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Exhibit 4.1
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INDESCO INTERNATIONAL, INC.
Issuer,
THE SUBSIDIARY GUARANTORS NAMED HEREIN,
Guarantors
and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
Trustee
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Indenture
Dated as of April 23, 1998
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$145,000,000
9 3/4% Senior Subordinated Notes Due 2008
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INDESCO INTERNATIONAL, INC.
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of April 23, 1998
Trust Indenture
Act Section Indenture Section
ss. 310(a)(1) .......................................... 608
(a)(2) .......................................... 608
(b) .......................................... 608
ss. 312(c) .......................................... 701
ss. 313 .......................................... 702
ss. 314(a)(4) .......................................... 1008(a)
(c)(1) .......................................... 103
(c)(2) .......................................... 103
(e) .......................................... 103
ss. 315(b) .......................................... 602
ss. 316(a)(last
sentence) .......................................... 101 ("Outstanding")
(a)(1)(A) .......................................... 502, 512
(a)(1)(B) .......................................... 513
(b) .......................................... 508
(c) .......................................... 105(d)
ss. 317(a)(1) .......................................... 503
(a)(2) .......................................... 504
(b) .......................................... 1003
ss. 318(a) .......................................... 114
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Note: This reconciliation and tie shall not, for any purpose, be deemed part of
the Indenture
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TABLE OF CONTENTS
Page
PARTIES.................................................................... 1
RECITALS OF THE COMPANY.................................................... 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions....................................................2
Acquired Indebtedness............................................2
Act..............................................................2
Additional Notes.................................................2
Affiliate........................................................2
Agent Bank.......................................................3
Asset Sale.......................................................3
Attributable Debt................................................3
Banks............................................................3
Board of Directors...............................................3
Board Resolution.................................................4
Borrowing Base...................................................4
Business Day.....................................................4
Capital Stock....................................................4
Capitalized Lease Obligation.....................................4
Change of Control................................................4
Closing Date.....................................................5
Commission.......................................................5
Common Stock.....................................................5
Company..........................................................6
Company Request" or "Company Order...............................6
Consolidated EBITDA..............................................6
Consolidated Net Income..........................................6
Consolidated Net Worth...........................................7
Consolidated Tangible Assets.....................................8
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Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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Corporate Trust Office...........................................8
corporation......................................................8
Credit Agreement.................................................8
Default..........................................................8
Defaulted Interest...............................................8
Depositary.......................................................8
Designated Senior Indebtedness...................................8
Disinterested Director...........................................9
Disqualified Stock...............................................9
Equity Offering..................................................9
Event of Default.................................................9
Exchange Act.....................................................9
Exchange Notes...................................................9
Exchange Offer..................................................10
Exchange Offer Registration Statement...........................10
Existing Indebtedness...........................................10
Federal Bankruptcy Code.........................................10
Fixed Charges...................................................10
Fixed Charge Coverage Ratio.....................................10
Foreign Subsidiary..............................................10
Generally Accepted Accounting Principles" or "GAAP..............10
Hedging Obligations.............................................11
Holder..........................................................11
Indebtedness....................................................11
Indenture.......................................................12
Initial Notes...................................................12
Interest Payment Date...........................................12
Investment......................................................12
Lien............................................................12
Maturity........................................................12
Net Cash Proceeds...............................................12
Non-payment Event Default.......................................13
Non-U.S. Person.................................................13
Notes...........................................................13
Obligations.....................................................13
Officers' Certificate...........................................13
Opinion of Counsel..............................................13
Outstanding.....................................................13
Parent..........................................................14
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Pari Passu Indebtedness.........................................14
Paying Agent....................................................14
Payment Default.................................................15
Payment Event of Default........................................15
Permitted Holders...............................................15
Permitted Investments...........................................15
Permitted Refinancing Indebtedness..............................16
Person..........................................................16
Polytek.........................................................17
Polytek Credit Agreement........................................17
Predecessor Note................................................17
Preferred Stock.................................................17
QIB.............................................................17
Qualified Equity Interest.......................................17
Qualified Stock.................................................17
Redemption Date.................................................17
Redemption Price................................................17
Register" and "Registrar........................................17
Registration Rights Agreement...................................17
Registration Statement..........................................18
Regular Record Date.............................................18
Regulation S....................................................18
Restricted Subsidiary...........................................18
Rule 144A.......................................................18
sale and leaseback transaction..................................18
Securities Act..................................................18
Senior Bank Debt................................................18
Senior Indebtedness.............................................18
Shelf Registration Statement....................................19
Significant Subsidiary..........................................19
Special Record Date.............................................19
Stated Maturity.................................................19
Subordinated Indebtedness.......................................19
Subordinated Parent Notes.......................................19
Subsidiary......................................................20
Subsidiary Guarantee............................................20
Subsidiary Guarantors...........................................20
Trust Indenture Act" or "TIA....................................20
Trustee.........................................................20
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Unrestricted Subsidiary.........................................20
U.S. Government Obligations.....................................20
Voting Stock....................................................21
Weighted Average Life...........................................21
Wholly Owned Restricted Subsidiary..............................21
SECTION 102. Incorporation by Reference of Trust Indenture Act.......21
SECTION 103. Compliance Certificates and Opinions....................22
SECTION 104. Form of Documents Delivered to Trustee..................22
SECTION 105. Acts of Holders.........................................23
SECTION 106. Notices, etc., to Trustee, Company and Subsidiary
Guarantors...........................................24
SECTION 107. Notice to Holders; Waiver...............................25
SECTION 108. Effect of Headings and Table of Contents................26
SECTION 109. Successors and Assigns..................................26
SECTION 110. Separability Clause.....................................26
SECTION 111. Benefits of Indenture...................................26
SECTION 112. Governing Law...........................................26
SECTION 113. Legal Holidays..........................................26
SECTION 114. Conflict of Any Provision of Indenture with Trust
Indenture Act........................................27
ARTICLE TWO
NOTE FORMS
SECTION 201. Forms Generally.........................................27
SECTION 202. Restrictive Legends.....................................28
ARTICLE THREE
THE NOTES
SECTION 301. Title and Terms.........................................31
SECTION 302. Denominations...........................................32
SECTION 303. Execution, Authentication, Delivery and Dating..........32
SECTION 304. Temporary Notes.........................................33
SECTION 305. Registration, Registration of Transfer and Exchange.....34
SECTION 306. Book-Entry Provisions for Global Notes..................35
SECTION 307. Special Transfer Provisions.............................37
SECTION 308. Mutilated, Destroyed, Lost and Stolen Notes.............40
SECTION 309. Payment of Interest; Interest Rights Preserved..........41
SECTION 310. Persons Deemed Owners...................................43
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SECTION 311. Cancellation............................................43
SECTION 312. Issuance of Additional Notes............................43
SECTION 313. Computation of Interest.................................44
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.................44
SECTION 402. Application of Trust Money..............................45
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.......................................45
SECTION 502. Acceleration of Maturity; Rescission and Annulment......47
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee..............................................48
SECTION 504. Trustee May File Proofs of Claim........................49
SECTION 505. Trustee May Enforce Claims Without Possession of Notes..50
SECTION 506. Application of Money Collected..........................50
SECTION 507. Limitation on Suits.....................................50
SECTION 508. Unconditional Right of Holders to Receive Principal
Premium and Interest.................................51
SECTION 509. Restoration of Rights and Remedies......................51
SECTION 510. Rights and Remedies Cumulative..........................51
SECTION 511. Delay or Omission Not Waiver............................52
SECTION 512. Control by Holders......................................52
SECTION 513. Waiver of Past Defaults.................................52
SECTION 514. Waiver of Stay or Extension Laws........................53
SECTION 515. Waiver of Personal Liability of Directors, Officers,
Employees and Stockholders...........................53
ARTICLE SIX
THE TRUSTEE
SECTION 601. Duties of Trustee.......................................53
SECTION 602. Notice of Defaults......................................54
SECTION 603. Certain Rights of Trustee...............................55
SECTION 604. Trustee Not Responsible for Recitals or Issuance of
Notes................................................56
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SECTION 605. May Hold Notes..........................................56
SECTION 606. Money Held in Trust.....................................57
SECTION 607. Compensation and Reimbursement..........................57
SECTION 608. Corporate Trustee Required; Eligibility.................58
SECTION 609. Resignation and Removal; Appointment of Successor.......58
SECTION 610. Acceptance of Appointment by Successor..................60
SECTION 611. Merger, Conversion, Consolidation or Succession to
Business.............................................60
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE
SECTION 701. Disclosure of Names and Addresses of Holders............61
SECTION 702. Reports by Trustee......................................61
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., Only on Certain Terms....61
SECTION 802. Successor Substituted...................................63
ARTICLE NINE
SUPPLEMENTS AND AMENDMENTS TO INDENTURE
AND SUBSIDIARY GUARANTEES
SECTION 901. Without Consent of Holders..............................63
SECTION 902. With Consent of Holders.................................64
SECTION 903. Execution of Supplemental Indentures....................65
SECTION 904. Effect of Supplemental Indentures.......................66
SECTION 905. Conformity with Trust Indenture Act.....................66
SECTION 906. Reference in Notes to Supplemental Indentures...........66
SECTION 907. Notice of Supplemental Indentures.......................66
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and Interest....67
SECTION 1002. Maintenance of Office or Agency........................67
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SECTION 1003. Money for Note Payments to Be Held in Trust............67
SECTION 1004. Corporate Existence....................................69
SECTION 1005. Payment of Taxes and Other Claims......................69
SECTION 1006. Maintenance of Properties..............................69
SECTION 1007. Insurance..............................................70
SECTION 1008. Statement by Officers As to Default....................70
SECTION 1009. Reports................................................70
SECTION 1010. Limitation on Incurrence of Indebtedness and Issuance
of Disqualified Stock...............................71
SECTION 1011. Limitation on Restricted Payments......................73
SECTION 1012. Limitation on Issuances and Sales of Capital Stock of
Restricted Subsidiaries.............................78
SECTION 1013. Limitation on Transactions with Affiliates.............78
SECTION 1014. Limitation on Liens....................................79
SECTION 1015. Purchase of Notes upon a Change of Control.............80
SECTION 1016. Limitation on Certain Asset Sales......................81
SECTION 1017. Unrestricted Subsidiaries..............................82
SECTION 1018. Limitation on Dividends and Other Payment Restrictions
Affecting Restricted Subsidiaries...................83
SECTION 1019. Waiver of Certain Covenants............................84
SECTION 1020. Payment for Consent....................................84
SECTION 1021. Limitation on Layering Debt............................84
SECTION 1022. Limitation on Guarantees of Indebtedness by Restricted
Subsidiaries........................................85
ARTICLE ELEVEN
REDEMPTION OF NOTES
SECTION 1101. Right of Redemption....................................85
SECTION 1102. Applicability of Article...............................86
SECTION 1103. Election to Redeem; Notice to Trustee..................86
SECTION 1104. Selection by Trustee of Notes to Be Redeemed...........86
SECTION 1105. Notice of Redemption...................................87
SECTION 1106. Deposit of Redemption Price............................88
SECTION 1107. Notes Payable on Redemption Date.......................88
SECTION 1108. Notes Redeemed in Part.................................88
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ARTICLE TWELVE
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. Company Option to Effect Legal Defeasance or Covenant
Defeasance..........................................89
SECTION 1202. Legal Defeasance and Discharge.........................89
SECTION 1203. Covenant Defeasance....................................89
SECTION 1204. Conditions to Legal Defeasance or Covenant Defeasance..90
SECTION 1205. Deposited Money and U.S. Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions.......91
SECTION 1206. Reinstatement..........................................92
ARTICLE THIRTEEN
GUARANTEES
SECTION 1301. Subsidiary Guarantees..................................92
SECTION 1302. Execution and Delivery of Subsidiary Guarantee.........94
SECTION 1303. Severability...........................................94
SECTION 1304. Seniority of Subsidiary Guarantees.....................94
SECTION 1305. Limitation of Subsidiary Guarantor's Liability.........94
SECTION 1306. Contribution...........................................95
SECTION 1307. Release of a Subsidiary Guarantor......................95
SECTION 1308. Benefits Acknowledged..................................96
SECTION 1309. Issuance of Subsidiary Guarantees by Certain New
Restricted Subsidiaries.............................96
ARTICLE FOURTEEN
SUBORDINATION
SECTION 1401. Notes Subordinate to Senior Indebtedness...............97
SECTION 1402. Payment over by the Company of Proceeds upon
Dissolution, etc....................................97
SECTION 1403. Suspension of Payment on Notes When Senior
Indebtedness of the Company in Default..............99
SECTION 1404. Payment Over by Subsidiary Guarantors of Proceeds
upon Dissolution, etc..............................100
SECTION 1405. Suspension of Payment on Subsidiary Guarantees When
Senior Indebtedness of Subsidiary Guarantor in
Default............................................101
SECTION 1406. Payment Permitted If No Default.......................102
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SECTION 1407. Subrogation to Rights of Holders of Senior
Indebtedness......................................102
SECTION 1408. Provisions Solely to Define Relative Rights...........102
SECTION 1409. Trustee to Effectuate Subordination...................103
SECTION 1410. No Waiver of Subordination Provisions.................103
SECTION 1411. Notice to Trustee.....................................104
SECTION 1412. Reliance on Judicial Order or Certificate of
Liquidating Agent..................................104
SECTION 1413. Rights of Trustee As a Holder of Senior Indebtedness;
Preservation of Trustees Rights....................105
SECTION 1414. Article Applicable to Paying Agents...................105
SECTION 1415. No Suspension of Remedies.............................105
SECTION 1416. Trust Moneys Not Subordinated.........................105
SECTION 1417. Trustee Not Fiduciary for Holders of Senior
Indebtedness.......................................106
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EXHIBITS
Exhibit A - Form of Note.............................................A-1
Exhibit B - Form of Subsidiary Guarantee.............................B-1
Exhibit C - Form of Certificate to Be Delivered in Connection with
Transfers to Non-QIB Institutional Accredited
Investors.............................................C-1
Exhibit D - Form of Certificate to Be Delivered in Connection with
Transfers Pursuant to Regulation S....................D-1
SCHEDULES
Schedule I - Existing Indebtedness
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INDENTURE, dated as of April 23, 1998 among Indesco International,
Inc., a corporation duly organized and existing under the laws of the State of
Delaware (herein called the "Company"), the Subsidiary Guarantors (as
hereinafter defined) and Norwest Bank Minnesota, National Association, a
national banking association organized and existing under the laws of United
States of America, trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of and issue of 9 3/4%
Senior Subordinated Notes Due 2008 (herein called the "Initial Notes") and 9
3/4% Series B Senior Subordinated Notes Due 2008 (the "Exchange Notes" and,
together with the Initial Notes, the "Notes") of substantially the tenor and
amount hereinafter set forth, and to provide therefor the Company has duly
authorized the execution and delivery of this Indenture.
Each of the Subsidiary Guarantors has duly authorized its guarantee
of the Notes, and to provide therefor each of them has duly authorized the
execution and delivery of this Indenture.
Upon the issuance of the Exchange Notes, if any, or the
effectiveness of the Shelf Registration Statement (as defined herein), this
Indenture will be subject to the provisions of the Trust Indenture Act of 1939,
as amended, that are required to be part of this Indenture and shall, to the
extent applicable, be governed by such provisions.
All things necessary have been done to make the Notes, when executed
by the Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company and to make this Indenture a valid
agreement of the Company and the Subsidiary Guarantors, each in accordance with
their respective terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Notes by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Notes, as follows:
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ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein, and the terms "cash transaction" and
"self-liquidating paper", as used in TIA Section 311, shall have the
meanings assigned to them in the rules of the Commission adopted under the
Trust Indenture Act;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles; and
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Two, Eight, Ten and
Twelve are defined in that Article.
"Acquired Indebtedness" means Indebtedness of a Person (a) existing
at the time such Person is merged with or into the Company or becomes a
Subsidiary or (b) assumed in connection with the acquisition of assets from such
Person.
"Act", when used with respect to any Holder, has the meaning
specified in Section 105.
"Additional Notes" has the meaning specified in Section 312.
"Affiliate" means, with respect to any specified person, (a) any
other person directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified person or (b) any other person
that owns, directly or indirectly, 10% or
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more of such specified person's Capital Stock or any executive officer or
director of any such specified person or other person or, with respect to any
natural person, any person having a relationship with such person by blood,
marriage or adoption not more remote than first cousin. For the purposes of this
definition, "control," when used with respect to any specified person, means the
power to direct the management and policies of such person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agent Bank" means NationsCredit Commercial Corporation and its
successors under the Credit Agreement, in its capacity as agent.
"Asset Sale" means (i) the sale, lease, conveyance or other
disposition of any assets (including, without limitation, by way of merger,
consolidation or similar arrangement) (collectively, a "transfer") by the
Company or any Restricted Subsidiary other than in the ordinary course of
business and (ii) the issue or sale by the Company or any of its Restricted
Subsidiaries of Shares of Capital Stock of any of the Company's Restricted
Subsidiaries (which shall be deemed to include the sale, grant or conveyance of
any interest in the income, profits or proceeds therefrom), in the case of
either clause (i) or (ii), whether in a single transaction or a series of
related transactions (x) that have a fair market value in excess of $750,000 or
(y) for Net Cash Proceeds in excess of $750,000. For the purposes of this
definition, the term "Asset Sale" does not include any transfer of properties or
assets (i) that is governed by Sections 801 and 1011, (ii) between or among the
Company and its Restricted Subsidiaries pursuant to transactions that do not
violate any other provision of this Indenture, (iii) representing damaged, worn
out, obsolete or permanently retired equipment and facilities, (iv) that
constitutes or would constitute the creation or grant of a Lien not prohibited
by this Indenture or (v) that constitutes or would constitute the surrender or
waiver of contract rights or the settlement, release or surrender of contract
tort or other claims of any kind.
"Attributable Debt" in respect of a sale and leaseback transaction
means, at the time of determination, the present value (discounted at the rate
of interest implicit in such transaction, determined in accordance with GAAP) of
the obligation of the lessee for net rental payments during the remainder of the
lease included in such sale and leaseback transaction (including any period for
which such lease has been extended or may, at the option of the lessor, be
extended).
"Banks" means the banks and other financial institutions that from
time to time are lenders under the Credit Agreement.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
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"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Borrowing Base" means, with respect to any Person, as of any date,
an amount equal to the sum of (a) 85% of the face amount of all accounts
receivable owned by such Person and its Subsidiaries (or, in the case of the
Company, its Subsidiary Guarantors) as of such date that are not more than 90
days past due and (b) 60% of the book value of all inventory owned by such
Person and its Subsidiaries (or, in the case of the Company, its Subsidiary
Guarantors) as of such date, all calculated on a consolidated basis and in
accordance with GAAP.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York are
authorized or obligated by law or executive order to close.
"Capital Stock" of any Person means any and all shares, interests,
partnership interests, participations, rights in or other equivalents (however
designated) of such Person's equity interest (however designated), whether now
outstanding or issued after the Closing Date.
"Capitalized Lease Obligation" means, with respect to any Person, an
obligation incurred or assumed under or in connection with any capital lease of
real or personal property that, in accordance with GAAP, has been recorded as a
capitalized lease.
"Change of Control" means the occurrence of any of the following
events:
(a) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act) (other than Permitted Holders) is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of 35% or more of the Voting Stock
of the Company or Parent and such person or group is or becomes, directly
or indirectly, the beneficial owner of a greater percentage of the voting
power of the Voting Stock of the Company or Parent than the percentage
beneficially owned by the Permitted Holders as a group;
(b) the Company consolidates with, or merges with or into, another
person, or sells, assigns, conveys, transfers, leases or otherwise
disposes of, or the Subsidiaries sell, assign, convey, transfer, lease or
otherwise dispose of, all or substantially all of the properties of the
Company and the Subsidiaries, taken as a whole (either in one transaction
or a series of related transactions), including Capital Stock of the
Subsidiaries, to any person (other than the Company or a Restricted
Subsidiary)
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pursuant to a transaction in which the outstanding Voting Stock of the
Company is converted into or exchanged for cash, securities or other
property, other than any such transaction (i) where the outstanding Voting
Stock of the Company is not converted or exchanged at all (except to the
extent necessary to reflect a change in the jurisdiction of incorporation
of the Company) or is converted into or exchanged for (A) Voting Stock
(other than Disqualified Stock) of the surviving or transferee corporation
or (B) Voting Stock (other than Disqualified Stock) of the surviving or
transferee corporation and cash, securities and other property (other than
Capital Stock of the surviving or transferee corporation) in an amount
that could be paid by the Company as a Restricted Payment as described
under Section 1011 and (ii) immediately after such transaction, no
"person" or "group" (as such terms are used in Sections 13(d) and 14(d) of
the Exchange Act) (other than Permitted Holders) is the "beneficial owner"
(as defined in Rule 13d-3 under the Exchange Act), directly or indirectly,
of more than 35% of the total outstanding Voting Stock of the surviving or
transferee corporation;
(c) during any consecutive twenty-four month period, individuals who
at the beginning of such period constituted the Board of Directors of the
Company or Parent (together with any new directors whose election by such
Board of Directors or whose nomination for election by the stockholders of
the Company or Parent, as the case may be, was approved by a vote of a
majority of the directors then still in office who were either 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 Board of Directors of the Company or Parent then in
office; or
(d) the Company is liquidated or dissolved or adopts a plan of
liquidation or dissolution, other than in a transaction that complies with
the provisions described under Section 801.
"Closing Date" means the date on which the Initial Notes are
originally issued under this Indenture.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Stock" means, with respect to any Person, any and all
shares, interests, participations and other equivalents (however designated,
whether voting or non-voting) of such Person's Common Stock, whether now
outstanding or issued after the date of this Indenture, and includes, without
limitation, all series and classes of such Common Stock.
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"Company" means the Person named as the "Company" in the first
paragraph of this Indenture, until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman, its President, any Vice
President, its Treasurer or an Assistant Treasurer, and delivered to the
Trustee.
"Consolidated EBITDA" means, for any period, the sum of, without
duplication, Consolidated Net Income for such period, plus (or, in the case of
clause (d) below, plus or minus) the following items to the extent included in
computing Consolidated Net Income for such period (a) Fixed Charges for such
period, plus (b) the provision for federal, state, local and foreign income
taxes of the Company and its Restricted Subsidiaries for such period, plus (c)
the aggregate depreciation and amortization expense of the Company and its
Restricted Subsidiaries for such period, plus (d) any other non-cash charges for
such period, and minus non-cash credits for such period, other than non-cash
charges or credits resulting from changes in prepaid assets or accrued
liabilities in the ordinary course of business, provided, however, that fixed
charges, income tax expense, depreciation and amortization expense and non-cash
charges and credits of a Restricted Subsidiary shall be included in Consolidated
EBITDA only to the extent (and in the same proportion) that the net income of
such Subsidiary was included in calculating Consolidated Net Income for such
period.
"Consolidated Net Income" means, for any period, the net income (or
net loss) of the Company and its Restricted Subsidiaries for such period as
determined on a consolidated basis in accordance with GAAP, adjusted to the
extent included in calculating such net income or loss by excluding (a) any net
after-tax extraordinary gains or losses (less all fees and expenses relating
thereto), (b) any net after-tax gains or losses (less all fees and expenses
relating thereto) attributable to Asset Sales, (c) the portion of net income (or
loss) of any Person (other than the Company or a Restricted Subsidiary),
including Unrestricted Subsidiaries, in which the Company or any Restricted
Subsidiary has an ownership interest, except to the extent of the amount of
dividends or other distributions actually paid to the Company or any Restricted
Subsidiary in cash during such period, (d) the net income (or loss) of any
Person combined with the Company or any Restricted Subsidiary on a "pooling of
interests" basis attributable to any period prior to the date of combination,
(e) the net income (but not the net loss) of any Restricted Subsidiary to the
extent that the declaration or payment of dividends or similar distributions by
such Restricted Subsidiary is at the date of determination restricted, directly
or indirectly, except to the extent that such net income is actually paid to the
Company or a Restricted Subsidiary thereof by loans, advances, intercompany
transfers, principal repayments or otherwise; provided, however, that, if any
Restricted Subsidiary is not a Wholly Owned Restricted Subsidiary, Consolidated
Net Income
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will be reduced (to the extent not otherwise reduced in accordance with GAAP) by
an amount equal to (A) the amount of the Consolidated Net Income otherwise
attributable to such Restricted Subsidiary multiplied by (B) the quotient of (1)
the number of shares of outstanding common stock of such Restricted Subsidiary
not owned on the last day of such period by the Company or any of its Restricted
Subsidiaries divided by (2) the total number of shares of outstanding common
stock of such Restricted Subsidiary on the last day of such period, (f) for any
period ending on or prior to the first year anniversary of the Closing Date, the
aggregate amount of one-time, non-recurring costs, expenses and fees incurred by
the Company or a Restricted Subsidiary in connection with (i) the acquisition by
AFA Acquisition Corp. of AFA Products, Inc. pursuant to the Asset Purchase
Agreement dated as of July 29, 1997, (ii) the financings provided in connection
with the acquisition referred to in clause (i) above pursuant to the Credit
Agreement dated as of July 29, 1997 among AFA Acquisition Corp., Parent, the
lenders referred to therein and NationsCredit Commercial Corporation as agent of
the lenders or any refinancings thereof, (iii) the acquisition by the Company of
the Continental Sprayers International and Contour Cutting divisions and certain
other assets of Contico International, Inc. pursuant to the Asset Purchase
Agreement dated as of January 14, 1998, and the concurrent repayment of certain
indebtedness of AFA Products, Inc., (iv) the financings provided in connection
with the acquisition and repayment of indebtedness referred to in clause (iii)
above pursuant to the Credit Agreement, (v) the acquisition by Dejanu BV of the
capital stock of Polytek pursuant to the Stock Purchase Agreement dated as of
August 6, 1997, and (vi) the financings provided in connection with the
acquisition referred to in clause (v) above pursuant to the Polytek Credit
Agreement and (g) any non-cash charges attributable to (i) the amortization
expense of the Parent associated with any original issue discount attributable
to any warrants owned by NationsCredit Commercial Corporation or Xxxxxxx Limited
to purchase respectively 1,750,000 shares of Class B Common Stock, par value
$.01 per share of Parent and 950,000 shares of Class A Common Stock, par value
$.01 per share of Parent or (ii) the interest expense of the Parent incurred in
respect of the Subordinated Parent Notes, to the extent such amortization
expense or interest expense is incurred by the Company as a result of the
Parent's obligations under the warrants or the Subordinated Parent Notes being
accounted for financial reporting purposes as an expense of the Company in
accordance with "push-down" accounting.
