification of the particular
Notes, or portions of the particular Notes, that the Company is
redeeming,
(5) if the Company is redeeming only part of a Note, the
notice that relates to that Note shall state that on and after the
Redemption Date, upon surrender of that Note, the Holder will receive,
without charge, a new Note or Notes of authorized denominations for the
principal amount of the Note remaining unredeemed,
(6) that on the Redemption Date the redemption price and any
accrued interest payable to the Redemption Date as provided in
Section 5.6 will become due and payable in respect of each Note, or the
portion of each Note, to be redeemed, and, unless the Company defaults in
making the redemption payment, that interest on each Note, or the portion
of each Note, to be redeemed, will cease to accrue on and after the
Redemption Date,
(7) the place or places where a Holder must surrender the
Holder's Notes for payment of the redemption price, and
(8) the CUSIP or ISIN number, if any, listed in the notice
or printed on the Notes, and that no representation is made as to the
accuracy or correctness of such CUSIP or ISIN number.
Section 5.4. Selection of Notes to Be Redeemed in Part. (a) If
the Company is not redeeming all Outstanding Notes, the Trustee shall select
the Notes to be redeemed in compliance with the requirements of the principal
national securities exchange, if any, on which the Notes are listed or, if the
Notes are not then listed on a national securities exchange, on a pro rata
basis, by lot or by such method as the Trustee shall deem fair and appropriate;
provided, however, that if a partial redemption is made with the proceeds of a
Public Equity Offering, selection of the Notes, or portions of the Notes, for
redemption shall be made by the Trustee only on a pro rata basis, unless that
method is prohibited. The Trustee shall make the selection from the
Outstanding Notes not previously called for redemption. The Trustee shall
promptly notify the Company in writing of the Notes selected for redemption
and, in the case of any Notes selected for partial redemption, the principal
amount of the Notes to be redeemed. In the event of a partial redemption by
lot, the Trustee shall select the particular Notes to be redeemed not less than
30 nor more than 60 days prior to the relevant Redemption Date from the
Outstanding Notes not previously called for redemption. The Company may redeem
Notes in denominations of $1,000 only in whole. The Trustee may select for
redemption portions (equal to $1,000 or any integral multiple of $1,000) of the
principal of Notes that have denominations larger than $1,000.
(b) For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to redemption of Notes shall
relate, in the case of any Note redeemed or to be redeemed only in part, to the
portion of the principal amount of that Note which has been or is to be
redeemed.
Section 5.5. Deposit of Redemption Price. Prior to 10:00 a.m. New
York City time on the relevant Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as Paying
Agent, segregate and hold in trust as provided in Section 2.4) an amount of
money in immediately available funds sufficient to pay the redemption price of,
and accrued interest on, all the Notes that the Company is redeeming on that
date.
Section 5.6. Notes Payable on Redemption Date. If the Company, or
the Trustee on behalf of the Company, gives notice of redemption in accordance
with this Article V, the Notes, or the portions of Notes, called for
redemption, shall, on the Redemption Date, become due and payable at the
redemption price specified in the notice (together with accrued interest, if
any, to the Redemption Date), and from and after the Redemption Date (unless
the Company shall default in the payment of the redemption price and accrued
interest) the Notes or the portions of Notes shall cease to bear interest.
Upon surrender of any Note for redemption in accordance with the notice, the
Company shall pay the Notes at the redemption price, together with accrued
interest, if any, to the Redemption Date (subject to the rights of Holders of
record on the relevant record date to receive interest due on the relevant
Interest Payment Date). If the Company shall fail to pay any Note called for
redemption upon its surrender for redemption, the principal shall, until paid,
bear interest from the Redemption Date at the rate borne by the Notes.
Section 5.7. Unredeemed Portions of Partially Redeemed Note. Upon
surrender of a Note that is to be redeemed in part, the Company shall execute,
and the Trustee shall authenticate and make available for delivery to the
Holder of the Note at the expense of the Company, a new Note or Notes, of any
authorized denomination as requested by the Holder, in an aggregate principal
amount equal to, and in exchange for, the unredeemed portion of the principal
of the Note surrendered, provided that each new Note will be in a principal
amount of $1,000 or integral multiple of $1,000.
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1. Events of Default.
(a) The following are "Events of Default:"
(i) default for 30 days in the payment when due of interest on the
Notes;
(ii) default in payment when due of the principal of or premium, if
any, on the Notes;
(iii) failure by the Company to comply with the provisions in
Sections 3.9, 3.10, 3.11, 3.12, 3.13, 4.1 or 10.1 ;
(iv) failure by the Company to comply with any of its other
agreements or covenants in this Indenture or in the Notes for 30 days
after written notice by the Trustee or Holders of at least 25% of the
aggregate principal amount of the Notes outstanding;
(v) default under any mortgage, indenture or instrument (including
without limitation, the Credit Facility) under which there may be issued
or by which there may be secured or evidenced any Indebtedness for money
borrowed by the Company or any of its Subsidiaries (or the payment of
which is guaranteed by the Company or any of its Subsidiaries) whether
such Indebtedness or guarantee now exists, or is created after the date
of the Indenture, which default:
(A) is caused by a failure to pay principal of such
Indebtedness at final maturity thereof (a "Payment Default"); or
(B) results in the acceleration of such Indebtedness prior
to its express maturity and, in each case, the principal amount of
any such Indebtedness, together with the principal amount of any
other such Indebtedness as to which there has been a Payment
Default or the maturity of which has been so accelerated, exceeds
in the aggregate $5.0 million;
(vi) the rendering of a final judgment or judgments or an order or
orders against the Company or any of its Subsidiaries for the payment of
money not fully covered by insurance in an amount in excess of $10.0
million in the aggregate and either:
(A) a creditor commences an enforcement proceeding upon any
such judgment or order; or
(B) any such judgment or order remains undischarged or
unstayed for a period of 45 days after the date on which the right
to appeal has expired;
(vii) a Bankruptcy Law Event of Default or the approval by
stockholders of the Company of any plan or proposal for the liquidation
or dissolution of the Company; or
(viii) except as permitted by the Indenture, any Note Guarantee is
held to be unenforceable or invalid in a judicial proceeding or ceases
for any reason to be in full force and effect or any Note Guarantor, or
any Person acting on behalf of any Note Guarantor, denies or disaffirms
such Note Guarantor's obligations under its Note Guarantee.
The foregoing will constitute Events of Default whatever the reason for any
such Event of Default and whether it is voluntary or involuntary or is effected
by operation of law or pursuant to any judgment, decree or order of any court
or any order, rule or regulation of any administrative or governmental body.
(b) The Company shall deliver to the Trustee upon becoming aware
of any Default or Event of Default a written statement in the form of an
Officers' Certificate specifying such Default or Event of Default, its status
and what action the Company is taking or proposes to take in respect thereof.
Section 6.2. Acceleration. If any Event of Default (other than an
Event of Default specified in Section 6.1(a)(vii)) occurs and is continuing,
the Trustee or the Holders of at least 25% in aggregate principal amount of all
of the then outstanding Notes may declare by written notice to the Company all
the Notes to be due and payable immediately. After such acceleration, but
before a judgment or decree based on acceleration, the Holders of a majority in
aggregate principal amount of outstanding Notes may, under certain
circumstances, rescind and annul such acceleration if all Events of Default,
other than the non-payment of principal, interest or premium that have become
due solely because of such acceleration, have been cured or waived as provided
in the Indenture. In the case of an Event of Default specified in Section
6.1(a)(vii) arising from certain events of bankruptcy or insolvency with
respect to the Company or any Material Domestic Subsidiary or Material Foreign
Subsidiary, all outstanding Notes will become due and payable without any
declaration or other act by the Trustee or any Holder.
Section 6.3. Other Remedies.
(a) If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy to collect the payment of principal of and
interest on the Notes or to enforce the performance of any provision of the
Notes or this Indenture.
(b) The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. No remedy
is exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
Section 6.4. Waiver of Past Defaults. The Holders of a majority
in aggregate principal amount of the Notes then outstanding by notice to the
Trustee may on behalf of the Holders of all of the Notes waive any existing
Default or Event of Default and its consequences under the Indenture except a
continuing Default or Event of Default (a) in the payment of interest or
premium on, or the principal of, any Note (except a payment default resulting
from an acceleration that has been rescinded) or (b) in respect of a covenant
provision hereof which under Section 9.2 cannot be amended or waived without
the consent of the Holder of each outstanding Note.
Section 6.5. Control by Majority. Subject to Section 7.1(i), the
Holders of a majority in principal amount of the Outstanding Notes may direct
the time, method and place of conducting any proceeding for any remedy
available to the Trustee or of exercising any trust or power conferred on the
Trustee. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture; provided, however, that the Trustee may
take any other action deemed proper by the Trustee that is not inconsistent
with such direction.
Section 6.6. Limitation on Suits. No Holder of any Note will have
any right to institute any proceeding with respect to the Indenture or for any
remedy thereunder, unless such Holder shall have previously given to the
Trustee written notice of a continuing Event of Default and unless the Holders
of at least 25% in aggregate principal amount of the outstanding Notes shall
have made written request, and offered reasonable indemnity, to the Trustee to
institute such proceeding as Trustee, and the Trustee shall not have received
from the Holders of a majority in aggregate principal amount of the outstanding
Notes a direction inconsistent with such request and shall have failed to
institute such proceeding within 30 days. However, such restrictions do not
apply to a suit instituted by a Holder of a Note for enforcement of payment of
the interest and premium (if any) on, or principal of, such Note on or after
the respective due dates expressed in such Note.
Section 6.7. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture (including, without
limitation, Section 6.6), the right of any Holder to receive payment of
principal of or interest on the Notes held by such Holder, on or after the
respective due dates, Redemption Dates or repurchase date expressed in this
Indenture or the Notes, or to bring suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of such Holder.
Section 6.8. Collection Suit by Trustee. If an Event of Default
specified in Section 6.1(a) (i) and (ii) occurs and is continuing, the Trustee
may recover judgment in its own name and as trustee of an express trust against
the Company and each Note Guarantor for the whole amount then due and owing
(together with applicable interest on any overdue principal and, to the extent
lawful, interest on overdue interest) and the amounts provided for in
Section 7.7.
Section 6.9. Trustee May File Proofs of Claim, etc.
(a) The Trustee may (irrespective of whether the principal of the
Notes is then due):
(i) 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 and
the Holders under this Indenture and the Notes allowed in any bankruptcy,
insolvency, liquidation or other judicial proceedings relative to the
Company, any Note Guarantor or any Subsidiary of the Company or their
respective creditors or properties; and
(ii) collect and receive any moneys or other property payable or
deliverable in respect of any such claims and distribute them in
accordance with this Indenture.
Any receiver, trustee, liquidator, sequestrator (or other similar official) in
any such proceeding is hereby authorized by each Holder to make such payments
to the Trustee and, in the event that the Trustee shall consent to the making
of such payments directly to the Holders, to pay to the Trustee any amount due
to it for the reasonable compensation, expenses, taxes, disbursements and
advances of the Trustee, its agent and counsel, and any other amounts due to
the Trustee pursuant to Section 7.7.
(b) Nothing in this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Notes or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
Section 6.10. Priorities. If the Trustee collects any money or
property pursuant to this Article VI, it shall pay out the money or property in
the following order:
FIRST: to the Trustee for amounts due under Section 7.7;
SECOND: if the Holders proceed against the Company directly
without the Trustee in accordance with this Indenture, to Holders for
their collection costs;
THIRD: to Holders for amounts due and unpaid on the Notes for
principal and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Notes for principal
and interest, respectively; and
FOURTH: to the Company or, to the extent the Trustee collects any
amount pursuant to Article X from any Note Guarantor, to such Note
Guarantor, or to such party as a court of competent jurisdiction shall
direct.
The Trustee may, upon notice to the Company, fix a record date and payment date
for any payment to Holders pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any
party litigant in the suit, having due regard to the merits and good faith of
the claims or defenses made by the party litigant. This Section 6.11 does not
apply to a suit by the Trustee, a suit by the Company, a suit by a Holder
pursuant to Section 6.7 or a suit by Holders of more than 10% in principal
amount of Outstanding Notes.
ARTICLE VII
TRUSTEE
Section 7.1. Duties of Trustee.
(a) If a Default or an Event of Default has occurred and is
continuing, the Trustee shall exercise the rights and powers vested in it by
this Indenture and use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(b) Except during the continuance of a Default or an Event of
Default:
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture. However, in the case of any such certificates or opinions
which by any provisions 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 (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph (c) does not limit the effect of paragraph (b)
of this Section 7.1;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.2, 6.4 or 6.5.
(d) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
(e) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(f) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(g) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Article VII and to the provisions of the TIA.
(h) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(i) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders unless such Holders shall have offered to the Trustee
reasonable security or indemnity satisfactory to it against the costs, expenses
(including reasonable attorneys' fees and expenses) and liabilities that might
be incurred by it in compliance with such request or direction.
(j) The Trustee may consult with counsel of its selection, and the
advice or opinion of counsel with respect to legal matters relating to this
Indenture and the Notes shall be full and complete authorization and protection
from liability in respect to any action taken, omitted or suffered by it
hereunder in good faith and in accordance with the advice or opinion of such
counsel.
(k) The Trustee shall not be deemed to have notice of any Default
or Event of Default unless a Trust Officer of the Trustee has actual knowledge
thereof or unless written notice of any event which is in fact such a default
is received by the Trustee at the Corporate Trust Office of the Trustee, and
such notice references the Notes and this Indenture.
(l) The rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and to each agent, custodian and other Person
employed to act hereunder.
Section 7.2. Rights of Trustee. Subject to Section 7.1:
(a) The Trustee may rely on any document reasonably believed by it
to be genuine and to have been signed or presented by the proper person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel. The Trustee shall
not be liable for any action it takes or omits to take in good faith in
reliance on an Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed with
due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers; provided, however, that the Trustee's conduct does not
constitute willful misconduct or negligence.
(e) If the Trustee shall determine, it shall be entitled to
examine the books, records and premises of the Company, personally or by agent
or attorney.
(f) The Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture,
which Officers' Certificate may be signed by any person authorized to sign an
Officers' Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded.
Section 7.3. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Notes and
may otherwise deal with the Company, the Note Guarantors or any of their
Affiliates with the same rights it would have if it were not Trustee. Any
Paying Agent, Registrar or co-Registrar may do the same with like rights.
However, the Trustee must comply with Sections 7.10 and 7.11.
Section 7.4. Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Notes, it shall not be accountable for the Company's use
of the proceeds from the Notes, and it shall not be responsible for any
statement of the Company in this Indenture or in any document issued in
connection with the sale of the Notes or in the Notes other than the Trustee's
certificate of authentication.
Section 7.5. Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if a
Trust Officer has actual knowledge thereof, the Trustee shall mail to each
Holder notice of the Default or Event of Default within 90 days after the
occurrence thereof. Except in the case of a Default or Event of Default in
payment of principal of or interest on any Note (including payments pursuant to
the optional redemption or required repurchase provisions of such Note, if
any), the Trustee may withhold the notice if and so long as a committee of its
Trust Officers in good faith determines that withholding the notice is in the
interests of the Holders.
Section 7.6. Reports by Trustee to Holders. The Trustee shall
comply with TIA {section} 313. The Company agrees to notify promptly the
Trustee whenever the Notes become listed on any stock exchange and of any
delisting thereof.
Section 7.7. Compensation and Indemnity.
(a) The Company shall pay to the Trustee from time to time
reasonable compensation for its acceptance of this Indenture and services
hereunder as the Company and the Trustee shall from time to time agree in
writing. 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 expenses incurred or made
by it, including costs of collection, costs of preparing and reviewing reports,
certificates and other documents, costs of preparation and mailing of notices
to Holders and reasonable costs of counsel retained by the Trustee in
connection with the delivery of an Opinion of Counsel or otherwise, in addition
to the compensation for its services. Such expenses shall include the
reasonable compensation and expenses, disbursements and advances of the
Trustee's agents, counsel, accountants and experts.
(b) The Company and the Note Guarantors shall jointly and
severally indemnify the Trustee against any and all loss, liability or expense
(including reasonable attorneys' fees and expenses) incurred by it without
negligence, willful misconduct or bad faith on its part in connection with the
acceptance and administration of this trust and the performance of its duties
hereunder, including the costs and expenses of enforcing this Indenture
(including this Section 7.7) and of defending itself against any claims
(whether asserted by any Holder, the Company, any Note Guarantor or otherwise).
The Trustee shall notify the Company promptly of any claim for which it may
seek indemnity. Failure by the Trustee to so notify the Company shall not
relieve the Company of its obligations hereunder. The Company shall defend the
claim and the Trustee may have separate counsel and the Company shall pay the
fees and expenses of such counsel, provided that the Company shall not be
required to pay such fees and expenses if it assumes the Trustee's defense,
and, in the reasonable judgment of outside counsel to the Trustee, there is no
conflict of interest between the Company and the Trustee in connection with
such defense. The Company need not reimburse any expense or indemnify against
any loss, liability or expense incurred by the Trustee through the Trustee's
own negligence, willful misconduct or bad faith.
(c) To secure the Company's payment obligations in this
Section 7.7, the Trustee shall have a lien prior to the Notes on all money or
property held or collected by the Trustee other than money or property held in
trust to pay principal of and interest on particular Notes. The Trustee's
right to receive payment of any amounts due under this Section 7.7 shall not be
subordinate to any other liability or Indebtedness of the Company.
(d) The Company's payment obligations pursuant to this Section 7.7
shall survive the discharge of this Indenture and the resignation or removal of
the Trustee. When the Trustee incurs expenses after the occurrence of a
Default specified in Section 6.1(a)(vii), the expenses are intended to
constitute expenses of administration under any Bankruptcy Law; provided,
however, that this shall not affect the Trustee's rights as set forth in this
Section 7.7 or Section 6.10.
Section 7.8. Replacement of Trustee.
(a) The Trustee may resign at any time by so notifying the
Company. The Holders of a majority in principal amount of the Outstanding
Notes may remove the Trustee by so notifying the Trustee and may appoint a
successor Trustee reasonably acceptable to the Company. The Company shall
remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee
or its property; or
(4) the Trustee otherwise becomes incapable of acting.
(b) If the Trustee resigns or is removed by the Company or by the
Holders of a majority in principal amount of the Outstanding Notes and such
Holders do not reasonably promptly appoint a successor Trustee, or if a vacancy
exists in the office of the 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.
(c) A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 7.7.
(d) If a successor Xxxxxxx does not take office within 30 days
after the retiring Trustee resigns or is removed, the retiring Trustee or the
Holders of 10% in principal amount of the Outstanding Notes may petition, at
the Company's expense, any court of competent jurisdiction for the appointment
of a successor Trustee.