"Consolidated Net Worth" means, at any date of determination,
stockholders' equity of the Company and its Restricted Subsidiaries as set forth
on the most recently available quarterly or annual consolidated balance sheet of
the Company and its Restricted Subsidiaries, less any amounts attributable to
Disqualified Stock or any equity security convertible into or exchangeable for
Indebtedness, the cost of treasury stock and the principal amount of any
promissory notes receivable from the sale of the Capital Stock of the Company or
any of its Restricted Subsidiaries and less to the extent included in
calculating such stockholders' equity of the Company and its Restricted
Subsidiaries, the stockholders' equity attributable to Unrestricted
Subsidiaries, each item to be determined in conformity with GAAP
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8
(excluding the effects of foreign currency adjustments under Financial
Accounting Standards Board Statement of Financial Accounting Standards No. 52).
"Consolidated Tangible Assets" means, as of the date of
determination, the total assets, less goodwill and other intangibles (other than
patents, trademarks, copyrights, licenses and other intellectual property),
shown on the balance sheet of the Company and its Restricted Subsidiaries as of
the most recent date for which such a balance sheet is available, determined on
a consolidated basis in accordance with GAAP less all write-ups (other than
writeups in connection with acquisitions) subsequent to the date of this
Indenture in the book value of any asset (except any such intangible assets)
owned by the Company or any of its Restricted Subsidiaries.
"Corporate Trust Office" means the principal corporate trust office
of the Trustee, at which at any particular time its corporate trust business
shall be administered, which office at the date of execution of this Indenture
is located at 6th and Marquette, Xxxxxxxxxxx, Xxxxxxxxx 00000-0000, except that
with respect to presentation of Notes for payment or for registration of
transfer or exchange, such term shall mean the office or agency of the Trustee
at which, at any particular time, its corporate trust and agency business shall
be conducted.
"corporation" includes corporations, associations, companies and
business trusts.
"Credit Agreement" means the Credit Agreement dated as of February
4, 1998, among the Company, Parent, the lenders named therein, NationsCredit
Commercial Corporation, as collateral agent and as initial issuing bank and
NationsBridge LLC, as administrative agent, including any related notes,
guarantees, collateral documents, instruments and agreements executed in
connection therewith, as the same may be amended, restated, supplemented,
refinanced or otherwise modified from time to time.
"Default" means any event that is, or after notice or passage of
time or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 309.
"Depositary" means The Depository Trust Company, its nominees and
successors.
"Designated Senior Indebtedness" means (i) so long as the Senior
Bank Debt is outstanding or any lender has any commitment to extend credit to
the Company thereunder, the Credit Agreement and (ii) any other Senior
Indebtedness permitted under this Indenture the
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principal amount of which at the time of designation is $20 million or more and
that has been specifically designated by the Company, in the instrument creating
or evidencing such Senior Indebtedness or in an Officers' Certificate delivered
to the Trustee, as "Designated Senior Indebtedness."
"Disinterested Director" means, with respect to any transaction or
series of transactions in respect of which the Board of Directors is required to
deliver a resolution of the Board of Directors, to make a finding or otherwise
take action under this Indenture, a member of the Board of Directors who does
not have any material direct or indirect financial interest in or with respect
to such transaction or series of transactions.
"Disqualified Stock" means any class or series of Capital Stock
that, either by its terms, by the terms of any security into which it is
convertible or exchangeable or by contract or otherwise (i) is or upon the
happening of an event or passage of time would be, required to be redeemed prior
to the final Stated Maturity of the Notes, (ii) is redeemable at the option of
the Holder thereof, at any time prior to such final Stated Maturity or (iii) at
the option of the Holder thereof is convertible into or exchangeable for debt
securities at any time prior to such final Stated Maturity; provided, however,
that any Capital Stock that would not constitute Disqualified Stock but for
provisions therein giving Holders thereof the right to cause the issuer thereof
to repurchase or redeem such Capital Stock upon the occurrence of an "asset
sale" or "change of control" occurring prior to the Stated Maturity of the Notes
will not constitute Disqualified Stock if the "asset sale" or "change of
control" provisions applicable to such Capital Stock are no more favorable to
the Holders of such Capital Stock than Sections 1015 and 1016 hereof, and such
Capital Stock specifically provides that the issuer will not repurchase or
redeem any such stock pursuant to such provision prior to the Company's
repurchase of such Notes as are required to be repurchased pursuant to the
provisions contained in Sections 1015 and 1016 hereof.
"Equity Offering" means a public or private offering of Capital
Stock (other than Disqualified Stock) of the Company.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and the rules and regulations thereunder.
"Exchange Notes" has the meaning stated in the first recital of this
Indenture and refers to any Exchange Notes containing terms substantially
identical to the Initial Notes (except that such Exchange Notes shall not
contain terms with respect to the interest rate step-up provision and transfer
restrictions) that are issued and exchanged for the Initial Notes pursuant to
the Registration Rights Agreement and this Indenture.
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"Exchange Offer" means the exchange offer that may be effected
pursuant to the Registration Rights Agreement.
"Exchange Offer Registration Statement" means the Exchange Offer
Registration Statement as defined in the Registration Rights Agreement.
"Existing Indebtedness" means the Indebtedness of the Company and
its Restricted Subsidiaries (other than Indebtedness under the Credit Agreement)
outstanding on the date of this Indenture and listed on a schedule to this
Indenture, until such amounts are repaid.
"Federal Bankruptcy Code" means the Bankruptcy Act of Title 11 of
the United States Code, as amended from time to time.
"Fixed Charges" means, for any period, without duplication, the sum
of (a) the amount that, in conformity with GAAP, would be set forth opposite the
caption "interest expense" (or any like caption) on a consolidated statement of
operations of the Company and its Restricted Subsidiaries for such period,
including, without limitation, (i) amortization of debt discount, (ii) the net
cost of interest rate contracts (including amortization of discounts), (iii) the
interest portion of any deferred payment obligation, (iv) amortization of debt
issuance costs, and (v) the interest component of Capitalized Lease Obligations,
plus (b) cash dividends paid on Preferred Stock and Disqualified Stock by the
Company and any Restricted Subsidiary (to any Person other than the Company and
its Restricted Subsidiaries), computed on a tax effected basis, plus (c) all
interest on any Indebtedness of any Person guaranteed by the Company or any of
its Restricted Subsidiaries or secured by a lien on the assets of the Company or
any of its Restricted Subsidiaries; provided, however, that Fixed Charges will
not include (i) any gain or loss from extinguishment of debt, including the
write-off of debt issuance costs, and (ii) the fixed charges of a Restricted
Subsidiary to the extent (and in the same proportion) that the net income of
such Subsidiary was excluded in calculating Consolidated Net Income pursuant to
clause (e) of the definition thereof for such period.
"Fixed Charge Coverage Ratio" means, for any period, the ratio of
Consolidated EBITDA for such period to Fixed Charges for such period.
"Foreign Subsidiary" means a Restricted Subsidiary that is
incorporated in a jurisdiction other than the United States or a state thereof
or the District of Columbia and that has no material operations or assets in the
United States.
"Generally Accepted Accounting Principles" or "GAAP" means generally
accepted accounting principles in the United States, consistently applied, that
are in effect on the Closing Date.
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"guarantee" means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, letters of
credit and reimbursement agreements in respect thereof), of all or any part of
any Indebtedness.
"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, and (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.
"Holder" means the Person in whose name a Note is, at the time of
determination, registered on the Registrar's books.
"Indebtedness" means (without duplication), with respect to any
Person, whether recourse is to all or a portion of the assets of such Person and
whether or not contingent, (a) every obligation of such Person for money
borrowed, (b) every obligation of such Person evidenced by bonds, debentures,
notes or other similar instruments, (c) every reimbursement obligation of such
Person with respect to letters of credit, bankers' acceptances or similar
facilities issued for the account of such Person, (d) every obligation of such
Person issued or assumed as the deferred purchase price of property or services,
(e) the Attributable Debt of every Capitalized Lease Obligation of such Person,
(f) all Disqualified Stock of such Person valued at its maximum fixed repurchase
price, plus accrued and unpaid dividends, (g) all obligations of such Person
under or in respect of Hedging Obligations, and (h) every obligation of the type
referred to in clauses (a) through (g) of another Person and all dividends of
another Person the payment of which, in either case, such Person has guaranteed.
For purposes of this definition, the "maximum fixed repurchase price" of any
Disqualified Stock that does not have a fixed repurchase price will be
calculated in accordance with the terms of such Disqualified Stock as if such
Disqualified Stock were purchased on any date on which Indebtedness is required
to be determined pursuant to this Indenture, and if such price is based upon, or
measured by, the fair market value of such Disqualified Stock, such fair market
value will be determined in good faith by the board of directors of the issuer
of such Disqualified Stock. Notwithstanding the foregoing, trade accounts
payable and accrued liabilities arising in the ordinary course of business and
any liability for federal, state or local taxes or other taxes owed by such
Person will not be considered Indebtedness for purposes of this definition.
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"Indenture" means this instrument as originally executed and as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Initial Notes" has the meaning stated in the first recital of this
Indenture.
"Interest Payment Date" means the Stated Maturity of an installment
of interest on the Notes.
"Investment" in any Person means, (i) directly or indirectly, any
advance, loan or other extension of credit (including, without limitation, by
way of guarantee or similar arrangement) or capital contribution to such Person,
the purchase or other acquisition of any stock, bonds, notes, debentures or
other securities issued by such Person, the acquisition (by purchase or
otherwise) of all or substantially all of the business or assets of such Person,
or the making of any investment in such Person, (ii) the designation of any
Restricted Subsidiary as an Unrestricted Subsidiary and (iii) the fair market
value of the Capital Stock (or any other Investment), held by the Company or any
of its Restricted Subsidiaries, of (or in) any Person that has ceased to be a
Restricted Subsidiary. Investments exclude extensions of trade credit on
commercially reasonable terms in accordance with normal trade practices.
"Lien" means any mortgage, charge, pledge, lien (statutory or
otherwise), privilege, security interest, hypothecation, assignment for
security, claim, or preference or priority or other encumbrance upon, or with
respect to, any property of any kind, real or personal, movable or immovable,
now owned or hereafter acquired. A Person will be deemed to own subject to a
Lien any property that such Person has acquired or holds subject to the interest
of a vendor or lessor under any conditional sale agreement, capital lease or
other title retention agreement.
"Maturity", when used with respect to any Note, means the date on
which the principal of such Note or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption or otherwise.
"Net Cash Proceeds" means, with respect to any Asset Sale, the
proceeds thereof in the form of cash or cash equivalents, including payments in
respect of deferred payment obligations when received in the form of, or stock
or other assets when disposed for, cash or cash equivalents (except to the
extent that such obligations are financed or sold with recourse to the Company
or any Restricted Subsidiary), net of (a) brokerage commissions and other fees
and expenses (including fees and expenses of legal counsel and investment banks)
related to such Asset Sale, (b) provisions for all taxes payable as a result of
such Asset Sale, (c) payments made to retire Indebtedness where such
Indebtedness is secured by the assets that
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are the subject of such Asset Sale, (d) amounts required to be paid to any
Person (other than the Company or any Restricted Subsidiary) owning a beneficial
interest in the assets that are subject to the Asset Sale and (e) appropriate
amounts to be provided by the Company or any Restricted Subsidiary, as the case
may be, as a reserve required in accordance with GAAP against any liabilities
associated with such Asset Sale and retained by the seller after such Asset
Sale, including pension and other post-employment benefit liabilities,
liabilities related to environmental matters and liabilities under any
indemnification obligations associated with such Asset Sale.
"Non-payment Event Default" means any event (other than a Payment
Event of Default) the occurrence of which entitles one or more Persons to
accelerate the maturity of any Designated Senior Indebtedness.
"Non-U.S. Person" means a Person that is not a "U.S. Person" as
defined in Regulation S.
"Notes" has the meaning stated in the first recital of this
Indenture and more particularly means any Notes authenticated and delivered
under this Indenture. For all purposes of this Indenture, the term "Notes" shall
include any Exchange Notes to be issued and exchanged for any Notes pursuant to
the Registration Rights Agreement and this Indenture and, for purposes of this
Indenture, all Initial Notes and Exchange Notes shall vote together as one
series of Notes under this Indenture.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Officers' Certificate" means a certificate signed by the Chairman,
the Chief Executive Officer, President or any Vice President, and by the Chief
Financial Officer, Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary of the Company, or any Subsidiary Guarantor, and delivered
to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, including an employee of the Company, and who shall be
acceptable to the Trustee.
"Outstanding", when used with respect to Notes, means, as of the
date of determination, all Notes theretofore authenticated and delivered under
this Indenture, except:
(a) Notes theretofore canceled by the Trustee or delivered to the
Trustee for cancellation; and
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(b) 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) in trust or set aside
and segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Notes; provided that, if such
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; and
(c) Notes, except to the extent provided in Sections 1202 and 1203,
with respect to which the Company has effected defeasance and/or covenant
defeasance as provided in Article Twelve; and
(d) Notes which have been paid pursuant to Section 308 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 the
Notes are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Notes have given any request, demand,
authorization, direction, consent, notice or waiver hereunder, and for the
purpose of making the calculations required by TIA Section 313, Notes owned by
the Company or any other obligor upon the Notes or any Affiliate of the Company
or such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in making
such calculation or in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Notes which the Trustee 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 such other obligor.
"Parent" means Indesco Holdings Co., a Delaware corporation.
"Pari Passu Indebtedness" means (a) with respect to the Notes,
Indebtedness that ranks pari passu in right of payment to the Notes and (b) with
respect to any Subsidiary Guarantee, Indebtedness that ranks pari passu in right
of payment to such Subsidiary Guarantee.
"Paying Agent" means Norwest Bank Minnesota, National Association,
and any successor (including the Company acting as Paying Agent) authorized by
the Company to pay the principal of (and premium, if any) or interest on any
Notes on behalf of the Company.
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"Payment Default" has the meaning specified in Section 501.
"Payment Event of Default" has the meaning specified in Section
1403.
"Permitted Holders" means any one or more of Xxxxx Xxxxxx ("Xxxxxx")
and Yehochai Xxxxxxxxx ("Xxxxxxxxx"), the estate, spouse, children and
grandchildren of each of Gratch and Xxxxxxxxx, any trust for the benefit solely
of Gratch and/or Xxxxxxxxx and/or members of their respective families, and any
Person controlled, directly or indirectly, by any one or more of the foregoing
Persons.
"Permitted Investments" means any of the following:
(a) Investments in (i) securities with a maturity of one year or
less issued or directly and fully guaranteed or insured by the United
States or any agency or instrumentality thereof (provided, however, that
the full faith and credit of the United States is pledged in support
thereof); (ii) certificates of deposit or acceptances with a maturity of
one year or less of any financial institution that is a member of the
Federal Reserve System having combined capital and surplus of not less
than $500,000,000; (iii) any shares of money market mutual or similar
funds having assets in excess of $500,000,000; and (iv) commercial paper
with a maturity of one year or less issued by a corporation that is not an
Affiliate of the Company and is organized under the laws of any state of
the United States or the District of Columbia and having a rating (A) from
Xxxxx'x Investors Service, Inc. of at least P-1 or (B) from Standard &
Poor's Ratings Group of at least A-1;
(b) Investments by the Company or a Restricted Subsidiary in another
Person, if as a result of such Investment (x) such other Person becomes a
Restricted Subsidiary that is a Subsidiary Guarantor, or (y) such other
Person becomes a Restricted Subsidiary that is not a Subsidiary Guarantor
but, at the time of such Investment, is not subject to a consensual
encumbrance or consensual restriction that would be prohibited by Section
1018, without regard to the exception described in clauses (i), (ii) and
(iv) of Section 1018, or (z) such other Person is merged or consolidated
with or into, or transfers or conveys all or substantially all of its
assets to, the Company or a Restricted Subsidiary that, at the time of
such Investment, either is a Subsidiary Guarantor or is not subject to a
consensual encumbrance or consensual restriction that would be prohibited
by Section 1018, without regard to the exception described in clauses (i),
(ii) and (iv) of Section 1018;
(c) Investments by the Company or a Restricted Subsidiary in (x) the
Company or, (y) a Subsidiary Guarantor or (z) a Restricted Subsidiary that
is not a Subsidiary Guarantor but, at the time of such Investment, is not
subject to a consensual
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encumbrance or consensual restriction that would be prohibited by Section
1018, without regard to the exception described in clauses (i), (ii) and
(iv) of Section 1018;
(d) Investments in existence on the Closing Date;
(e) promissory notes or other evidence of Indebtedness received as a
result of Asset Sales permitted under Section 1016;
(f) loans or advances to officers, directors and employees of the
Company or any of its Restricted Subsidiaries made in the ordinary course
of business after the date of the initial issuance of the Notes in an
amount not to exceed $1 million in the aggregate at any one time
outstanding; and
(g) other Investments that do not exceed $4 million in the aggregate
at any one time outstanding.
"Permitted Refinancing Indebtedness" means any Indebtedness of the
Company or any of its Restricted 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 Restricted Subsidiaries;
provided, however, 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 lesser of
the amount of any premium required to be paid in connection with such
refinancings pursuant to the terms of such indebtedness or the amount of any
premium reasonably determined by the Company as necessary to accomplish such
refinancing (plus the amount of reasonable expenses incurred in connection
therewith); (ii) such Permitted Refinancing Indebtedness 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; (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 the Restricted Subsidiary of the Company that 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.
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"Polytek" means AFA Polytek, BV and its successors.
"Polytek Credit Agreement" means the credit agreement dated July 24,
1997 between Polytek and ABN AMRO Bank NV, as such credit agreement may be
amended, restated, supplemented, refinanced or otherwise modified from time to
time.
"Predecessor Note" of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 308 in exchange for a mutilated
security or in lieu of a lost, destroyed or stolen Note shall be deemed to
evidence the same debt as the mutilated, lost, destroyed or stolen Note.
"Preferred Stock" means, with respect to any Person, any and all
shares, interests, partnership interests, participation, rights in or other
equivalents (however designated) of such Person's preferred or preference stock,
whether now outstanding or issued after the Closing Date, and including, without
limitation, all classes and series of preferred or preference stock of such
Person.
"QIB" means a "Qualified Institutional Buyer" under Rule 144A.
"Qualified Equity Interest" means any Qualified Stock and all
warrants, options or other rights to acquire Qualified Stock (but excluding any
debt security that is convertible into or exchangeable for Capital Stock).
"Qualified Stock" of any Person means any and all Capital Stock of
such Person, other than Disqualified Stock.
"Redemption Date", when used with respect to any Note to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Note to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Register" and "Registrar" have the respective meanings specified in
Section 305.
"Registration Rights Agreement" means the Registration Rights
Agreement among the Company, the Subsidiary Guarantors and the Initial Purchaser
named therein, dated as of April 23, 1998 relating to the Notes.
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"Registration Statement" means the Registration Statement as defined
in the Registration Rights Agreement.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the April 1 or October 1 (whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act.
"Restricted Subsidiary" means any Subsidiary other than an
Unrestricted Subsidiary. Restricted Subsidiaries shall always include AFA
Products, Inc., AFA Polytek B.V., Continental Sprayers International, Inc.,
Continental Acquisition (U.K.) Limited and Continental Sprayers de Mexico S.A.
de C.V.
"Rule 144A" means Rule 144A under the Securities Act.
"sale and leaseback transaction" means any transaction or series of
related transactions pursuant to which a person sells or transfers any property
or asset in connection with the leasing, or the resale against installment
payments, of such property or asset to the seller or transferor.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, and the rules and regulations thereunder.
"Senior Bank Debt" means the Obligations outstanding under the
Credit Agreement.
"Senior Indebtedness" means (i) the Senior Bank Debt and (ii) all
other Indebtedness of the Company for borrowed money, including principal,
premium, if any, and interest on such Indebtedness, unless the instrument under
which such Indebtedness of the Company for money borrowed is created, incurred,
assumed or guaranteed expressly provides that such Indebtedness for money
borrowed is not senior or superior in right of payment to the Notes, and all
renewals, extensions, modifications, amendments, restatements, or refinancings
thereof. Notwithstanding anything to the contrary in the foregoing, Senior
Indebtedness will not include (i) Indebtedness evidenced by the Notes, (ii)
Indebtedness of the Company that is expressly subordinated in right of payment
to any Senior Indebtedness of the Company or the Notes, (iii) Indebtedness of
the Company that by operation of law is subordinate to any general unsecured
obligations of the Company, (iv) Indebtedness of the Company to the extent
incurred in violation of this Indenture, (v) any liability for federal, state or
local taxes or other taxes, owed or owing by the Company, (vi) trade account
payables owed or owing by the Company, (vii) amounts owed by the Company for
compensation to employees or for services rendered to
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the Company, (viii) Indebtedness of the Company to any Restricted Subsidiary or
any other Affiliate of the Company, (ix) Disqualified Stock of the Company and
(x) Indebtedness which when incurred and without respect to any election under
Section 1111(b) of Title 11 of the United States Code is without recourse to the
Company or any Restricted Subsidiary.
"Shelf Registration Statement" means the Shelf Registration
Statement as defined in the Registration Rights Agreement.
"Significant Subsidiary" means any Restricted Subsidiary of the
Company that, together with its Subsidiaries, (a) for the most recent fiscal
year of the Company, accounted for more than 10% of the consolidated net sales
of the Company and its Subsidiaries, (b) as of the end of such fiscal year, was
the owner of more than 10% of the consolidated assets of the Company and its
Restricted Subsidiaries, in the case of either (a) or (b), as set forth on the
most recently available consolidated financial statements of the Company for
such fiscal year or (c) was organized or acquired after the beginning of such
fiscal year and would have been a Significant Subsidiary if it had been owned
during such entire fiscal year.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 309.
"Stated Maturity" means, when used with respect to any Note or any
installment of interest thereon, the date specified in such Note as the fixed
date on which the principal of such Note or such installment of interest is due
and payable and, when used with respect to any other Indebtedness, means the
date specified in the instrument governing such Indebtedness as the fixed date
on which the principal of such Indebtedness or any installment of interest
thereon is due and payable.
"Subordinated Indebtedness" means Indebtedness of the Company or a
Subsidiary Guarantor that is subordinated in right of payment to the Notes or
the Subsidiary Guarantees issued by such Subsidiary Guarantor, as the case may
be.
"Subordinated Parent Notes" means the unsecured subordinated note
issued by Parent to AFA International Limited dated as of July 29, 1997 in the
principal amount of $1,000,000, the unsecured subordinated note issued by Parent
to Xxxxxxx Limited dated as of July 29, 1997 in the principal amount of
$2,000,000 and the unsecured subordinated notes issued by Parent on the Closing
Date to AFA International Limited and Xxxxx Xxxxxx in the aggregate principal
amount of $2,500,000.
"Subsidiary" means any Person a majority of the equity ownership or
Voting Stock of which is at the time owned, directly or indirectly, by the
Company and/or one or more other Subsidiaries of the Company.
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"Subsidiary Guarantee" means with respect to each Subsidiary
Guarantor, the unconditional guarantee by such Subsidiary Guarantor, pursuant to
Article Thirteen.
"Subsidiary Guarantors" means, collectively, all Restricted
Subsidiaries that are incorporated in the United States or a State thereof or
the District of Columbia; provided, however, that any Person that becomes an
Unrestricted Subsidiary in compliance with Section 1011 shall not be included in
"Subsidiary Guarantors" after becoming an Unrestricted Subsidiary.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939
as in force at the date as of which this Indenture was executed, except as
provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Unrestricted Subsidiary" means (a) any Subsidiary that is
designated by the Board of Directors of the Company as an Unrestricted
Subsidiary in accordance with Section 1017 and (b) any Subsidiary of an
Unrestricted Subsidiary.
"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.
"Voting Stock" means any class or classes of Capital Stock pursuant
to which the Holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers
or trustees of any Person (irrespective of whether or not, at the time, stock of
any other class or classes has, or might have, voting power by reason of the
happening of any contingency).
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"Weighted Average Life" means, as of the date of determination with
respect to any Indebtedness or Disqualified Stock, the quotient obtained by
dividing (a) the sum of the products of (i) the number of years from the date of
determination to the date or dates of each successive scheduled principal or
liquidation value payment of such Indebtedness or Disqualified Stock,
respectively, multiplied by (ii) the amount of each such principal or
liquidation value payment by (b) the sum of all such principal or liquidation
value payments.
"Wholly Owned Restricted Subsidiary" means any Restricted
Subsidiary, all of the outstanding voting securities (other than directors'
qualifying shares or shares of foreign Restricted Subsidiaries required to be
owned by foreign nationals pursuant to applicable law) of which are owned,
directly or indirectly, by the Company.
SECTION 102. Incorporation by Reference of Trust Indenture Act.
(a) This Indenture is expressly made subject to the Trust Indenture
Act as if this Indenture were, on the date hereof, subject to the Trust
Indenture Act under the provisions of such statute and such provisions are
incorporated by reference in this Indenture.