(e) If the Trustee fails to comply with Section 7.10, any Holder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
(f) Notwithstanding the replacement of the Trustee pursuant to
this Section 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 Xxxxxx.
(a) If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all its corporate trust business or assets to,
another corporation or banking association, the resulting, surviving or
transferee corporation without any further act shall be the successor Trustee.
(b) In case at the time such successor or successors to the
Trustee shall succeed to the trusts created by this Indenture, any of the Notes
shall have been authenticated but not delivered, any such successor to the
Trustee may adopt the certificate of authentication of any predecessor trustee,
and deliver such Notes so authenticated; and in case at that time any of the
Notes shall not have been authenticated, any successor to the Trustee may
authenticate such Notes either in the name of any predecessor hereunder or in
the name of the successor to the Trustee; and in all such cases such
certificates shall have the full force which it is anywhere in the Notes or in
this Indenture provided that the certificate of the Trustee shall have.
Section 7.10. Eligibility; Disqualification. The Trustee shall at
all times satisfy the requirements of TIA {section} 310(a). The Trustee shall
have a combined capital and surplus of at least $150 million as set forth in
its most recent published annual report of condition. The Trustee shall comply
with TIA {section} 310(b); provided, however, that there shall be excluded from
the operation of TIA {section} 310(b)(1) any indenture or indentures under
which other securities or certificates of interest or participation in other
securities of the Company are outstanding if the requirements for such
exclusion set forth in TIA {section} 310(b)(1) are met.
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.
ARTICLE VIII
DEFEASANCE; DISCHARGE OF INDENTURE
Section 8.1. Legal Defeasance and Covenant Defeasance.
(a) The Company may, at its option, at any time, elect to have
either paragraph (b) or (c) of this Section 8.1 applied to all Outstanding
Notes upon compliance with the conditions set forth in Section 8.2.
(b) Upon the Company's exercise under paragraph (a) of this
Section 8.1 of the option applicable to this paragraph (b), the Company shall,
subject to the satisfaction of the conditions set forth in Section 8.2, be
deemed to have been discharged from its obligations with respect to all
Outstanding Notes on the date all of the conditions set forth in Section 8.2
(including Section 8.2(iv)(b)) are satisfied (hereinafter, "Legal Defeasance").
For this purpose, Legal Defeasance means that the Company shall be deemed to
have paid and discharged the entire Indebtedness represented by the Outstanding
Notes, which shall thereafter be deemed to be Outstanding only for the purposes
of Section 8.3 and the other Sections of this Indenture referred to in
clause (i) or (ii) of this paragraph (b), and to have satisfied all its other
obligations under such Notes and this Indenture (and the Trustee, on demand of
and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following provisions, which shall
survive until otherwise terminated or discharged hereunder:
(i) the rights of Holders of Outstanding Notes to receive solely
from the trust fund described in Section 8.3, and as more fully set forth
in Section 8.3, payments in respect of the principal of, premium, if any,
and interest on such Notes when such payments are due,
(ii) the Company's obligations with respect to such Notes under
Article II and Section 3.2,
(iii) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and the Company's obligations in connection therewith,
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) of this Section 8.1.
(c) Upon the Company's exercise under paragraph (a) of this
Section 8.1 of the option applicable to this paragraph (c), the Company shall,
subject to the satisfaction of the applicable conditions set forth in
Section 8.2, be released from its obligations under the covenants contained in
Sections 3.8 through 3.18, and 4.1(a)(iii) and (iv) and with respect to the
Outstanding Notes on and after the date the conditions set forth below are
satisfied (hereinafter, "Covenant Defeasance"), and the Notes 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 Outstanding for all
other purposes hereunder (it being understood that such Notes shall not be
deemed Outstanding for accounting purposes). For this purpose, such Covenant
Defeasance means that, with respect to the Outstanding Notes, the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or
by reason of any reference in any such covenant to any other provision herein
or in any other document and such omission to comply shall not constitute a
Default or an Event of Default under Sections 4.1, 6.1(a)(iii), (iv), (v),
(vi), (viii) and 6.2, but, except as specified above, the remainder of this
Indenture and such Notes shall be unaffected thereby.
Section 8.2. Conditions to Defeasance. The Company may exercise
its Legal Defeasance option or its Covenant Defeasance option only if:
(i) the Company irrevocably deposits with the Trustee, in trust
for the benefit of the Holders, U.S. Legal Tender, U.S. Government
Obligations or a combination thereof in such amounts as will be
sufficient, in the opinion of a nationally recognized firm of independent
public accountants, to pay the principal of, premium, if any, and
interest on the Notes on the stated date for payment thereof or on the
applicable redemption date, as the case may be; the Company specifies
whether the Notes are being defeased to maturity or to a particular
redemption date; and the Trustee has a perfected first priority security
interest under applicable law in such U.S. Legal Tender and U.S.
Government Obligations;
(ii) in the case of Legal Defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel in the United States
acceptable to the Trustee confirming that (A) the Company has received
from, or there has been published by, the Internal Revenue Service a
ruling or (B) since the Issue Date, 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 Outstanding Notes will not recognize income, gain or loss for federal
income tax purposes as a result of such Legal Defeasance and will be
subject to federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such Legal Defeasance
had not occurred;
(iii) in the case of Covenant Defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel in the United States
acceptable to the Trustee confirming that the Holders of the Outstanding
Notes will not recognize income, gain or loss for federal income tax
purposes as a result of such Covenant Defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such Covenant Defeasance had
not occurred;
(iv) no Default or Event of Default shall have occurred and be
continuing on (a) the date of such deposit (other than a Default or Event
of Default resulting from the borrowing of funds to be applied to such
deposit), or (b) in the case of Legal Defeasance, insofar as Events of
Default from bankruptcy or insolvency events are concerned, at any time
in the period ending on the 91st day after the date of deposit;
(v) such Legal Defeasance or Covenant Defeasance shall not result
in a breach or violation of, or constitute a default under this Indenture
or any other material agreement or instrument to which the Company or any
of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound;
(vi) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders over any other creditors of the Company
or with the intent of defeating, hindering, delaying or defrauding any
other creditors of the Company or others;
(vii) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the
Covenant Defeasance have been complied with;
(viii) the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that after the 91st day following the deposit,
the trust funds will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally; and
(ix) such Legal Defeasance or Covenant Defeasance shall not result
in the trust arising from such deposit constituting an investment company
under the Investment Company Act of 1940, as amended, unless such trust
shall be registered under such act or exempt from registration
thereunder.
Section 8.3. Application of Trust Money. The Trustee shall hold
in trust U.S. Legal Tender or U.S. Government Obligations deposited with it
pursuant to this Article VIII. It shall apply the deposited money and the U.S.
Legal Tender from U.S. Government Obligations through the Paying Agent and in
accordance with this Indenture to the payment of principal of and interest on
the Notes.
Section 8.4. Repayment to Company.
(a) The Trustee and the Paying Agent shall promptly turn over to
the Company upon request any excess money or securities held by them upon
payment of all the obligations under this Indenture.
(b) Subject to any applicable abandoned property law, the Trustee
and the Paying Agent shall pay to the Company upon request any money held by
them for the payment of principal of or interest on the Notes that remains
unclaimed for two years, and, thereafter, Holders entitled to the money must
look to the Company for payment as general creditors.
Section 8.5. Indemnity for U.S. Government Obligations. The
Company shall pay and shall indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against deposited U.S. Government Obligations or
the principal and interest received on such U.S. Government Obligations.
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
obligations of the Company under this Indenture and the Notes 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, however, that, if the Company has made any payment of
interest on or principal of any Notes because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the U.S. Legal Tender or U.S.
Government Obligations held by the Trustee or Paying Agent.
Section 8.7. Satisfaction and Discharge. The Indenture will be
discharged and will cease to be of further effect (except as to surviving
rights or registration of transfer or exchange of the Notes, as expressly
provided for in the Indenture) as to all Outstanding Notes when:
(a) either:
(1) all the Notes theretofore executed, authenticated and
delivered (except lost, stolen or destroyed Notes which have been
replaced or paid and Notes for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust) have been
delivered to the Trustee for cancellation, or
(2) all Notes not theretofore delivered to the Trustee for
cancellation have become due and payable, and the Company has irrevocably
deposited or caused to be deposited with the Trustee U.S. Legal Tender or
U.S. Government Obligations sufficient to pay and discharge the entire
Indebtedness on the Notes not theretofore delivered to the Trustee for
cancellation, for principal of and interest on the Notes to the date of
deposit, together with irrevocable instructions from the Company
directing the Trustee to apply such funds to the payment;
(b) the Company has paid all other sums payable under this
Indenture and the Notes by the Company; and
(c) the Company has delivered to the Trustee an Officers'
Certificate stating that all conditions precedent under this Indenture relating
to the satisfaction and discharge of this Indenture have been complied with.
ARTICLE IX
AMENDMENTS, SUPPLEMENT AND WAIVER
Section 9.1. Without Consent of Holders.
(a) The Company, the Note Guarantors and the Trustee may amend
this Indenture or the Notes without notice to or consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article IV in respect of the assumption by a
Surviving Entity of the obligations of the Company under the Notes and
this Indenture;
(3) to provide for uncertificated Notes in addition to or in place
of Certificated Notes; provided, however, that the uncertificated Notes
are issued in registered form for purposes of Section 163(f) of the Code;
(4) to add Note Guarantees with respect to the Notes or to secure
the Notes;
(5) to add to the covenants of the Company for the benefit of the
Holders or to surrender any right or power herein conferred upon the
Company;
(6) to comply with any requirements of the SEC in connection with
qualifying this Indenture under the TIA;
(7) to make any change that would provide any additional rights or
benefits to the Holders of Notes;
(8) to make any change that does not adversely affect the rights
of any Holder in any material respect;
(9) to provide for the issuance of the Exchange Notes and Private
Exchange Notes, which will have terms substantially identical to the
other Outstanding Notes except for the requirement of a Private Placement
Legend and related transfer restrictions under the Securities Act and
this Indenture and as to the applicability of additional interest payable
as provided in Section 2.14, and which will be treated, together with any
other Outstanding Notes, as a single issue of securities; or
(10) to provide for the issuance of Add On Notes as permitted by
Sections 2.2(c) and 2.13, which will have terms substantially identical
to the other Outstanding Notes except as specified in Section 2.13
or 2.14, and which will be treated, together with any other Outstanding
Notes, as a single issue of securities.
(b) After an amendment under this Section 9.1 becomes effective,
the Company shall mail to Holders a notice briefly describing such amendment.
The failure to give such notice to all Holders, or any defect therein, shall
not impair or affect the validity of an amendment under this Section 9.1.
Section 9.2. With Consent of Holders.
(a) The Company, the Note Guarantors and the Trustee may amend
this Indenture or the Notes without notice to any Holder but with the written
consent of the Holders of at least a majority in principal amount of the
Outstanding Notes (including, without limitation, consents obtained in
connection with a purchase of, or tender offer or exchange offer for, Notes).
However, without the consent of each Holder affected, an amendment may not:
(1) reduce the principal amount of Notes whose Holders must consent
to an amendment or waiver;
(2) reduce the principal of or premium on or change or have the
effect of changing the fixed maturity of any Notes or alter the
provisions with respect to the redemption of the Notes (except as
provided for with respect to Sections 3.9 and 3.10 hereof);
(3) reduce the rate of or change or have the effect of changing the
time for payment of interest, including Defaulted Interest, on any Notes;
(4) waive a Default or Event of Default in the payment of interest
or premium (if any) on, or principal of, any Note (except a rescission of
acceleration of the Notes by the Holders of at least a majority in
aggregate principal amount of the Notes and a waiver of the payment
default that resulted from such acceleration);
(5) make any Notes payable in money other than that stated in the
Notes;
(6) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders of Notes to receive
payments of principal of or premium, if any, or interest on the Notes;
(7) waive a redemption payment with respect to any Note (other than
a payment required by Section 3.9 or Section 3.10, hereof);
(8) modify the ranking or priority of the Notes;
(9) release the Company from any of its obligations under this
Indenture other than in accordance with the terms of this Indenture;
(10) eliminate or modify in any manner a Note Guarantor's
obligations with respect to its Note Guarantee which adversely affects
Holders in any material respect, except as contemplated in this
Indenture;
(11) make any change in the foregoing amendment and waiver
provisions; or
(12) amend, change or modify in any material respect any obligation
of the Company to make and consummate a Change of Control Offer in
respect of a Change of Control that has occurred or make and consummate
an Asset Sale Offer with respect to any Asset Sale that has been
consummated.
(b) 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, but
it shall be sufficient if such consent approves the substance thereof.
(c) After an amendment under this Section 9.2 becomes effective,
the Company shall mail to Holders a notice briefly describing such amendment.
The failure to give such notice to all Holders, or any defect therein, shall
not impair or affect the validity of an amendment under this Section 9.2.
Section 9.3. Compliance with Trust Indenture Act. Every amendment
to this Indenture or the Notes shall comply with the TIA as then in effect.
Section 9.4. Revocation and Effect of Consents and Waivers.
(a) A consent to an amendment or a waiver by a Holder of a Note
shall bind the Holder and every subsequent Holder of that Note or portion of
the Note that evidences the same debt as the consenting Xxxxxx's Note, even if
notation of the consent or waiver is not made on the Note. However, any such
Holder or subsequent Holder may revoke the consent or waiver as to such
Holder's Note or portion of the Note if the Trustee receives the notice of
revocation before the date the amendment or waiver becomes effective. After an
amendment or waiver becomes effective, it shall bind every Holder. An
amendment or waiver shall become effective upon receipt by the Trustee of the
requisite number of written consents under Section 9.2.
(b) The Company may, but shall not be obligated to, fix a record
date, which need not be the date provided for in Section 3.16(c) of the TIA to
the extent it would otherwise be applicable, for the purpose of determining the
Holders entitled to give their consent or take any other action described above
or required or permitted to be taken pursuant to this Indenture. If a record
date is fixed, then notwithstanding the immediately preceding paragraph, those
Persons who were Holders at such record date (or their duly designated
proxies), and only those Persons, shall be entitled to give such consent or to
revoke any consent previously given or to take any such action, whether or not
such Persons continue to be Holders after such record date. No such consent
shall become valid or effective more than 90 days after such record date.
Section 9.5. Notation on or Exchange of Notes. If an amendment
changes the terms of a Note, the Trustee may require the Holder of the Note to
deliver it to the Trustee. The Trustee may place an appropriate notation on
the Note regarding the changed terms and return it to the Holder.
Alternatively, if the Company or the Trustee so determines, the Company in
exchange for the Note will execute and upon Company Order the Trustee will
authenticate a new Note that reflects the changed terms. Failure to make the
appropriate notation or to issue a new Note shall not affect the validity of
such amendment.
Section 9.6. Trustee to Sign Amendments. The Trustee shall sign
any amendment authorized pursuant to this Article IX if the amendment does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may but need not sign it. In signing such amendment
the Trustee shall be entitled to receive indemnity reasonably satisfactory to
it and to receive, and (subject to Sections 7.1 and 7.2) shall be fully
protected in relying upon, such evidence as it deems appropriate, including,
without limitation, solely on an Opinion of Counsel stating that such amendment
is authorized or permitted by this Indenture.
ARTICLE X
NOTE GUARANTEES
Section 10.1. Note Guarantees
(a) The Company will cause any Person that shall become a Material
Domestic Subsidiary concurrently to become a Note Guarantor and to grant a Note
Guarantee of the Company's obligations under this Indenture and the Notes by
executing a Supplemental Indenture substantially in the form of Exhibit F and
providing the Trustee with an Officers' Certificate and Opinion of Counsel;
provided, however, that each Note Guarantor will be automatically and
unconditionally released and discharged from its obligations under such Note
Guarantee only in accordance with Section 10.2.
(b) Each Note Guarantor hereby fully, unconditionally and
irrevocably guarantees, as primary obligor and not merely as surety, jointly
and severally with each other Note Guarantor, to each Holder and the Trustee
the full and punctual payment when due, whether at maturity, by acceleration,
by redemption or otherwise, of the Obligations (such guaranteed Obligations,
the "Guaranteed Obligations"). Each Note Guarantor further agrees (to the
extent permitted by law) that the Obligations may be extended or renewed, in
whole or in part, without notice or further assent from it, and that it will
remain bound under this Article X notwithstanding any extension or renewal of
any Obligation. Each Note Guarantor hereby agrees to pay, in addition to the
amounts stated above, any and all expenses (including reasonable counsel fees
and expenses) incurred by the Trustee or the Holders in enforcing any rights
under any Note Guarantee.
(c) Each Note Guarantor waives presentation to, demand of payment
from and protest to the Company of any of the Obligations and also waives
notice of protest for nonpayment. Each Note Guarantor waives notice of any
default under the Notes or the Obligations. The obligations of each Note
Guarantor hereunder shall not be affected by (i) the failure of any Holder to
assert any claim or demand or to enforce any right or remedy against the
Company or any other Person under this Indenture, the Notes or any other
agreement or otherwise; (ii) any extension or renewal of any thereof; (iii) any
rescission, waiver, amendment or modification of any of the terms or provisions
of this Indenture, the Notes or any other agreement; (iv) the release of any
security held by any Holder or the Trustee for the Obligations or any of them;
(v) the failure of any Holder to exercise any right or remedy against any other
Note Guarantor; or (vi) any change in the ownership of the Company.
(d) Each Note Guarantor further agrees that its Note Guarantee
herein constitutes a guarantee of payment when due (and not a guarantee of
collection) and waives any right to require that any resort be had by any
Holder to any security held for payment of the Obligations.
(e) The obligations of each Note Guarantor hereunder shall not be
subject to any reduction, limitation, impairment or termination for any reason
(other than payment of the Obligations in full), including any claim of waiver,
release, surrender, alteration or compromise, and shall not be subject to any
defense of setoff, counterclaim, recoupment or termination whatsoever or by
reason of the invalidity, illegality or unenforceability of the Obligations or
otherwise. Without limiting the generality of the foregoing, the obligations
of each Note Guarantor herein shall not be discharged or impaired or otherwise
affected by the failure of any Holder to assert any claim or demand or to
enforce any remedy under this Indenture, the Notes or any other agreement, by
any waiver or modification of any thereof, by any default, failure or delay,
willful or otherwise, in the performance of the Obligations, or by any other
act or thing or omission or delay to do any other act or thing which may or
might in any manner or to any extent vary the risk of such Note Guarantor or
would otherwise operate as a discharge of such Note Guarantor as a matter of
law or equity.