(b) Whenever this Indenture refers to a provision of the Trust
Indenture Act, the provision is incorporated by reference in and made a part of
this Indenture. The following Trust Indenture Act terms used in this Indenture
have the following meanings:
"indenture securities" means the Notes;
"indenture security holder" means a Holder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
and
"obligor" on the indenture securities means the Company or any other
obligor on the Notes.
All other Trust Indenture Act terms used in this Indenture that are
defined by the Trust Indenture Act, defined by reference in the Trust Indenture
Act to another statute or defined by a rule of the Commission and not otherwise
defined herein shall have the meanings assigned to them therein.
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SECTION 103. Compliance Certificates and Opinions.
Upon any application or request by the Company and the Subsidiary
Guarantors to the Trustee to take any action under any provision of this
Indenture, the Company and the Subsidiary Guarantors shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture (including any covenant compliance which
constitutes a condition precedent) relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Section 1008(a)) shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) 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;
(c) a statement that, in the opinion of each 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
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 104. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company and/or the
Subsidiary Guarantors may be based, insofar as it relates to legal matters, upon
a certificate or opinion of,
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or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company or such Subsidiary
Guarantor, as the case may be, stating that the information with respect to such
factual matters is in the possession of the Company or such Subsidiary
Guarantor, as the case may be, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 105. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in Person or by agents duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and conclusive in favor of the Trustee, the Company and the Subsidiary
Guarantors, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of the signer's authority. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner that the Trustee deems sufficient.
(c) The principal amount and serial numbers of Notes held by any
Person, and the date of holding the same, shall be proved by the Register.
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(d) If the Company or any Subsidiary Guarantor shall solicit from
the Holders of Notes any request, demand, authorization, direction, notice,
consent, waiver or other Act, the Company or any such Subsidiary Guarantor (as
the case may be), may, at its option, by or pursuant to a Board Resolution, fix
in advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Company or any such Subsidiary Guarantor (as the case may be) shall have
no obligation to do so. Notwithstanding TIA Section 316(c), such record date
shall be the record date specified in or pursuant to such Board Resolution,
which shall be a date not earlier than the date 30 days prior to the first
solicitation of Holders generally in connection therewith and not later than the
date such solicitation is completed. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or other Act
may be given before or after such record date, but only the Holders of record at
the close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Outstanding Notes have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Notes shall be computed as of such record date;
provided that no such authorization, agreement or consent by the Holders on such
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than eleven months after the
record date.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Note shall bind every future Holder of
the same Note and the Holder of every Note issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company
and/or the Subsidiary Guarantors in reliance thereon, whether or not notation of
such action is made upon such Note.
SECTION 106. Notices, etc., to Trustee, Company and Subsidiary
Guarantors.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder, the Company or any Subsidiary
Guarantor shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its Corporate
Trust Office, Attention: Corporate Trust Department, or
(b) the Company by the Trustee, any Holder or any Subsidiary
Guarantor shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to the Company
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addressed to it at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxx Xxxxxx, or at any other address previously furnished in writing to
the Trustee or such Subsidiary Guarantor (as the case may be) by the
Company, or
(c) any Subsidiary Guarantor by any Holder, the Trustee or the
Company shall be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed, first-class postage
prepaid, to Subsidiary Guarantor addressed to it at 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxx, or at any other address
previously furnished in writing to the Trustee or the Company (as the case
may be) by such Subsidiary Guarantor.
SECTION 107. Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to Holders by
the Company or the Trustee, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder affected by such event, at his address as it
appears in the Register, not later than the latest date, and not earlier than
the earliest date, prescribed for the giving of such notice. In any case where
notice to Holders is given by mail, neither the failure to mail such notice, nor
any defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Any notice mailed to a
Holder in the manner herein prescribed shall be conclusively deemed to have been
received by such Holder, whether or not such Holder actually receives such
notice. Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause, it shall be impracticable to mail
notice of any event to Holders when such notice is required to be given pursuant
to any provision of this Indenture, then any manner of giving such notice as
shall be satisfactory to the Trustee shall be deemed to be a sufficient giving
of such notice for every purpose hereunder.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
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SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company and
the Subsidiary Guarantors shall bind their respective successors and assigns,
whether so expressed or not.
SECTION 110. Separability Clause.
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 111. Benefits of Indenture.
Nothing in this Indenture or in the Notes, express or implied, shall
give to any Person, other than the parties hereto, any Paying Agent, any
Registrar and their successors hereunder, the Holders any benefit or any legal
or equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Notes shall be governed by, and construed in
accordance with, the law of the State of New York. Upon the issuance of the
Exchange Notes, if any, or the effectiveness of the Shelf Registration
Statement, this Indenture shall be subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are required to be part of this
Indenture and shall, to the extent applicable, be governed by such provisions.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, date
established for payment of Defaulted Interest pursuant to Section 309, Stated
Maturity or Maturity with respect to any Note shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Notes) payment
of principal (or premium, if any) or interest need not be made on such date, but
may be made on the next succeeding Business Day with the same force and effect
as if made on the Interest Payment Date, Redemption Date, date established for
payment of Defaulted Interest pursuant to Section 309, Stated Maturity or
Maturity; provided that no interest shall accrue for the period from and after
such Interest Payment Date, Redemption Date, date established for payment of
Defaulted Interest pursuant to Section 309, Stated Maturity or Maturity, Change
in Control Purchase Date or Asset Sale Purchase Date, as the case may be, to the
next succeeding Business Day.
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SECTION 114. Conflict of Any Provision of Indenture with Trust
Indenture Act.
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by Trust Indenture Act Sections
310 to 318, inclusive, or conflicts with any provision (an "incorporated
provision") required by or deemed to be included in this Indenture by operation
of such Trust Indenture Act Sections, such imposed duties or incorporated
provision shall control. If any provision of this Indenture modifies or excludes
any provision of the Trust Indenture Act that may be so modified or excluded,
the latter provision shall be deemed to apply to this Indenture as so modified
or excluded, as the case may be.
ARTICLE TWO
NOTE FORMS
SECTION 201. Forms Generally.
The Initial Notes shall be known as the "9 3/4% Senior Subordinated
Notes due 2008" and the Exchange Notes shall be known as the "9 3/4% Series B
Senior Subordinated Notes due 2008", in each case, of the Company. The Notes and
the Trustee's certificate of authentication shall be in substantially the form
annexed hereto as Exhibit A. The Notes may have such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture and may have letters, notations or other marks of identification
and such notations, legends or endorsements required by law, stock exchange
agreements to which the Company is subject or usage. Any portion of the text of
any Note may be set forth on the reverse thereof, with an appropriate reference
thereto on the face of the Note. The Company shall approve the form of the Notes
and any notation, legend or endorsement on the Notes. Each Note shall be dated
the date of its authentication.
The definitive Notes shall be printed, lithographed or engraved on
steel-engraved borders or may be produced in any other manner, all as determined
by the officers of the Company executing such Notes, as evidenced by their
execution of such Notes.
The terms and provisions contained in the form of the Notes annexed
hereto as Exhibit A shall constitute, and are hereby expressly made, a part of
this Indenture. To the extent applicable, the Company and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.
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Initial Notes offered and sold in reliance on Rule 144A shall be
issued initially in the form of a permanent global Note substantially in the
form set forth in Exhibit A (the "U.S. Global Note") deposited with, or on
behalf of, the Depositary or with the Trustee, as custodian for the Depositary,
duly executed by the Company and authenticated by the Trustee as hereinafter
provided. The aggregate principal amount of the U.S. Global Note may from time
to time be increased or decreased by adjustments made on the records of the
Trustee, as custodian for the Depositary or its nominee, as hereinafter
provided.
Initial Notes offered and sold in offshore transactions in reliance
on Regulation S shall be issued initially in the form of a single permanent
global Note in registered form substantially in the form set forth in Exhibit A
(the "Offshore Global Note") deposited with the Trustee, as custodian for the
Depositary, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The aggregate principal amount at maturity of the Offshore
Global Note may from time to time be increased or decreased by adjustments made
in the records of the Trustee, as custodian for the Depositary or its nominee,
as herein provided.
Initial Notes offered and sold to "accredited investors" (as defined
in Rule 501(a)(1), (2), (3) and (7) under the Securities Act) who are not QIBs
(excluding non-U.S. Persons) shall initially be issued in the form of permanent
certificated Notes ("U.S. Physical Notes") in registered form in substantially
the form of Exhibit A hereto. Notes issued pursuant to Section 306 in exchange
for or upon transfer of interests in the U.S. Global Note or the Offshore Global
Note shall be in the form of U.S. Physical Notes or in the form of permanent
certificated Notes in registered form substantially in the form set forth in
Exhibit A (the "Offshore Physical Note").
The Offshore Physical Notes and the U.S. Physical Notes are
sometimes collectively herein referred to as the "Physical Notes". The Offshore
Global Note and the U.S. Global Note are sometimes collectively referred to as
the "Global Notes."
SECTION 202. Restrictive Legends.
Unless and until (i) an Initial Note is sold under an effective
Registration Statement or (ii) an Initial Note is exchanged for an Exchange Note
in connection with an effective Registration Statement, in each case pursuant to
the Registration Rights Agreement, (A) each U.S. Global Note and U.S. Physical
Note shall bear the legend set forth below (the "Private Placement Legend") on
the face thereof and (B) the Offshore Physical Notes and the Offshore Global
Note shall bear the legend set forth below on the face thereof until at least 41
days after the Closing Date and receipt by the Company and the Trustee of a
certificate substantially in the form of Exhibit D hereto:
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THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE
HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS TWO YEARS
AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON
WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) (THE "RESALE RESTRICTION
TERMINATION DATE") ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY, (B) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) FOR
SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES
IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO
NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING
OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3)
OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY
FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
"ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR
FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S
AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i)
PURSUANT TO CLAUSE (D) PRIOR TO THE END OF THE 40-DAY RESTRICTED PERIOD
WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR PURSUANT TO
CLAUSES (E) OR (F) PRIOR TO THE RESALE RESTRICTION TERMINATION DATE TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION
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SATISFACTORY TO EACH OF THEM, AND (ii) IN EACH OF THE FOREGOING CASES, TO
REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS
SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRANSFER
AGENT. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE
RESALE RESTRICTION TERMINATION DATE.
Each Global Note, whether or not an Initial Note, shall also bear
the following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY 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 TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR SUCH OTHER
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY
(AND ANY PAYMENT HEREON IS MADE TO CEDE & CO.), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN SECTIONS 306 AND 307 OF THE INDENTURE.
ARTICLE THREE
THE NOTES
SECTION 301. Title and Terms.
The aggregate principal amount of Notes which may be authenticated
and delivered under this Indenture is limited to $145,000,000, except for Notes
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Notes
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pursuant to Section 304, 305, 306, 307, 308, 906, 1015, 1016 or 1108, pursuant
to an Exchange Offer or pursuant to Section 312.
The Initial Notes shall be known and designated as the "9 3/4%
Senior Subordinated Notes Due 2008" and the Exchange Notes shall be known and
designated as the "9 3/4% Series B Senior Subordinated Notes Due 2008" of the
Company. Their Stated Maturity shall be April 15, 2008, and they shall bear
interest at the rate of 9.75% per annum from April 23, 1998, or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, payable semiannually on April 15 and October 15 in each year, commencing
October 15, 1998, until the principal thereof is paid or duly provided for, to
the Person in whose name the Note (or any Predecessor Note) is registered at the
close of business on the April 1 or October 1 next preceding such Interest
Payment Date.
The principal of (and premium, if any), and interest on the Notes
shall be payable, and the Notes shall be exchangeable and transferable, at the
office or agency of the Company in The City of New York maintained for such
purposes (which initially shall be the office of the Trustee located in the care
of the Depositary Trust Company, at 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 10041)
or, at the option of the Company, interest may be paid by check mailed to the
address of the Person entitled thereto as such address shall appear on the
Register; provided that all payments with respect to the Global Notes and the
Physical Notes the Holders of which have given wire transfer instructions to the
Company will be required to be made by wire transfer of immediately available
funds to the accounts specified by the Holders thereof.
Notes that remain outstanding after the consummation of the Exchange
Offer and Exchange Notes issued in connection with the Exchange Offer will be
treated as a single class of securities under this Indenture.
The Notes shall be redeemable as provided in Article Eleven.
SECTION 302. Denominations.
The Notes shall be issuable only in registered form without coupons
and only in denominations of $1,000 and any integral multiple thereof; provided
that U.S. Physical Notes originally purchased by or transferred to institutional
"accredited investors" (as defined in Rule 501(a), (1), (2), (3) or (7) under
the Securities Act) who are not QIBs (excluding Non-U.S. Persons) (as defined in
Rule 144A) will be subject to a minimum denomination of $250,000.
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SECTION 303. Execution, Authentication, Delivery and Dating.
The Notes shall be executed on behalf of the Company by its
Chairman, its President or a Vice President. The signature of any of these
officers on the Notes may be manual or facsimile signatures of the present or
any future such authorized officer and may be imprinted or otherwise reproduced
on the Notes.
Notes bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Initial Notes executed by the Company
to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Initial Notes directing the Trustee to
authenticate the Notes and certifying that all conditions precedent to the
issuance of Notes contained herein have been fully complied with, and the
Trustee in accordance with such Company Order shall authenticate and deliver
such Initial Notes. On Company Order, the Trustee shall authenticate for
original issue Exchange Notes in an aggregate principal amount not to exceed the
sum of $145,000,000 plus the aggregate principal amount of any Additional Notes
issued; provided that such Exchange Notes shall be issuable only upon the valid
surrender for cancellation of Initial Notes of a like aggregate principal amount
in accordance with an Exchange Offer pursuant to the Registration Rights
Agreement. In each case, the Trustee shall be entitled to receive an Officers'
Certificate and an Opinion of Counsel of the Company that it may reasonably
request in connection with such authentication of Notes. Such order shall
specify the amount of Notes to be authenticated and the date on which the
original issue of Initial Notes or Exchange Notes is to be authenticated.
Each Note shall be dated the date of its authentication.
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for in Exhibit
A duly executed by the Trustee by manual signature of an authorized officer, and
such certificate upon any Note shall be conclusive evidence, and the only
evidence, that such Note has been duly authenticated and delivered hereunder and
is entitled to the benefits of this Indenture.
In case the Company, pursuant to Article Eight, shall be
consolidated or merged with or into any other Person or shall convey, transfer,
lease or otherwise dispose of its properties and assets substantially as an
entirety to any Person, and the successor Person resulting from such
consolidation, or surviving such merger, or into which the Company shall
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have been merged, or the Person which shall have received a conveyance,
transfer, lease or other disposition as aforesaid, shall have executed an
indenture supplemental hereto with the Trustee pursuant to Article Eight, any of
the Notes authenticated or delivered prior to such consolidation, merger,
conveyance, transfer, lease or other disposition may, from time to time, at the
request of the successor Person, be exchanged for other Notes executed in the
name of the successor Person with such changes in phraseology and form as may be
appropriate, but otherwise in substance of like tenor as the Notes surrendered
for such exchange and of like principal amount; and the Trustee, upon Company
Request of the successor Person, shall authenticate and deliver Notes as
specified in such request for the purpose of such exchange. If Notes shall at
any time be authenticated and delivered in any new name of a successor Person
pursuant to this Section in exchange or substitution for or upon registration of
transfer of any Notes, such successor Person, 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 304. Temporary Notes.
Pending the preparation of definitive Notes, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Notes which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Notes in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Notes may determine, as conclusively evidenced by their
execution of such Notes.
If temporary Notes are issued, the Company will cause definitive
Notes to be prepared without unreasonable delay. After the preparation of
definitive Notes, the temporary Notes shall be exchangeable for definitive Notes
upon surrender of the temporary Notes at the office or agency of the Company
designated for such purpose pursuant to Section 1002, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Notes, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Notes of authorized
denominations. Until so exchanged, the temporary Notes shall in all respects be
entitled to the same benefits under this Indenture as definitive Notes.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency designated pursuant to Section 1002 being herein sometimes
referred to as the "Register") in which, subject to such reasonable regulations
as it may prescribe, the Company shall provide for the
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registration of Notes and of transfers of Notes. The Register shall be in
written form or any other form capable of being converted into written form
within a reasonable time. At all reasonable times, the Register shall be open to
inspection by the Trustee. The Trustee is hereby initially appointed as security
registrar (the "Registrar") for the purpose of registering Notes and transfers
of Notes as herein provided.
Subject to the provisions of Section 307, upon surrender for
registration of transfer of any Note at the office or agency of the Company
designated pursuant to Section 1002, the Company shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Notes of any authorized denomination or
denominations of a like aggregate principal amount.
At the option of the Holder, Notes may be exchanged for other Notes
of any authorized denomination and of a like aggregate principal amount, upon
surrender of the Notes to be exchanged at such office or agency. Whenever any
Notes are so surrendered for exchange (including an exchange of Initial Notes
for Exchange Notes), the Company shall execute, and the Trustee shall
authenticate and deliver, the Notes which the Holder making the exchange is
entitled to receive; provided that no exchange of Initial Notes for Exchange
Notes shall occur until an Exchange Offer Registration Statement shall have been
declared effective by the Commission and that the Initial Notes to be exchanged
for the Exchange Notes shall be canceled by the Trustee.
All Notes issued upon any registration of transfer or exchange of
Notes shall be the valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer, in form
satisfactory to the Company and the Registrar, duly executed by the Holder
thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange or redemption of Notes, but the Company may require payment in certain
circumstances of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any registration of transfer or exchange
of Notes, other than exchanges pursuant to Section 304, 906, 1015, 1016 or 1108
not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange any Note during a period beginning at the opening of
business 15 days before the selection of Notes to be redeemed under Section 1104
and ending at the close of business on
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the day of such mailing of the relevant notice of redemption, or (ii) to
register the transfer of or exchange any Note so selected for redemption in
whole or in part, except the unredeemed portion of any Note being redeemed in
part.
SECTION 306. Book-Entry Provisions for Global Notes.
(a) Each Global Note initially shall (i) be registered in the name
of Cede & Co., as nominee of the Depositary (such nominee being referred to
herein as the "Global Note Holder"), (ii) be deposited with, or on behalf of,
the Depositary or with the Trustee, as custodian for such Depositary, and (iii)
bear legends as set forth in Section 202.
Members of, or participants in, the Depositary ("Agent Members")
shall have no rights under this Indenture with respect to any Global Note held
on their behalf by the Depositary, or the Trustee as its custodian, or under any
Global Note, and the Depositary may be treated by the Company, the Trustee and
any agent of the Company or the Trustee as the absolute owner of such Global
Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or shall impair, as between the
Depositary and its Agent Members, the operation of customary practices governing
the exercise of the rights of a Holder of any Note.
(b) Transfers of any Global Note shall be limited to transfers of
such Global Note in whole, but not in part, to the Depositary, its successors or
their respective nominees. Interests of beneficial owners in a Global Note may
be transferred in accordance with the rules and procedures of the Depositary and
the provisions of Section 307. In addition, U.S. Physical Notes or Offshore
Physical Notes shall be transferred to all beneficial owners in exchange for
their beneficial interests in the U.S. Global Note or the Offshore Global Note,
respectively, if: (x) the Depositary notifies the Company that it is unwilling
or unable to continue as Depositary for the applicable Global Note or the
Depositary ceases to be a "Clearing Agency" registered under the Exchange Act
and a successor depositary is not appointed by the Company within 90 days or (y)
an Event of Default has occurred and is continuing and Holders of more than 25%
in aggregate principal amount of the Notes at the time Outstanding represented
by the Global Notes advise the Trustee through the Depositary in writing that
the continuation of a book-entry system through the Depositary with respect to
the Global Notes is no longer required.
(c) Any beneficial interest in one of the Global Notes that is
transferred to a person who takes delivery in the form of an interest in the
other Global Note will, upon transfer, cease to be an interest in such Global
Note and become an interest in the other Global Note and, accordingly, will
thereafter be subject to all transfer restrictions, if any, and other
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procedures applicable to beneficial interests in such other Global Note for as
long as it remains such an interest.
(d) In connection with any transfer pursuant to paragraph (b) of
this Section of a beneficial interest in any Global Note to a beneficial owner
who is required or permitted to hold a Physical Note, the Registrar shall
reflect on its books and records the date and a decrease in the principal amount
of the applicable Global Note in an amount equal to the principal amount of the
beneficial interest in such Global Note to be transferred, and the Company shall
execute, and the Trustee shall authenticate and deliver, subject to the terms
and conditions of Section 307 hereof, one or more Physical Notes of like tenor
and amount.
(e) In connection with the transfer of the entire U.S. Global Note
or Offshore Global Note to beneficial owners pursuant to paragraph (b) of this
Section, the U.S. Global Note or Offshore Global Note, as the case may be, shall
be deemed to be surrendered to the Trustee for cancellation, and the Company
shall execute, and the Trustee shall authenticate and deliver, to each
beneficial owner identified by the Depositary in exchange for its beneficial
interest in the U.S. Global Note or Offshore Global Note, as the case may be, an
equal aggregate principal amount of U.S. Physical Notes or Offshore Physical
Notes, as the case may be, of authorized denominations.
(f) Any U.S. Physical Note delivered in exchange for an interest in
the U.S. Global Note pursuant to subsection (b) or (d) of this Section shall,
unless such exchange is made on or after the Resale Restriction Termination Date
and except as otherwise provided in Section 307, bear the applicable legend
regarding transfer restrictions applicable to the U.S. Physical Note set forth
in Section 202.
(g) The registered Global Note Holder may grant proxies and
otherwise authorize any person, including Agent Members and persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Notes.
(h) Beneficial owners of interests in a Global Note may receive
Physical Notes (which shall bear the Private Placement Legend if required by
Section 202) in accordance with the procedures of the Depositary. In connection
with the execution, authentication and delivery of such Physical Notes, the
Registrar shall reflect on its books and records a decrease in the principal
amount of the relevant Global Note equal to the principal amount of such
Physical Notes and the Company shall execute and the Trustee shall authenticate
and deliver one or more Physical Notes having an equal aggregate principal
amount.
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SECTION 307. Special Transfer Provisions.
Unless and until (i) an Initial Note is sold under an effective
Registration Statement, or (ii) an Initial Note is exchanged for an Exchange
Note in connection with an effective Registration Statement, in each case
pursuant to the Registration Rights Agreement, the following provisions shall
apply:
(a) Transfers to Non-QIB Institutional Accredited Investors. The
following provisions shall apply with respect to the registration of any
proposed transfer of an Initial Note to any institutional "accredited investor"
(as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the
Securities Act) which is not a QIB (excluding Non-U.S. Persons):
(i) The Registrar shall register the transfer of any Initial Note,
whether or not such Initial Note bears the Private Placement Legend, if
(x) the requested transfer is at least two years after the original issue
date of the Initial Notes or (y) the proposed transferee has delivered to
the Registrar a certificate substantially in the form of Exhibit C hereto.
(ii) If the proposed transferor is an Agent Member holding a
beneficial interest in the U.S. Global Note, upon receipt by the Registrar
of (x) the documents, if any, required by paragraph (i) and (y)
instructions given in accordance with the Depositary's and the Registrar's
procedures therefor, the Registrar shall reflect on its books and records
the date and a decrease in the principal amount of the U.S. Global Note in
an amount equal to the principal amount of the beneficial interest in the
U.S. Global Note to be transferred, and the Company shall execute, and the
Trustee shall authenticate and deliver, one or more U.S. Physical Notes of
like tenor and amount.
(b) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of a U.S. Physical Note or
an interest in the U.S. Global Note to a QIB (excluding Non-U.S. Persons):
(i) If the Note to be transferred consists of (i) U.S. Physical
Notes, the Registrar shall register the transfer and the Company shall
execute, and the Trustee shall authenticate and deliver one or more U.S.
Physical Notes if such transfer is being made by a proposed transferor who
has checked the box provided for on the form of Initial Note stating, or
has otherwise advised the Company and the Registrar in writing, that the
sale has been made in compliance with the provisions of Rule 144A to a
transferee who has signed the certification provided for on the form of
Initial Note stating, or has otherwise advised the Company and the
Registrar in writing, that it is purchasing the Initial Note for its own
account or an account with respect to which it exercises sole investment
discretion and that it, or the Person on whose behalf it is
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acting with respect to any such account, is a QIB within the meaning of
Rule 144A, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding
the Company as it has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor
is relying upon its foregoing representations in order to claim the
exemption from registration provided by Rule 144A or (ii) an interest in
the U.S. Physical Note, the transfer of such interest may be effected only
through the book-entry system maintained by the Depositary.
(ii) If the proposed transferee is an Agent Member, and the Initial
Notes to be transferred consist of U.S. Physical Notes, upon receipt by
the Registrar of instructions given in accordance with the Depositary's
and the Registrar's procedures therefor, the Registrar shall reflect on
its books and records the date and an increase in the principal amount of
the U.S. Global Note in an amount equal to the principal amount of the
U.S. Physical Notes, as the case may be, to be transferred, and the
Trustee shall cancel the U.S. Physical Notes so transferred.
(c) Transfers of Interests in the Offshore Global Note or Offshore
Physical Notes to U.S. Persons. The following provisions shall apply with
respect to any transfer of interests in the Offshore Global Note or Offshore
Physical Notes to U.S. Persons:
(i) prior to the removal of the Private Placement Legend from the
Offshore Global Notes or Offshore Physical Notes pursuant to Section 202,
the Registrar shall refuse to register such transfer; and
(ii) after such removal pursuant to Section 202, the Registrar shall
register the transfer of any such Note without requiring any additional
certification.
(d) Transfers to Non-U.S. Persons at Any Time. The following
provisions shall apply with respect to any transfer of an Initial Note to a
Non-U.S. Person:
(i) The Registrar shall register any proposed transfer to any
Non-U.S. Person if the Note to be transferred is a U.S. Physical Note or
an interest in the U.S. Global Note only upon receipt of a certificate
substantially in the form of Exhibit D from the proposed transferor.