(f) Each Note Guarantor further agrees that its Note Guarantee
herein shall continue to be effective or be reinstated, as the case may be, if
at any time payment, or any part thereof, of principal of or interest on any of
the Obligations is rescinded or must otherwise be restored by any Holder upon
the bankruptcy or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any
other right which any Holder has at law or in equity against each Note
Guarantor by virtue hereof, upon the failure of the Company to pay any of the
Obligations when and as the same shall become due, whether at maturity, by
acceleration, by redemption or otherwise, each Note Guarantor hereby promises
to and will, upon receipt of written demand by the Trustee, forthwith pay, or
cause to be paid, in cash, to the Holders an amount equal to the sum of:
(i) the unpaid amount of such Obligations then due and owing; and
(ii) accrued and unpaid interest on such Obligations then due and
owing (but only to the extent not prohibited by law).
(h) Each Note Guarantor further agrees that, as between such Note
Guarantor, on the one hand, and the Holders, on the other hand:
(i) the maturity of the Obligations guaranteed hereby may be
accelerated as provided in this Indenture for the purposes of its Note
Guarantee herein, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the Obligations
guaranteed hereby; and
(ii) in the event of any such declaration of acceleration of such
Obligations, such Obligations (whether or not due and payable) shall
forthwith become due and payable by such Note Guarantor for the purposes
of its Note Guarantee.
Section 10.2. Limitation on Liability; Termination, Release and
Discharge.
(a) The Obligations of each Note Guarantor hereunder will be
limited to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of such Note Guarantor and after giving effect
to any collections from or payments made by or on behalf of any other Note
Guarantor in respect of the obligations of such other Note Guarantor under its
Note Guarantee or pursuant to its contribution obligations under this
Indenture, result in the obligations of such Note Guarantor under its Note
Guarantee not constituting a fraudulent conveyance or fraudulent transfer under
federal or state law.
(b) A Note Guarantor will be released and relieved of its
Obligations under its Note Guarantee in the event:
(1) there is a Legal Defeasance of the Notes as described under
Section 8.1; or
(2) there is a sale or other disposition of Capital Stock of such
Note Guarantor following which such Note Guarantor is no longer a direct
or indirect Material Domestic Subsidiary of the Company;
provided that the transaction is carried out pursuant to and in accordance with
the applicable provisions of the Indenture.
(c) On the date hereof, there are no Note Guarantors.
Section 10.3. Right of Contribution. Each
Note Guarantor that makes a payment or distribution under a Note Guarantee will
be entitled to a contribution from each other Note Guarantor in a pro rata
amount, based on the net assets of each Note Guarantor determined in accordance
with GAAP. The provisions of this Section 10.3 shall in no respect limit the
obligations and liabilities of each Note Guarantor to the Trustee and the
Holders and each Note Guarantor shall remain liable to the Trustee and the
Holders for the full amount guaranteed by such Note Guarantor hereunder.
Section 10.4. No Subrogation. Each Note
Guarantor agrees that it shall not be entitled to any right of subrogation in
respect of any Guaranteed Obligations until payment in full of all Obligations.
If any amount shall be paid to any Note Guarantor on account of such
subrogation rights at any time when all of the Obligations shall not have been
paid in full, such amount shall be held by such Note Guarantor in trust for the
Trustee and the Holders, segregated from other funds of such Note Guarantor,
and shall, forthwith upon receipt by such Note Guarantor, be turned over to the
Trustee in the exact form received by such Note Guarantor (duly endorsed by
such Note Guarantor to the Trustee, if required), to be applied against the
Obligations.
ARTICLE XI
MISCELLANEOUS
Section 11.1. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts
with another provision which is required to be included in this Indenture by
the TIA, the provision required by the TIA shall control. Each Note Guarantor
in addition to performing its obligations under its Note Guarantee shall
perform such other obligations as may be imposed upon it with respect to this
Indenture under the TIA.
Section 11.2. Notices.
(a) Any notice or communication shall be in writing and delivered
in person or mailed by first-class mail addressed as follows:
if to the Company:
DIMON Incorporated
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Secretary
if to the Trustee:
SunTrust Bank
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
(Attention: Corporate Trust
Administration)
The Company or the Trustee by notice to the other may designate additional or
different addresses for subsequent notices or communications.
(b) Any notice or communication mailed to a registered Holder
shall be mailed to the Holder at the Holder's address as it appears on the
registration books of the Registrar and shall be sufficiently given if so
mailed within the time prescribed.
(c) Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
(d) Any notice or communication delivered to the Company under the
provisions herein shall constitute notice to the Note Guarantors.
Section 11.3. Communication by Holders with Other Holders.
Holders may communicate pursuant to TIA {section} 312(b) with other Holders
with respect to their rights under this Indenture or the Notes. The Company,
the Note Guarantors, the Trustee, the Registrar and anyone else shall have the
protection of TIA {section} 312(c).
Section 11.4. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take or
refrain from taking any action under this Indenture, the Company shall furnish
to the Trustee:
(1) 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; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
Section 11.5. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a covenant or
condition provided for in this Indenture shall include:
(1) a statement that the individual making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
In giving such Opinion of Counsel, counsel may rely as to factual matters on an
Officers' Certificate or on certificates of public officials.
Section 11.6. Rules by Trustee, Paying Agent and Registrar.
The Trustee may make reasonable rules for action by, or a meeting of, Holders.
The Registrar and the Paying Agent may make reasonable rules for their
functions.
Section 11.7.. Legal Holidays. A "Legal Holiday"
is a Saturday, a Sunday or other day on which commercial banking institutions
are authorized or required to be closed in New York City. If a payment date is
a Legal Holiday, payment shall be made on the next succeeding day that is not a
Legal Holiday, and no interest shall accrue for the intervening period. If a
regular record date is a Legal Holiday, the record date shall not be affected.
Section 11.8. Governing Law, etc.
(a) THIS INDENTURE (INCLUDING EACH NOTE GUARANTEE) AND THE NOTES
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK. THE PARTIES HERETO EACH HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
INDENTURE, EACH NOTE GUARANTEE OR THE NOTES OR ANY TRANSACTION RELATED HERETO
OR THERETO.
(b) The Company and each Note Guarantor hereby:
(i) agrees that any suit, action or proceeding against it arising
out of or relating to this Indenture or the Notes, as the case may be,
may be instituted in any Federal or state court sitting in The City of
New York,
(ii) waives to the extent permitted by applicable law, any
objection which it may now or hereafter have to the laying of venue of
any such suit, action or proceeding, and any claim that any suit, action
or proceeding in such a court has been brought in an inconvenient forum,
(iii) irrevocably submits to the non-exclusive jurisdiction of
such courts in any suit, action or proceeding,
(iv) agrees that final judgment in any such suit, action or
proceeding brought in such a court shall be conclusive and binding may be
enforced in the courts of the jurisdiction of which it is subject by a
suit upon judgment, and
(v) agrees that service of process by mail to the addressed
specified herein shall constitute personal service of such process on it
in any such suit, action or proceeding.
(c) Nothing in this shall affect the right of the Trustee or any
Holder of the Notes to serve process in any other manner permitted by law.
Section 11.9. No Recourse Against Others. No director, officer,
employee, incorporator or stockholder of the Company, as such, shall have any
liability for any obligations of the Company under the Notes or this Indenture
or for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder of Notes by accepting a Note waives and releases all
such liability. The waiver and release are part of the consideration for
issuance of the Notes. Such waiver may not be effective to waive liabilities
under the federal securities laws and it is the view of the SEC that such
waiver is against public policy.
Section 11.10. Successors. All agreements of the Company and the
Note Guarantors in this Indenture and the Notes shall bind their respective
successors. All agreements of the Trustee in this Indenture shall bind its
successors.
Section 11.11. Duplicate and Counterpart Originals. The parties
may sign any number of copies of this Indenture. One signed copy is enough to
prove this Indenture. This Indenture may be executed in any number of
counterparts, each of which so executed 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 Notes shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
Section 11.13. Qualification of Indenture. The Company shall
Qualify this Indenture under the TIA in accordance with the terms and
conditions of the Issue Date Registration Rights Agreement and shall pay all
reasonable costs and expenses (including attorneys' fees and expenses for
the Company, the Note Guarantors, the Trustee and the Holders) incurred in
connection therewith, including, but not limited to, costs and expenses of
qualification of this Indenture and the Notes and printing this Indenture
and the Notes. The Trustee shall be entitled to receive from the Company
any such Officers' Certificates, Opinions of Counsel or other
documentation as it may reasonably request in connection with any such
qualification of this Indenture under the TIA.
Section 11.14. Table of Contents; Headings. The table of contents
and headings of the Articles and Sections of this Indenture have been inserted
for convenience of reference only, are not intended to be considered a part
hereof and shall not modify or restrict any of the terms or provisions hereof.
IN WITNESS WHEREOF, the parties have caused this Indenture to be
duly executed as of the date first written above.
DIMON INCORPORATED
By:/s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: President and Chief
Operating Officer
By:/s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President-
Chief Financial Officer
Attest:/s/ Xxxxxx x. Xxxxxxx
SUNTRUST BANK,
as Trustee
By:/s/Xxxxx X. XxXxxxx
Name: Xxxxx X. XxXxxxx
Title: Assistant Vice President
Attest:/s/Xxxxxxxx X. Xxxxxxx
EXHIBIT A
FORM OF NOTE
[Include the following legend for Global Notes only:
"THIS IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE REFERRED TO
HEREINAFTER.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK,
NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF."]
[Include the following legend on all Notes that are Restricted Notes:
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER, OR AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF, THE SECURITIES ACT, IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
JURISDICTION AND IN ACCORDANCE WITH THE TRANSFER RESTRICTIONS CONTAINED
IN THE INDENTURE UNDER WHICH THIS NOTE WAS ISSUED."]
[Include the following legend on all Certificated Notes that are
Restricted Notes:
"IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
REGISTRAR SUCH OPINIONS OF COUNSEL, CERTIFICATES AND/OR OTHER INFORMATION
AS IT MAY REASONABLY REQUIRE IN FORM REASONABLY SATISFACTORY TO IT AS
PROVIDED FOR IN THE INDENTURE TO CONFIRM THAT THE TRANSFER COMPLIED WITH
THE FOREGOING RESTRICTIONS AS PROVIDED FOR IN THE INDENTURE."]
FORM OF FACE OF NOTE
No. [___]
Principal Amount $[______________]
[If the Note is a Global Note include the following two lines:
as revised by the Schedule of Increases and
Decreases in Global Note attached hereto]
CUSIP NO. ____________
[If the Note is a Regulation S Global Note, delete the reference to
CUSIP NO. and replace it with:
ISIN NO. ____________]
DIMON Incorporated, a Virginia corporation, promises to pay to CEDE
& CO., or registered assigns, the principal sum of [__________________] Dollars
[If the Note is a Global Note, add the following, as revised by the Schedule of
Increases and Decreases in Global Note attached hereto], on June 1, 2013.
Interest Payment Dates:June 1 and December 1
Record Dates: May 15 and November 15
Additional provisions of this Note are set forth on the other side
of this Note.
DIMON INCORPORATED
By:
Name:
Title:
By:
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
SunTrust Bank,
as Trustee, certifies
that this is one of
the Notes referred
to in the Indenture.
By:
Authorized Signatory Date:
FORM OF REVERSE SIDE OF NOTE
7 3/4 % SENIOR NOTES DUE 2013
1. Interest
DIMON Incorporated, a Virginia corporation (such corporation, and
its successors and assigns under the Indenture hereinafter referred to, the
"Company"), promises to pay interest on the principal amount of this Note at
the rate per annum shown above.
The Company will pay interest semiannually in arrears on each
Interest Payment Date of each year commencing December 1, 2003. Interest on
the Notes will accrue from the most recent date to which interest has been paid
on the Notes or, if no interest has been paid, from May 30, 2003. The Company
shall pay interest on overdue principal (plus interest on such interest to the
extent lawful), at the rate borne by the Notes to the extent lawful. Interest
will be computed on the basis of a 360-day year of twelve 30-day months.
The Company shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue principal and, to the
extent such payments are lawful, interest on overdue installments of interest
("Defaulted Interest") without regard to any applicable grace periods at the
rate of 2.0% per annum in excess of the rate shown on this Note, as provided in
the Indenture.
2. Method of Payment
Prior to 10:00 a.m. New York City time on the date on which any
principal of or interest on any Note is due and payable, the Company shall
irrevocably deposit with the Trustee or the Paying Agent money sufficient to
pay such principal and/or interest. The Company will pay interest (except
Defaulted Interest) to the Persons who are registered Holders of Notes at the
close of business on the Record Date preceding the Interest Payment Date even
if Notes are canceled, repurchased or redeemed after the Record Date and on or
before the relevant Interest Payment Date. Holders must surrender Notes to a
Paying Agent to collect principal payments. The Company will pay principal and
interest in U.S. Legal Tender.
Payments in respect of Notes represented by a Global Note
(including principal and interest) will be made by the transfer of immediately
available funds to the accounts specified by DTC. The Company will make all
payments in respect of a Certificated Note (including principal and interest)
by mailing a check to the registered address of each Holder thereof; provided,
however, that payments on the Notes may also be made, in the case of a Holder
of at least $1,000,000 aggregate principal amount of Notes, by wire transfer to
a U.S. dollar account maintained by the payee with a bank in the United States
if such Holder elects payment by wire transfer by giving written notice to the
Trustee or the Paying Agent to such effect designating such account no later
than 15 days immediately preceding the relevant due date for payment (or such
other date as the Trustee may accept in its discretion).
3. Paying Agent and Registrar
Initially, SunTrust Bank (the "Trustee"), will act as Trustee,
Paying Agent and Registrar. The Company may appoint and change any Paying
Agent, Registrar or co-registrar without notice to any Holder. The Company or
any Note Guarantor may act as Paying Agent, Registrar or co-registrar.
4. Indenture
The Company issued the Notes under an Indenture, dated as of May
30, 2003 (as it may be amended or supplemented from time to time in accordance
with the terms thereof, the "Indenture"), between the Company, the Note
Guarantors and the Trustee. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the TIA.
Capitalized terms used herein and not defined herein have the meanings ascribed
thereto in the Indenture. The Notes are subject to all such terms, and Holders
are referred to the Indenture and the TIA for a statement of those terms. Each
Holder by accepting a Note, agrees to be bound by all of the terms and
provisions of the Indenture, as amended from time to time.
The Notes are general unsecured obligations of the Company of which
$125,000,000 in aggregate principal amount will be initially issued on the
Issue Date. Subject to the conditions set forth in the Indenture and without
the consent of the Holders, the Company may issue an unlimited principal amount
of Add On Notes. All Notes will be treated as a single class of securities
under the Indenture.
The Indenture imposes certain limitations on, among other things,
the ability of the Company and its Subsidiaries to: Incur Indebtedness, make
Restricted Payments, incur Liens, make Asset Sales, enter into transactions
with Affiliates, or consolidate or merge or transfer or convey all or
substantially all of the Company's and its Subsidiaries' assets.
To guarantee the due and punctual payment of the principal of and
interest on the Notes and all other amounts payable by the Company under the
Indenture and the Notes when and as the same shall be due and payable, whether
at maturity, by acceleration or otherwise, according to the terms of the Notes
and the Indenture, each Material Domestic Subsidiary will unconditionally
guarantee, jointly and severally, such obligations pursuant to the terms of the
Indenture. Each Note Guarantee will be subject to release as provided in the
Indenture.
5. Redemption
Optional Redemption. The Notes will not be redeemable at the
Company's option prior to June 1, 2008. Thereafter, the Notes will be subject
to redemption at the Company's option, in whole or in part, upon not less than
30 nor more than 60 days' notice, at the redemption prices (expressed as
percentages of principal amount) set forth below plus accrued and unpaid
interest thereon to the applicable redemption date, if redeemed during the
twelve-month period beginning on June 1 of the years indicated below:
YEAR PERCENTAGE
2008 .................................................... 103.875 %
2009 .................................................... 102.583 %
2010..................................................... 101.292 %
2011 and thereafter...................................... 100.000 %
Optional Redemption upon Equity Offerings. At any time, or from
time to time, on or prior to June 1, 2006, the Company may, at its option, use
the net cash proceeds of one or more Public Equity Offerings (as defined below)
to redeem in the aggregate up to 35% of the aggregate principal amount of the
Notes originally issued at a redemption price equal to 107.75% of the principal
amount thereof, plus accrued and unpaid interest thereon to the date of
redemption; provided that:
(i) after giving effect to any such redemption at least 65% of the
aggregate principal amount of the Notes originally issued remains
outstanding; and
(ii) the Company shall make such redemption not more than 90 days
after the consummation of such Public Equity Offering.
As used in the preceding paragraph, "Public Equity Offering" means
an underwritten public offering of Capital Stock of the Company other than
Disqualified Stock pursuant to an effective registration statement (other than
a registration statement filed on Form S-4 or S-8) filed with the Commission in
accordance with the Securities Act, or any successor statute.
Partial Redemption. In the case of any partial redemption,
selection of the Notes for redemption will be made in accordance with Article V
of the Indenture. On and after the redemption date, interest will cease to
accrue on Notes or portions thereof called for redemption as long as the
Company has deposited with the Paying Agent funds in satisfaction of the
applicable redemption price pursuant to the Indenture.
6. Repurchase Provisions
Change Of Control Offer. Upon the occurrence of a Change of
Control, each Holder of Notes will have the right to require that the Company
repurchase all or a portion (equal to $1,000 or in integral multiples thereof)
of the Holder's Notes at a purchase price in cash equal to 101% of the
principal amount thereof, plus accrued and unpaid interest to the date of
purchase. Within 30 days following the date upon which the Change of Control
occurred, the Company must make a Change of Control Offer pursuant to a Change
of Control Offer Notice. As more fully described in the Indenture, the Change
of Control Offer Notice shall state, among other things, the Change of Control
Payment Date, which must be no earlier than 30 days nor later than 60 days from
the date the notice is mailed, other than as may be required by applicable law.
Asset Sale Offer. The Indenture imposes certain limitations on the
ability of the Company and its Restricted Subsidiaries to make Asset Sales. In
the event the proceeds from a permitted Asset Sale exceed certain amounts and
are not applied as specified in the Indenture, the Company will be required to
make an Asset Sale Offer to purchase to the extent of such remaining proceeds
each Holder's Notes together with holders of certain other Indebtedness at 100%
of the principal amount thereof, plus accrued interest (if any) to the Asset
Sale Offer Payment Date, as more fully set forth in the Indenture.
7. Denominations; Transfer; Exchange
The Notes are in fully registered form without coupons, and only in
denominations of principal amount of $1,000 and any integral multiple thereof.