(ii) (x) If the proposed transferor is an Agent Member holding a
beneficial interest in the U.S. Global Note, upon receipt by the Registrar
of (1) the document required by paragraph (i) and (2) instructions in
accordance with the Depositary's and the Registrar's procedures, the
Registrar shall reflect on its books and records the date and a decrease
in the principal amount of the U.S. Global Note in an amount equal to
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the principal amount of the beneficial interest in the U.S. Global Note to
be transferred, and (y) if the proposed transferor is an Agent Member,
upon receipt by the Registrar of instructions given in accordance with the
Depositary's and the Registrar's procedures, the Registrar shall reflect
on its books and records the date and an increase in the principal amount
of the Offshore Global Note in an amount equal to the principal amount of
the U.S. Physical Note or the U.S. Global Note, as the case may be, to be
transferred, and the Trustee shall cancel the Physical Note, if any, so
transferred or decrease the amount of the U.S. Global Note.
(e) Transfers to Non-U.S. Persons at Any Time. The following
provisions shall apply with respect to any transfer of an Initial Note to a
Non-U.S. Person:
(i) Prior to June 2, 1998, the Registrar shall register any proposed
transfer of an Initial Note to a Non-U.S. Person upon receipt of a
certificate substantially in the form of Exhibit C hereto from the
proposed transferor and the Company shall execute, and the Trustee shall
authenticate and deliver, one or more Physical Notes of like tenor and
amount.
(ii) On and after June 2, 1998, the Registrar shall register any
proposed transfer to any Non-U.S. Person (x) if the Initial Note to be
transferred is an Offshore Physical Note, (y) if the Initial Note to be
transferred is a U.S. Physical Note or an interest in the U.S. Global
Note, upon receipt of a certificate substantially in the form of Exhibit C
from the proposed transferor and (z) in the case of either clause (x) or
(y), the Company shall execute, and the Trustee shall authenticate and
deliver, one or more Physical Notes of like tenor and amount.
(iii) If the proposed transferor is an Agent Member holding a
beneficial interest in the U.S. Global Note, upon receipt by the Registrar
of (x) the document, if any, required by paragraph (i), and (y)
instructions in accordance with the Depositary's and the Registrar's
procedures therefor, the Registrar shall reflect on its books and records
the date and a decrease in the principal amount of the U.S. Global Note in
an amount equal to the principal amount of the beneficial interest in the
U.S. Global Note to be transferred and the Company shall execute, and the
Trustee shall authenticate and deliver, one or more Physical Notes of like
tenor and amount.
(f) Private Placement Legend. Upon the transfer, exchange or
replacement of Notes not bearing the Private Placement Legend, the Registrar
shall deliver Notes that do not bear the Private Placement Legend. Upon the
transfer, exchange or replacement of Notes bearing the Private Placement Legend,
the Registrar shall deliver only Notes that bear the Private Placement Legend
unless either (i) the circumstances contemplated by the sixth paragraph of
Section 201 or paragraph (a)(i)(x) of this Section 307 exist or (ii) there is
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delivered to the Registrar an Opinion of Counsel reasonably satisfactory to the
Company to the effect that neither such legend nor the related restrictions on
transfer are required in order to maintain compliance with the provisions of the
Securities Act.
(g) General. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such a Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in this
Indenture.
The Registrar shall retain until such time as no Notes remain
Outstanding copies of all letters, notices and other written communications
received pursuant to Section 306 or this Section 307. 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.
SECTION 308. Mutilated, Destroyed, Lost and Stolen Notes.
If (i) any mutilated Note is surrendered to the Trustee or the
Registrar, or (ii) the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Note, and there is
delivered to the Company and the Trustee such security or indemnity as may be
required by them to save each of them harmless, then, 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 deliver, 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.
In case any such mutilated, destroyed, lost or stolen Note has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section, 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) connected therewith.
Every new Note issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Company, 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.
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The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 309. Payment of Interest; Interest Rights Preserved.
Interest on any Note which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name such Note (or one or more Predecessor Notes) is registered at the
close of business on the Regular Record Date for such interest at the office or
agency of the Company in The City of New York maintained for such purposes
(which initially shall be the office of the Trustee located in care of the
Depositary Trust Company, at 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 pursuant
to Section 1002 or, at the option of the Company, interest may be paid by check
mailed to the address of the Person entitled thereto pursuant to Section 310 as
such address appears in the Register; provided that all payments with respect to
the Global Notes and Physical Notes the Holders of which have given wire
transfer instructions to the Trustee (or other Paying Agent) by the Regular
Record Date shall be required to be made by wire transfer of immediately
available funds to the accounts specified by the Holders thereof.
Any interest on any Note which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date shall forthwith cease to
be payable to the Holder on the Regular Record Date by virtue of having been
such Holder, and such defaulted interest and (to the extent lawful) interest on
such defaulted interest at the rate borne by the Notes (such defaulted interest
and interest thereon herein collectively called "Defaulted Interest") may be
paid by the Company, at its election in each case, as provided in clause (a) or
(b) below:
(a) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Notes (or their respective Predecessor
Notes) are registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest, 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 on each Note 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 Persons entitled to such Defaulted Interest
as in this clause provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall be not
more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 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,
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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 given in the manner provided for in Section 107, not
less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so given, such Defaulted Interest shall be paid to
the Persons in whose names the Notes (or their respective Predecessor
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) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the 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, such
manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Note
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Note shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Note.
If the Company shall be required to pay any additional interest
pursuant to the terms of the Registration Rights Agreement, it shall deliver an
Officer's Certificate to the Trustee setting forth the new interest rate and the
period for which such rate is applicable.
SECTION 310. Persons Deemed Owners.
Prior to the due presentment of a Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Note is registered as the owner of such Note for
the purpose of receiving payment of principal of (and premium, if any) and
(subject to Sections 305 and 309) interest on such Note and for all other
purposes whatsoever, whether or not such Note be overdue, and none of the
Company, the Trustee or any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 311. Cancellation.
All Notes surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and shall be promptly canceled by it. The Company
may at any time deliver to the Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Company
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may have acquired in any manner whatsoever, and may deliver to the Trustee (or
to any other Person for delivery to the Trustee) for cancellation any Notes
previously authenticated hereunder which the Company has not issued and sold,
and all Notes so delivered shall be promptly canceled by the Trustee. If the
Company shall so acquire any of the Notes, however, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness represented by such
Notes unless and until the same are surrendered to the Trustee for cancellation.
No Notes shall be authenticated in lieu of or in exchange for any Notes canceled
as provided in this Section, except as expressly permitted by this Indenture.
All canceled Notes held by the Trustee shall be disposed of by the Trustee in
accordance with its customary procedures and certification of their disposal
delivered to the Company unless by Company Order the Company shall direct that
canceled Notes be returned to it.
SECTION 312. Issuance of Additional Notes.
The Company may, subject to Article Ten of this Indenture, issue up
to $75,000,000 aggregate principal amount of additional Notes having identical
terms and conditions as the Notes offered hereby, except that interest may begin
accruing from a date other than the date hereof (the "Additional Notes"). Any
Additional Notes will be part of the same issue as the Notes offered hereby and
will vote on all matters with the Notes offered hereby.
SECTION 313. Computation of Interest.
Interest on the Notes shall be computed on the basis of a 360-day
year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
Upon the request of the Company, this Indenture will cease to be of
further effect (except as to surviving rights of registration of transfer or
exchange of the Notes, as expressly provided for herein or pursuant hereto) and
the Trustee, at the expense of the Company, will execute proper instruments
acknowledging satisfaction and discharge of this Indenture when:
(a) either (i) all the Notes theretofore authenticated and delivered
(other than mutilated, destroyed, lost or stolen Notes that have been
replaced or paid and Notes
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that have been subject to defeasance under Article Twelve) have been
delivered to the Trustee for cancellation or (ii) all Notes not
theretofore delivered to the Trustee for cancellation (A) have become due
and payable, (B) will become due and payable at maturity within one year
or (C) are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company, and the Company,
in the case of (A), (B) or (C) above, has irrevocably deposited or caused
to be deposited with the Trustee funds in trust for the purpose in an
amount sufficient to pay and discharge the entire Indebtedness on such
Notes not theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any, on) and interest on the Notes to the date
of such deposit (in the case of Notes that have become due and payable) or
to the Stated Maturity or redemption date, as the case may be;
(b) the Company has paid or caused to be paid all sums payable under
this Indenture by the Company; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided herein relating to the satisfaction and discharge of
this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 607 and, if
money shall have been deposited with the Trustee pursuant to subclause
(ii) of clause (a) of this Section, the obligations of the Trustee under
Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee; but such money need not be segregated from other funds except to the
extent required by law.
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ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(a) default in the payment of any interest on any Note when it
becomes due and payable, and continuance of such default for a period of
30 days (whether or not prohibited by Article 14;
(b) default in the payment of the principal of (or premium, if any,
on) any Note when due (whether or not prohibited by Article 14);
(c) failure to perform or comply with Sections 801, 1015 and 1016;
(d) failure to perform or comply with Sections 1010 and 1011 and
continuance of such default or breach for a period of 30 days after
written notice has been given to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Notes then outstanding;
(e) default in the performance, or breach, of any covenant or
agreement of the Company or any Subsidiary Guarantor contained in this
Indenture or in any Note or Subsidiary Guarantee (other than a default in
the performance, or breach, of a covenant or agreement that is
specifically dealt with elsewhere herein), and continuance of such default
or breach for a period of 60 days after written notice has been given to
the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in aggregate principal amount of the Notes then
outstanding;
(f) (i) an event of default has occurred under any mortgage, bond,
indenture, loan agreement or other document evidencing an issue of
Indebtedness of the Company or any Restricted Subsidiary, which issue
individually or in the aggregate has an aggregate outstanding principal
amount of not less than $5 million, and such default has resulted in such
Indebtedness becoming, whether by declaration or otherwise, due and
payable prior to the date on which it would otherwise become due and
payable or (ii) a default in any payment when due at final maturity of any
such Indebtedness;
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(g) failure by the Company or any of its Restricted Subsidiaries to
pay one or more final judgments (not subject to appeal), the uninsured
portion of which exceeds in the aggregate $5 million, which judgment or
judgments are not paid, discharged or stayed for a period of 60 days;
(h) any Subsidiary Guarantee ceases to be in full force and effect
or is declared null and void or any such Subsidiary Guarantor denies that
it has any further liability under any Subsidiary Guarantee, or gives
notice to such effect (other than by reason of the termination of this
Indenture or the release of any such Subsidiary Guarantee in accordance
with this Indenture);
(i) the entry of a decree or order by a court having jurisdiction in
the premises adjudging the Company or any Significant Subsidiary a
bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustments or composition of or in respect
of the Company or any Significant Subsidiary under the Federal Bankruptcy
Code or any other applicable federal or state law, or appointing a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or any Significant Subsidiary or of any
substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or
order unstayed and in effect for a period of 90 consecutive days; or
(j) the institution by the Company or any Significant Subsidiary of
proceedings to be adjudicated a bankrupt or insolvent, or the consent by
it to the institution of bankruptcy or insolvency proceedings against it,
or the filing by it of a petition or answer or consent seeking
reorganization or relief under the Federal Bankruptcy Code or any other
applicable federal or state law, or the consent by it to the filing of any
such petition or to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Company or any
Significant Subsidiary or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as
they become due.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than as specified in Section 501(i) or
501(j)) occurs and is continuing, the Trustee or the Holders of not less than
25% in aggregate principal amount of the Notes then outstanding may, and the
Trustee at the request of such Holders will, declare the principal of, and
accrued interest on, all of the outstanding Notes immediately due and payable
and, upon any such declaration, such principal and such interest will become due
and payable immediately provided, however, that the Notes shall not become due
and payable
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until the earlier to occur of (i) the acceleration of the maturity of any
Indebtedness under the Credit Agreement or (ii) five business days following
written notice of such declaration to the agent under the Credit Agreement.
If an Event of Default specified in Section 501(i) or 501(j) occurs
and is continuing, then the principal of and accrued interest on all of the
outstanding Notes will ipso facto become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any Holder.
At any time after a declaration of acceleration under this
Indenture, but before a judgment or decree for payment of the money due has been
obtained by the Trustee, the Holders of a majority in aggregate principal amount
of the outstanding Notes, by written notice to the Company and the Trustee, may
rescind such declaration and its consequences if: (i) the Company has paid or
deposited with the Trustee a sum sufficient to pay (A) all overdue interest on
all Notes, (B) all unpaid principal of (and premium, if any, on) any outstanding
Notes that has become due otherwise than by such declaration of acceleration and
interest thereon at the rate borne by the Notes, (C) to the extent that payment
of such interest is lawful, interest upon overdue interest and overdue principal
at the rate borne by the Notes and (D) all sums paid or advanced by the Trustee
under this Indenture and the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel; and (ii) all Events of
Default, other than the non-payment of amounts of principal of (or premium, if
any, on) or interest on the Notes that have become due solely by such
declaration of acceleration, have been cured or waived. No such rescission will
affect any subsequent default or impair any right consequent thereon.
Notwithstanding the preceding paragraph, in the event of a
declaration of acceleration in respect of the Notes because an Event of Default
specified in Section 501(f) shall have occurred and be continuing and provided
no judgment or decree for payment of the money due has been obtained by the
Trustee, such declaration of acceleration shall be automatically annulled if the
Indebtedness that is the subject of such Event of Default has been discharged or
the holders thereof have rescinded their declaration of acceleration in respect
of such Indebtedness, and written notice of such discharge or rescission, as the
case may be, shall have been given to the Trustee by the Company and
countersigned by the holders of such Indebtedness or a trustee, fiduciary or
agent for such holders, within 30 days after such declaration of acceleration in
respect of the Notes, and no other Event of Default has occurred during such
30-day period which has not been cured or waived during such period.
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SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company and each of the Subsidiary Guarantors covenants that if
(a) default is made in the payment of any installment of interest on
any Note when such interest becomes due and payable and such default
continues for a period of 30 days, or
(b) default is made in the payment of the principal of (or premium,
if any, on) any Note at the Maturity thereof,
the Company and each Subsidiary Guarantor, subject to Section 1305, will, upon
demand of the Trustee, pay to the Trustee for the benefit of the Holders of such
Notes, the whole amount then due and payable on such Notes for principal (and
premium, if any) and interest, and interest on any overdue principal (and
premium, if any) and, to the extent that payment of such interest shall be
legally enforceable, upon any overdue installment of interest, at the rate borne
by the Notes, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company or any Subsidiary Guarantor, as the case may be,
fails to pay such amounts forthwith upon such demand, the Trustee, in its own
name as trustee of an express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid, may prosecute such proceeding to
judgment or final decree and may enforce the same against the Company, such
Subsidiary Guarantor or any other obligor upon the Notes and collect the moneys
adjudged or decreed to be payable in the manner provided by law out of the
property of the Company, such Subsidiary Guarantor or any other obligor upon the
Notes, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Notes (including the Subsidiary
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Guarantors) or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Notes shall
then be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal, premium, if any, or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest owing and unpaid in respect of the Notes and
to file such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in such
judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same,
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial 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 the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the 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 505. Trustee May Enforce Claims Without Possession of Notes.
All rights of action and claims under this Indenture or the Notes
may be prosecuted and enforced by the Trustee without the possession of any of
the Notes or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name and
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Notes in respect of which such judgment
has been recovered.
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SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the Notes and the notation thereon of
the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Notes in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due
and payable on such Notes for principal (and premium, if any) and
interest, respectively; and
THIRD: The balance, if any, to the Company or any other obligors of
the Notes, including the Subsidiary Guarantors, as their interests may
appear, or as a court of competent jurisdiction may direct.
SECTION 507. Limitation on Suits.
No Holder of any of the Notes has any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture or for the
appointment of a receiver or trustee or for any other remedy thereunder, unless
such Holder has previously given written notice to the Trustee of a continuing
Event of Default, the Holders of at least 25% in aggregate principal amount of
the outstanding Notes have made written request, and offered reasonable
indemnity, to the Trustee to institute such proceeding, the Trustee has failed
to institute any such proceeding within 60 days after receipt of such notice,
request and offer of indemnity and the Trustee, within such 60-day period, has
not received directions inconsistent with such written request from Holders of a
majority in aggregate principal amount of the outstanding Notes. Such
limitations do not apply, however, to a suit instituted by a Holder of a Note
for the enforcement of the payment of the principal of, premium, if any, or
interest on such Note on or after the respective due dates expressed in such
Note. A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over another Holder.
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SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Note shall have the right, which is absolute and unconditional, to receive
payment, as provided herein (including, if applicable, Article Twelve) and in
such Note of the principal of (and premium, if any) and (subject to Section 309)
interest on such Note on the respective Stated Maturities expressed in such Note
(or, in the case of redemption, on the Redemption Date) and to institute suit
for the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Subsidiary Guarantors, the
Trustee and the Holders shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the Trustee
and the Holders shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes in the last paragraph of
Section 308, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Note to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
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SECTION 512. Control by Holders.
The Holders of not less than a majority in principal amount of the
Outstanding Notes shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, provided that
(a) such direction shall not be in conflict with any rule of law or
with this Indenture,
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(c) the Trustee need not take any action which might conflict with
law or this Indenture or involve it in personal liability or be unjustly
prejudicial to the Holders not consenting.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal
amount of the outstanding Notes may, by notice to the Trustee, on behalf of the
Holders of all of the Notes, waive any existing Default or Event of Default and
its consequences under this Indenture, except a continuing Default or Event of
Default in the payment of the principal of (and premium, if any) or interest on
any Note (except for such a default resulting from an acceleration that has been
rescinded), or in respect of a covenant or provision that under this Indenture
cannot be modified or amended without the consent of the Holder of each
outstanding Note.
Upon any such waiver, such Default or Event of Default shall cease
to exist, and any Event of Default arising therefrom shall be deemed to have
been cured, for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any right
consequent thereon.
SECTION 514. Waiver of Stay or Extension Laws.
The Company and each Subsidiary Guarantor covenants (to the extent
that it may lawfully do so) that it will not at any time insist upon, or plead,
or in any manner whatsoever claim or take the benefit or advantage of, any stay
or extension law wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this Indenture; and the Company
and each Subsidiary Guarantor (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law
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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 515. Waiver of Personal Liability of Directors, Officers,
Employees and Stockholders.
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. No director, officer,
employee, incorporator or stockholder of any Subsidiary Guarantor, as such,
shall have any liability for any obligations of such Subsidiary Guarantor under
its Subsidiary Guarantee or this Indenture or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder by
accepting a Note waives and releases all such liability. The waiver and release
are part of the consideration for issuance of the Notes and the Subsidiary
Guarantees. 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.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its 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 an Event of Default:
(i) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture and the Trustee need perform only
those duties that are specifically set forth in this Indenture and no
others, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the
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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 the
certificates and opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of
this Section;
(ii) the Trustee shall not be liable for any error of judgment made
in good faith by a responsible officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 512 hereof.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b) and (c) of this Section.
SECTION 602. Notice of Defaults.
If a Default or an Event of Default occurs and is continuing and is
known to the Trustee, the Trustee shall mail to each Holder of the Notes notice
of the Default or Event of Default within 90 days after the occurrence thereof.
However, except in the case of a Default or an Event of Default in payment of
principal of (and premium, if any, on) or interest on any Notes, the Trustee may
withhold the notice to the Holders of the Notes if a committee of its trust
officers in good faith determines that withholding such notice is in the
interests of the Holders of the Notes.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of TIA Sections 315(a) through 315(d):
(a) the Trustee may conclusively rely and shall be protected in
acting or refraining from acting, pursuant to the terms of this Indenture
or otherwise, upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or
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document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order with
sufficient detail as may be requested by the Trustee and any resolution of
the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate and/or an
Opinion of Counsel;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities (including fees and expenses
of its agents and counsel) which might be incurred by it in compliance
with such request or direction;
(f) the Trustee shall not be bound to make any investigation into,
and may conclusively rely upon, the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
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(h) the Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Indenture; and
(i) except during the continuance of an Event of Default, the
Trustee need perform only those duties as are specifically set forth in
this Indenture.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
SECTION 604. Trustee Not Responsible for Recitals or Issuance of
Notes.
The recitals contained herein and in the Notes, except for the
Trustee's certificates of authentication, shall be taken as the statements of
the Company and the Subsidiary Guarantors, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture, the Notes or any Subsidiary
Guarantee, except that the Trustee represents that it is duly authorized to
execute and deliver this Indenture, authenticate the Notes and perform its
obligations hereunder and, upon the effectiveness of the Registration Statement,
that the statements made by it in a Statement of Eligibility on Form T-1
supplied to the Company are true and accurate, subject to the qualifications set
forth therein. The Trustee shall not be accountable for the use or application
by the Company of Notes or the proceeds thereof.
SECTION 605. May Hold Notes.
The Trustee, any Paying Agent, any Registrar or any other agent of
the Company or of the Trustee, in its individual or other capacity, may become
the owner or pledgee of Notes and, subject to TIA Sections 310(b) and 311, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Paying Agent, Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company or any Subsidiary Guarantor, as the case may
be.
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SECTION 607. Compensation and Reimbursement.
The Company agrees:
(a) to pay to the Trustee (in its capacity as Trustee, Paying Agent
and Registrar) from time to time reasonable compensation for all services
rendered by it hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(c) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. 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 shall cooperate in the defense. The Trustee may
have separate counsel and the Company shall pay the reasonable fees and
expenses of such counsel. The Company need not pay for any settlement made
without its consent, which consent shall not be unreasonably withheld.
The obligations of the Company under this Section to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture. As security for the performance of such obligations
of the Company, the Trustee shall have a claim prior to the Notes upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of (and premium, if any) or interest on
particular Notes.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 501(i) or 501(j), the expenses
(including the reasonable charges and expenses of its counsel) of and the
compensation for such services are intended to constitute expenses of
administration under any applicable Federal or State bankruptcy, insolvency or
other similar law.
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The provisions of this Section shall survive the termination of this
Indenture.
SECTION 608. Corporate Trustee Required; Eligibility.
There shall be at all times a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1). Each successor Trustee
shall have a combined capital and surplus of at least $50,000,000. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of Federal, State, territorial or District of Columbia
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
SECTION 609. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 610.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If the instrument of acceptance by a successor Trustee
required by Section 610 shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of
not less than a majority in principal amount of the Outstanding Notes, delivered
to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Note for at least six months,
except when the Trustee's duty to resign is stayed in accordance with the
provisions of TIA Section 310(b), or
(2) the Trustee shall cease to be eligible under Section 608 and
shall fail to resign after written request therefor by the Company or by
any Holder who has been a bona fide Holder of a Note for at least six
months, or
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(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation, winding-up or liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove the
Trustee, or (ii) subject to TIA Section 315(e), any Holder who has been a bona
fide Holder of a Note for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Notes delivered to
the Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trustee
and supersede the successor Trustee appointed by the Company. If no successor
Trustee shall have been so appointed by the Company or the Holders and accepted
appointment in the manner hereinafter provided subject to TIA Section 315(e),
any Holder who has been a bona fide Holder of a Note for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to the
Holders of Notes in the manner provided for in Section 107. Each notice shall
include the name of the successor Trustee and the address of its Corporate Trust
Office.
SECTION 610. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder subject to the retiring Trustee's
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rights as provided under the last sentence of Section 607. Upon request of any
such successor Trustee, the Company shall execute any and all instruments for
more fully and certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 611. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Notes shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Notes so authenticated with the same effect
as if such successor Trustee had itself authenticated such Notes. In case at
that time any of the Notes shall not have been authenticated, any successor
Trustee may authenticate such Notes either in the name of any predecessor
hereunder or in the name of the successor Trustee. In all such cases such
certificates shall have the full force and effect which this Indenture provides
that the certificate of authentication of the Trustee shall have for the
certificate of authentication of the Trustee shall have; provided, however, that
the right to adopt the certificate of authentication of any predecessor Trustee
or to authenticate Notes in the name of any predecessor Trustee shall apply only
to its successor or successors by merger, conversion or consolidation.
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of Notes, by receiving and holding the same, agrees
with the Company and the Trustee that none of the Company or the Trustee or any
agent of either of them shall be held accountable by reason of the disclosure of
any such information as to the names and addresses of the Holders in accordance
with TIA Section 312, regardless of the source from which such information was
derived, and that the Trustee shall not be held
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accountable by reason of mailing any material pursuant to a request made under
TIA Section 312(b).
SECTION 702. Reports by Trustee.
Within 60 days after May 15 of each year commencing with the first
May 15 after the first issuance of Notes, the Trustee shall transmit to the
Holders, in the manner and to the extent provided in TIA Section 313(c), a brief
report dated as of such May 15 if required by TIA Section 313(a).
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., Only on Certain Terms.
(1) The Company shall not, in a single transaction or series of
related transactions, consolidate or merge with or into (whether or not the
Company is the surviving corporation), or directly and/or indirectly through its
Subsidiaries, sell, assign, transfer, lease, convey or otherwise dispose of all
or substantially all of its properties or assets (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:
(a) either (i) the Company is the surviving corporation or (ii) 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 (the "Surviving Entity") is a
corporation organized or existing under the laws of the United States, any
state thereof or the District of Columbia and assumes all the obligations
of the Company under the Notes and this Indenture pursuant to a
supplemental indenture in a form reasonably satisfactory to the Trustee;
(b) immediately after giving effect to such transaction and treating
any obligation of the Company in connection with or as a result of such
transaction as having been incurred as of the time of such transaction, no
Default or Event of Default has occurred and is continuing;
(c) the Company (or the Surviving Entity if the Company is not the
continuing obligor under this Indenture) could, at the time of such
transaction and after
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giving pro forma effect thereto as if such transaction had occurred at the
beginning of the applicable four-quarter period, incur at least $1.00 of
additional Indebtedness (other than Permitted Indebtedness) pursuant to
subsection (a) of Section 1010;
(d) each Subsidiary Guarantor, unless it is the other party to the
transaction described above, has by supplemental indenture confirmed that
its Subsidiary Guarantee applies to the Surviving Entity's obligations
under this Indenture and the Notes;
(e) if any of the property or assets of the Company or any of its
Restricted Subsidiaries would thereupon become subject to any Lien, the
provisions of Section 1014 are complied with;
(f) immediately after giving effect to such transaction on a pro
forma basis, the Consolidated Net Worth of the Company (or of the
Surviving Entity if the Company is not the continuing obligor under this
Indenture) is equal to or greater than the Consolidated Net Worth of the
Company immediately prior to such transaction; and
(g) the Company delivers, or causes to be delivered, to the Trustee,
in form and substance reasonably satisfactory to the Trustee, an Officers'
Certificate and an Opinion of Counsel, each stating that such transaction
complies with the requirements of this Indenture.
(2) No Subsidiary Guarantor shall consolidate with or merge with or
into any other Person or convey, sell, assign, transfer, lease or otherwise
dispose of its properties and assets substantially as an entirety to any other
Person (other than the Company or another Subsidiary Guarantor) unless:
(a) subject to the provisions of Clause (3) of this Section, the
Person formed by or surviving such consolidation or merger (if other than
such Subsidiary Guarantor) or to which such properties and assets are
transferred assumes all of the obligations of such Subsidiary Guarantor
under this Indenture and its Subsidiary Guarantee, pursuant to a
supplemental indenture in form and substance satisfactory to the Trustee;
(b) immediately after giving effect to such transaction, no Default
or Event of Default has occurred and is continuing; and
(c) the Subsidiary Guarantor delivers, or causes to be delivered, to
the Trustee, in form and substance reasonably satisfactory to the Trustee,
an Officers' Certificate and an Opinion of Counsel, each stating that such
transaction complies with the requirements of this Indenture.
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(3) For purposes of this Section, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all of the properties or assets of one or
more Restricted Subsidiaries, 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.
SECTION 802. Successor Substituted.
In the event of any transaction described in and complying with the
conditions listed in Section 801(1) in which the Company is not the continuing
obligor under this Indenture, the Surviving Entity will succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture, and thereafter the Company will, except in the case of a lease,
be discharged from all its obligations and covenants under this Indenture and
the Notes.
ARTICLE NINE
SUPPLEMENTS AND AMENDMENTS TO INDENTURE
AND SUBSIDIARY GUARANTEES
SECTION 901. Without Consent of Holders.
Without the consent of any Holders, the Company and any affected
Subsidiary Guarantor, each when authorized by a Board Resolution, and the
Trustee may amend or supplement this Indenture, the Notes or any Subsidiary
Guarantee without the consent of any Holder of a Note:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company in
this Indenture and in the Notes; or
(2) 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; or
(3) to add additional Events of Default; or
(4) to provide for uncertificated Notes in addition to or in place
of the Physical Notes; or
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(5) to evidence and provide for the acceptance of appointment under
this Indenture by a successor Trustee; or
(6) to secure the Notes; or
(7) to cure any ambiguity, to correct or supplement any provision in
this Indenture that may be defective or inconsistent with any other
provision in this Indenture, or to make any other provisions with respect
to matters or questions arising under this Indenture, provided, however,
that such actions pursuant to this clause do not adversely affect the
interests of the Holders in any material respect; or
(8) to comply with any requirements of the Commission in order to
effect and maintain the qualification of this Indenture under the Trust
Indenture Act.
SECTION 902. With Consent of Holders.
With the consent of the Holders of not less than a majority in
aggregate Outstanding principal amount of the Notes (including consents obtained
in connection with a tender offer or exchange offer for the Notes), by Act of
said Holders delivered to the Company, any affected Subsidiary Guarantor and the
Trustee, the Company and the Subsidiary Guarantor, each when authorized by a
Board Resolution, and the Trustee may amend or supplement in any manner this
Indenture or any Subsidiary Guarantee or modify in any manner the rights of the
Holders under this Indenture or any Subsidiary Guarantee; provided, however,
that no such supplement, amendment or modification may, without the consent of
the Holder of each Outstanding Note affected thereby:
(a) change the Stated Maturity of the principal of, or any
installment of interest on, any Note, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or change the coin or currency in which any Note or
any premium or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment after the Stated
Maturity thereof (or, in the case of redemption, on or after the
redemption date);
(b) amend, change or modify the obligation of the Company to make
and consummate an Excess Proceeds Offer with respect to any Asset Sale in
accordance with the Section 1016 or the obligation of the Company to make
and consummate a Change of Control offer in the event of a Change of
Control in accordance with Section 1015, including, in each case,
amending, changing or modifying any definition relating thereto;
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(c) reduce the percentage in principal amount of outstanding Notes,
the consent of whose Holders is required for any amendment, supplement or
waiver of compliance with certain provisions of, or certain defaults and
their consequences provided for under, this Indenture;
(d) waive a Default or Event of Default in the payment of principal
of, or premium, if any, or interest on the Notes or reduce the percentage
or aggregate principal amount of outstanding Notes the consent of whose
Holders is necessary for waiver of compliance with certain provisions of
this Indenture or for waiver of certain Defaults or Events of Default;
(e) modify the ranking or priority of the Notes or the Subsidiary
Guarantee of any Subsidiary Guarantor;
(f) release any Subsidiary Guarantor from any of its obligations
under its Subsidiary Guarantee or this Indenture other than in accordance
with the terms of this Indenture; or
(g) make any change in the foregoing amendment and waiver provisions
of this Section 902.
It shall not be necessary for any Act of Holders under this Section
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
Upon the request of the Company accompanied by a Board Resolution
authorizing the execution of any amended or supplemental indenture, the Trustee
shall, subject to this Section 903, join with the Company in the execution of
such amended or supplemental indenture authorized or permitted by the terms of
this Indenture. In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustees own rights, duties or
immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
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Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Notes theretofore or thereafter authenticated and delivered hereunder shall
be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to the Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Notes to Supplemental Indentures.
Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Notes so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Notes.
SECTION 907. Notice of Supplemental Indentures.
Promptly after the execution by the Company, any affected Subsidiary
Guarantor and the Trustee of any supplemental indenture or Subsidiary Guarantee
pursuant to the provisions of Section 902, the Company shall give notice thereof
to the Holders of each Outstanding Note affected, in the manner provided for in
Section 107, setting forth in general terms the substance of such supplemental
indenture or Subsidiary Guarantee.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and Interest.
The Company covenants and agrees for the benefit of the Holders that
it will duly and punctually pay the principal of (and premium, if any) and
interest on the Notes in accordance with the terms of the Notes and this
Indenture.
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SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in The City of New York, an office or
agency where Notes may be presented or surrendered for payment, where Notes may
be surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Notes and this Indenture may be
served. The Corporate Trust Office located, in care of The Depositary Trust
Company, at 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 of the Trustee shall be
such office or agency of the Company, unless the Company shall designate and
maintain some other office or agency for one or more of such purposes. 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.
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 1003. Money for Note Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it
will, on or before each due date of the principal of (or premium, if any) or
interest on any of the Notes, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal of (or premium,
if any) or interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and will promptly notify the
Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for the
Notes, it will, on or before each due date of the principal of (or premium, if
any) or interest on any Notes, deposit with a Paying Agent a sum sufficient to
pay the principal (and premium, if any) or interest so becoming due, such sum to
be held in trust for the benefit of the Persons entitled to such principal,
premium or interest, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of such action or any failure so to act.
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The Company will cause each Paying Agent (other than the Trustee) to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(a) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest on Notes in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company (or any
other obligor upon the Notes) in the making of any payment of principal
(and premium, if any) or interest; and
(c) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such sums.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of (or premium,
if any) or interest on any Note and remaining unclaimed for two years after such
principal (and premium, if any) or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Note shall thereafter, as
an unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, The City of New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
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SECTION 1004. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect the corporate
existence, rights (charter and statutory) and franchises of the Company and each
Subsidiary; provided, however, that the Company shall not be required to
preserve any such right or franchise if the Board of Directors shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Company and its Subsidiaries as a whole and that the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 1005. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (a) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary and (b)
all lawful claims for labor, materials and supplies, which, if unpaid, might by
law become a 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.
SECTION 1006. Maintenance of Properties.
The Company will cause all properties owned by the Company or any
Subsidiary or used or held for use in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good condition, repair
and working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this Section shall
prevent the Company from discontinuing the maintenance of any of such properties
if such discontinuance is, in the judgment of the Company, desirable in the
conduct of its business or the business of any Subsidiary and not
disadvantageous in any material respect to the Holders.
SECTION 1007. Insurance.
The Company will at all times keep all of its and its Subsidiaries'
properties which are of an insurable nature insured with insurers, believed by
the Company to be responsible, against loss or damage to the extent that
property of similar character is usually so insured by corporations similarly
situated and owning like properties.
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SECTION 1008. Statement by Officers As to Default.
(a) The Company and each Subsidiary Guarantor will deliver to the
Trustee, within 120 days after the end of each fiscal year, a brief certificate
from the principal executive officer, principal financial officer or principal
accounting officer as to his or her knowledge of compliance by the Company and
such Subsidiary Guarantor with all conditions and covenants under this
Indenture. For purposes of this Section 1008(a), such compliance shall be
determined without regard to any period of grace or requirement of notice under
this Indenture.
(b) When any Default has occurred and is continuing under this
Indenture, or if the trustee for or the holder of any other evidence of
Indebtedness of the Company or any Subsidiary Guarantor gives any notice or
takes any other action with respect to a claimed default (other than with
respect to Indebtedness in the principal amount of less than $2,000,000), the
Company shall deliver to the Trustee by registered or certified mail or by
telegram, telex or facsimile transmission an Officers' Certificate specifying
such event, notice or other action within five Business Days of becoming aware
of its occurrence.
SECTION 1009. Reports.
Whether or not required by the rules and regulations of the
Commission, so long as any Notes are outstanding, the Company will furnish to
the Holders of Notes, and file with the Trustee, (a) prior to the effectiveness
of a registration statement with respect to the Exchange Offer or a Shelf
Registration Statement, the information specified in Rule 144A(d)(4) under the
Securities Act and (b) within 15 days after it is or would have been required to
file such with the Commission (i) all quarterly and annual financial information
that would be required to be contained in a filing with the Commission on Forms
10-Q and 10-K if the Company were required to file such Forms, including a
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and, with respect to the annual information only, a report thereon
by the Company's certified independent accountants and (ii) all current reports
that would be required to be filed with the Commission on Form 8-K if the
Company were required to file such reports. In addition, following the
consummation of the Exchange Offer, whether or not required by the rules and
regulations of the Commission, the Company will file a copy of all such
information and reports with the Commission for public availability within the
time periods specified in the Commission's rules and regulations (unless the
Commission will not accept such a filing) and make such information available to
securities analysts and prospective investors upon request.
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SECTION 1010. Limitation on Incurrence of Indebtedness and Issuance
of Disqualified Stock.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, create, issue, assume, guarantee or in any manner become directly
or indirectly liable for the payment of, or otherwise incur (collectively,
"incur"), any Indebtedness (including Acquired Indebtedness and the issuance of
Disqualified Stock), except that the Company or any Subsidiary Guarantor may
incur Indebtedness if, at the time of such event, the Fixed Charge Coverage
Ratio for the immediately preceding four full fiscal quarters for which internal
financial statements are available, taken as one accounting period, would have
been equal to at least 2.0 to 1.0.
(b) In making the foregoing calculation for any four-quarter period
that includes the Closing Date, pro forma effect will be given to the
[Offering], as if such transactions had occurred at the beginning of such
four-quarter period. In addition (but without duplication), in making the
foregoing calculation, pro forma effect will be given to:
(i) the incurrence of such Indebtedness and (if applicable) the
application of the net proceeds therefrom, including to refinance other
Indebtedness, as if such Indebtedness was incurred and the application of
such proceeds occurred at the beginning of such four-quarter period;
(ii) the incurrence, repayment or retirement of any other
Indebtedness by the Company or its Restricted Subsidiaries since the first
day of such four-quarter period as if such Indebtedness was incurred,
repaid or retired at the beginning of such four-quarter period; and
(iii) the acquisition (whether by purchase, merger or otherwise) or
disposition (whether by sale, merger or otherwise) of any company, entity
or business acquired or disposed of by the Company or its Restricted
Subsidiaries, as the case may be, since the first day of such four-quarter
period, as if such acquisition or disposition occurred at the beginning of
such four-quarter period. In making a computation under the foregoing
clause (i) or (ii), (A) the amount of Indebtedness under a revolving
credit facility will be computed based on the average daily balance of
such Indebtedness during such four-quarter period, (B) if such
Indebtedness bears, at the option of the Company, a fixed or floating rate
of interest, interest thereon will be computed by applying, at the option
of the Company, either the fixed or floating rate, and (C) the amount of
any Indebtedness that bears interest at a floating rate will be calculated
as if the rate in effect on the date of determination had been the
applicable rate for the entire period (taking into account any Hedging
Obligations applicable to such Indebtedness if such
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Hedging Obligations have a remaining term at the date of determination in
excess of 12 months).
(c) Notwithstanding the foregoing, the Company may, and may permit
its Restricted Subsidiaries to, incur the following Indebtedness ("Permitted
Indebtedness"):
(i) Indebtedness of the Company or any Subsidiary Guarantor under
the Credit Agreement (and the incurrence by any Subsidiary Guarantor of
guarantees thereof) in an aggregate principal amount at any one time
outstanding not to exceed the greater of (x) $30 million or (y) the amount
of the Borrowing Base of the Company, less any amounts applied to the
permanent reduction of such credit facilities pursuant to the provisions
of Section 1016;
(ii) Indebtedness represented by the Notes (other than the
Additional Notes) and the Subsidiary Guarantees;
(iii) Existing Indebtedness (other than the Polytek Credit
Agreement);
(iv) the incurrence by the Company of Permitted Refinancing
Indebtedness in exchange for, or the net proceeds of which are used to
refund, refinance or replace, any Indebtedness that is permitted to be
incurred under clause (ii) or (iii) above;
(v) Indebtedness owed by the Company to any Wholly Owned Restricted
Subsidiary or owed by any Restricted Subsidiary to the Company or a Wholly
Owned Restricted Subsidiary (provided, however, that such Indebtedness is
held by the Company or such Restricted Subsidiary); provided, however,
that any Indebtedness of the Company owing to any such Restricted
Subsidiary is unsecured and subordinated in right of payment from and
after such time as the Notes shall become due and payable (whether at
Stated Maturity, acceleration, or otherwise) to the payment and
performance of the Company's obligations under the Notes;
(vi) Indebtedness of the Company or any Restricted Subsidiary under
Hedging Obligations incurred in the ordinary course of business;
(vii) Indebtedness of the Company or any Restricted Subsidiary
consisting of guarantees, indemnities or obligations in respect of
purchase price adjustments in connection with the acquisition or
disposition of assets, including, without limitation, shares of Capital
Stock;
(viii) either (A) Capitalized Lease Obligations of the Company or
any Restricted Subsidiary or (B) Indebtedness under purchase money
mortgages or secured
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by purchase money security interests, in each case, incurred to finance
the purchase, lease or improvement of real or personal property so long as
(x) such Indebtedness is not secured by any property or assets of the
Company or any Restricted Subsidiary other than the property and assets so
acquired and (y) such Indebtedness is created within 90 days of the
acquisition of the related property; provided, however, that the aggregate
amount of Indebtedness under clauses (A) and (B) does not exceed $10
million at any one time outstanding;
(ix) Guarantees by any Restricted Subsidiary made in accordance with
the provisions of Section 1022;
(x) Indebtedness under the Polytek Credit Agreement in an aggregate
principal amount at any one time outstanding not to exceed the greater of
(A) $11 million or (B) the amount of the Borrowing Base of Polytek;
(xi) Indebtedness of the Company or any Subsidiary Guarantor not
permitted by any other clause of this definition, in an aggregate
principal amount not to exceed $10 million at any one time outstanding;
and
(xii) Indebtedness in respect of surety or performance bonds,
worker's compensation claims, payment obligations in connection with
self-insurance and other similar requirements arising in the ordinary
course of business.
SECTION 1011. Limitation on Restricted Payments.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, take any of the following actions:
(a) declare or pay any dividend on, or make any distribution to
holders of, any shares of the Capital Stock of the Company or any
Restricted Subsidiary, other than (i) dividends or distributions payable
solely in Qualified Equity Interests or (ii) dividends or distributions by
a Restricted Subsidiary payable to the Company or another Restricted
Subsidiary;
(b) purchase, redeem or otherwise acquire or retire for value,
directly or indirectly, any shares of Capital Stock, or any options,
warrants or other rights to acquire such shares of Capital Stock, of the
Company, any Restricted Subsidiary or any Affiliate of the Company (other
than, in either case, any such Capital Stock owned by the Company or any
of its Restricted Subsidiaries);
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(c) make any principal payment on, or repurchase, redeem, defease or
otherwise acquire or retire for value, prior to any scheduled principal
payment, sinking fund payment or maturity, any Pari Passu Indebtedness or
Subordinated Indebtedness; and
(d) make any Investment (other than a Permitted Investment) in any
Person; (such payments or other actions described in (but not excluded
from) clauses (a) through (d) being referred to as "Restricted Payments"),
unless at the time of, and immediately after giving effect to, the
proposed Restricted Payment:
(i) no Default or Event of Default has occurred and is
continuing,
(ii) the Company could incur at least $1.00 of additional
Indebtedness pursuant to subsection (a) of Section 1010, and
(iii) the aggregate amount of all Restricted Payments made
after the Closing Date does not exceed the sum of:
(A) 50% of the aggregate Consolidated Net Income of the
Company during the period (taken as one accounting period)
from the first day of the Company's fiscal quarter during
which the Closing Date occurs to the last day of the Company's
most recently ended fiscal quarter for which internal
financial statements are available at the time of such
proposed Restricted Payment (or, if such aggregate cumulative
Consolidated Net Income is a loss, minus 100% of such amount);
plus
(B) the aggregate net cash proceeds received by the
Company after the Closing Date from the issuance or sale
(other than to a Subsidiary) of either (1) Qualified Equity
Interests of the Company or (2) debt securities or
Disqualified Stock that have been converted into or exchanged
for Qualified Equity Interests of the Company, together with
the aggregate net cash proceeds received by the Company at the
time of such conversion or exchange.
Notwithstanding the foregoing, the Company and its Restricted
Subsidiaries may take the following actions, so long as no Default or Event of
Default has occurred and is continuing or would occur:
(a) the payment of any dividend in cash or Qualified Equity
Interests of the Company within 60 days after the date of declaration
thereof, if at the declaration date such payment would not have been
prohibited by the foregoing provisions;
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(b) the repurchase, redemption or other acquisition or retirement
for value of any shares of Capital Stock of the Company, in exchange for,
or out of the net cash proceeds of a substantially concurrent issuance and
sale (other than to a Subsidiary) of, Qualified Equity Interests of the
Company;
(c) the purchase, redemption, defeasance or other acquisition or
retirement for value of any Pari Passu Indebtedness or Subordinated
Indebtedness in exchange for, or out of the net cash proceeds of a
substantially concurrent issuance and sale (other than to a Subsidiary)
of, shares of Qualified Equity Interests of the Company;
(d) the purchase, redemption, defeasance or other acquisition or
retirement for value of Pari Passu Indebtedness or Subordinated
Indebtedness in exchange for, or out of the net cash proceeds of a
substantially concurrent issuance or sale (other than to a Subsidiary) of,
Pari Passu Indebtedness or Subordinated Indebtedness, respectively, so
long as the Company or a Restricted Subsidiary would be permitted to
refinance such original Pari Passu Indebtedness or Subordinated
Indebtedness with such new Pari Passu Indebtedness or Subordinated
Indebtedness pursuant to clause (iv) of the definition of Permitted
Indebtedness;
(e) the repurchase of any Subordinated Indebtedness at a purchase
price not greater than 101% of the principal amount of such Subordinated
Indebtedness in the event of a Change of Control in accordance with
Section 1016; provided, however, that, prior to or simultaneously with
such repurchase, the Company has made the Change of Control Offer as
provided in Section 1016 with respect to the Notes and has repurchased all
Notes validly tendered for payment in connection with such Change of
Control Offer;
(f) the purchase, redemption, acquisition, cancellation or other
retirement for value of shares of Capital Stock of the Company or the
Parent, options on any such shares or related stock appreciation rights or
similar securities held by officers or employees or former officers or
employees of the Company or of any Restricted Subsidiary (or their estates
or beneficiaries under their estates) or by any employee benefit plan,
upon death, disability, retirement or termination of employment or
pursuant to the terms of any employee benefit plan or any other agreement
under which such shares of stock or related rights were issued; provided,
however, that the aggregate cash consideration paid for such purchase,
redemption, acquisition, cancellation or other retirement of such shares
of Capital Stock after the Closing Date does not exceed in any fiscal year
the sum of (i) $500,000 and (ii) amounts referred to in clause (i) that
remains unused from the two immediately preceding fiscal years;
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(g) the payment of any dividend or distribution by the Company to
the Parent pursuant to the terms of the tax sharing agreement in existence
on the Closing Date among the Company, the Parent and other members of the
consolidated group of corporations of which the Company is a member, and
any amendments to such agreement, provided, however, that the tax sharing
agreement as so amended is no less favorable in any material respect to
the Company than the tax sharing agreement in effect on the Closing Date;
(h) the payment of dividends or distributions to the Parent to pay
its franchise taxes and other fees required to maintain its legal
existence and to provide for operating expenses of up to $150,000 in any
fiscal year of the Company;
(i) the payment of a distribution to the Parent that does not exceed
$2,500,000 on the Closing Date for the Parent's repurchase from
NationsCredit of warrants to purchase the Parent's common stock; and
(j) other Restricted Payments that do not exceed $1,000,000.
The actions described in clauses (b), (c), (e) and (j) of the
preceding paragraph will be Restricted Payments that will be permitted to be
taken in accordance with this Section 1011 but will reduce the amount that would
otherwise be available for Restricted Payments under clause (d)(iii) of the
first paragraph of this Section 1011 and the actions described in clauses (a),
(d), (f), (g), (h) and (i) of this Section 1011 will be Restricted Payments that
will be permitted to be taken in accordance with this Section 1011 and will not
reduce the amount that would otherwise be available for Restricted Payments
under clause (d)(iii) of the first paragraph of this Section 1011.
For the purpose of making any calculations under this Indenture (i)
if a Restricted Subsidiary is designated an Unrestricted Subsidiary, the Company
will be deemed to have made an Investment in an amount equal to the greater of
the fair market value or net book value of the net assets of such Restricted
Subsidiary at the time of such designation as determined by the Board of
Directors of the Company, and (ii) any property transferred to or from an
Unrestricted Subsidiary will be valued at fair market value at the time of such
transfer, as determined by the Board of Directors of the Company. The amount of
all Restricted Payments (other than cash) shall be the fair market value on the
date of the Restricted Payment of the asset(s) or securities proposed to be
transferred or issued by the Company or such Restricted Subsidiary, as the case
may be, pursuant to the Restricted Payment. The fair market value of any
non-cash Restricted Payment shall be determined by the Board of Directors whose
resolution with respect thereto shall be delivered to the Trustee, such
determination to be based upon an opinion or appraisal issued by an accounting,
appraisal or investment banking firm of national standing if such fair market
value exceeds $5 million.
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Not later than the date of making any Restricted Payment, the Company shall
deliver to the Trustee an Officers' Certificate stating that such Restricted
Payment is permitted and setting forth the basis upon which the calculations
required under this Section 1011 were computed, together with a copy of any
fairness opinion or appraisal required by this Indenture.
If the aggregate amount of all Restricted Payments calculated under
the foregoing provision includes an Investment in an Unrestricted Subsidiary or
other Person that thereafter becomes a Restricted Subsidiary, the aggregate
amount of all Restricted Payments calculated under the foregoing provision will
be reduced by the lesser of (x) the net asset value of such Subsidiary at the
time it becomes a Restricted Subsidiary and (y) the initial amount of such
Investment.
If an Investment resulted in the making of a Restricted Payment, the
aggregate amount of all Restricted Payments calculated under the foregoing
provision will be reduced by the amount of any net reduction in such Investment
(resulting from the payment of interest or dividends, loan repayment, transfer
of assets or otherwise, other than the redesignation of an Unrestricted
Subsidiary or other Person as a Restricted Subsidiary), to the extent such net
reduction is not included in the Company's Consolidated Net Income; provided
that the total amount by which the aggregate amount of all Restricted Payments
may be reduced may not exceed the lesser of (x) the cash proceeds received by
the Company and its Restricted Subsidiaries in connection with such net
reduction and (y) the initial amount of such Investment.
In computing the Consolidated Net Income of the Company for purposes
of the foregoing clause (iii)(A) of subsection (d) of this Section 1011, (i) the
Company may use audited financial statements for the portions of the relevant
period for which audited financial statements are available on the date of
determination and unaudited financial statements and other current financial
data based on the books and records of the Company for the remaining portion of
such period and (ii) the Company will be permitted to rely in good faith on the
financial statements and other financial data derived from its books and records
that are available on the date of determination. If the Company makes a
Restricted Payment that, at the time of the making of such Restricted Payment,
would in the good faith determination of the Company be permitted under the
requirements of this Indenture, such Restricted Payment will be deemed to have
been made in compliance with this Indenture notwithstanding any subsequent
adjustments made in good faith to the Company's financial statements affecting
Consolidated Net Income of the Company for any period.
SECTION 1012. Limitation on Issuances and Sales of Capital Stock of
Restricted Subsidiaries.