A Holder may transfer or exchange Notes in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not register the
transfer or exchange of (i) any Notes selected for redemption (except, in the
case of a Note to be redeemed in part, the portion of the Note not to be
redeemed) for a period beginning 15 days before the mailing of a notice of
Notes to be redeemed and ending on the date of such mailing or (ii) any Notes
for a period beginning 15 days before an interest payment date and ending on
such interest payment date.
8. Persons Deemed Owners
The registered holder of this Note may be treated as the owner of
it for all purposes.
9. Unclaimed Money
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee or Paying Agent shall pay the money back to the
Company at its request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only
to the Company and not to the Trustee for payment.
10. Discharge Prior to Redemption or Maturity
Subject to certain conditions set forth in the Indenture, the
Company at any time may terminate some or all of its obligations under the
Notes and the Indenture if the Company deposits with the Trustee U.S. Legal
Tender or U.S. Government Obligations for the payment of principal of and
interest on the Notes to redemption or maturity, as the case may be.
11. Amendment, Supplement and Waiver
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Notes may be amended or supplemented with the consent of the
Holders of at least a majority in principal amount of the then Outstanding
Notes and (ii) any existing default (other than with respect to nonpayment or
in respect of a provision that cannot be amended without the written consent of
each Holder affected) or noncompliance with any provision may be waived with
the written consent of the Holders of a majority in principal amount of the
then Outstanding Notes. Subject to certain exceptions set forth in the
Indenture, without the consent of any Holder, the Company and the Trustee may
amend the Indenture or the Notes to, among other things, cure any ambiguity,
omission, defect or inconsistency, or to comply with Article IV of the
Indenture, or to provide for uncertificated Notes in addition to or in place of
Certificated Notes, or to add Note Guarantees with respect to the Notes or to
secure the Notes, or to add additional covenants or surrender rights and powers
conferred on the Company, or to comply with any request of the SEC in
connection with qualifying the Indenture under the TIA, or to make any change
that would provide any additional benefits to the Holder of Notes, or to make
any change that does not adversely affect the rights of any Holder, or to
provide for the issuance of Exchange Notes or Add On Notes.
12. Defaults and Remedies
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the Notes may declare all the
Notes to be due and payable immediately. Certain events of bankruptcy or
insolvency are Events of Default which will result in the Notes being due and
payable immediately upon the occurrence of such Events of Default.
Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Notes unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in principal amount of the
Outstanding Notes may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Holders notice of any continuing Default or Event
of Default (except a Default or Event of Default in payment of principal or
interest) if it determines that withholding notice is in their interest.
13. Trustee Dealings with the Company
Subject to certain limitations set forth in the Indenture, the
Trustee under the Indenture, in its individual or any other capacity, may
become the owner or pledgee of Notes and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it
were not Trustee.
14. No Recourse Against Others
No director, officer, employee, incorporator or stockholder of the
Company or any Note Guarantor, as such, shall have any liability for any
obligations of the Company under the Notes, the Indenture or any Note Guarantee
or for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder of Notes by accepting a Note waives and releases
all such liability. The waiver and release are part of the consideration for
issuance of the Notes. Such waiver may not be effective to waive liabilities
under the federal securities laws and it is the view of the Commission that
such waiver is against public policy.
15. Authentication
This Note shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent acting on its behalf) manually signs the
certificate of authentication on the other side of this Note.
16. Abbreviations
Customary abbreviations may be used in the name of a Holder or an
assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entirety), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian) and U/G/M/A (=Uniform Gift to Minors
Act).
17. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures the Company has caused CUSIP numbers
to be printed on the Notes and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
[If the Note is a Regulation S Global Note, replace 17. with the
following:
17. ISIN Numbers
The Company has caused ISIN numbers to be printed on the Notes and
has directed the Trustee to use ISIN numbers in notices of redemption as a
convenience to Holders. No representation is made as to the accuracy of such
numbers either as printed on the Notes or as contained in any notice of
redemption and reliance may be placed only on the other identification numbers
placed thereon.]
18. Governing Law
This Note shall be governed by, and construed in accordance with,
the laws of the State of New York.
The Company will furnish to any Holder upon written request and
without charge to the Holder a copy of the Indenture which has in it the text
of this Note in larger type. Requests may be made to:
DIMON Incorporated
000 Xxxxxx Xxxxxx
Xxxxxxxx XX 00000
Attention: Secretary
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's Social Security or Tax I.D. Number)
and irrevocably appoint agent to transfer this Note on the books of the
Company. The agent may substitute another to act for him.
Date:____________________ Your Signature:___________________
Signature Guarantee:______________________________
(Signature must be guaranteed)
Sign exactly as your name appears on the other side of this Note.
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
SEC Rule 17Ad-15.
[To be attached to Global Notes only:
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been made:
Date of Amount of Amount of increase Principal Amount Signature of
Exchange decrease in in Principal Amount of this Global authorized
Principal of this Global Note Note following signatory of
Amount of such decrease Trustee or Note
This Global or increase Custodian
Note
________ ___________ ___________________ ________________ _______________
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 3.9 or Section 3.10 of the Indenture, check either box:
[ ] [ ]
SECTION 3.9 SECTION 3.10
If you want to elect to have only part of this Note purchased by
the Company pursuant to Section 3.9 or Section 3.10 of the Indenture, state the
principal amount (which must be an integral multiple of $1,000) that you want
to have purchased by the Company: $
Date: __________ Your Signature ____________________________
(Sign exactly as your name appears on the other side of the Note)
Signature Guarantee:_______________________________________
(Signature must be guaranteed)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
SEC Rule 17Ad-15.
EXHIBIT B
FORM OF TRANSFER CERTIFICATE FOR TRANSFER TO QIB
[Date]
SunTrust Bank
Attn: Corporate Trust Department
10th Floor
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Re: 7 3/4 % Senior Notes Due 2013 (the "Notes")
of DIMON Incorporated (the "Company")
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of May 30, 2003
(as amended and supplemented from time to time, the "Indenture"), between the
Company, the Note Guarantors party thereto and SunTrust Bank, as Trustee.
Capitalized terms used but not defined herein shall have the meanings given
them in the Indenture.
This letter relates to $___________ aggregate principal amount of
Notes [in the case of a transfer of an interest in a Regulation S Global Note:
which represents an interest in a Regulation S Global Note beneficially owned
by] [in the case of a transfer of an IAI Note: which are held in the name of]
the undersigned (the "Transferor") to effect the transfer of such Notes in
exchange for an equivalent beneficial interest in the Rule 144A Global Note.
In connection with such request, and with respect to such Notes,
the Transferor does hereby certify that such Notes are being transferred in
accordance with Rule 144A under the Securities Act of 1933, as amended
("Rule 144A"), to a transferee that the Transferor reasonably believes is
purchasing the Notes for its own account or an account with respect to which
the transferee exercises sole investment discretion, and the transferee, as
well as any such account, is a "qualified institutional buyer" within the
meaning of Rule 144A, in a transaction meeting the requirements of Rule 144A
and in accordance with applicable securities laws of any state of the United
States or any other jurisdiction.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby.
Very truly yours,
[Name of Transferor]
By:____________________________
_______________________________
Authorized Signature
EXHIBIT C
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH TRANSFERS
TO INSTITUTIONAL ACCREDITED INVESTORS
[Date]
SunTrust Bank
Attn: Corporate Trust Department
10th Floor
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Re: 7 3/4 % Senior Notes Due 2013 (the "Notes")
of DIMON Incorporated (the "Company")
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of May 30, 2003
(as amended and supplemented from time to time, the "Indenture"), between the
Company, the Note Guarantors party thereto and SunTrust Bank, as Trustee.
Capitalized terms used but not defined herein shall have the meanings given
them in the Indenture.
This certificate is delivered to request a transfer of US $________
principal amount of the Notes (the "Transferred Notes") to the undersigned (the
"Transferee").
Upon transfer, the Transferred Notes should be registered in the
name of the new owner as follows:
Name: ___________________________________ [If applicable, add: as
nominee for the transferee]
Address: ________________________________
Taxpayer ID Number: _____________________
The undersigned represents and warrants to you that:
1) We have received a copy of the Offering Memorandum (the
"Offering Memorandum"), dated May 27, 2003, relating to the Notes. We
acknowledge that we have read and agreed to the matters stated on pages
77-79 of the Offering Memorandum and in the section entitled "Notice to
Investors" of the Offering Memorandum, including the restrictions on
duplication and circulation of the Offering Memorandum.
2) We understand that any subsequent transfer of the Notes is
subject to certain restrictions and conditions set forth in the Indenture
relating to the Notes (as described in the Offering Memorandum) and the
undersigned agrees to be bound by, and not to resell, pledge or otherwise
transfer the Notes except in compliance with, such restrictions and
conditions and the Securities Act of 1933, as amended (the "Securities
Act").