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The Company (a) shall not permit any Restricted Subsidiary to issue
any Capital Stock (other than to the Company or a Wholly Owned Restricted
Subsidiary) and (b) shall not, and shall not permit any Restricted Subsidiary
to, transfer, convey, sell, lease or otherwise dispose of any Capital Stock of
any Restricted Subsidiary to any Person (other than the Company or a Wholly
Owned Restricted Subsidiary); provided, however, that this covenant will not
prohibit (i) the sale or other disposition of all, but not less than all, of the
issued and outstanding Capital Stock of a Restricted Subsidiary owned by the
Company and its Restricted Subsidiaries in compliance with the other provisions
of this Indenture, or (ii) the ownership by directors of director's qualifying
shares or the ownership by foreign nationals of Capital Stock of any Restricted
Subsidiary, to the extent mandated by applicable law.
The Company shall not permit any Restricted Subsidiary to issue any
Preferred Stock.
SECTION 1013. Limitation on Transactions with Affiliates.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, enter into or suffer to exist any
transaction with, or for the benefit of, any Affiliate of the Company
("Interested Persons"), unless (a) such transaction is on terms that are no less
favorable to the Company or such Restricted Subsidiary, as the case may be, than
those that could have been obtained in an arm's-length transaction with third
parties who are not Interested Persons and (b) the Company delivers to the
Trustee (i) with respect to any transaction or series of related transactions
entered into after the Closing Date involving aggregate payments 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 transaction or transactions comply
with clause (a) above and that such transaction or transactions have been
approved by the Board of Directors (including a majority of the Disinterested
Directors) of the Company and (ii) with respect to a transaction or series of
related transactions involving aggregate payments equal to or greater than $5.0
million, a written opinion as to the fairness to the Company or such Restricted
Subsidiary of such transaction or series of transactions from a financial point
of view issued by an accounting, appraisal or investment banking firm, in each
case of national standing.
The foregoing covenant will not restrict:
(A) transactions among the Company and/or its Restricted
Subsidiaries;
(B) the Company from paying reasonable and customary regular
compensation and fees to directors of the Company or any Restricted
Subsidiary who are not employees of the Company or any Restricted
Subsidiary;
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(C) maintenance in the ordinary course of business of benefit
programs or arrangements for employees, officers or directors of the
Company or any Subsidiary, including vacation plans, health and life
insurance plans, deferred compensation plans and retirement or savings
plans and similar plans;
(D) payment of management, consulting and advisory fees and related
expenses to the Permitted Holders or their Affiliates not subject to
employment agreements not to exceed $300,000 in any fiscal year of the
Company;
(E) transactions permitted by the provisions of Section 1011; or
(F) payment of any amounts under a supply agreement effective as of
February 4, 1998, between the Company and Springs & Wire Design LLC, and
the employment agreement effective as of February 4, 1998 between the
Company and Xxxxx Xxxxxx, and any amendments to such agreements, provided
that such agreements as so amended are no less favorable in any material
respect to the Company than the agreements in effect on the Closing Date.
SECTION 1014. Limitation on Liens.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create, incur, assume or suffer to exist
any Lien securing Pari Passu Indebtedness or Subordinated Indebtedness of the
Company on or with respect to any of its property or assets, including any
shares of stock or indebtedness of any Restricted Subsidiary, whether owned at
the Closing Date or thereafter acquired, or any income, profits or proceeds
therefrom, or assign or otherwise convey any right to receive income thereon,
unless:
(i) in the case of any Lien securing Subordinated Indebtedness, the
Notes are secured by a Lien on such property, assets or proceeds that is
senior in priority to such Lien; and
(ii) in the case of any Lien securing Pari Passu Indebtedness, the
Notes are secured by a Lien on such property, assets or proceeds that is
senior in priority to or pari passu with such Lien.
(b) The Company shall not permit any Subsidiary Guarantor to,
directly or indirectly, create, incur, assume or suffer to exist any Lien
securing Pari Passu Indebtedness or Subordinated Indebtedness of such Subsidiary
Guarantor on or with respect to such Subsidiary Guarantor's properties or
assets, including any shares of stock or Indebtedness of any other Restricted
Subsidiary, whether owned at the date of this Indentures or thereafter acquired,
or
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any income, profits or proceeds therefrom, or assign or otherwise convey any
right to receive income thereon, unless:
(i) in the case of any Lien securing Pari Passu Indebtedness of such
Subsidiary Guarantor, each Subsidiary Guarantee of such Subsidiary
Guarantor is secured by a Lien on such property, assets or proceeds that
is senior in priority to or pari passu with such Lien; and
(ii) in the case of any Lien securing Subordinated Indebtedness of
such Subsidiary Guarantor, each Subsidiary Guarantee of such Subsidiary
Guarantor is secured by a Lien on such property, assets or proceeds that
is senior in priority to such Lien.
SECTION 1015. Purchase of Notes upon a Change of Control.
(a) If a Change of Control occurs at any time, then each Holder
shall have the right to require that the Company purchase such Holder's Notes
and Additional Notes, if any, in whole or in part in integral multiples of
$1,000, at a purchase price in cash equal to 101% of the principal amount of
such Notes, plus accrued and unpaid interest, if any, to the date of purchase,
pursuant to the offer described below (the "Change of Control Offer") and the
other procedures set forth in this Indenture.
(b) Within 30 days following any Change of Control, the Company
shall notify the Trustee thereof and give written notice of such Change of
Control to each Holder of Notes and Additional Notes by first-class mail,
postage prepaid, at its address appearing in the security register, stating,
among other things:
(i) the purchase price and the purchase date, which will be a
Business Day no earlier than 30 days nor later than 60 days from the date
such notice is mailed or such later date as is necessary to comply with
requirements under the Exchange Act;
(ii) that any Note or Additional Note not tendered will continue to
accrue interest;
(iii) that, unless the Company defaults in the payment of the
purchase price, any Notes or Additional Notes accepted for payment
pursuant to the Change of Control Offer will cease to accrue interest
after the Change of Control purchase date; and
(iv) certain other procedures that a Holder must follow to accept a
Change of Control Offer or to withdraw such acceptance.
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(c) The Company shall comply with the applicable tender offer rules
including Rule 14e-1 under the Exchange Act, and any other applicable securities
laws and regulations in connection with a Change of Control Offer. To the extent
that provisions of any applicable securities laws or regulations conflict with
provisions of this Section 1015, the Company shall comply with such securities
laws and regulations and shall not be deemed to have breached its obligations
under this Section 1015 by virtue thereof.
SECTION 1016. Limitation on Certain Asset Sales.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, engage in any Asset Sale unless (i) the consideration received by
the Company or such Restricted Subsidiary for such Asset Sale is not less than
the fair market value of the assets sold evidenced by a resolution of the Board
of Directors of such entity set forth in an Officers' Certificate delivered to
the Trustee and (ii) the consideration received by the Company or the relevant
Restricted Subsidiary in respect of such Asset Sale consists of at least 75%
cash or cash equivalents (for purposes of this clause (ii), cash and cash
equivalents includes (a) the principal amount of any Indebtedness for money
borrowed (as reflected in the Company's consolidated balance sheet) of the
Company or any Restricted Subsidiary that is assumed by any transferee of any
such assets or other property in such Asset Sale and (b) any securities, notes
or other obligations received by the Company or such Restricted Subsidiary from
such transferee that are converted within 30 days of consummation of such Asset
Sale by the Company or such Restricted Subsidiary into cash and cash equivalents
(to the extent of the cash and cash equivalents received)).
(b) If the Company or any Restricted Subsidiary engages in an Asset
Sale, the Company may, at its option, within 12 months after such Asset Sale,
(i) apply all or a portion of the Net Cash Proceeds to the permanent reduction
of amounts outstanding under the Credit Agreement or to the permanent repayment
of other senior Indebtedness of the Company or a Restricted Subsidiary or (ii)
invest (or enter into a legally binding agreement to invest) all or a portion of
such Net Cash Proceeds in properties and assets to replace the properties and
assets that were the subject of the Asset Sale or in properties and assets that
will be used in the business of the Company or its Restricted Subsidiaries, as
the case may be. If any such legally binding agreement to invest such Net Cash
Proceeds is terminated, the Company may, within 90 days of such termination or
within 12 months of such Asset Sale, whichever is later, invest such Net Cash
Proceeds as provided in clause (i) or (ii) (without regard to the parenthetical
contained in such clause (ii)) above. The amount of such Net Cash Proceeds not
so used as set forth above in this paragraph shall constitute "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $5.0
million, the Company will, within 30 days thereafter, make an offer to purchase
(an "Excess Proceeds Offer") from all Holders of Notes and Additional Notes, if
any, on a pro rata basis, in
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accordance with the procedures set forth in this Indenture, the maximum
principal amount (expressed as a multiple of $1,000) of Notes and Additional
Notes, if any, that may be purchased with the Excess Proceeds, at a purchase
price in cash equal to 100% of the principal amount thereof, plus accrued
interest, if any, to the date such offer to purchase is consummated. To the
extent that the aggregate principal amount of Notes and Additional Notes, if
any, tendered pursuant to such offer to purchase is less than the Excess
Proceeds, the Company may use such deficiency for general corporate purposes. If
the aggregate principal amount of Notes and Additional Notes, if any, validly
tendered and not withdrawn by holders thereof exceeds the Excess Proceeds, the
Notes and Additional Notes, if any, to be purchased will be selected on a pro
rata basis. Upon completion of such offer to purchase, the amount of Excess
Proceeds will be reset to zero.
(d) The Company shall comply with the applicable tender offer rules
including Rule 14e-1 under the Exchange Act, and any other applicable securities
laws and regulations in connection with the repurchase of Notes as a result of
an Asset Sale. To the extent that provisions of any applicable securities laws
or regulations conflict with provisions of this Section 1016, the Company shall
comply with such securities laws and regulations and shall not be deemed to have
breached its obligations under this Section 1016 by virtue thereof.
SECTION 1017. Unrestricted Subsidiaries.
(a) The Board of Directors of the Company may designate any
Subsidiary (including any newly acquired or newly formed Subsidiary) to be an
Unrestricted Subsidiary so long as (i) neither the Company nor any Restricted
Subsidiary is directly or indirectly liable for any Indebtedness of such
Subsidiary, (ii) no default with respect to any Indebtedness of such Subsidiary
would permit (upon notice, lapse of time or otherwise) any holder of any other
Indebtedness of the Company or any Restricted Subsidiary to declare a default on
such other Indebtedness or cause the payment thereof to be accelerated or
payable prior to its stated maturity, (iii) any Investment in such Subsidiary
made as a result of designating such Subsidiary an Unrestricted Subsidiary will
not violate the provisions of Section 1011, (iv) neither the Company nor any
Restricted Subsidiary has a contract, agreement, arrangement, understanding or
obligation of any kind, whether written or oral, with such Subsidiary other than
those that might be obtained at the time from Persons who are not Affiliates of
the Company, (v) neither the Company nor any Restricted Subsidiary has any
obligation to subscribe for additional shares of Capital Stock or other equity
interest in such Subsidiary, or to maintain or preserve such Subsidiary's
financial condition or to cause such Subsidiary to achieve certain levels of
operating results, and (vi) such Unrestricted Subsidiary has at least one
director on its Board of Directors that is not a director or executive officer
of the Company or any of its Restricted Subsidiaries and has at least one
executive officer of the Company or any of its Restricted Subsidiaries.
Notwithstanding the foregoing, the Company may not designate any of its
Subsidiaries existing as of the Closing Date or any successor to any of
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them as an Unrestricted Subsidiary and may not sell, transfer or otherwise
dispose of any properties or assets of any such Subsidiary to an Unrestricted
Subsidiary, other than in the ordinary course of business.
(b) The Board of Directors of the Company may designate any
Unrestricted Subsidiary as a Restricted Subsidiary; provided, however, that (i)
no Default or Event of Default has occurred and is continuing following such
designation and (ii) the Company could incur at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) pursuant to subsection (a) of
Section 1010 (treating any Indebtedness of such Unrestricted Subsidiary as the
incurrence of Indebtedness by a Restricted Subsidiary).
SECTION 1018. Limitation on Dividends and Other Payment Restrictions
Affecting Restricted Subsidiaries.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or consensual restriction
of any kind on the ability of any Restricted Subsidiary to (a) pay dividends, in
cash or otherwise, or make any other distributions on or in respect of its
Capital Stock, (b) pay any Indebtedness owed to the Company or any other
Restricted Subsidiary, (c) make loans or advances to the Company or any other
Restricted Subsidiary or (d) transfer any of its properties or assets to the
Company or any other Restricted Subsidiary, except for such encumbrances or
restrictions imposed under or by reason of:
(i) any agreement existing on the Closing Date;
(ii) customary non-assignment provisions of any lease governing a
leasehold interest of the Company or any Restricted Subsidiary;
(iii) the refinancing or successive refinancing of Indebtedness
incurred under the agreements in effect on the Closing Date, so long as
such encumbrances or restrictions are no more restrictive than those
contained in such original agreement;
(iv) any agreement or other instrument of a Person acquired by the
Company or any Restricted Subsidiary in existence at the time of such
acquisition (but not created in contemplation thereof), 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; or
(v) any restriction with respect to a Restricted Subsidiary imposed
pursuant to an agreement entered into for the sale or disposition of all
or substantially all the
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Capital Stock or assets of such Restricted Subsidiary pending the closing
of such sale or disposition.
SECTION 1019. Waiver of Certain Covenants.
The Company or any Subsidiary Guarantor may omit in any particular
instance to comply with any term, provision or condition set forth in Section
803 or Sections 1007 through 1022, inclusive, if before or after the time for
such compliance the Holders of at least a majority in principal amount of the
Outstanding Notes, by Act of such Holders, waive such compliance in such
instance with such term, provision or condition, but no such waiver shall extend
to or affect such term, provision or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of the
Company and the duties of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
SECTION 1020. Payment for Consent.
Neither the Company nor any of its Restricted Subsidiaries shall,
directly or indirectly, pay or cause to be paid any consideration, whether by
way of interest, fee or otherwise, to any Holder for or as an inducement to any
consent, waiver or amendment of any of the terms or provisions of this Indenture
or the Notes unless such consideration is offered to be paid or is paid to all
Holders that consent, waive or agree to amend in the time frame set forth in the
solicitation documents relating to such consent, waiver or agreement.
SECTION 1021. Limitation on Layering Debt.
The Company and each Subsidiary Guarantor shall not incur, create,
issue, assume, guarantee or otherwise become liable for any Indebtedness or
guarantee, as applicable, that is subordinate or junior in right of payment to
any Senior Indebtedness and senior in any respect in right of payment to the
Notes or such Subsidiary Guarantor's Subsidiary Guarantee, respectively.
SECTION 1022. Limitation on Guarantees of Indebtedness by Restricted
Subsidiaries.
The Company shall not permit any Restricted Subsidiary that is not a
Subsidiary Guarantor, directly or indirectly, to guarantee, assume or in any
other manner become liable for the payment of any Indebtedness of the Company or
any Indebtedness of any other Restricted Subsidiary, unless (a) such Restricted
Subsidiary simultaneously executes and delivers a supplemental indenture
providing for a guarantee of payment of the Notes by such Restricted Subsidiary
and (b) with respect to any guarantee of Subordinated Indebtedness by a
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Restricted Subsidiary, any such guarantee is subordinated to such Restricted
Subsidiary's guarantee with respect to the Notes at least to the same extent as
such Subordinated Indebtedness is subordinated to the Notes, provided, however,
that the foregoing provision will not be applicable to any guarantee by any
Restricted Subsidiary that existed at the time such Person became a Restricted
Subsidiary and was not incurred in connection with, or in contemplation of, such
Person becoming a Restricted Subsidiary.
Any guarantee by a Restricted Subsidiary of the Notes pursuant to
the preceding paragraph may provide by its terms that it will be automatically
and unconditionally released and discharged upon (i) any sale, exchange or
transfer to any Person not an Affiliate of the Company of all of the Company's
and the Restricted Subsidiaries' Capital Stock in, or all or substantially all
the assets of, such Restricted Subsidiary (which sale, exchange or transfer is
not prohibited by this Indenture) or (ii) the release or discharge of the
guarantee that resulted in the creation of such guarantee of the Notes, except a
discharge or release by or as a result of payment under such guarantee.
ARTICLE ELEVEN
REDEMPTION OF NOTES
SECTION 1101. Right of Redemption.
(a) The Notes may be redeemed at the option of the Company, as a
whole or from time to time in part, at any time on or after April 15, 2003,
subject to the conditions and at the Redemption Prices specified in the form of
Note, together with accrued interest, if any, to the Redemption Date.
(b) In addition, at any time or from time to time prior to April 15,
2001, the Company may redeem, on one or more occasions, up to 35% of the sum of
(i) the initial aggregate principal amount of the Notes and (ii) the initial
aggregate principal amount of any Additional Notes on one or more occasions with
the net proceeds of one or more Equity Offerings at a redemption price equal to
109.75% of the principal amount thereof, plus accrued interest, if any, to the
redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on an interest payment date); provided that,
immediately after giving effect to such redemption, at least 65% of the initial
aggregate principal amount of the Notes (excluding Additional Notes) remains
outstanding; provided further that such redemptions shall occur within 60 days
of the date of closing of each Equity Offering.
(c) The Company is not required to make mandatory redemption or
sinking fund payments with respect to the Notes.
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SECTION 1102. Applicability of Article.
Redemption of Notes at the election of the Company or otherwise, as
permitted or required by any provision of this Indenture, shall be made in
accordance with such provision and this Article.
SECTION 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Notes pursuant to Section
1101 shall be evidenced by a Board Resolution. In case of any redemption at the
election of the Company, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Notes to be redeemed and shall deliver to the Trustee
such documentation and records as shall enable the Trustee to select the Notes
to be redeemed pursuant to Section 1104.
SECTION 1104. Selection by Trustee of Notes to Be Redeemed.
If less than all the Notes or Additional Notes, if any, are to be
redeemed, selection of Notes for redemption shall be made by the Trustee not
more than 60 days prior to the redemption date 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 so listed, by such method as the
Trustee shall deem fair and appropriate and which may provide for the selection
for redemption of portions of the principal of Notes; provided, however, that no
such partial redemption shall reduce the portion of the principal amount of a
Note not redeemed to less than $1,000. The Company shall notify the Trustee of
any national securities exchange on which the Notes may be listed.
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 thereof to be redeemed.
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 such Note which has been or is to be redeemed.
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SECTION 1105. Notice of Redemption.
Notice of redemption shall be given in the manner provided for in
Section 107 not less than 30 nor more than 60 days prior to the Redemption Date,
to each Holder of Notes to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued interest to the
Redemption Date payable as provided in Section 1107, if any,
(3) if less than all Outstanding Notes are to be redeemed, the
identification (and, in the case of a partial redemption, the principal
amounts) of the particular Notes to be redeemed,
(4) in case any Note is to be redeemed in part only, the notice
which relates to such Note shall state that on and after the Redemption
Date, upon surrender of such Note, the Holder will receive, without
charge, a new Note or Notes of authorized denominations for the principal
amount thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price (and accrued
interest, if any, to the Redemption Date payable as provided in Section
1107) will become due and payable upon each such Note, or the portion
thereof, to be redeemed, and that interest thereon will cease to accrue on
and after said date,
(6) the place or places where such Notes are to be surrendered for
payment of the Redemption Price and accrued interest, if any, and
(7) the CUSIP number.
Notice of redemption of Notes to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1106. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold
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in trust as provided in Section 1003) an amount of money sufficient to pay the
Redemption Price of, and accrued interest on, all the Notes which are to be
redeemed on that date.
SECTION 1107. Notes Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Notes so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified (together with accrued interest, if any, to
the Redemption Date), and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such Notes
shall cease to bear interest. Upon surrender of any such Note for redemption in
accordance with said notice, such Note shall be paid by the Company at the
Redemption Price, together with accrued interest, if any, to the Redemption
Date; provided, however, that installments of interest whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Notes, or one or more Predecessor Notes, registered as such at the close of
business on the relevant Regular Record Dates according to their terms and the
provisions of Section 309.
If any Note called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate borne by the
Notes.
SECTION 1108. Notes Redeemed in Part.
Any Note which is to be redeemed only in part shall be surrendered
at the office or agency of the Company maintained for such purpose pursuant to
Section 1002 (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or such Holders attorney duly
authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Note without service charge, a
new Note or Notes, of any authorized denomination as requested by such Holder,
in aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Note so surrendered.
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ARTICLE TWELVE
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. Company Option to Effect Legal Defeasance or Covenant
Defeasance.
The Company may, at its option and at any time, with respect to the
Notes, elect to have either Section 1202 or Section 1203 be applied to all
Outstanding Notes upon compliance with the conditions set forth below in this
Article Twelve.
SECTION 1202. Legal Defeasance and Discharge.
Upon the Company's exercise under Section 1201 of the option
applicable to this Section 1202, the Company and the Subsidiary Guarantors shall
be deemed to have been discharged from its obligations with respect to all
Outstanding Notes and the Subsidiary Guarantees on the date the conditions set
forth in Section 1204 are satisfied (hereinafter, "Legal Defeasance"). For this
purpose, such Legal Defeasance means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by the Outstanding Notes
and the Subsidiary Guarantees, which shall thereafter be deemed to be
"Outstanding" only for the purposes of Section 1205 and the other Sections of
this Indenture referred to in (A) and (B) below, and to have satisfied all its
other obligations under such Notes and this Indenture insofar as such Notes are
concerned (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of outstanding Notes to receive payments in respect of the principal of
(and premium, if any, on) and interest on such Notes when such payments are due
from the trust described in Section 1204, (B) the Company's obligations under
Sections 304, 305, 308, 1002 and 1003, (C) the rights, powers, trusts, duties
and immunities of the Trustee and (D) this Article Twelve. Subject to compliance
with this Article Twelve, the Company may exercise its option under this Section
1202 notwithstanding the prior exercise of its option under Section 1203 with
respect to the Notes.
SECTION 1203. Covenant Defeasance.
Upon the Company's exercise under Section 1201 of the option
applicable to this Section 1203, the Company and any Subsidiary Guarantor shall
be released from its obligations under any covenant contained in Section 801 and
Section 803 and in Sections 1006 through 1018 and Sections 1021 and 1022 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 to be "Outstanding" for the purposes of any direction,
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waiver, consent or declaration or Act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose, such Covenant
Defeasance means that, with respect to the Outstanding Notes, the Company and
any Subsidiary Guarantor may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such covenant or by reason of any reference in any such covenant to any
other provision herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under Section 501(c), (d)
or (e), but, except as specified above, the remainder of this Indenture and such
Notes shall be unaffected thereby.
SECTION 1204. Conditions to Legal Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either
Section 1202 or Section 1203 to the Outstanding Notes:
(a) the Company must irrevocably deposit or cause to be deposited
with the Trustee, as trust funds in trust, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders, money
in an amount, or U.S. Government Obligations that through the scheduled
payment of principal and interest thereon will provide money in an amount,
or a combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to pay and discharge
the principal of (and premium, if any, on) and interest on the outstanding
Notes at maturity (or upon redemption, if applicable) of such principal or
installment of interest;
(b) no Default or Event of Default has occurred and is continuing on
the date of such deposit or, insofar as an event of bankruptcy under
Section 501(i) or 501(j) is concerned, at any time during the period
ending on the 91st day after the date of such deposit;
(c) such Legal Defeasance or Covenant Defeasance may not result in a
breach or violation of, or constitute a default under, this Indenture or
any material agreement or instrument to which the Company or any
Subsidiary Guarantor is a party or by which it is bound;
(d) in the case of Legal Defeasance, the Company must deliver to the
Trustee an Opinion of Counsel stating that the Company has received from,
or there has been published by, the Internal Revenue Service a ruling, or,
since the date of this Indenture, there has been a change in applicable
federal income tax law, to the effect, and based thereon such Opinion of
Counsel must confirm, that the Holders of the outstanding Notes will not
recognize income, gain or loss for federal income tax
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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;
(e) in the case of Covenant Defeasance, the Company must have
delivered to the Trustee an Opinion of Counsel to the effect 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; and
(f) the Company must have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the Legal Defeasance or the
Covenant Defeasance, as the case may be, have been complied with.
SECTION 1205. Deposited Money and U.S. Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee, collectively for purposes of this
Section 1205, the "Trustee") pursuant to Section 1204 in respect of the
Outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Holders of such Notes of
all sums due and to become due thereon in respect of principal (and premium, if
any) and interest, but such money need not be segregated from other funds except
to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Governmental Obligations
deposited pursuant to Section 1204 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the Outstanding Notes.
Anything in this Article Twelve to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 1204 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would
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then be required to be deposited to effect an equivalent Legal Defeasance or
Covenant Defeasance, as applicable, in accordance with this Article.
SECTION 1206. Reinstatement.
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 1205 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 1202 or 1203, as the case may be, until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with Section
1205; provided, however, that if the Company makes any payment of principal of
(or premium, if any) or interest on any Note following 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 money held by the Trustee or Paying
Agent.
ARTICLE THIRTEEN
GUARANTEES
SECTION 1301. Subsidiary Guarantees.
Each Subsidiary Guarantor hereby jointly and severally, fully,
unconditionally and irrevocably guarantees the Notes and obligations of the
Company hereunder and thereunder, and guarantees to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee on behalf of such
Holder, that: (a) the principal of (and premium, if any) and interest on the
Notes will be paid in full when due, whether at Stated Maturity, by
acceleration, call for redemption or otherwise (including, without limitation,
the amount that would become due but for the operation of the automatic stay
under Section 362(a) of the Federal Bankruptcy Code), together with interest on
the overdue principal, if any, and interest on any overdue interest, to the
extent lawful, and all other obligations of the Company to the Holders or the
Trustee hereunder or thereunder will be paid in full or performed, all in
accordance with the terms hereof and thereof; and (b) in case of any extension
of time of payment or renewal of any Notes or of any such other obligations, the
same will be paid in full when due or performed in accordance with the terms of
the extension or renewal, whether at Stated Maturity, by acceleration or
otherwise, subject, however, in the case of clauses (a) and (b) above, to the
limitations set forth in Section 1306 hereof. Each of the Subsidiary Guarantees
shall be a guarantee of payment and not of collection.
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Each Subsidiary Guarantor hereby agrees that its obligations
hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Notes with respect
to any provisions hereof or thereof, the recovery of any judgment against the
Company, any action to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of a Subsidiary
Guarantor.
Each Subsidiary Guarantor hereby waives the benefits of diligence,
presentment, demand for payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a proceeding first
against the Company or any other Person, protest, notice and all demands
whatsoever and covenants that the Subsidiary Guarantee of such Subsidiary
Guarantor will not be discharged as to any Note except by complete performance
of the obligations contained in such Note and such Subsidiary Guarantee or as
provided for in this Indenture. Each of the Subsidiary Guarantors hereby agrees
that, in the event of a default in payment of principal (or premium, if any) or
interest on such Note, whether at its Stated Maturity, by acceleration, call for
redemption, purchase or otherwise, legal proceedings may be instituted by the
Trustee on behalf of, or by, the Holder of such Note, subject to the terms and
conditions set forth in this Indenture, directly against each of the Subsidiary
Guarantors to enforce such Subsidiary Guarantor's Subsidiary Guarantee without
first proceeding against the Company or any other Subsidiary Guarantor. Each
Subsidiary Guarantor agrees that if, after the occurrence and during the
continuance of an Event of Default, the Trustee or any of the Holders are
prevented by applicable law from exercising their respective rights to
accelerate the maturity of the Notes, to collect interest on the Notes, or to
enforce or exercise any other right or remedy with respect to the Notes, such
Subsidiary Guarantor will pay to the Trustee for the account of the Holders,
upon demand therefor, the amount that would otherwise have been due and payable
had such rights and remedies been permitted to be exercised by the Trustee or
any of the Holders.
If any Holder or the Trustee is required by any court or otherwise
to return to the Company or any Subsidiary Guarantor, or any custodian, trustee,
liquidator or other similar official acting in relation to either the Company or
any Subsidiary Guarantor, any amount paid by any of them to the Trustee or such
Holder, the Subsidiary Guarantee of each of the Subsidiary Guarantors, to the
extent theretofore discharged, shall be reinstated in full force and effect.
Each Subsidiary Guarantor further agrees that, as between each Subsidiary
Guarantor, on the one hand, and the Holders and the Trustee, on the other hand,
(x) the maturity of the obligations guaranteed hereby may be accelerated as
provided in Article Five hereof for the purposes of the Subsidiary Guarantee of
such Subsidiary Guarantor, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any acceleration of such obligations
as provided in Article Five hereof, such obligations (whether or not due and
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payable) shall forthwith become due and payable by each Subsidiary Guarantor for
the purpose of the Subsidiary Guarantee of such Subsidiary Guarantor.
SECTION 1302. Execution and Delivery of Subsidiary Guarantee.
To further evidence the Subsidiary Guarantee set forth in Section
1301, each Subsidiary Guarantor hereby agrees that such Subsidiary Guarantee,
substantially in the form included in Exhibit B of this Indenture, shall be
endorsed on each Note authenticated and delivered by the Trustee. Such
Subsidiary Guarantee shall be executed by manual or facsimile signature on
behalf of each Subsidiary Guarantor by its Chairman, any Vice Chairman, its
President or a Vice President and attested by its Secretary or Assistant
Secretary, and shall have been duly authorized by all requisite corporate
action. The validity and enforceability of any Subsidiary Guarantee shall not be
affected by the fact that it is not affixed to any particular Note.
Each Subsidiary Guarantor hereby agrees that its respective
Subsidiary Guarantee set forth in Section 1301 shall remain in full force and
effect notwithstanding any failure to endorse on each note a notation of such
Subsidiary Guarantee.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of any Subsidiary Guarantee set
forth in this Indenture on behalf of the Subsidiary Guarantors.
SECTION 1303. Severability.
In case any provision of any Subsidiary Guarantee shall be invalid,
illegal or unenforceable, the validity, legality, and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 1304. Seniority of Subsidiary Guarantees.
The obligations of each Subsidiary Guarantor to the Holders of Notes
and to the Trustee pursuant to such Subsidiary Guarantor's Subsidiary Guarantee
and this Indenture are unsecured senior subordinated obligations of such
Subsidiary Guarantor ranking pari passu in right of payment with all existing
and future senior subordinated obligations of such Subsidiary Guarantor.
SECTION 1305. Limitation of Subsidiary Guarantor's Liability.
Each Subsidiary Guarantor and by its acceptance hereof each Holder
confirms that it is the intention of all such parties that the guarantee by each
Subsidiary Guarantor
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pursuant to its Subsidiary Guarantee not constitute a fraudulent transfer or
conveyance for purposes of the Federal Bankruptcy Code, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or
state law or the provisions of its local law relating to fraudulent transfer or
conveyance. To effectuate the foregoing intention, the Holders and such
Subsidiary Guarantor hereby irrevocably agree that the obligations of such
Subsidiary Guarantor under its Subsidiary Guarantee shall be limited to the
maximum amount that will not, after giving effect to all other contingent and
fixed liabilities of such Subsidiary Guarantor and after giving effect to any
collections from or payments made by or on behalf of any other Subsidiary
Guarantor in respect of the obligations of such other Subsidiary Guarantor under
its Subsidiary Guarantee or pursuant to Section 1306 hereof, result in the
obligations of such Subsidiary Guarantor under its Subsidiary Guarantee
constituting such fraudulent transfer or conveyance.
SECTION 1306. Contribution.
In order to provide for just and equitable contribution among the
Subsidiary Guarantors, the Subsidiary Guarantors agree, inter se, that in the
event any payment or distribution is made by any Subsidiary Guarantor (a
"Funding Guarantor") under a Subsidiary Guarantee, such Funding Guarantor shall
be entitled to a contribution from all other Subsidiary Guarantors in a pro rata
amount based on the Adjusted Net Assets of each Subsidiary Guarantor (including
the Funding Guarantor) for all payments, damages and expenses incurred by that
Funding Guarantor in discharging the Company's obligations with respect to the
Notes or any other Subsidiary Guarantor's obligations with respect to the
Subsidiary Guarantee of such Subsidiary Guarantor. "Adjusted Net Assets" of such
Subsidiary Guarantor at any date shall mean the lesser of (x) the amount by
which the fair value of the property of such Subsidiary Guarantor exceeds the
total amount of liabilities, including, without limitation, contingent
liabilities (after giving effect to all other fixed and contingent liabilities
incurred or assumed on such date), but excluding liabilities under the
Subsidiary Guarantee of such Subsidiary Guarantor at such date and (y) the
amount by which the present fair salable value of the assets of such Subsidiary
Guarantor at such date exceeds the amount that will be required to pay the
probable liability of such Subsidiary Guarantor on its debts (after giving
effect to all other fixed and contingent liabilities incurred or assumed on such
date), excluding debt in respect of the Subsidiary Guarantee of such Subsidiary
Guarantor, as they become absolute and matured.
SECTION 1307. Release of a Subsidiary Guarantor.
(a) A Subsidiary Guarantor will be deemed automatically and
unconditionally released and discharged from all of its obligations under its
Subsidiary Guarantee without any further action on the part of the Trustee or
any Holder of the Notes upon (i) a sale or other disposition to a Person not an
Affiliate of the Company of all of the
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Capital Stock of, or all or substantially all of the assets of, such Subsidiary
Guarantor, by way of merger, consolidation or otherwise, which transaction is
carried out in accordance with Section 801 and 1016, so long as (a) no Default
or Event of Default shall have occurred and be continuing at the time of, or
would occur after giving effect on a pro forma basis to, such release and (b)
the Company is permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Fixed Charge Coverage Ratio test set forth in subsection (a) of
Section 1010 on the date on which such release occurs; provided that any such
termination shall occur (x) only to the extent that all obligations of such
Subsidiary Guarantor under all of its guarantees of, and under all of its
pledges of assets or other security interests which secure any Indebtedness of
the Company shall also terminate upon such sale, disposition or release and (y)
only if the Trustee is furnished with written notice of such release together
with an Officer's Certificate from such Subsidiary Guarantor to the effect that
all of the conditions to release in this Section 1307(a) have been satisfied.
(b) Any Subsidiary Guarantor that is designated by the Board of
Directors of the Company as an Unrestricted Subsidiary in accordance with the
terms of this Indenture may, at such time, at the option of the Board of
Directors, be released and relieved of its obligations under its Subsidiary
Guarantee. The Trustee shall deliver an appropriate instrument evidencing such
release upon receipt of a Company Request accompanied by an Officers'
Certificate certifying as to the compliance with this Section 1307. Any
Subsidiary Guarantor not so released shall remain liable for the full amount of
principal of and interest on the Notes as provided in its Subsidiary Guarantee.
(c) Concurrently with the Legal Defeasance of the Notes under
Section 1202 hereof, or the Covenant Defeasance of the Notes under Section 1203
hereof, the Subsidiary Guarantors shall be released from all their obligations
under their Subsidiary Guarantees under this Article Thirteen.
SECTION 1308. Benefits Acknowledged.
Each Subsidiary Guarantor acknowledges that it will receive direct
and indirect benefits from the financing arrangements contemplated by this
Indenture and that its guarantee and waivers pursuant to its Subsidiary
Guarantee are knowingly made in contemplation of such benefits.
SECTION 1309. Issuance of Subsidiary Guarantees by Certain New
Restricted Subsidiaries.
The Company shall provide to the Trustee, on the date that any
Person becomes a Restricted Subsidiary, a supplemental indenture to this
Indenture, executed by such new Restricted Subsidiary, providing for a full and
unconditional guarantee on a senior
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subordinated basis by such new Restricted Subsidiary of the Company's
obligations under the Notes and this Indenture to the same extent as that set
forth in this Indenture, provided, however, that, in the case of any new
Restricted Subsidiary that becomes a Restricted Subsidiary through the
acquisition of a majority of its voting Capital Stock by the Company or any
other Restricted Subsidiary, such guarantee may be subordinated to the extent
required by the obligations of such new Restricted Subsidiary existing on the
date of such acquisition that were not incurred in contemplation of such
acquisition and provided further that any such Restricted Subsidiary that is a
Foreign Subsidiary shall not be required to provide a Subsidiary Guarantee so
long as such Restricted Subsidiary has not guaranteed any other Indebtedness of
the Company or of any other Restricted Subsidiary.
ARTICLE FOURTEEN
SUBORDINATION
SECTION 1401. Notes Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder, by its acceptance
thereof, likewise covenants and agrees, for the benefit of the Holders, from
time to time, of Senior Indebtedness that, to the extent and in the manner
hereinafter set forth in this Article, the Indebtedness represented by the Notes
and the payment of the principal of (and premium, if any) and interest on each
and all of the Notes are hereby expressly made subordinate and subject in right
of payment as provided in this Article to the prior payment in full in cash of
all Senior Indebtedness, whether outstanding on the date of this Indenture or
thereafter incurred; provided, however, that the Notes, the Indebtedness
represented thereby and the payment of the principal of (and premium, if any)
and interest on the Notes in all respects shall rank equally with, or prior to,
all existing and future unsecured indebtedness (including, without limitation,
Indebtedness) of the Company that is subordinated to Senior Indebtedness.
SECTION 1402. Payment over by the Company of Proceeds upon
Dissolution, etc.
Upon any distribution to creditors of the Company in a total or
partial liquidation or dissolution of the Company or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to the
Company or its property, whether voluntary or involuntary, an assignment for the
benefit of creditors or any marshaling of the Company's assets and liabilities,
(1) the holders of Senior Indebtedness of the Company shall be
entitled to receive payment in full in cash of all Obligations due in
respect of such Senior
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Indebtedness (including interest after the commencement of any such
proceeding at the rate specified in the applicable Senior Indebtedness)
before the Holders of Notes will be entitled to receive any payment with
respect to the Notes, and until all Obligations with respect to Senior
Indebtedness are paid in full in cash or cash equivalents, any
distribution to which the Holders of Notes (or the Trustee on their
behalf) would be entitled shall be made to the holders of Senior
Indebtedness (except that Holders of Notes may receive securities that are
subordinated at least to the same extent as the Notes to Senior
Indebtedness ("Permitted Junior Securities") and any securities issued in
exchange for Senior Indebtedness and Holders of Notes may recover payments
made from the trust described in Section 1204); and
(2) in the event that, notwithstanding the foregoing provisions of
this Section, the Trustee or any Holder of Notes shall have received any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, in respect of principal of (and
premium, if any) or interest on the Notes before all Senior Indebtedness
is paid in full or payment thereof provided for, and if such fact shall at
or prior to the time of such payment or distribution, have been made known
to the Trustee or such Holder, as the case may be, by the holders of
Senior Indebtedness or their respective trustee, agent or other
representative under any agreement or indenture pursuant to which any such
Senior Indebtedness may have been issued, then and in such event such
payment or distribution (other than a payment or distribution in the form
of Permitted Junior Securities or out of the trust described in Section
1204) shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or
other Person making payment or distribution of assets of the Company for
application to the payment of all Senior Indebtedness remaining unpaid, to
the extent necessary to pay all Senior Indebtedness in full, after giving
effect to any concurrent payment or distribution to or for the holders of
Senior Indebtedness.
The consolidation of the Company with, or the merger of the Company
into, another Person or the liquidation or dissolution of the Company following
the conveyance, transfer or lease of its properties and assets substantially as
an entirety to another Person upon the terms and conditions set forth in Article
Eight shall not be deemed a dissolution, winding up, liquidation,
reorganization, assignment for the benefit of creditors or marshaling of assets
and liabilities of the Company for the purposes of this Section if the Person
formed by such consolidation or into which the Company is merged or the Person
which acquires by conveyance, transfer or lease such properties and assets
substantially as an entirety, as the case may be, shall, as a part of such
consolidation, merger, conveyance, transfer or lease, comply with the conditions
set forth in Article Eight.
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SECTION 1403. Suspension of Payment on Notes When Senior
Indebtedness of the Company in Default.
(a) Unless Section 1402 shall be applicable, the Company shall not
make any direct or indirect payment upon or in respect of the Notes (except in
such Permitted Junior Securities or from the trust described in Section 1204) if
(i) a default in the payment when due of all or any portion of
the principal of, premium, if any, or interest on or any other
obligations under or in respect of any Designated Senior
Indebtedness exists, whether at maturity, on account of mandatory
redemption or prepayment, acceleration or otherwise and such default
shall not have been cured or waived (a "Payment Event of Default")
which is notified to the Trustee in writing from the Company, the
Agent or any other representative of holders of Designated Senior
Indebtedness, or
(ii) any Non-payment Event of Default occurs and is continuing
with respect to Designated Senior Indebtedness which permits holders
of the Designated Senior Indebtedness as to which such default
relates to accelerate its maturity and the Trustee receives a notice
of such default (a "Payment Blockage Notice") from the Agent Bank or
the holders or the representative of the holders of any Designated
Senior Indebtedness.
(b) Payments on the Notes may and shall be resumed (a) in the case
of a Payment Event of Default, upon the date on which such default is cured or
waived and (b) in case of a Non-payment Event of Default, the earlier of the
date on which such Non-payment Event of Default is cured or waived or 179 days
after the date on which the applicable Payment Blockage Notice is received. No
new period of payment blockage may be commenced by a Payment Blockage Notice
unless and until 360 days have elapsed since the first day of the effectiveness
of the immediately prior Payment Blockage Notice. No Non-payment Event of
Default that existed or was continuing on the date of delivery of any Payment
Blockage Notice to the Trustee shall be, or be made, the basis for a subsequent
Payment Blockage Notice, unless such default has been cured or waived for a
period of not less than 90 days.
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SECTION 1404. Payment Over by Subsidiary Guarantors of Proceeds upon
Dissolution, etc.
Upon any distribution to creditors of any Subsidiary Guarantor in a
liquidation or dissolution of such Subsidiary Guarantor or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to such
Subsidiary Guarantor or its property, whether voluntary or involuntary, an
assignment for the benefit of creditors or any marshaling of such Subsidiary
Guarantor's assets and liabilities,
(1) the holders of Senior Indebtedness of such Subsidiary Guarantor
shall be entitled to receive indefeasible payment in full in cash or cash
equivalents of all Obligations due or in respect of such Senior
Indebtedness (including interest after the commencement of any such
proceeding at the rate specified in the applicable Senior Indebtedness)
before the Holders of Notes will be entitled to receive any payment with
respect to the respective Subsidiary Guarantee, and until all Obligations
with respect to Senior Indebtedness of such Subsidiary Guarantor and
Senior Indebtedness of the Company are paid in full in cash or cash
equivalents, any distribution to which the Holders of Notes (or the
Trustee on their behalf) would be entitled shall be made to the holders of
such Senior Indebtedness (except that Holders of Notes may receive (i)
Capital Stock of such Subsidiary Guarantor (other than Disqualified Stock)
and (ii) Permitted Junior Securities and any securities issued in exchange
for such Senior Indebtedness); and
(2) in the event that, notwithstanding the foregoing provisions of
this Section, the Trustee or any Holder of Notes shall have received any
payment or distribution of assets of such Subsidiary Guarantor of any kind
or character, whether in cash, property or securities, in respect of
principal of (and premium, if any) or interest on the Notes before all
Senior Indebtedness of such Subsidiary Guarantor is paid in full or
payment thereof provided for, and if such fact shall at or prior to the
time of such payment or distribution, have been made known to the Trustee
or such Holder, as the case may be, by the holders of Senior Indebtedness
or their respective trustee, agent or other representative under any
agreement or indenture pursuant to which any such Senior Indebtedness may
have been issued, then and in such event such payment or distribution
(other than a payment or distribution in the form of Permitted Junior
Securities) shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or
other Person making payment or distribution of assets of such Subsidiary
for application to the payment of all Senior Indebtedness of such
Subsidiary Guarantor remaining unpaid, to the extent necessary to pay all
such Senior Indebtedness in full, after giving effect to any concurrent
payment or distribution to or for the holders of Senior Indebtedness.
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The consolidation of any Subsidiary Guarantor with, or the merger of
any Subsidiary Guarantor into, another Person or the liquidation or dissolution
of any Subsidiary Guarantor following the conveyance, transfer or lease of its
properties and assets substantially as an entirety to another Person upon the
terms and conditions set forth in Article Eight shall not be deemed a
dissolution, winding up, liquidation, reorganization, assignment for the benefit
of creditors or marshaling of assets and liabilities of such Subsidiary
Guarantor for the purposes of this Section if the Person formed by such
consolidation or into which such Subsidiary Guarantor is merged or the Person
which acquires by conveyance, transfer or lease such properties and assets
substantially as an entirety, as the case may be, shall, as a part of such
consolidation, merger, conveyance, transfer or lease, comply with the conditions
set forth in Article Eight.
SECTION 1405. Suspension of Payment on Subsidiary Guarantees When
Senior Indebtedness of Subsidiary Guarantor in
Default.
(a) Unless Section 1404 shall be applicable, a Subsidiary Guarantor
shall not make any direct or indirect payment upon or in respect of such
Subsidiary Guarantor's Subsidiary Guarantee (except in such Permitted Junior
Securities) if:
(i) a Payment Event of Default on Designated Senior
Indebtedness of such Subsidiary Guarantor or Designated Senior
Indebtedness of the Company which is notified to the Trustee in
writing from such Subsidiary Guarantor, the Agent or any other
representative of holders of Designated Senior Indebtedness, or
(ii) any Non-payment Event of Default occurs and is continuing
with respect to Designated Senior Indebtedness of such Subsidiary
Guarantor or Designated Senior Indebtedness of the Company which
permits holders of the Designated Senior Indebtedness of such
Subsidiary Guarantor or Designated Senior Indebtedness of the
Company as to which such default relates to accelerate its maturity
and the Trustee receives a Payment Blockage Notice from the Agent
Bank or the holders or the representative of the holders of such
Designated Senior Indebtedness.
(b) Payments on the Subsidiary Guarantees may and shall be resumed
(a) in the case of a Payment Event of Default, upon the date on which such
default is cured or waived and (b) in case of a Non-payment Event of Default,
the earlier of the date on which such Non-payment Event of Default is cured or
waived or 179 days after the date on which the applicable Payment Blockage
Notice is received. No new period of payment blockage may be commenced by a
Payment Blockage Notice unless and until 360 days have elapsed since the first
day of the effectiveness of the immediately prior Payment Blockage Notice. No
Non-
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payment Event of Default that existed or was continuing on the date of delivery
of any Payment Blockage Notice to the Trustee shall be, or be made, the basis
for a subsequent Payment Blockage Notice.
SECTION 1406. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture, in
any of the Notes or in any Subsidiary Guarantee shall prevent the Company or any
Subsidiary Guarantors, as applicable, at any time except during the pendency of
any case, proceeding, dissolution, liquidation or other winding up, assignment
for the benefit of creditors or other marshaling of assets and liabilities of
the Company or any Subsidiary Guarantor referred to in Section 1402 or 1404 or
under the conditions described in Section 1403 or 1405, from making payments at
any time of principal of (and premium, if any, on) or interest on the Notes or
under a Subsidiary Guarantee, as applicable.
SECTION 1407. Subrogation to Rights of Holders of Senior
Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the
Holders shall be subrogated (equally and ratably with the holders of all
indebtedness of the Company or any Subsidiary Guarantor which by its express
terms is subordinated to Senior Indebtedness of the Company or such Subsidiary
Guarantor to the same extent as the Notes or the Subsidiary Guarantees are
subordinated and which is entitled to like rights of subrogation) to the rights
of the holders of such Senior Indebtedness to receive payments and distributions
of cash, property and securities applicable to the Senior Indebtedness until the
principal of (and premium, if any) and interest on the Notes shall be paid in
full. For purposes of such subrogation, no payments or distributions to the
holders of Senior Indebtedness of any cash, property or securities to which the
Holders or the Trustee would be entitled except for the provisions of this
Article, and no payments over pursuant to the provisions of this Article to the
holders of Senior Indebtedness by Holders or the Trustee, shall, as among the
Company, the Subsidiary Guarantors, their respective creditors other than
holders of Senior Indebtedness, and the Holders of the Notes, be deemed to be a
payment or distribution by the Company or any Subsidiary Guarantor to or on
account of the Senior Indebtedness.
SECTION 1408. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders of the Notes on the one
hand and the holders of Senior Indebtedness on the other hand. Nothing contained
in this Article or elsewhere in this Indenture or in the Notes is intended to or
shall (a) impair, as between the Company, or any Subsidiary Guarantor as
applicable, and the Holders, the obligation of the Company or such Subsidiary
Guarantor, which is absolute and unconditional, to pay to the Holders the
principal
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of (and premium, if any) and interest on the Notes as and when the same shall
become due and payable in accordance with their terms; or (b) affect the
relative rights against the Company or any Subsidiary Guarantor of the Holders
and creditors of the Company or such Subsidiary Guarantor other than the holders
of Senior Indebtedness; or (c) prevent the Trustee or any Holder from exercising
all remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article of the holders of
Senior Indebtedness.
SECTION 1409. Trustee to Effectuate Subordination.
Each Holder of a Note by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 1410. No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company or any Subsidiary Guarantor, or by any act or failure to act, in
good faith, by any such holder, or by any non-compliance by the Company or any
Subsidiary Guarantor with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have or be otherwise
charged with.
(b) Without in any way limiting the generality of paragraph (a) of
this Section, the holders of Senior Indebtedness may, at any time and from time
to time, without the consent of or notice to the Trustee or the Holders of the
Notes, without incurring responsibility to the Holders and without impairing or
releasing the subordination provided in this Article or the obligations
hereunder of the Holders to the holders of Senior Indebtedness, do any one or
more of the following: (1) change the manner, place or terms of payment or
extend the time of payment of, or renew or alter, Senior Indebtedness or any
instrument evidencing the same or any agreement under which Senior Indebtedness
is outstanding; (2) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Indebtedness; (3) release any
Person liable in any manner for the collection of Senior Indebtedness; and (4)
exercise or refrain from exercising any rights against the Company, any
Subsidiary Guarantor and any other Person.
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SECTION 1411. Notice to Trustee.
(a) The Company shall give prompt written notice to the Trustee of
any fact known to the Company which would prohibit the making of any payment to
or by the Trustee in respect of the Notes. Notwithstanding the provisions of
this Article or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Notes, unless and
until the Trustee shall have received written notice thereof from the Company,
the Agent or a holder of Senior Indebtedness or from any trustee, fiduciary or
agent therefor; and, prior to the receipt of any such written notice, the
Trustee, subject to TIA Sections 315(a) through 315(d), shall be entitled in all
respects to assume that no such facts exist; provided, however, that, if the
Trustee shall not have received the notice provided for in this Section at least
three Business Days prior to the date upon which by the terms hereof any money
may become payable for any purpose (including, without limitation, the payment
of the principal of (and premium, if any) or interest on any Note), then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such money and to apply the same to the
purpose for which such money was received and shall not be affected by any
notice to the contrary which may be received by it within three Business Days
prior to such date.
(b) Subject to TIA Sections 315(a) through 315(d), the Trustee shall
be entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee,
fiduciary or agent therefor) to establish that such notice has been given by a
holder of Senior Indebtedness (or a trustee, fiduciary or agent therefor). In
the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
SECTION 1412. Reliance on Judicial Order or Certificate of
Liquidating Agent.
Upon any payment or distribution of assets of the Company referred
to in this Article, the Trustee, subject to TIA Sections 315(a) through 315(d),
and the Holders shall be entitled to rely upon any order or decree entered by
any court of competent jurisdiction in which such insolvency, bankruptcy,
receivership, liquidation, reorganization, dissolution,
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winding up or similar case or proceeding is pending, or a certificate of the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for
the benefit of creditors, agent or other Person making such payment or
distribution, delivered to the Trustee or to the Holders, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article.
SECTION 1413. Rights of Trustee As a Holder of Senior Indebtedness;
Preservation of Trustees Rights.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Indebtedness which
may at any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder. Nothing in this Article shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 607.
SECTION 1414. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall
have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying Agent
were named in this Article in addition to or in place of the Trustee; provided,
however, that Section 1413 shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
SECTION 1415. No Suspension of Remedies.
Nothing contained in this Article shall limit the right of the
Trustee or the Holders to take any action to accelerate the maturity of the
Notes pursuant to Article Five or to pursue any rights or remedies hereunder or
under applicable law, except as provided in Article Five.
SECTION 1416. Trust Moneys Not Subordinated.
Notwithstanding anything contained herein to the contrary, payments
from cash or the proceeds of U.S. Government Obligations held in trust under
Article Twelve hereof by the Trustee (or other qualifying trustee) and which
were deposited in accordance with the terms of Article Twelve hereof and not in
violation of Section 1403 hereof for the payment of principal of (and premium,
if any) and interest on the Notes shall not be subordinated to the
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prior payment of any Senior Indebtedness or subject to the restrictions set
forth in this Article Fourteen, and none of the Holders shall be obligated to
pay over any such amount to the Company or any holder of Senior Indebtedness or
any other creditor of the Company.
SECTION 1417. Trustee Not Fiduciary for Holders of Senior
Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders if it
shall in good faith mistakenly pay over or distribute to Holders or to the
Company or to any other Person cash, property or securities to which any holders
of Senior Indebtedness shall be entitled by virtue of this Article or otherwise.
This Indenture may be signed in any number of counterparts each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed all as of the day and year first above written.
INDESCO INTERNATIONAL, INC.
By: /s/ Xxxxx Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx
Title: Vice Chairman, President,
Asst. Secretary and CEO
AFA PRODUCTS, INC.
By: /s/ Xxxxx Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx
Title: Vice Chairman
CONTINENTAL SPRAYERS INTERNATIONAL, INC.
By: /s/ Xxxxx Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx
Title: Vice Chairman, Secretary and CEO
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Trustee
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Assistant Vice President
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Exhibit A
[FACE OF NOTE]
INDESCO INTERNATIONAL, INC.
9 3/4% [Series B]** Senior Subordinated Note Due 2008
CUSIP [_________]
No. [_______] $
INDESCO INTERNATIONAL, INC., a Delaware corporation (the "Company",
which term includes any successor under the Indenture hereinafter referred to),
for value received, promises to pay to [___________], or its registered assigns,
the principal sum of [___________], on April 15, 2008.
[Initial Interest Rate: 9 3/4% per annum.]*
[Interest Rate: [___]% per annum.]**
Interest Payment Dates: April 15 and October 15 of each year
commencing October 15, 1998.
Regular Record Dates: April 1 and October 1 of each year.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
----------
* Include only for Initial Notes.
** Include only for Exchange Notes.
121
IN WITNESS WHEREOF, the Company has caused this Note to be executed.
Date: April 23, 1998 INDESCO INTERNATIONAL, INC.
By: __________________________
Title:
122
Form of Trustee's Certificate of Authentication
This is one of the 9 3/4% [Series B]** Senior Subordinated Notes due 2008
described in the within-mentioned Indenture.
Date: April 23, 0000 XXXXXXX XXXX XXXXXXXXX,
NATIONAL ASSOCIATION
as Trustee
By: _____________________________
Authorized Signatory
----------
** Include only for Exchange Notes.
A-3
123
[REVERSE SIDE OF NOTE]
INDESCO INTERNATIONAL, INC.
9 3/4% [Series B]** Senior Subordinated Note due 2008
1. Principal and Interest.
The Company will pay the principal of this Note on April 15, 2008.
The Company promises to pay interest on the principal amount of this
Note on each Interest Payment Date, as set forth below, at the rate of [9.75%
per annum (subject to adjustment as provided below)]* 9.75%] per annum, except
that interest accrued on this Note pursuant to the penultimate paragraph of this
Section 1 for periods prior to the applicable Exchange Date (as such term is
defined in the Registration Rights Agreement referred to below) will accrue at
the rate or rates borne by the Notes from time to time during such periods].**
Interest will be payable semiannually (to the Holders of record of
the Notes (or any Predecessor Notes) at the close of business on the April 1, or
October 1, immediately preceding the Interest Payment Date) on each Interest
Payment Date, commencing October 15, 1998.
If (a) the Exchange Offer Registration Statement is not filed with
the Commission on or prior to the 90th calendar day following the Closing Date
or (b) the Exchange Offer Registration Statement is not declared effective on or
prior to the 120th calendar day following the Closing Date or the Exchange Offer
consummated on or prior to the 150th calendar day following the Closing Date or
(c) a Shelf Registration Statement is not declared effective when required, the
Company will pay liquidated damages ("Liquidated Damages") to each Holder of
Notes with respect to the first 30-day period following the 90-day period
referred to in clause (a) above or the first 90-day period following the periods
referred to in clauses (b) or (c) above in an amount equal to $0.05 per week per
$1,000 principal amount of Notes held by such Holder. The amount of Liquidated
Damages will increase by an additional $0.05 per week per $1,000 principal
amount of Notes at the beginning of each subsequent 30-day period in the case of
clause (a) above or 90-day period in
----------
* Include only for Initial Notes.
** Include only for Exchange Notes.
A-4
124
the case of clauses (b) and (c) above, up to a maximum amount of Liquidated
Damages of $0.30 per week per $1,000 principal amount of Notes. Upon the filing
of the Exchange Offer Registration Statement, the consummation of the Exchange
Offer or the effectiveness of a Shelf Registration Statement, as the case may
be, Liquidated Damages will cease to accrue from the date of such filing,
consummation or effectiveness, as the case may be; provided, however, that, if,
after the date such Liquidated Damages cease to accrue, a different event
specified in clause (a), (b) or (c) above occurs, Liquidated Damages may again
commence accruing pursuant to the foregoing provisions.
Interest on this Note will accrue from the most recent date to which
interest has been paid [on this Note or the Note surrendered in exchange
herefor]** or, if no interest has been paid, from April 23, 1998; provided that,
if there is no existing default in the payment of interest and if this Note is
authenticated between a Regular Record Date referred to on the face hereof and
the next succeeding Interest Payment Date, interest shall accrue from such
Interest Payment Date. Interest will be computed on the basis of a 360-day year
of twelve 30-day months.
The Company shall pay interest on overdue principal and premium, if
any, and interest on overdue installments of interest, to the extent lawful, at
a rate per annum equal to the rate of interest applicable to the Notes.
2. Method of Payment.
The Company will pay interest (except defaulted interest) on the
principal amount of the Notes on each April 15 and October 15 to the persons who
are Holders (as reflected in the Register at the close of business on the April
1 and October 1 immediately preceding the Interest Payment Date), in each case,
even if the Note is canceled on registration of transfer or registration of
exchange after such record date.
The principal of (and premium, if any), and interest on the Notes
shall be payable, and the Notes shall be exchangeable and transferable, at the
office or agency of the Company in The City of New York maintained for such
purposes, (which initially shall be the office of the Trustee located in care of
The Depositary Trust Company, at 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 10041) or,
at the option of the Company, interest may be paid by check mailed to the
address of the Person entitled thereto as such address shall appear on the
Register; provided that all payments with respect to the Global Notes and the
Physical Notes the Holder of which have given wire transfer instructions to the
Company will be required to be made by wire transfer of immediately available
funds to the accounts specified by the Holders thereof.
----------
** Include only for Exchange Notes.
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0. Paying Agent and Registrar.
Initially, the Trustee will act as Paying Agent and Registrar. The
Company may change any Paying Agent or Registrar upon written notice thereto.
The Company, any Subsidiary or any Affiliate of any of them may act as Paying
Agent, Registrar or co-registrar.
4. Subsidiary Guarantees.
This Note is initially entitled to the benefits of the Subsidiary
Guarantee made by the Subsidiary Guarantors as described in the Indenture and
may thereafter be entitled to Subsidiary Guarantees made by other Subsidiary
Guarantors for the benefit of the Holders of Notes. Each present Subsidiary
Guarantor has, and each future Subsidiary Guarantor will, irrevocably and
unconditionally, jointly and severally, guarantee on a senior subordinated basis
the punctual payment when due, whether at Stated Maturity, by acceleration, in
connection with a Change of Control Offer, an Asset Sale Offer or redemption, or
otherwise, of all obligations of the Company under the Indenture and this Note,
whether for payment of principal of, premium, if any, or interest, if any, on
the Notes, expenses, indemnification or otherwise. A Subsidiary Guarantor shall
be released from its Subsidiary Guarantee upon the terms and subject to the
conditions set forth in the Indenture.
5. Subordination.
This Note and the Subsidiary Guarantees are subordinated in right of
payment, as set forth in the Indenture, to the prior payment in full of all
existing and future Senior Indebtedness. Each of the Company and the Subsidiary
Guarantors agrees, and each Holder by accepting a Note agrees, to the
subordination provisions set forth in the Indenture, authorizes the Trustee to
give them effect and appoints the Trustee as attorney-in-fact for such purposes.
6. Indenture; Limitations.
The Company issued the Notes under an Indenture dated as of April
23, 1998 (the "Indenture"), between the Company, the Subsidiary Guarantors and
Norwest Bank Minnesota, National Association, as trustee (the "Trustee").
Capitalized terms herein are used as defined in the Indenture unless otherwise
indicated. The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act. The
Notes are subject to all such terms, and Holders are referred to the Indenture
and the Trust Indenture Act for a statement of all such terms. To the extent
permitted by applicable law, in the event of any inconsistency between the terms
of this Note and the terms of the Indenture, the terms of the Indenture shall
control.
The Notes are general unsecured obligations of the Company.
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7. Redemption.
Optional Redemption. The Notes may be redeemed at the option of the
Company, in whole or in part, at any time and from time to time on or April 15,
2003 at the following Redemption Prices (expressed in percentages of principal
amount), plus accrued and unpaid interest, if any, to the Redemption Date
(subject to the right of Holders of record on the relevant Regular Record Date
to receive interest due on an Interest Payment Date that is on or prior to the
Redemption Date), if redeemed during the 12-month period beginning April 15 of
each of the years set forth below:
Redemption
Year Price
---- -------------
2003....................................104.875%
2004 ...................................103.250%
2005 ..................................101.625%
2006 and thereafter ...................100.000%
In addition, at any time or from time to time prior to April 15,
2001, the Company may redeem up to 35% of the sum of (i) the initial aggregate
principal amount of the Notes and (ii) the initial aggregate principal amount of
any Additional Notes on one or more occasions with the net proceeds of one or
more Equity Offerings at a redemption price equal to 109.75% of the principal
amount thereof, plus accrued interest, if any, to the redemption date (subject
to the right of Holders of record on the relevant record date to receive
interest due on an interest payment date); provided that, immediately after
giving effect to such redemption, at least 65% of the initial aggregate
principal amount of the Notes (excluding Additional Notes) remains outstanding;
provided further that such redemptions shall occur within 60 days of the date of
closing of each Equity Offering.
Notice of a redemption will be mailed at least 30 days but not more
than 60 days before the Redemption Date to each Holder to be redeemed at such
Holder's last address as it appears in the Register. Notes in original
denominations larger than $1,000 may be redeemed in part in integral multiples
of $1,000. On and after the Redemption Date, interest ceases to accrue on Notes
or portions of Notes called for redemption, unless the Company defaults in the
payment of the Redemption Price.
8. Repurchase upon a Change in Control and Asset Sales.
(a) If a Change of Control occurs at any time, then, each Holder of
Notes or Additional Notes shall have the right to require that the Company
purchase such Holder's Notes or Additional Notes, as applicable, in whole or in
part in integral multiples of $1,000, at
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a purchase price in cash equal to 101% of the principal amount of such Notes or
Additional Notes, plus accrued and unpaid interest, if any, to the date of
purchase, pursuant to the offer described in the Indenture (the "Change of
Control Offer") and (b) upon Asset Sales, the Company may be obligated to make
offers to purchase Notes with a portion of the Net Cash Proceeds of such Asset
Sales at a redemption price of 100% of the principal amount thereof plus accrued
and unpaid interest, if any, to the date of purchase in accordance with the
procedures set forth in the Indenture.
9. Denominations; Transfer; Exchange.
The Notes are in registered form without coupons, in denominations
of $1,000 and multiples of $1,000 in excess thereof; provided that U.S. Physical
Notes originally purchased by or transferred to institutional "accredited
investors" (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities
Act) who are not "qualified institutional buyers" (as defined in Rule 144A under
the Securities Act) will be subject to a minimum denomination of $250,000. A
Holder may register the transfer or exchange of Notes in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Registrar need not register
the transfer or exchange of any Notes selected for redemption (except the
unredeemed portion of any Note being redeemed in part). Also, it need not
register the transfer or exchange of any Notes for a period of 15 days before a
selection of Notes to be redeemed is made.
10. Persons Deemed Owners.
A Holder may be treated as the owner of a Note for all purposes.
11. Unclaimed Money.
If money for the payment of principal, premium, if any, or interest
remains unclaimed for two years, the Trustee and the Paying Agent will pay the
money back to the Company at its request. After that, Holders entitled to the
money must look to the Company for payment, unless an abandoned property law
designates another Person, and all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
12. Discharge Prior to Redemption or Maturity.
If the Company irrevocably deposits, or causes to be deposited, with
the Trustee money or U.S. Government Obligations sufficient to pay the then
outstanding principal of,
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128
premium, if any, and accrued interest on the Notes to redemption or maturity,
the Company will be discharged from the Indenture and the Notes, except in
certain circumstances for certain sections thereof.
13. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Notes may be
amended or supplemented with the consent of the Holders of at least a majority
in aggregate principal amount of the Notes then outstanding, and any existing
default or compliance with any provision may be waived with the consent of the
Holders of a majority in aggregate principal amount of the Notes then
outstanding. Without notice to or the consent of any Holder, the parties thereto
may amend or supplement the Indenture or the Notes to, among other things, cure
any ambiguity, defect or inconsistency.
14. Restrictive Covenants.
The Indenture contains certain covenants, including, without
limitation, covenants with respect to the following matters: (i) Indebtedness;
(ii) Restricted Payments; (iii) issuances and sales of Restricted Subsidiary
Capital Stock; (iv) transactions with Affiliates; (v) Liens; (vi) certain Asset
Sales; (vii) dividends and other payment restrictions affecting Restricted
Subsidiaries; (viii) mergers and certain transfers of assets. Within 120 days
after the end of each fiscal year, the Company must report to the Trustee on
compliance with such limitations.
15. Successor Persons.
When a successor person or other entity assumes all the obligations
of its predecessor under the Notes and the Indenture, the predecessor person
will be released from those obligations.
16. Remedies for Events of Default.
If an Event of Default, as defined in the Indenture, occurs and is
continuing, the Trustee or the Holders of not less than 25% in principal amount
of the Notes then outstanding may declare all the Notes to be immediately due
and payable. If a bankruptcy or insolvency default with respect to the Company
or any of its Significant Subsidiaries occurs and is continuing, the Notes
automatically become immediately due and payable. Holders may not enforce the
Indenture or the Notes except as provided in the Indenture. The Trustee may
require indemnity satisfactory to it before it enforces the Indenture or the
Notes. Subject to
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certain limitations, Holders of at least a majority in principal amount of the
Notes then outstanding may direct the Trustee in its exercise of any trust or
power.
17. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Notes and may make loans to, accept
deposits from, perform services for, and otherwise deal with, the Company and
its Affiliates as if it were not the Trustee.
18. No Recourse Against Certain 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 the Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation. No director, officer, employee,
incorporator or stockholder of any Subsidiary Guarantor, as such, shall have any
liability for any obligations of such Subsidiary Guarantor under its Subsidiary
Guarantee or the 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 and the Subsidiary Guarantees.
19. Authentication.
This Note shall not be valid until the Trustee manually signs the
certificate of authentication on the other side of this Note.
20. Governing Law.
The Notes shall be governed by, and construed in accordance with,
the law of the State of New York.
X-00
000
00. 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
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts to Minors
Act).
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to Indesco
International, Inc., 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, Attention: Xxxxx
Xxxxxx.
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[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered Holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
(Please print or typewrite name and address including zip code of assignee)
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
attorney to transfer such Note on the books of the Company with full power of
substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL CERTIFICATES
EXCEPT PERMANENT OFFSHORE PHYSICAL
CERTIFICATES]
In connection with any transfer of this Note occurring prior to the
date which is the earlier of the date of an effective Registration Statement or
[________], the undersigned confirms that without utilizing any general
solicitation or general advertising that:
[Check One]
[ ](a) this Note is being transferred in compliance with the exemption from
registration under the Securities Act of 1933, as amended, provided by
Rule 144A thereunder.
or
[ ](b) this Note is being transferred other than in accordance with (a)
above and documents are being furnished which comply with the
conditions of transfer set forth in this Note and the Indenture.
If none of the foregoing boxes is checked, the Trustee or other Registrar shall
not be obligated to register this Note in the name of any Person other than the
Holder hereof unless
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and until the conditions to any such transfer of registration set forth herein
and in Section 307 of the Indenture shall have been satisfied.
Date: ---------------------------------
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of the
within-mentioned instrument in every
particular, without alteration or any
change whatsoever.
Signature Guarantee:
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated: -----------------------------
NOTICE: To be executed by an
executive officer
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133
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company pursuant to
Section 1015 or Section 1016 of the Indenture, check the Box: [ ].
If you wish to have a portion of this Note purchased by the Company
pursuant to Section 1015 or Section 1016 of the Indenture, state the amount (in
original principal amount) below:
$_______________________.
Date:
Your Signature:
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee:
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Exhibit B
FORM OF SUBSIDIARY GUARANTEE
Each Subsidiary Guarantor hereby jointly and severally, absolutely,
unconditionally and irrevocably guarantees the Notes and obligations of the
Company hereunder and thereunder, and guarantees to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee on behalf of such
Holder, that: (a) the principal of (and premium, if any) and interest on the
Notes will be paid in full when due, whether at Stated Maturity, by
acceleration, call for redemption or otherwise (including, without limitation,
the amount that would become due but for the operation of the automatic stay
under Section 362(a) of the Federal Bankruptcy Code), together with interest on
the overdue principal, if any, and interest on any overdue interest, to the
extent lawful, and all other obligations of the Company to the Holders or the
Trustee hereunder or thereunder will be paid in full or performed, all in
accordance with the terms hereof and thereof; and (b) in case of any extension
of time of payment or renewal of any Notes or of any such other obligations, the
same will be paid in full when due or performed in accordance with the terms of
the extension or renewal, whether at Stated Maturity, by acceleration or
otherwise, subject, however, in the case of clauses (a) and (b) above, to the
limitations set forth in Section 1306 of the Indenture.
The obligations of the Subsidiary Guarantors to the Holders of the
Notes and to the Trustee pursuant to this Subsidiary Guarantee and the Indenture
are expressly set forth in Article Thirteen of the Indenture, and reference is
hereby made to such Indenture for the precise terms of this Subsidiary
Guarantee. The terms of Article Thirteen of the Indenture are incorporated
herein by reference.
This is a continuing guarantee and shall remain in full force and
effect and shall be binding upon each Subsidiary Guarantor and its respective
successors and assigns to the extent set forth in the Indenture until full and
final payment of all of the Company's obligations under the Notes and the
Indenture and shall inure to the benefit of the successors and assigns of the
Trustee and the Holders of Notes and, in the event of any transfer or assignment
of rights by any Holder of Notes or the Trustee, the rights and privileges
herein conferred upon that party shall automatically extend to and be vested in
such transferee or assignee, all subject to the terms and conditions hereof.
This is a guarantee of payment and not a guarantee of collection.
In certain circumstances more fully described in the Indenture, any
Subsidiary Guarantor may be released from its liability under this Subsidiary
Guarantee, and any such release will be effective whether or not noted herein.
135
This Subsidiary Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Senior Subordinated Note
upon which this Subsidiary Guarantee is noted shall have been executed by the
Trustee under the Indenture by the manual signature of one of its authorized
officers.
Capitalized terms used herein have the same meanings given in the
Indenture unless otherwise indicated.
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IN WITNESS WHEREOF, each Subsidiary Guarantor has caused its
Subsidiary Guarantee to be duly executed.
Date: April 23, 1998 AFA PRODUCTS, INC.
By ___________________________
Name:
Title:
Attest: _________________________
Secretary
CONTINENTAL SPRAYERS
INTERNATIONAL, INC.
By ___________________________
Name:
Title:
Attest: _________________________
Secretary
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Exhibit C
Form of Certificate to Be
Delivered in Connection with
Transfers to Non-QIB Institutional Accredited Investors
____________________, _____
Indesco International, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Re: Indesco International, Inc., (the "Company")
9 3/4% Senior Subordinated Notes due 2008 (the "Notes")
Ladies and Gentlemen:
In connection with our proposed purchase of $[____________]
aggregate principal amount of the Notes:
1. We understand that the Notes have not been registered under the
Securities Act of 1933, as amended (the "Securities Act"), and may not be
sold except as permitted in the following sentence. We agree on our own
behalf and on behalf of any investor account for which we are purchasing
the Notes to offer, sell or otherwise transfer such Notes prior to the
date which is two years after the later of the date of original issue and
the last date on which the Company or any affiliate of the Company was the
owner of such Notes, or any predecessor thereto (the "Resale Restriction
Termination Date") only (a) to the Company, (b) pursuant to a registration
statement which has been declared effective under the Securities Act, (c)
for so long as the Notes are eligible for resale pursuant to Rule 144A
under the Securities Act, to a person we reasonably believe is a qualified
institutional buyer under Rule 144A (a "QIB") that purchases for its own
account or for the account of a QIB to whom notice is given that the
transfer is being made in reliance on Rule 144A, (d) pursuant to offers
and sales to non-U.S. Persons that occur outside the United States within
the meaning of Regulations S under the Securities Act, (e) to an
institutional "accredited investor"
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within the meaning of subparagraph (a)(1), (2), (3) or (7) of Rule 501
under the Securities Act that is acquiring the Notes for its own account
or for the account of such an institutional "accredited investor" for
investment purposes and not with a view to, or for offer or sale in
connection with, any distribution thereof in violation of the Securities
Act or (f) pursuant to any other available exemption from the registration
requirements of the Securities Act, subject in each of the foregoing cases
to any requirement of law that the disposition of our property and the
property of such investor account or accounts be at all times within our
or their control and to compliance with any applicable state securities
laws. The foregoing restrictions on resale will not apply subsequent to
the Resale Restriction Termination Date. If any resale or other transfer
of the Notes is proposed to be made pursuant to clause (e) above prior to
the Resale Restriction Termination Date, the transferor shall deliver a
letter from the transferee substantially in the form of this letter to the
Trustee, which shall provide, among other things, that the transferee is
an institutional "accredited investor" within the meaning of subparagraph
(a)(1), (2), (3) or (7) or Rule 501 under the Securities Act and that it
is acquiring such Notes for investment purposes and not for distribution
in violation of the Securities Act. We acknowledge that the Company and
the Trustee reserve the right prior to any offer, sale or other transfer
prior to the Resale Restriction Termination Date of the Notes pursuant to
clauses (d), (e) and (f) above to require the delivery of an Opinion of
Counsel, certifications and/or other information satisfactory to the
Company and the Trustee.
2. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act)
purchasing for our own account or for the account of such an institutional
"accredited investor," and we are acquiring the Notes for investment
purposes and not with a view to, or for offer or sale in connection with,
any distribution in violation of the Securities Act and we 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 its investment.
3. We are acquiring the Notes purchased by us for our own account or
for one or more accounts as to each of which we exercise sole investment
discretion.
X-0
000
0. You are entitled to rely upon this letter and you are irrevocably
authorized to produce this letter or a copy hereof to any interested party
in any administrative or legal proceeding or official inquiry with respect
to the matters covered hereby.
Very truly yours,
By:
(NAME OF PURCHASER)
Date:
Upon transfer, the Notes should be registered in the name of the new
beneficial owner as follows:
Name:
Address:
Taxpayer ID Number:
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Exhibit D
Form of Certificate to Be Delivered
in Connection with Transfers
Pursuant to Regulation S
____________________, _____
Indesco International, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
x/x
XXXXXXX XXXX XX XXXXXXXXX, NATIONAL ASSOCIATION
0xx xxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Department
Re: Indesco International, Inc. (the "Company")
9 3/4% Senior Subordinated Notes Due 2008 (the "Notes")
Ladies and Gentlemen:
In connection with our proposed sale of $[_________] aggregate
principal amount of the Notes, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the Securities Act of
1933, as amended, and, accordingly, we represent that:
(1) the offer of the Notes was not made to a person in the United
States and the proposed transferee is a Non-U.S. Person (as defined in the
Indenture pursuant to which the Notes were issued);
(2) either (a) 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
(b) the transaction was executed in, on or through the facilities of a
designated off-shore securities market and neither we nor any person
141
acting on our behalf knows that the transaction has been pre-arranged with a
buyer in the United States;
(3) no directed selling efforts have been made in the United States
in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation
S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the U.S. Securities Act of 1933, as amended.
In addition, if the sale is made during a restricted period and the
provisions of Rule 903(c)(3) or Rule 904(c)(1) of Regulation S are applicable
thereto, we confirm that such sale has been made in accordance with the
applicable provisions of Rule 903(c)(3) or Rule 904(c)(1), 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 certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
Authorized Signature
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Schedule I
Existing Indebtedness