3) We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes may not be
offered or sold except as permitted in the following sentence. We agree,
on our own behalf and on behalf of any accounts for which we are acting
as hereinafter stated, that if we should sell or otherwise transfer any
Notes prior to the date which is two years after the original issuance of
the Notes, we will do so only:
(a)to the Company or any of its subsidiaries,
(b)inside the United States in accordance with Rule 144A under
the Securities Act to a "qualified institutional buyer" (as defined in
Rule 144A under the Securities Act),
(c)inside the United States to an institutional "accredited
investor" (as defined in Rule 501(a)(1), (2) (3) or (7) under the
Securities Act) that, prior to such transfer, furnishes (or has furnished
on its behalf by a U.S. broker-dealer) to the Trustee (as defined in the
Indenture relating to the Notes), a signed letter containing certain
representations and agreements relating to the restrictions on
transfer of the Notes (the form of which letter can be obtained from
the Trustee),
(d)outside the United States in accordance with Regulation S
under the Securities Act,
(e)pursuant to the exemption from registration provided by Rule
144 under the Securities Act or another available exemption under the
Securities Act (if available), or
(f)pursuant to an effective registration statement under the
Securities Act,
and we further agree to provide to any person purchasing Notes from us a notice
advising such purchaser that resales of the Notes are restricted as stated
herein.
4) We are not acquiring the Notes for or on behalf of, and will not
transfer the Notes to, any Benefit Plan (as defined in the section
entitled "Notice to Investors" in the Offering Memorandum), except as
permitted in the section entitled "Notice to Investors" in the Offering
Memorandum.
5) We understand that, on any proposed resale of any Notes, we will
be required to furnish to the Trustee and the Company such certification,
legal opinions and other information as the Trustee and the Company may
reasonably require to confirm that the proposed sale complies with the
foregoing restrictions. We further understand that the Notes purchased
by us will bear a legend to the foregoing effect.
6) We are an institutional "accredited investor" (as defined in
Rule 501(a)(l), (2), (3) or (7) of Regulation D under the Securities Act)
and have such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of our investment in
the Notes, and we and any accounts for which we are acting are each able
to bear the economic risk of our or their investment for an indefinite
period of time, as the case may be.
7) We are acquiring the Notes purchased by us for our account or
for one or more accounts (each of which is an institutional "accredited
investor") as to each of which we exercise sole investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By: _________________________
_____________________________
Authorized Signature
EXHIBIT D
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH TRANSFERS
PURSUANT TO REGULATION S
[Date]
SunTrust Bank
Attn: Corporate Trust Department
10th Floor
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Re: 7 3/4 % Senior Notes Due 2013 (the "Notes")
of DIMON Incorporated (the "Company")
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of May 30, 2003
(as amended and supplemented from time to time, the "Indenture"), between the
Company, the Note Guarantors party thereto and SunTrust Bank, as Trustee.
Capitalized terms used but not defined herein shall have the meanings given
them in the Indenture.
In connection with our proposed sale of $________ aggregate
principal amount of the Notes [in the case of a transfer of an interest in a
144A Global Note: , which represent an interest in a 144A Global Note
beneficially owned by] [in the case of a transfer of an IAI Note: held in the
name of] the undersigned ("Transferor"), we confirm that such sale has been
effected pursuant to and in accordance with Regulation S under the Securities
Act of 1933, as amended (the "Securities Act"), and, accordingly, we represent
that:
(a) the offer of the Notes was not made to a person in the United
States;
(b) either (i) at the time the buy order was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed that the transferee was outside the United
States or (ii) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we nor
any person acting on our behalf knows that the transaction has been pre-
arranged with a buyer in the United States;
(c) no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 903(b) or Rule 904(b)
of Regulation S, as applicable;
(d) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(e) we are the beneficial owner of the principal amount of Notes
being transferred.
In addition, if the sale is made during a Distribution Compliance
Period and the provisions of Rule 904(b)(1) or Rule 904(b)(2) of Regulation S
are applicable thereto, we confirm that such sale has been made in accordance
with the applicable provisions of Rule 904(b)(1) or Rule 904(b)(2), as the case
may be.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this letter have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:____________________________
_______________________________
Authorized Signature
EXHIBIT E
FORM OF RULE 144 CERTIFICATION
[Date]
SunTrust Bank
Attn: Corporate Trust Department
10th Floor
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Re: 7 3/4 % Senior Notes Due 2013 (the "Notes")
of DIMON Incorporated (the "Company")
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of May 30, 2003
(as amended and supplemented from time to time, the "Indenture"), between the
Company, the Note Guarantors party thereto and SunTrust Bank, as Trustee.
Capitalized terms used but not defined herein shall have the meanings given
them in the Indenture.
In connection with our proposed sale of $________ aggregate
principal amount of the Notes [in the case of a transfer of an interest in a
144A Global Note: , which represent an interest in a 144A Global Note
beneficially owned by] [in the case of a transfer of an IAI Note: held in the
name of] the undersigned ("Transferor"), we confirm that such sale has been
effected pursuant to and in accordance with Rule 144 under the Securities Act.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby.
Very truly yours,
[Name of Transferor]
By:____________________________
_______________________________
Authorized Signature
EXHIBIT F
FORM OF NOTE GUARANTEE
This Supplemental Indenture, dated as of [__________] (this
"Supplemental Indenture"), between [name of new Note Guarantor], a [________]
[corporation][limited liability company] (the "New Note Guarantor"), DIMON
Incorporated, a Virginia corporation (together with its successors and assigns,
the "Company"), each other Note Guarantor (if any) under the Indenture referred
to below, and SunTrust Bank, as Trustee under the Indenture referred to below.
W I T N E S S E T H:
WHEREAS, the Company and the Trustee have heretofore executed and
delivered an Indenture, dated as of May 30, 2003 (as amended, supplemented,
waived or otherwise modified, the "Indenture"), providing for the issuance of 7
3/4 % Senior Notes Due 2013 of the Company (the "Notes");
WHEREAS, the Indenture provides that the Company is required to
cause each Material Domestic Subsidiary created or acquired by the Company to
execute and deliver to the Trustee a Note Guarantee pursuant to which such
Material Domestic Subsidiary will unconditionally guarantee, jointly and
severally with the other Note Guarantors, the Company's full and prompt payment
of the Obligations (as defined in the Indenture) in respect of the Indenture,
the Notes and the Registration Rights Agreement; and
WHEREAS, pursuant to Section 9.1 of the Indenture, the Trustee, the
Company and any existing Note Guarantors are authorized to execute and deliver
this Supplemental Indenture to amend the Indenture, without the consent of any
Holder;
NOW, THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
the New Note Guarantor, the Company, each other Note Guarantor and the Trustee
mutually covenant and agree for the equal and ratable benefit of the holders of
the Notes as follows:
Article I
Definitions
Section 1.1. Defined Terms. Unless otherwise defined in this
Supplemental Indenture, terms defined in the Indenture are used herein as
therein defined.
Article II
Agreement to be Bound; Guarantee
Section 2.1. Agreement to be Bound. The New Note Guarantor hereby
becomes a party to the Indenture as a Note Guarantor and as such will have all
of the rights and be subject to all of the obligations and agreements of a Note
Guarantor under the Indenture. The New Note Guarantor hereby agrees to be
bound by all of the provisions of the Indenture applicable to a Note Guarantor
and to perform all of the obligations and agreements of a Note Guarantor under
the Indenture.
Section 2.2. Guarantee. The New Note Guarantor hereby fully,
unconditionally and irrevocably guarantees, as primary obligor and not merely
as surety, jointly and severally with each other Note Guarantor, to each Holder
of the Notes and the Trustee, the full and punctual payment when due, whether
at maturity, by acceleration, by redemption or otherwise, of the Obligations,
all as more fully set forth in Article X of the Indenture.
Article III
Miscellaneous
Section 3.1. Notices. Any notice or communication delivered to
the Company under the provisions of the Indenture shall constitute notice to
the New Note Guarantor.
Section 3.2. Parties. Nothing expressed or mentioned herein is
intended or shall be construed to give any Person, firm or corporation, other
than the Holders and the Trustee, any legal or equitable right, remedy or claim
under or in respect of this Supplemental Indenture or the Indenture or any
provision herein or therein contained.
Section 3.3. Governing Law, etc. This Supplemental Indenture
shall be governed by the provisions set forth in Section 11.8 of the Indenture.
Section 3.4. Severability. In case any provision in this
Supplemental Indenture shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby and such provision shall be ineffective
only to the extent of such invalidity, illegality or unenforceability.
Section 3.5. Ratification of Indenture; Supplemental Indenture
Part of Indenture. Except as expressly amended hereby, the Indenture is in all
respects ratified and confirmed and all the terms, conditions and provisions
thereof shall remain in full force and effect. This Supplemental Indenture
shall form a part of the Indenture for all purposes, and every holder of Notes
heretofore or hereafter authenticated and delivered shall be bound hereby. The
Trustee makes no representation or warranty as to the validity or sufficiency
of this Supplemental Indenture.
Section 3.6. Duplicate and Counterpart Originals. The parties may
sign any number of copies of this Supplemental Indenture. One signed copy is
enough to prove this Supplemental Indenture. This Supplemental Indenture may
be executed in any number of counterparts, each of which so executed shall be
an original, but all of them together represent the same agreement.
Section 3.7. Headings. The headings of the Articles and Sections
in this Supplemental Indenture have been inserted for convenience of reference
only, are not intended to be considered as a part hereof and shall not modify
or restrict any of the terms or provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed as of the date first above written.
DIMON INCORPORATED
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
[NAME OF NEW NOTE GUARANTOR],
as a Note Guarantor
By:_____________________________
Name:
Title:
[COMPLETE THE FOLLOWING SIGNATURE BLOCK FOR EACH EXISTING NOTE GUARANTOR:]
[NAME OF NOTE GUARANTOR],
as a Note Guarantor
By:_____________________________
Name:
Title:
SUNTRUST BANK,
as Trustee
By:_____________________________
Name:
Title:
