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Exhibit 4.1
XXXXXX-FIELD HEALTH PRODUCTS, INC.
---------------------------------
$100,000,000
9.-3/4% SENIOR SUBORDINATED NOTES DUE 2007
--------------------------------
INDENTURE
Dated as of August 4, 1997
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AMERICAN STOCK TRANSFER & TRUST COMPANY
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Trustee
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CROSS-REFERENCE TABLE*
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
----------- -----------------
310 (a)(1) ....................................................... 7.10
(a)(2) ....................................................... 7.10
(a)(3) ....................................................... N.A.
(a)(4) ....................................................... N.A.
(a)(5) ....................................................... 7.10
(b) .......................................................... 7.03; 7.10
(c) .......................................................... N.A.
311 (a) .......................................................... 7.11
(b) .......................................................... 7.11
(c) .......................................................... N.A.
312 (a) .......................................................... 2.05
(b) .......................................................... 13.03
(c) .......................................................... 13.03
313 (a) .......................................................... 7.06
(b)(1) ....................................................... N.A.
(b)(2) ....................................................... 7.06; 7.07
(c) .......................................................... 7.06; 13.02
(d) .......................................................... 7.06
314 (a) .......................................................... 4.03; 13.05
(b) .......................................................... N.A.
(c)(1) ....................................................... 13.04
(c)(2) ....................................................... 13.04
(c)(3) ....................................................... N.A.
(d) .......................................................... N.A.
(e) .......................................................... 13.05
(f) .......................................................... N.A.
315 (a) .......................................................... 7.01
(b) .......................................................... 7.05; 13.02
(c) .......................................................... 7.01
(d) .......................................................... 7.01
(e) .......................................................... 6.11
316 (a) (last sentence) .......................................... 2.08
(a)(1)(A) .................................................... 6.05
(a)(1)(B) .................................................... 6.04
(a)(2) ....................................................... N.A.
(b) .......................................................... 6.07
(c) .......................................................... N.A.
317 (a)(1) ....................................................... 6.08
(a)(2) ....................................................... 6.09
(b) .......................................................... 2.04
318 (a) .......................................................... 13.01
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(b) .......................................................... N.A.
(c) .......................................................... 13.01
N.A. means not applicable
* This Cross-Reference Table is not part of the Indenture.
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TABLE OF CONTENTS
Page
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ARTICLE 1 ...............................................................................................1
SECTION 1.01. DEFINITIONS................................................................1
SECTION 1.02. OTHER DEFINITIONS.........................................................17
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.........................17
SECTION 1.04. RULES OF CONSTRUCTION.....................................................17
ARTICLE 2 ..............................................................................................18
SECTION 2.01. FORM AND DATING...........................................................18
SECTION 2.02. EXECUTION AND AUTHENTICATION..............................................19
SECTION 2.03. REGISTRAR AND PAYING AGENT................................................20
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.......................................20
SECTION 2.05. REGISTRATION OF TRANSFER AND EXCHANGE.....................................20
SECTION 2.06. REPLACEMENT NOTES.........................................................26
SECTION 2.07. OUTSTANDING NOTES.........................................................26
SECTION 2.08. TREASURY NOTES............................................................27
SECTION 2.09. TEMPORARY NOTES...........................................................27
SECTION 2.10. CANCELLATION..............................................................27
SECTION 2.11. DEFAULTED INTEREST........................................................28
SECTION 2.12. NOTES ISSUABLE IN THE FORM OF A GLOBAL NOTE...............................28
ARTICLE 3 ..............................................................................................30
SECTION 3.01. NOTICES TO TRUSTEE........................................................30
SECTION 3.02. SELECTION OF NOTES TO BE PURCHASED
OR REDEEMED .............................................................30
SECTION 3.03. NOTICE OF REDEMPTION......................................................31
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION............................................32
SECTION 3.05. DEPOSIT OF REDEMPTION OR PURCHASE PRICE...................................32
SECTION 3.06. NOTES REDEEMED IN PART....................................................33
SECTION 3.07. OPTIONAL REDEMPTION.......................................................33
SECTION 3.08. MANDATORY REDEMPTION......................................................34
SECTION 3.09. OFFER TO PURCHASE BY APPLICATION OF EXCESS
PROCEEDS.................................................................34
ARTICLE 4 ..............................................................................................37
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SECTION 4.01. PAYMENT OF NOTES..........................................................37
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY...........................................37
SECTION 4.03. REPORTS...................................................................38
SECTION 4.04. COMPLIANCE CERTIFICATE....................................................39
SECTION 4.05. TAXES.....................................................................39
SECTION 4.06. STAY, EXTENSION AND USURY LAWS............................................40
SECTION 4.07. RESTRICTED PAYMENTS.......................................................40
SECTION 4.08. DIVIDEND AND OTHER PAYMENT RESTRICTION
AFFECTING RESTRICTED SUBSIDIARIES........................................43
SECTION 4.09. INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF
PREFERRED STOCK .........................................................44
SECTION 4.10. ASSET SALES...............................................................46
SECTION 4.11. TRANSACTIONS WITH AFFILIATES..............................................47
SECTION 4.12. LIENS.....................................................................48
SECTION 4.13. SALE AND LEASEBACK TRANSACTIONS...........................................48
SECTION 4.14. OFFER TO PURCHASE UPON CHANGE OF CONTROL..................................48
SECTION 4.15. CORPORATE EXISTENCE.......................................................50
SECTION 4.16. ANTI-LAYERING.............................................................51
SECTION 4.17. LINE OF BUSINESS..........................................................51
ARTICLE 5 ..............................................................................................52
SECTION 5.01. MERGER, CONSOLIDATION, OR SALE OF ASSETS..................................52
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.........................................52
ARTICLE 6 ..............................................................................................53
SECTION 6.01. EVENTS OF DEFAULT.........................................................53
SECTION 6.02. ACCELERATION..............................................................55
SECTION 6.03. OTHER REMEDIES............................................................56
SECTION 6.04. WAIVER OF PAST DEFAULTS...................................................56
SECTION 6.05. CONTROL BY MAJORITY.......................................................56
SECTION 6.06. LIMITATION ON SUITS.......................................................56
SECTION 6.07. RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT.............................57
SECTION 6.08. COLLECTION SUIT BY TRUSTEE................................................57
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM..........................................57
SECTION 6.10. PRIORITIES................................................................58
SECTION 6.11. UNDERTAKING FOR COSTS.....................................................59
ARTICLE 7 ..............................................................................................59
SECTION 7.01. DUTIES OF TRUSTEE.........................................................59
SECTION 7.02. RIGHTS OF TRUSTEE.........................................................60
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SECTION 7.04. TRUSTEE'S DISCLAIMER......................................................61
SECTION 7.05. NOTICE OF DEFAULTS........................................................61
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES................................62
SECTION 7.07. COMPENSATION AND INDEMNITY................................................62
SECTION 7.08. REPLACEMENT OF TRUSTEE....................................................63
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC..........................................64
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.............................................64
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
THE COMPANY .............................................................65
ARTICLE 8 ..............................................................................................65
SECTION 8.01. OPTION TO EFFECT LEGAL DEFEASANCE
OR COVENANT DEFEASANCE ..................................................65
SECTION 8.02. LEGAL DEFEASANCE AND DISCHARGE............................................65
SECTION 8.03. COVENANT DEFEASANCE.......................................................66
SECTION 8.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE................................66
SECTION 8.05. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO
BE HELD IN TRUST; OTHER MISCELLANEOUS
PROVISIONS...............................................................68
SECTION 8.06. REPAYMENT TO THE COMPANY..................................................68
SECTION 8.07. REINSTATEMENT.............................................................69
ARTICLE 9 ..............................................................................................69
SECTION 9.01. WITHOUT CONSENT OF HOLDERS OF THE NOTES...................................69
SECTION 9.02. WITH CONSENT OF HOLDERS OF NOTES..........................................70
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.......................................72
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.........................................72
SECTION 9.05. NOTATION ON OR EXCHANGE OF NOTES..........................................73
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC...........................................73
ARTICLE 10 .............................................................................................73
SECTION 10.01. AGREEMENT TO SUBORDINATE................................................73
SECTION 10.02. LIQUIDATION; DISSOLUTION; BANKRUPTCY.....................................74
SECTION 10.03. DEFAULT ON DESIGNATED SENIOR DEBT........................................74
SECTION 10.04. ACCELERATION OF NOTES....................................................75
SECTION 10.05. WHEN DISTRIBUTION MUST BE PAID OVER......................................75
SECTION 10.06. NOTICE BY COMPANY........................................................76
SECTION 10.07. SUBROGATION..............................................................76
SECTION 10.08. RELATIVE RIGHTS..........................................................76
SECTION 10.09. SUBORDINATION MAY NOT BE IMPAIRED BY
COMPANY.................................................................77
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SECTION 10.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.................................77
SECTION 10.11. RIGHTS OF TRUSTEE AND PAYING AGENT.......................................77
SECTION 10.12. AUTHORIZATION TO EFFECT SUBORDINATION....................................78
SECTION 10.13. AMENDMENTS...............................................................78
ARTICLE 11 .............................................................................................78
SECTION 11.01. SUBSIDIARY GUARANTEE.....................................................78
SECTION 11.02. EXECUTION AND DELIVERY OF
SUBSIDIARY GUARANTEE ...................................................80
SECTION 11.03. GUARANTEEING SUBSIDIARIES
MAY CONSOLIDATE, ETC., ON CERTAIN
TERMS...................................................................80
SECTION 11.04. RELEASES FOLLOWING SALE OF ASSETS........................................81
SECTION 11.05. ADDITIONAL GUARANTEEING SUBSIDIARIES.....................................82
SECTION 11.06. LIMITATION ON GUARANTEEING SUBSIDIARY
LIABILITY...............................................................82
SECTION 11.07. "TRUSTEE" TO INCLUDE PAYING AGENT........................................82
ARTICLE 12 .............................................................................................83
SECTION 12.01. AGREEMENT TO SUBORDINATE.................................................83
SECTION 12.02. LIQUIDATION; DISSOLUTION; BANKRUPTCY.....................................83
SECTION 12.03. DEFAULT ON DESIGNATED GUARANTOR SENIOR
DEBT....................................................................84
SECTION 12.04. ACCELERATION OF NOTES....................................................85
SECTION 12.05. WHEN DISTRIBUTION MUST BE PAID OVER......................................85
SECTION 12.06. NOTICE BY GUARANTEEING SUBSIDIARY........................................85
SECTION 12.07. SUBORDINATION............................................................86
SECTION 12.08. RELATIVE RIGHTS..........................................................86
SECTION 12.09. SUBORDINATION MAY NOT BE IMPAIRED BY
GUARANTEEING SUBSIDIARY ................................................86
SECTION 12.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.................................87
SECTION 12.11. RIGHTS OF TRUSTEE AND PAYING AGENT.......................................87
SECTION 12.12. AUTHORIZATION TO EFFECT SUBORDINATION....................................87
SECTION 12.13. AMENDMENTS...............................................................88
ARTICLE 13 .............................................................................................88
SECTION 13.01. TRUST INDENTURE ACT CONTROLS.............................................88
SECTION 13.02. NOTICES..................................................................88
SECTION 13.03. COMMUNICATION BY HOLDERS OF NOTES WITH
OTHER HOLDERS OF NOTES .................................................89
SECTION 13.04. CERTIFICATE AND OPINION AS TO
CONDITIONS PRECEDENT ...................................................89
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SECTION 13.05. STATEMENTS REQUIRED IN CERTIFICATE
OR OPINION .............................................................90
SECTION 13.06. RULES BY TRUSTEE AND AGENTS..............................................90
SECTION 13.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS,
EMPLOYEES AND STOCKHOLDERS .............................................90
SECTION 13.08. GOVERNING LAW............................................................90
SECTION 13.09. NO ADVERSE INTERPRETATION OF
OTHER AGREEMENTS .......................................................90
SECTION 13.10. SUCCESSORS...............................................................91
SECTION 13.11. SEVERABILITY.............................................................91
SECTION 13.12. COUNTERPART ORIGINALS....................................................91
SECTION 13.13. TABLE OF CONTENTS, HEADINGS, ETC.........................................91
SIGNATURES...............................................................................92
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INDENTURE dated as of August 4, 1997 between Xxxxxx-Field Health
Products, Inc. ("the Company"), the Guaranteeing Subsidiaries and American Stock
Transfer & Trust Company, as trustee (the "Trustee").
The Company, the Guaranteeing Subsidiaries and the Trustee agree as
follows for the benefit of each other and for the equal and ratable benefit of
the holders (the "Holders") of the 9.-3/4% Senior Subordinated Notes due 2007
(the "Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01. DEFINITIONS.
"Acquired Debt" means, with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person merges
with or into or becomes a Subsidiary of such specified Person, including
Indebtedness incurred in connection with, or in contemplation of, such other
Person merging with or into or becoming a Subsidiary of such specified Person,
and (ii) Indebtedness secured by a Lien encumbering any assets acquired by such
specified Person.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or, indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise.
"Agent" means the Registrar or any Paying Agent.
"Asset Sale" means (i) the sale, lease, conveyance, or other disposition
by the Company or any of its Restricted Subsidiaries of any assets (including,
without limitation, by way of a sale and leaseback transaction) other than in
the ordinary course of business and (ii) the issue or sale by the Company or any
of its Restricted Subsidiaries of Equity Interests of any of the Company's
Restricted Subsidiaries, in the case of clauses (i) and (ii), whether in a
single transaction or a series of related transactions (a) that have a fair
market value in excess of $3.0 million or (b) for net proceeds in excess of $3.0
million. Notwithstanding the foregoing: (i) a transfer of assets by the Company
to a Restricted Subsidiary or by a Restricted Subsidiary to the Company or to
another Restricted Subsidiary, (ii) an issuance of Equity Interests by a
Restricted Subsidiary to the Company or to another Restricted Subsidiary, (iii)
a Restricted Payment that is permitted by Section 4.07 and (iv) the sale and
leaseback of any assets within 90 days of the acquisition of such assets will
not be deemed to be Asset Sales.
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"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 remaining term
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).
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or state
law for the relief of debtors.
"Board of Directors" means the Board of Directors of the Company or any
authorized committee of the Board of Directors.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any determination thereof is
to be made, the amount of the liability in respect of a capital lease that would
at such time be so required to be capitalized on the balance sheet in accordance
with GAAP.
"Capital Stock" means (i) in the case of a corporation, corporate stock,
(ii) in the case of an association or business entity, any and all shares,
interests, participation, rights or other equivalents (however designated) of
corporate stock and (iii) in the case of a partnership, partnership interests
(whether general or limited).
"Cash Equivalents" means (i) U.S. dollars, (ii) securities issued or
directly and fully guaranteed or insured by the U.S. government or any agency or
instrumentality thereof having maturities of not more than one year from the
date of acquisition, (iii) certificates of deposit and eurodollar time deposits
with maturities of one year or less from the date of acquisition, bankers'
acceptances with maturities not exceeding one year and overnight bank deposits,
in each case with any commercial bank or trust company having capital and
surplus in excess of $300 million, (iv) repurchase obligations with a term of
not more than seven days for underlying securities of the types described in
clauses (ii) and (iii) above entered into with any financial institution meeting
the qualifications specified in clause (iii) above, (v) commercial paper having
the highest rating obtainable from Xxxxx'x Investors Service, Inc. ("Moody's")
or Standard & Poor's Ratings Services, a division of the XxXxxx-Xxxx Companies,
Inc. ("S&P") and in each case maturing within one year after the date of
acquisition, (vi) investment funds investing 95% of their assets in securities
of the types described in clauses (i)-(v) above, (vii) readily marketable direct
obligations issued by any state of the United States of America or any political
subdivision thereof having one of the two highest rating categories obtainable
from either Moody's or S&P and (viii) Indebtedness with a rating of "A" or
higher from S&P or "A2" or higher from Moody's.
"Change of Control" means the occurrence of any of the following: (i) any
sale,
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lease, transfer, conveyance or other disposition (other than by way of merger or
consolidation) in one or a series of related transactions, of all or
substantially all of the assets of the Company and its Subsidiaries taken as a
whole to any "person" (as defined in Section 13(d) of the Exchange Act) or
"group" (as defined in Sections 13(d)(3) and 14(d)(2) of the Exchange Act) other
than a Permitted Holder; (ii) the adoption of a plan for the liquidation or
dissolution of the Company; (iii) the Company consolidates with, or merges with
or into, another "person" (as defined above) or "group" (as defined above) other
than a Permitted Holder, in a transaction or series of related transactions in
which the Voting Stock of the Company is converted into or exchanged for cash,
securities or other property, other than any transaction where (A) the
outstanding Voting Stock of the Company is converted into or exchanged for
Voting Stock (other than Disqualified Stock) of the surviving or transferee
corporation and (B) either (1) the "beneficial owners" (as defined in Rule 13d-3
under the Exchange Act) of the outstanding Voting Stock of the Company
immediately prior to such transaction own beneficially, directly or indirectly
through one or more Subsidiaries, not less than a majority of the total
outstanding Voting Stock of the surviving or transferee corporation immediately
after such transaction or (2) if, immediately prior to such transaction the
Company is a direct or indirect Subsidiary of any other Person (each such other
Person, the "Holding Company"), the "beneficial owners" (as defined above) of
the outstanding Voting Stock of such Holding Company immediately prior to such
transaction own beneficially, directly or indirectly through one or more
Subsidiaries, not less than a majority of the outstanding Voting Stock of the
surviving or transferee corporation immediately after such transaction; (iv) the
consummation of any transaction or series of related transactions (including,
without limitation, by way of merger or consolidation) the result of which is
that any "person" (as defined above) or "group" (as defined above) other than a
Permitted Holder becomes the "beneficial owner" (as defined above) of more than
50% of the voting power of the Voting Stock of the Company or (v) during any
consecutive two-year period, the first day on which a majority of the members of
the Board of Directors of the Company who were members of the Board of Directors
of the Company at the beginning of such period are not Continuing Directors.
"Commission" means the Securities and Exchange Commission.
"Consolidated EBITDA" means, with respect to any Person for any period,
the Consolidated Net Income of such Person and its Restricted Subsidiaries for
such period, plus, to the extent deducted in computing Consolidated Net Income,
(i) provision for taxes based on income or profits of such Person and its
Restricted Subsidiaries for such period, (ii) Consolidated Interest Expense of
such Person for such period, (iii) depreciation and amortization (including
amortization of goodwill and other intangibles) and all other non-cash charges
(excluding any such noncash charge to the extent that it represents an accrual
of or reserve for cash charges in any future period or amortization of a prepaid
cash expense that was paid in a prior period) of such Person and its Restricted
Subsidiaries for such period and (iv) any extraordinary or non-recurring loss
and any net loss realized in connection with either any Asset Sale or the
extinguishment of Indebtedness, in each case, on a consolidated basis determined
in accordance with GAAP.
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Notwithstanding the foregoing, the provision for taxes based on the income or
profits of, and the depreciation and amortization and other non-cash charges of,
a Restricted Subsidiary of a Person shall be added to Consolidated Net Income to
compute Consolidated EBITDA only to the extent (and in the same proportion) that
the Net Income of such Restricted Subsidiary was included in calculating the
Consolidated Net Income of such Person.
"Consolidated Interest Expense" means, with respect to any Person for any
period, the interest expense of such Person and its Restricted Subsidiaries for
such period, on a consolidated basis, determined in accordance with GAAP
(including amortization of original issue discount and deferred financing costs,
(except as set forth in the proviso to this definition), non-cash interest
payments, the interest component of all payments associated with Capital Lease
Obligations, net payments, if any, pursuant to Hedging Obligations and imputed
interest with respect to Attributable Debt; provided, however, that in no event
shall any amortization of deferred financing costs incurred on or prior to the
date of the Indenture in connection with the Credit Facility or any amortization
of deferred financing costs incurred in connection with the issuance of the
Notes be included in Consolidated Interest Expense).
"Consolidated Net Income" means, with respect to any Person for any
period, the aggregate of the Net Income of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis, determined in accordance
with GAAP; provided, however, that (i) the Net Income (but not loss) of any
Person that is not a Restricted Subsidiary or that is accounted for by the
equity method of accounting shall be included only to the extent of the amount
of dividends or distributions paid to the referent Person or a Restricted
Subsidiary thereof in cash, (ii) the Net Income of any Person acquired in a
pooling of interests transaction for any period prior to the date of such
acquisition shall be included, (iii) the cumulative effect of a change in
accounting principles shall be excluded, (iv) the portion of net income of the
Company and its Consolidated Subsidiaries allocable to investments in
unconsolidated Persons to the extent that cash dividends or distributions have
not actually been received by the Company or one of its Consolidated
Subsidiaries shall be excluded and (v) the Net Income of any Restricted
Subsidiary shall be excluded to the extent that the declaration or payment of
dividends or similar distributions by that Restricted Subsidiary of Net Income
is not, at the date of determination, permitted without any prior governmental
approval (which has not been obtained) or, directly or indirectly, by operation
of the terms of its charter or any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable to that Restricted
Subsidiary.
"Consolidated Net Worth" means, with respect to any Person at any date,
the consolidated stockholders' equity of such Person less the amount of such
stockholders' equity attributable to Redeemable Capital Stock of such Person and
its Subsidiaries, as determined in accordance with GAAP.
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"Continuing Directors" means, as of any date of determination, any member
of the Board of Directors of the relevant Person who (i) was a member of such
Board of Directors on the date of the Indenture or (ii) was nominated for
election or elected to such Board of Directors with the approval of a majority
of the Continuing Directors who were members of such Board of Directors at the
time of such nomination or election.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 13.02 hereof or such other address as to which the
Trustee may give notice to the Company.
"Credit Facility" means that certain revolving credit and security
agreement, providing for up to $75 million aggregate principal amount of
borrowings, dated as of December 10, 1996 and as amended through the date of the
Indenture, by and among the Company, certain Subsidiaries and IBJ Xxxxxxxx Bank
& Trust Company as lender and agent, including any related notes, guarantees,
collateral documents, instruments and agreements executed in connection
therewith, and in each case as amended, modified, renewed, refunded, replaced or
refinanced from time to time (together with any amendment, modification,
renewal, refunding, replacement or refinancing to or of any of the foregoing
(collectively, a "Modification") or to any Modification, ad infinitum,
including, without limitation, any agreement modifying the maturity or
amortization schedule of or refinancing or refunding all or any portion of the
Indebtedness thereunder or increasing the amount that may be borrowed under such
agreement or any successor agreement, whether or not among the same parties.
"Default" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"Definitive Notes" means any Notes other than a Global Note.
"Depositary" means, with respect to Notes issuable or issued in whole or
in part in global form hereunder, unless otherwise specified by the Company
pursuant to Section 2.12, The Depository Trust Company, New York, New York, or
any successor thereto registered as a clearing agency under the Exchange Act or
other applicable statute or regulations.
"Designated Guarantor Senior Debt" means, with respect to any Guaranteeing
Subsidiary, (i) so long as any Indebtedness of such Guaranteeing Subsidiary is
outstanding under the Credit Facility, such Indebtedness, and (ii) any other
Guarantor Senior Debt permitted under the Indenture the principal amount of
which is $10.0 million or more and that has been designated by the Guaranteeing
Subsidiary as "Designated Guarantor Senior Debt."
"Designated Senior Debt" means (i) so long as any Indebtedness is
outstanding under the Credit Facility, such Indebtedness, and (ii) any other
Senior Debt permitted under the Indenture the principal amount of which is $10.0
million or more and that has
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been designated by the Company as "Designated Senior Debt."
"Disqualified Stock" means that portion of any Capital Stock which, by its
terms (or by the terms of any security into which it is convertible or for which
it is exchangeable), or upon the happening of any event (other than an event
which would constitute a Change of Control), matures (excluding any maturity as
the result of an optional redemption by the issuer thereof) or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the sole option of the holder thereof (except, in each case, upon the
occurrence of a Change of Control) on or prior to the final maturity date of the
Notes.
"Equity Interests" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Excess Amount" means, with respect to any Credit Facility, the amount by
which aggregate payments of principal made thereunder exceed the aggregate
payments of principal required to be made through the date of determination, in
respect of any term Indebtedness, under the amortization schedule of such Credit
Facility.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Notes" means Notes having terms substantially identical in all
respects to the Rule 144A Notes for which they are to be exchanged in the
Exchange Offer, except that (i) the Exchange Notes will have been registered
under the Securities Act and, therefore, will not bear legends restricting the
transfer thereof, and (ii) Holders of Exchange Notes will not be entitled to
certain rights of holders of Rule 144A Notes under the Registration Rights
Agreement.
"Exchange Offer" means the offer the Company is to make pursuant to the
Registration Rights Agreement to exchange Rule 144A Notes for Exchange Notes.
"Existing Indebtedness" means Indebtedness of the Company and its
Restricted Subsidiaries (other than the Indebtedness under the Credit Facility)
in existence on the date hereof until such amounts are repaid.
"Fixed Charges" means, with respect to any Person for any period, the sum
of (i) the Consolidated Interest Expense of such Person for such period and (ii)
any interest expense on Indebtedness of another Person that is (A) Guaranteed by
the referent Person or one of its Restricted Subsidiaries (whether or not such
Guarantee is called upon) or (B) secured by a Lien on assets of such Person or
one of its Restricted Subsidiaries (whether or not such Lien is called upon);
provided that with respect to clause (ii)(B), the amount of Indebtedness (and
attributable interest expense) shall be equal to the lesser of (i) the principal
amount of the Indebtedness secured by the assets of such Person or one of its
Restricted Subsidiaries and (ii) the fair market value (as determined by the
Board of
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Directors of such Person and set forth in an Officers' Certificate delivered to
the Trustee) of the assets securing such Indebtedness and (iii) the product of
(a) all cash dividend payments (and non-cash dividend payments in the case of a
Person that is a Subsidiary) on any series of preferred stock of such Person,
times (b) a fraction, the numerator of which is one and the denominator of which
is one minus the then current combined federal, state and local statutory tax
rate of such Person, expressed as a decimal, in each case, on a consolidated
basis and in accordance with GAAP.
"Fixed Charge Coverage Ratio" means with respect to any Person for any
period, the ratio of the Consolidated EBITDA of such Person and its Restricted
Subsidiaries for such period to the Fixed Charges of such Person and its
Restricted Subsidiaries for such period. In the event that the Company or any of
its Restricted Subsidiaries incurs, assumes, Guarantees or redeems any
Indebtedness (other than revolving credit borrowings) or issues or redeems
preferred stock subsequent to the commencement of the period for which the Fixed
Charge Coverage Ratio is being calculated but on or prior to the date on which
the event for which the calculation of the Fixed Charge Coverage Ratio is made
(the "Calculation Date"), then the Fixed Charge Coverage Ratio shall be
calculated giving pro forma effect to such incurrence, assumption, Guarantee or
redemption of Indebtedness, or such issuance or redemption of preferred stock,
as if the same had occurred at the beginning of the applicable reference period.
For purposes of making the computation referred to above, (i) acquisitions that
have been made by the Company or any of its Restricted Subsidiaries, including
through mergers or consolidations and including any related financing
transactions, during the applicable reference period or subsequent to such
reference period and on or prior to the Calculation Date shall be deemed to have
occurred on the first day of the applicable reference period and shall give pro
forma effect to the Indebtedness and the Consolidated EBITDA of the Person which
is the subject of any such acquisition and (ii) the Consolidated EBITDA
attributable to discontinued operations, as determined in accordance with GAAP,
and operations or businesses disposed of prior to the Calculation Date, shall be
excluded.
"Foreign Subsidiary" means any Restricted Subsidiary of the Company
organized and existing under the laws of any jurisdiction outside the United
States.
"GAAP" means generally accepted accounting principles set forth in the
opinion and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board, the Commission or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession of the United States, which are in effect from time to
time, provided, however, that all reports and other financial information
provided by the Company to the Holders, the Trustee and/or the Commission shall
be prepared in accordance with GAAP, as in effect on the date of such report or
other financial information.
"Global Note" means a Note which is executed by the Company and
authenticated and delivered by the Trustee to the Depository or pursuant to the
Depository's
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instruction, all in accordance with this Indenture and pursuant to a written
order of the Company, which shall be registered in the name of the Depositary or
its nominee and which shall represent, and shall be denominated in an amount
equal to the aggregate principal amount of, all of the Notes or any portion
thereof, but not including any Notes that are no longer outstanding, and having
the same terms, including, without limitation, the same original issue date,
date or dates on which principal is due, and rate of interest.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America for the payment of which guarantee
or obligations the full faith and credit of the United States is pledged.
"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.
"Guarantee Obligations" means any principal, interest (including any
interest accruing subsequent to the filing of a petition of bankruptcy at the
date provided in the documentation with respect thereto, whether or not such
interest is an allowed claim under applicable law), penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable with
respect to the Subsidiary Guarantees.
"Guaranteeing Subsidiary" means each of (i) the Restricted Subsidiaries of
the Company in existence on the date of the Indenture and (ii) any future
Restricted Subsidiary and their respective successors and assigns.
"Hedging Obligations" means, with respect to any Person, the obligations
of such Person under (i) interest rate swap agreements, interest rate cap
agreements and interest rate collar agreements, (ii) other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates or foreign exchange rates and (iii) indemnity agreements and arrangements
entered into in connection with the agreements and arrangements described in
clauses (i) and (ii).
"Holder" means a Person in whose name a Note is registered.
"Incur or incur" means, with respect to any Indebtedness (including
Acquired Debt), to create, incur, issue, assume, guaranty or otherwise become
directly or indirectly liable for or with respect to, or become responsible for,
the payment of such Indebtedness (including Acquired Debt); provided that (i)
neither the accrual of interest nor the accretion of original issue discount
shall be considered an incurrence of Indebtedness and (ii) the assumption of
Indebtedness by the surviving entity of a transaction permitted by Section
11.03(a) hereof or the last sentence of Section 5.01 hereof in existence at the
time of such transaction shall not be deemed an incurrence of Indebtedness. The
term "incurrence" has corresponding meaning.
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"Indebtedness" means, with respect to any Person without duplication, any
indebtedness of such Person, whether or not contingent, in respect of borrowed
money or evidenced by bonds, notes, debentures or similar instruments or letters
of credit (or reimbursement agreements in respect thereof) or representing
Capital Lease Obligations or the deferred and unpaid balance of the purchase
price of any property, except any such balance that constitutes an accrued
expense or trade payable, or representing any Hedging Obligations if and to the
extent any of the foregoing indebtedness (other than letters of credit and
Hedging Obligations) would appear as a liability upon a balance sheet of such
Person prepared in accordance with GAAP, as well as all indebtedness of others
secured by a Lien on any asset of such Person (whether or not such indebtedness
is assumed by such Person), the maximum fixed repurchase price of Disqualified
Stock issued by such Person and the liquidation preference of preferred stock
issued by such Person, in each case if held by any Person other than the Company
or a Wholly Owned Restricted Subsidiary of the Company, and, to the extent not
otherwise included, the Guarantee by such Person of any such indebtedness of any
other Person.
"Indenture" means this Indenture, as amended or supplemented from time to
time.
"Indirect Participant" means a Person who holds an interest through a
Participant.
"Interest Payment Date" shall have the meaning assigned to such term in
the Notes.
"Investments" means, with respect to any Person, all investments by such
Person in other Persons (including Affiliates) in the forms of loans (including
Guarantees), advances or capital contributions (excluding commission, travel and
similar advances to officers and employees made in the ordinary course of
business), purchases or other acquisitions for consideration of Indebtedness,
Equity Interests or other securities, and all other items that are or would be
classified as investments on a balance sheet prepared in accordance with GAAP;
provided that an acquisition of assets, Equity Interests or other securities by
the Company for consideration consisting of common equity securities of the
Company shall not be deemed to be an Investment. If the Company or any
Restricted Subsidiary of the Company sells or otherwise disposes of any Equity
Interests of any direct or indirect Restricted Subsidiary of the Company, or any
Restricted Subsidiary of the Company issues Equity Interests, such that, after
giving effect to any such sale or disposition, such Person is no longer a
Restricted Subsidiary of the Company, the Company shall be deemed to have made
an Investment on the date of any such sale, disposition or issuance equal to the
fair market value of the Equity Interests of such Person held by the Company or
such Restricted Subsidiary immediately following any such sale, disposition or
issuance.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York or at a place of payment are authorized by
law, regulation executive order to remain closed. If a payment date is a Legal
Holiday at a place of payment, payment may be made at that place on the next
succeeding day that is
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not a Legal Holiday, and no interest shall accrue for the intervening period.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest).
"Liquidated Damages" means all liquidated damages then owing pursuant to
Section 5 of the Registration Rights Agreement.
"Net Income" means, with respect to any Person, the net income (loss) of
such Person, determined in accordance with GAAP, excluding, however, (i) any
gain (but not loss), together with any related provision for taxes on such gain
(but not loss), realized in connection with (a) any Asset Sale (including,
without limitation, dispositions pursuant to sale and leaseback transactions) or
(b) the extinguishment of any Indebtedness of such Person or any of its
Restricted Subsidiaries, and (ii) any extraordinary or nonrecurring gain (but
not loss), together with any related provision for taxes on such extraordinary
or nonrecurring gain (but not loss).
"Net Proceeds" means the aggregate cash proceeds received by the Company
or any of its Restricted Subsidiaries in respect of any Asset Sale (including,
without limitation, any cash received Upon the sale or other disposition of any
non-cash consideration received In any Asset Sale), net of the direct costs
relating to such Asset Sale (including, without limitation, legal, accounting
and investment banking fees, and sales commissions) and any relocation expenses
incurred as a result thereof, taxes paid or payable as a result thereof, amounts
required to be applied to the repayment of Indebtedness (other than long-term
Indebtedness of a Restricted Subsidiary of such Person and Indebtedness under
the Credit Facility) secured by a Lien on the asset or assets that are the
subject of such Asset Sale and any reserve for adjustment in respect of the sale
price of such asset or assets established in accordance with GAAP.
"Non-Recourse Debt" means Indebtedness (i) no default with respect to
which (including any rights that the holders thereof may have to take
enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any holder of any other Indebtedness of the
Company or any of its Restricted Subsidiaries to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated or payable prior to
its stated maturity; and (ii) as to which the lenders have been notified in
writing that they will not have any recourse to the stock or assets of the
Company or any of its Restricted Subsidiaries.
"Note Custodian" means the Trustee, as custodian for the Depository with
respect to the Notes in global form, or any successor entity thereto.
"Notes" means the Rule 144A Notes and Exchange Notes issued under this
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Indenture.
"Obligations" means any principal, interest (including any interest
accruing subsequent to the filing of a petition of bankruptcy at the rate
provided in the documentation with respect thereto, whether or not such interest
is an allowed claim under applicable law), penalties, fees, indemnifications,
reimbursements, damages and other liabilities payable under the documentation
governing any Indebtedness.
"Officer" means, with respect to any Person, the Chairman of the Board,
the Chief Executive Officer, the President, the Chief Operating Officer, the
Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller,
the Secretary or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed on behalf of the
Company by two Officers of the Company, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Company, delivered to the Trustee that meets
the requirements of Section 13.05 hereof.
"Opinion of Counsel" means an opinion from legal counsel who is reasonably
acceptable to the Trustee, that meets the requirements of Section 13.05 hereof.
The counsel may be an employee of or counsel to the Company, any Subsidiary of
the Company or the Trustee.
"Pari Passu Indebtedness" means Indebtedness of the Company which ranks
pari passu in right of payment with the Notes.
"Permitted Holder" means BIL and its current, former and future employees,
members, stockholders, affiliates, directors and officers.
"Permitted Investments" means (i) Investments in the Company or in a
Restricted Subsidiary of the Company (including, without limitation, Guarantees
of the Indebtedness and/or other Obligations of the Company and/or any
Restricted Subsidiary of the Company, so long as such Indebtedness and/or other
Obligations are permitted under the Indenture), (ii) Investments in Cash
Equivalents, (iii) Investments by the Company or any Restricted Subsidiary of
the Company in, or the purchase of the securities of, a Person if, as a result
of such Investment, (a) such person becomes a Restricted Subsidiary of the
Company or (b) such Person is merged, consolidated or amalgamated with or into,
or transfers or conveys substantially all of its assets to, or is liquidated
into, the Company or a Restricted Subsidiary of the Company, (iv) Investments in
accounts and notes receivable acquired in the ordinary course of business, (v)
any non-cash consideration received in connection with an Asset Sale that
complies with Section 4.10 hereof and (vi) Investments in connection with
Hedging Obligations permitted to be incurred under Section 4.09 hereof.
"Permitted Junior Securities" means Equity Interests or debt securities of
the
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Company, that are unsecured, subordinated at least to the same extent as the
Notes to Senior Debt of the Company and guarantees of any such debt by any
Guaranteeing Subsidiary that are unsecured and subordinated at least to the same
extent as the Subsidiary Guarantee of such Guaranteeing Subsidiary to the Senior
Debt of such Guaranteeing Subsidiary, as the case may be, and have a final
maturity date at least as late as the final maturity date of, and have a
Weighted Average Life to Maturity equal to or greater than the Weighted Average
Life to Maturity of, the Notes.
"Permitted Liens" means (i) Liens on property of the Company and any
Guaranteeing Subsidiary securing (a) Senior Debt and/or (b) Hedging Obligations
permitted to be incurred under the Indenture; (ii) Liens in favor of the Company
or any of its Restricted Subsidiaries; (iii) Liens on property of a Person
existing at the time such Person is merged with or into or consolidated with the
Company or any Restricted Subsidiary of the Company; provided, that such Liens
were not incurred in connection with, or in contemplation of, such merger or
consolidation and do not extend to any assets of the Company or any Restricted
Subsidiary of the Company other than the assets acquired in such merger or
consolidation; (iv) Liens on property of a Person existing at the time such
Person becomes a Restricted Subsidiary of the Company; provided that such Liens
were not incurred in connection with, or in contemplation of, such Person
becoming a Restricted Subsidiary and do not extend to any assets of the Company
or any other Restricted Subsidiary of the Company; (v) Liens on property
existing at the time of acquisition thereof by the Company or any Restricted
Subsidiary of the Company; provided that such Liens were not incurred in
connection with, or in contemplation of, such acquisition and do not extend to
any assets of the Company or any of its Restricted Subsidiaries other than the
property so acquired; (vi) Liens to secure the performance of statutory
obligations, surety or appeal bonds or performance bonds, or landlords',
carriers', warehousemen's, mechanics', suppliers', materialmen's, or other like
Liens, in any case incurred in the ordinary course of business and with respect
to amounts not yet delinquent or being contested in good faith by appropriate
process of law, if a reserve or other appropriate provision, if any, as is
required by GAAP shall have been made therefor; (vii) Liens existing on the date
of the Indenture; (viii) Liens for taxes, assessments or governmental charges or
claims that are not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently concluded; provided
that any reserve or other appropriate provision as shall be required in
conformity with GAAP shall have been made therefor; (ix) Liens to secure (A)
Indebtedness (including Capital Lease Obligations) permitted by clause (iii) of
the second paragraph of the covenant entitled "Incurrence of Indebtedness and
Issuance of Preferred Stock" covering only the assets acquired with such
Indebtedness or the assets which are the subject of the sale leaseback
transaction, as the case may be and (B) Indebtedness of any Restricted
Subsidiary (other than a Guaranteeing Subsidiary) permitted to be incurred by
such Restricted Subsidiary pursuant to the covenant entitled "Incurrence of
Indebtedness and Issuance of Preferred Stock;" (x) Liens incurred in the
ordinary course of business of the Company or any Restricted Subsidiary of the
Company with respect to obligations not constituting Indebtedness for borrowed
money that do not exceed $10.0 million in the aggregate at any one time
outstanding; (xi) Liens securing
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Indebtedness incurred to refinance Indebtedness that has been secured by a Lien
permitted under the Indenture; provided that (a) any such Lien shall not extend
to or cover any assets or property not securing the Indebtedness so refinanced
and (b) the refinancing Indebtedness secured by such Lien shall have been
permitted to be incurred under the covenant entitled "Incurrence of Indebtedness
and Issuance of Preferred Stock;" (xii) Liens in favor of the lessee on
instruments which are the subject of leases entered into in the ordinary course
of business; provided that any such Lien shall not extend to or cover any assets
or property of the Company and its Restricted Subsidiaries that is not the
subject of any such lease; and (xiii) Liens to secure Attributable Debt and or
that is permitted to be incurred pursuant to the covenant entitled "Sale and
Leaseback Transactions;" provided that any such Lien shall not extend to or
cover any assets of the Company or any Guaranteeing Subsidiary other than the
assets which are the subject of the sale leaseback transaction in which the
Attributable Debt is incurred.
"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 that: (i) the principal amount of such Permitted Refinancing
Indebtedness does not exceed the principal amount of the Indebtedness so
extended, refinanced, renewed, replaced, defeased or refunded (plus the amount
of reasonable expenses incurred in connection therewith); (ii) such Permitted
Refinancing Indebtedness has a final maturity date at least as late as the final
maturity date of, and 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 by the Company or
by the Restricted Subsidiary who is the obliger on the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust, charitable
foundation, unincorporated organization, government or any agency or political
subdivision thereof or any other entity.
"Redeemable Capital Stock" means any shares of any class or series of
Capital Stock, that, either by the terms thereof, by the terms of any security
into which it is convertible or exchangeable or by contract or otherwise, is or
upon the happening of an event or passage of time would be required to be
redeemed prior to the Stated Maturity with respect to the principal of any Note
or is redeemable at the option of the holder thereof at any time prior to any
such Stated Maturity, or is convertible into or
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exchangeable for debt securities at any time prior to any such Stated Maturity.
"Registration Rights Agreement" means the Registration Rights Agreement
dated as of August 4, 1997 by and between the Company, the Guaranteeing
Subsidiaries and the Initial Purchasers, as such agreement may be amended,
modified or supplemented from time to time.
"Related Business" means the business conducted (or proposed to be
conducted) by the Company and its Subsidiaries as of the date of the Indenture
and any and all businesses that in the good faith judgment of the Board of
Directors of the Company are materially related businesses.
"Representative" means the indenture trustee or other trustee, agent or
representative for any Senior Debt or Guarantor Senior Debt.
"Responsible Officer," when used with respect to the Trustee, means any
officer within the Corporate Trust Administration of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Subsidiary" means any Subsidiary of the referent Person that
is not an Unrestricted Subsidiary.
"Rule 144A Notes" means the Company's 9.-3/4% Senior Subordinated Notes
due 2007, as initially issued under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Debt" means (a) with respect to the Company, (i) all Obligations
permitted to be incurred pursuant to the Indenture under or in respect of the
Credit Facility and (ii) any other Indebtedness permitted to be incurred by the
Company under the terms of the Indenture and any Hedging Obligation permitted to
be incurred under the terms of the Indenture, unless the instrument under which
the foregoing is incurred expressly provides that it is on a parity with or
subordinated in right of payment to the Notes and (b) with respect to any
Guaranteeing Subsidiary, (i) all Obligations permitted to be incurred pursuant
to the Indenture under or in respect of the Credit Facility and (ii) any other
Indebtedness permitted to be incurred by such Guaranteeing Subsidiary under the
terms of the Indenture and any Hedging Obligation permitted to be incurred under
the terms of the Indenture, unless the instrument under which the foregoing is
incurred expressly provided that such Indebtedness is on parity with or
subordinated in right of payment to the Subsidiary Guarantee of such
Guaranteeing Subsidiary. Notwithstanding
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anything to the contrary in the foregoing, Senior Debt will not include (w) any
liability for federal, state, local or other taxes; (x) any Indebtedness of the
Company or any Guaranteeing Subsidiary to the Company or any Subsidiary of the
Company or any of their respective Affiliates, (y) any trade payables or (z) any
Indebtedness that is incurred in violation of the Indenture.
"Shelf Registration Statement" means the Registration Statement with
respect to the Notes which the Company is required to file pursuant to the
Registration Rights Agreement.
"Significant Subsidiary" means any Restricted Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the date hereof.
"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.
"Subsidiary" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of Voting Stock is at the time owned or controlled, directly or
indirectly, by such Person or one or more of the other Subsidiaries of that
Person (or a combination thereof) and (ii) any partnership (a) the sole general
partner or the managing general partner of which is such Person or a Subsidiary
of such Person or (b) the only general partners of which are such Person or one
or more Subsidiaries of such Person (or any combination thereof).
"Subsidiary Guarantee" means any guarantee of the Notes by a Guaranteeing
Subsidiary.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
under the TIA.
"Transfer Restricted Securities" means Notes or beneficial interest
therein that bear or are required to bear the legend set forth in Section 2.05
hereof.
"Trustee" means the party named as such above until a successor replaces
it in accordance with the applicable provisions of this Indenture and thereafter
means the successor serving hereunder.
"Unrestricted Subsidiary" means any Subsidiary that is designated by the
Board of Directors of the Company as an Unrestricted Subsidiary pursuant to a
Board Resolution,
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but only to the extent that such Subsidiary: (i) has no Indebtedness other than
Non-Recourse Debt; (ii) is not party to any agreement, contract, arrangement or
understanding with the Company or any Restricted Subsidiary of the Company
unless the terms of any such agreement, contract, arrangement or understanding
are no less favorable to the Company or such Restricted Subsidiary than those
that might be obtained at the time from Persons who are not Affiliates of the
Company; (iii) is a Person with respect to which neither the Company nor any of
its Restricted Subsidiaries has any direct or indirect obligation (a) to
subscribe for additional Equity Interests or (b) to maintain or preserve such
Person's financial condition or to cause such Person to achieve any specified
levels of operating results; and (iv) has not guaranteed or otherwise directly
or indirectly provided credit support for any Indebtedness of the Company or any
of its Restricted Subsidiaries. Any such designation by the Board of Directors
shall be evidenced to the Trustee by filing with the Trustee a certified copy of
the Board Resolution giving effect to such designation and an Officers'
Certificate certifying that such designation complied with the foregoing
conditions and was permitted by Section 4.07 hereof. If, at any time, any
Unrestricted Subsidiary would fail to meet the foregoing requirements as an
Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted
Subsidiary for purposes of the Indenture and Indebtedness of such Subsidiary
shall be deemed to be incurred by a Restricted Subsidiary of the Company as of
such date (and, if such Indebtedness is not permitted to be incurred as of such
date under Section 4.09 hereof, the Company shall be in default of such covenant
from the date of such incurrence). The Board of Directors of the Company may at
any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary;
provided that such designation shall be deemed to be an incurrence of
Indebtedness by a Restricted Subsidiary of the Company of any outstanding
Indebtedness of such Unrestricted Subsidiary and such designation shall only be
permitted if (i) such Indebtedness is permitted under Section 4.09 hereof and
(ii) no Default or Event of Default would be in existence following such
designation.
"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 shall have, or might have, voting power by reason of
the happening of any contingency).
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the then
outstanding principal amount of such Indebtedness into (ii) the total of the
product obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment.
"Wholly Owned Restricted Subsidiary" of any Person means a Restricted
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors' qualifying shares) shall at
the time be owned by such
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Person or by one or more Wholly Owned Restricted Subsidiaries of such Person or
by such Person and one or more Wholly Owned Restricted Subsidiaries of such
Person.
SECTION 1.02. OTHER DEFINITIONS.
Term Defined in
Section
-------
"Affiliate Transaction"........... 4.11
"Asset Sale Offer"................ 3.09
"Change of Control Offer"......... 4.14
"Change of Control Payment"....... 4.14
"Change of Control Payment Date".. 4.14
"Covenant Defeasance"............. 8.03
"Event of Default"................ 6.01
"Excess Proceeds"................. 4.10
"Legal Defeasance"................ 8.02
"Offer Amount".................... 3.09
"Offer Period".................... 3.09
"Paying Agent".................... 2.03
"Purchase Date"................... 3.09
"Registrar"....................... 2.03
"Restricted Payments"............. 4.07
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture.
All terms used in this Indenture that are defined by the TIA, defined by
TIA reference to another statute or defined by Commission rule under the TIA
have the meanings so assigned to them.
SECTION 1.04. RULES OF CONSTRUCTION.
Unless the context otherwise requires, a term has the meaning assigned to
it.
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to
it in accordance with GAAP;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and in the plural include
the singular;
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(e) provisions apply to successive events and transactions;
(f) references to sections of or rules under the Securities Act shall be
deemed to include substitute, replacement of successor sections or
rules adopted by the Commission from time to time; and
(g) For purposes of making any determination of any amount under any
single definition set forth in Section 1.01 hereof, such
determination shall be made without double counting of any item;
provided that with respect to the definition of "Fixed Charge
Coverage Ratio" it shall not be deemed to be double counting if an
item is included in the calculation of each of "Consolidated EBITDA"
and "Fixed Charges."
ARTICLE 2
THE NOTES
SECTION 2.01. FORM AND DATING.
The Rule 144A Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A. Subject to Section 2.06, the
Rule 144A Notes shall be in an aggregate principal amount no greater than
$100,000,000; provided, that if Exchange Notes are issued hereunder pursuant to
the Exchange Offer, the aggregate maximum principal amount of Rule 144A Notes
shall be reduced by the principal amount of Exchange Notes so issued. The
Exchange Notes, when and if issued, and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit B. Subject to
Section 2.06, the Exchange Notes shall be in an aggregate principal amount no
greater than $100,000,000 less the principal amount of Rule 144A Notes not
exchanged for the Exchange Notes in the Exchange Offer. The Notes may have
notations, legends or endorsements required by law, stock exchange rule or
usage. Each Note shall be dated the date of its authentication. The Notes shall
be in denominations of $1,000 and integral multiples thereof.
The Notes may be initially issued either in the form of a Global
Note or Notes or in the form of Definitive Notes or both. A Global Note shall
represent such of the outstanding Notes as shall be specified therein and shall
provide that it shall represent the aggregate amount of outstanding Notes from
time to time endorsed thereon and that the aggregate amount of outstanding Notes
represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any endorsement of a Global
Note to reflect the amount of any increase or decrease in the amount of
outstanding Notes represented thereby shall be made by the Trustee or an Agent
thereof, at the direction of the Trustee, in accordance with written
instructions given by the Holder thereof. Definitive Notes shall be printed,
lithographed or engraved
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or produced by any combination of these methods on steel engraved borders or may
be produced in any other manner permitted by the rules of any securities
exchange on which the Notes may be listed, all as determined by the officers
executing such Notes, as evidenced by their execution of such Notes.
The terms and provisions contained in the Notes shall constitute,
and are hereby expressly made, a part of this Indenture and to the extent
applicable, the Company, the Guaranteeing Subsidiaries and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.
SECTION 2.02. EXECUTION AND AUTHENTICATION.
Two Officers shall sign the Notes for the Company by manual or
facsimile signature.
If an Officer whose signature is on a Note no longer holds that
office at the time the Note is authenticated, the Note nevertheless shall be
valid.
A Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Note has been authenticated under this Indenture.
The Trustee shall authenticate Notes for original issue up to the
aggregate principal amount stated in paragraph 4 of the Notes, upon a written
order of the Company signed by two Officers. The aggregate principal amount of
Notes outstanding at any time may not exceed such amount except as provided in
Section 2.06.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. An authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate.
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SECTION 2.03. REGISTRAR AND PAYING AGENT.
The Company shall maintain or cause to be maintained through the
Trustee or such other Person as may be appointed hereunder an office or agency
where Notes may be presented for registration of transfer or for exchange
("Registrar") and an office or agency where Notes may be presented for payment
("Paying Agent"). The Registrar shall keep a register of the Notes and of their
transfer and exchange. The Company may appoint one or more co-registrars and one
or more additional paying agents. The term "Registrar" includes any co-registrar
and the term "Paying Agent" includes any additional paying agent. The Company
may change any Paying Agent or Registrar without notice to any Holder. The
Company shall notify the Trustee in writing of the name and address of any Agent
not a party to this Indenture, such notification to be delivered, together with
a certificate of such Agent that it agrees to perform its duties in accordance
with the procedures established by the Trustee and with the terms of this
Indenture, to the Trustee prior to the date such Agent assumes its duties
hereunder. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any of
its Subsidiaries may act as Paying Agent or Registrar.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the Trustee
to agree in writing that the Paying Agent will hold in trust for the benefit of
the Holders or the Trustee all money held by the Paying Agent for the payment of
principal of or premium, if any, or interest on the Notes, and will notify the
Trustee of any default by the Company in making any such payment. While any such
default continues, the Trustee may require a Paying Agent to pay all money held
by it to the Trustee. The Company at any time may require a Paying Agent to pay
all money held by it to the Trustee. Upon payment over to the Trustee, the
Paying Agent (if other than the Company or a Subsidiary) shall have no further
liability for the money. If the Company or a Subsidiary acts as Paying Agent, it
shall segregate and hold in a separate trust fund for the benefit of the Holders
all money held by it as Paying Agent.
SECTION 2.05. REGISTRATION OF TRANSFER AND EXCHANGE.
(a) With respect to the transfer and exchange of Definitive Notes:
when Definitive Notes are presented to the Trustee with the request (x) to
register the transfer of the Definitive Notes or (y) to exchange such Definitive
Notes for an equal principal amount of Definitive Notes of other authorized
denominations, the Trustee shall register the transfer or make the exchange as
requested if its requirements for such transactions are met; provided, however,
that the Definitive Notes presented or surrendered for register of transfer or
exchange:
(A) shall be duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the Trustee duly
executed by
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the Holder thereof or by its attorney, duly authorized in writing; and
(B) shall, in the case of Transfer Restricted Securities that
are Definitive Notes, except if exchanged for an Exchange Note in the
Exchange Offer, be accompanied by the following additional information
and documents, as applicable
(1) if such Transfer Restricted Security is being
delivered to the Registrar by a Holder for registration in the
name of such Holder, without transfer, a certification from
such Holder to that effect (in substantially the form of
Exhibit C hereto); or
(2) if such Transfer Restricted Security is being
transferred to a "qualified institutional buyer" (as defined
in Rule 144A under the Securities Act) in reliance on Rule
144A under the Securities Act or pursuant to an exemption from
registration in accordance with Rule 144 under the Securities
Act or pursuant to an effective registration statement under
the Securities Act, a certification to that effect (in
substantially the form of Exhibit C hereto); or
(3) if such Transfer Restricted Security is being
transferred in reliance on another exemption from the
registration requirements of the Securities Act, a
certification to that effect (in substantially the form of
Exhibit C hereto) and an opinion of counsel reasonably
acceptable to the Company and to the Registrar to the effect
that such transfer is in compliance with the Securities Act.
(b) The following restrictions apply to any transfer of a Definitive
Note for a beneficial interest in a Global Note. A Definitive Note may not be
exchanged for a beneficial interest in a Global Note except until and upon
satisfaction of the requirements set forth below. Upon receipt by the Trustee of
a Definitive Note, duly endorsed or accompanied by appropriate instruments of
transfer, in form satisfactory to the Trustee, together with:
(A) if such Definitive Note is a Transfer Restricted Security
and such transfer is not being made in connection with the Exchange
Offer, certification, substantially in the form of Exhibit C hereto,
that such Definitive Note is being transferred to a "qualified
institutional buyer" (as defined in Rule 144A under the Securities Act)
in accordance with Rule 144A under the Securities Act; and
(B) whether or not such Definitive Note is a Transfer
Restricted Security, written instructions directing the Trustee to make
an endorsement
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on the Global Note to reflect an increase in the aggregate principal
amount of the Notes represented by the Global Note,
then the Trustee shall cancel such Definitive Note and cause, in accordance with
the standing instructions and procedures existing between it and the Depositary,
the aggregate principal amount of Notes represented by the Global Note to be
increased accordingly. If no Global Notes are then outstanding, the Company
shall issue and, upon receipt of a written authentication order in the form of
an Officers' Certificate, the Trustee shall authenticate a new Global Note in
the appropriate principal amount.
(c) The transfer and exchange of Global Notes or beneficial
interests therein shall be effected through the Depositary, in accordance with
this Indenture (including the restrictions on transfer set forth herein) and the
procedures of the Depositary therefor.
(d) With respect to the transfer of a beneficial interest in a
Global Note for a Definitive Note:
(A) Any person having a beneficial interest in a Global Note
may upon request exchange such beneficial interest for a Definitive
Note. Upon receipt by the Trustee of written instructions or such other
form of instructions as is customary for the Depositary or its nominee
on behalf of any person having a beneficial interest in a Global Note
constituting a Transfer Restricted Security only, except if exchanged
for an Exchange Note in the Exchange Offer, the following additional
information and documents (all of which may be submitted by facsimile):
(1) if such beneficial interest is being transferred
to the person designated by the Depositary as being the
beneficial owner, a certification from such person to that
effect (in substantially the form of Exhibit C hereto); or
(2) if such beneficial interest is being transferred
to a "qualified institutional buyer" (as defined in Rule 144A
under the Securities Act) in accordance with Rule 144A under
the Securities Act or pursuant to an exemption from
registration in accordance with Rule 144 under the Securities
Act or pursuant to an effective registration statement under
the Securities Act, a certification to that effect from the
transferor (in substantially the form of Exhibit C hereto); or
(3) if such beneficial interest is being transferred
in reliance on another exemption from the registration
requirements of the Securities Act, a certification to that
effect from the transferee or transferor (in substantially the
form of Exhibit C
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hereto) and an opinion of counsel from the transferee or
transferor reasonably acceptable to the Company and to the
Registrar to the effect that such transfer is in compliance
with the Securities Act,
then the Trustee will cause, in accordance with the standing instructions and
procedures existing between it and the Depositary, the aggregate principal
amount of the Global Note to be reduced and, following such reduction, the
Company will execute and, upon receipt of a written authentication order in the
form of an Officers' Certificate, the Trustee will authenticate and deliver to
the transferee a Definitive Note.
(B) Definitive Notes issued in exchange for a beneficial
interest in a Global Note pursuant to this Section 2.05 shall be
registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall in writing instruct the Trustee. The
Trustee shall deliver such Definitive Notes to the persons in whose
name such Notes are so registered.
(e) Notwithstanding any other provisions of this Indenture (other
than the provisions set forth in subsection (f) of this Section 2.05), a Global
Note may not be transferred as a whole except by the Depositary to a nominee of
the Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
(f) The following relates to the authentication of Definitive Notes
in the absence of the Depositary. If at any time: (i) the Depositary for the
Notes notifies the Company that the Depositary is unwilling or unable to
continue as Depositary for the Global Notes and a successor Depositary for the
Global Notes is not appointed by the Company within 90 days after delivery of
such notice; or (ii) the Company, at its sole discretion, notifies the Trustee
in writing that it elects to cause the issuance of Definitive Notes under this
Indenture, then the Company will execute, and the Trustee, upon receipt of a
written order in the form of an Officers' Certificate requesting the
authentication and delivery of Definitive Notes, will authenticate and deliver
Definitive Notes, in an aggregate principal amount equal to the principal amount
of the Global Notes, in exchange for such Global Notes.
(g) (A) Except as otherwise agreed to by the Company, the Trustee
and the Holder thereof or as permitted by the following paragraph (B), each Rule
144A Note certificate evidencing the Global Notes and the Definitive Notes (and
all Notes other than Exchange Notes issued in exchange therefor or substitution
thereof) shall bear a legend in substantially the following form:
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
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PARTICIPATION HEREIN MAY BE REOFFERED, 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,
REGISTRATION UNDER SUCH LAWS.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HERETO AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATED PERSON OF THE COMPANY WAS THE OWNER OF THIS Note UNLESS SUCH
OFFER, SALE OR OTHER TRANSFER IS (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 SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, TO A PERSON THE HOLDER REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT 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) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (a)(2), (a)(3) OR
(a)(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 (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, AND IN EACH OF THE
FOREGOING CASES SUCH OFFER, SALE OR OTHER TRANSFER IS IN COMPLIANCE WITH
ANY APPLICABLE STATE SECURITIES LAWS, SUBJECT TO THE COMPANY'S AND THE
TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO
CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND
IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM
CONTAINED IN THE INDENTURE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO
THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE THEN
HOLDER OF THIS SECURITY AFTER THE RESALE RESTRICTION TERMINATION DATE. ANY
TRANSFEREE OF THIS SECURITY SHALL BE DEEMED TO HAVE REPRESENTED EITHER
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(A) THAT IT IS NOT USING THE ASSETS OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT ("ERISA") OR THE INTERNAL
REVENUE CODE (THE "CODE") TO PURCHASE THIS SECURITY OR (B) THAT ITS
PURCHASE AND CONTINUED HOLDING OF THE SECURITY WILL BE COVERED BY A U.S.
DEPARTMENT OF LABOR CLASS EXEMPTION (WITH RESPECT TO PROHIBITED
TRANSACTIONS UNDER SECTION 406(a) OF ERISA).
(B) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security represented by a
Global Note) pursuant to Rule 144 under the Securities Act or an
effective registration statement under the Securities Act (including
the Shelf Registration Statement):
(1) in the case of any Transfer Restricted Security
that is a Definitive Note, the Registrar shall permit the
Holder thereof to exchange such Transfer Restricted Security
for a Definitive Note that does not bear the legend set forth
above and rescind any restriction on the transfer of such
Transfer Restricted Security; and
(2) any such Transfer Restricted Security represented
by a Global Note shall not be subject to the provisions set
forth in (i) above (such sales or transfers being subject only
to the provisions of Section 2.05(c) hereof); provided,
however, that with respect to any request for an exchange of a
Transfer Restricted Security that is represented by a Global
Note for a Definitive Note that does not bear a legend, which
request is made in reliance upon Rule 144 or an effective
registration statement, the Holder thereof shall certify in
writing to the Registrar that such request is being made
pursuant to Rule 144 or an effective registration statement
(such certification to be substantially in the form of Exhibit
C hereto.)
(h) At such time as all beneficial interests in a Global Note have
either been exchanged for Definitive Notes, redeemed, repurchased or cancelled,
such Global Note shall be returned to or retained and cancelled by the Trustee.
At any time prior to such cancellation, if any beneficial interest in a Global
Note is exchanged for Definitive Notes, redeemed, repurchased or cancelled, the
principal amount of Notes represented by such Global Note shall be reduced and
an endorsement shall be made on such Global Note, by the Trustee or the Note
Custodian, at the direction of the Trustee, to reflect such reduction.
(i) All Definitive Notes and Global Notes issued upon any
registration of transfer or exchange of Definitive Notes or Global Notes shall
be the valid obligations of the Company, evidencing the same debt, and entitled
to the same benefits under this
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Indenture, as the Definitive Notes or Global Notes surrendered upon such
registration of transfer or exchange.
The Registrar shall not be required (A) to issue, to register the
transfer of or to exchange Notes during a period beginning at the opening of
business 15 days before the day of any selection of Notes for redemption under
Section 3.02 hereof and ending at the close of business on the day of selection,
(B) to register the transfer of or to exchange any Note so selected for
redemption in whole or in part, except the unredeemed portion of any Note being
redeemed in part or (C) to register the transfer of or to exchange a Note
between a record date and the next succeeding Interest Payment Date.
No service charge shall be made to a Holder for any registration of
transfer or exchange (except as otherwise expressly permitted herein), but the
Company may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable and any other expenses (including the fees
and expenses of the Trustee) in connection therewith (other than such transfer
tax or similar governmental charge payable upon exchanges pursuant to Section
2.06 or 9.05).
SECTION 2.06. REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Trustee, or the Company
and the Trustee receive evidence to their satisfaction of the destruction, loss
or theft of any Note, the Company shall issue and the Trustee, upon the written
order of the Company signed by two Officers, shall authenticate a replacement
Note if the Trustee's requirements are met. If required by the Trustee or the
Company, an indemnity bond must be supplied by the Holder that is sufficient in
the judgment of the Trustee and the Company to protect the Company, the Trustee,
the Agent or any authenticating agent from any loss which any of them may suffer
if a Note is replaced. The Company and the Trustee may charge for their expenses
in replacing a Note.
Every replacement Note is an additional obligation of the Company.
SECTION 2.07. OUTSTANDING NOTES.
The Notes outstanding at any time are all the Notes authenticated by
the Trustee except for those canceled by it, those delivered to it for
cancellation and those described in this Section 2.07 as not outstanding.
If a Note is replaced pursuant to Section 2.06, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under Section
4.01, it ceases to be outstanding and interest on it ceases to accrue as of the
date it is deemed paid. Upon a "legal defeasance" pursuant to Section 8.02 or a
"covenant defeasance"
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pursuant to Section 8.03, the Notes shall be deemed to be outstanding or not
outstanding as provided in the applicable Section 8.02 or 8.03.
Except as set forth in Section 2.08, a Note does not cease to be
outstanding because the Company or an Affiliate holds the Note.
SECTION 2.08. TREASURY NOTES.
In determining whether the Holders of the required principal amount
of Notes have concurred in any direction, waiver or consent, Notes owned by the
Company or any Guaranteeing Subsidiary or by any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company shall be considered as though not outstanding, except that for the
purposes of determining whether the Trustee shall be protected in relying on any
such direction, waiver or consent, only Notes which the Trustee actually knows
are so owned shall be so disregarded.
SECTION 2.09. TEMPORARY NOTES.
Until definitive Notes are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Notes. Temporary Notes
shall be substantially in the form of definitive Notes but may have variations
that the Company considers appropriate for temporary Notes. Without unreasonable
delay, the Company shall prepare and the Trustee shall authenticate definitive
Notes in exchange for temporary Notes.
SECTION 2.10 CANCELLATION.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee shall cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation, and, upon request of the
Company, certification of their destruction shall be delivered to the Company
unless, by a written order signed by two Officers, the Company shall direct that
canceled Notes be returned to it. The Company may not issue new Notes to replace
Notes that it has paid or that have been delivered to the Trustee for
cancellation.
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SECTION 2.11. DEFAULTED INTEREST.
If the Company or any Guaranteeing Subsidiary defaults in a payment
of interest on the Notes, it shall pay the defaulted interest in any lawful
manner plus, to the extent lawful, interest payable on the defaulted interest,
to the Persons who are Holders on a subsequent special record date, in each case
at the rate provided in the Notes. The Company, with the consent of the Trustee,
shall fix each such special record date and payment date. At least 15 days
before the special record date, the Company (or, upon written request of the
Company, the Trustee, in the name of and at the expense of the Company) shall
mail to Holders a notice that states the special record date, the related
payment date and the amount of such interest to be paid.
SECTION 2.12. NOTES ISSUABLE IN THE FORM OF A GLOBAL NOTE.
(a) If the Company shall establish that the Notes are to be issued
in whole or in part in the form of one or more Global Notes, then the Company
shall execute and the Trustee or an agent thereof shall, in accordance with
Section 2.02 and the written order of the Company delivered to the Trustee or
its agent thereunder, authenticate and deliver such Global Note or Notes, which
(i) shall represent, and shall be denominated in an amount equal to the
aggregate principal amount of the outstanding Notes to be represented by such
Global Note or Notes, or such portion thereof as the Company shall specify in a
written order of the Company signed by two Officers, (ii) shall be registered in
the name of the Depositary for such Global Note or Notes or its nominee, (iii)
shall be delivered by the Trustee or its agent to the Depositary or pursuant to
the Depositary's instruction and (iv) shall bear a legend substantially to the
following effect: "Unless and until it is exchanged in whole or in part for
securities in definitive form, this security may not be transferred except as a
whole by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary. Unless this certificate is presented by an authorized
representative of the Depositary to the Company or its agent for registration of
transfer, exchange, or payment, and any certificate issued is registered in the
name of the nominee of the Depositary or in such other name as is requested by
an authorized representative of the Depositary (and any payment is made to the
nominee of the Depositary or to such other entity as is requested by an
authorized representative of the Depositary), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, the nominee of the Depositary, has an interest herein."
(b) Notwithstanding any other provision of this Section 2.12 or of
Section 2.05, and subject to the provisions of paragraph (c) below, a Global
Note may be transferred, in whole but not in part and in the manner provided in
Section 2.05, only to a nominee of the Depositary for such Global Note, or to
the Depositary, or a successor Depositary for such Global Note selected or
approved by the Company, or to a nominee
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of such successor Depositary.
(c) (i) If at any time the Depositary for a Global Note notifies the
Company that it is unwilling or unable to continue as Depositary for such Global
Note or if at any time the Depositary for the Notes shall no longer be eligible
or in good standing under the Exchange Act or any other applicable statute or
regulation, the Company shall appoint a successor Depositary with respect to
such Global Note. If a successor Depositary for such Global Note is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such ineligibility, the Company and the Guaranteeing
Subsidiaries will execute, and the Trustee or an agent thereof, upon receipt of
a written order of the Company signed by two Officers for the authentication and
delivery of individual Definitive Notes in exchange for such Global Note, will
authenticate and deliver, individual Definitive Notes of like tenor and terms in
an aggregate principal amount equal to the principal amount of the Global Note
in exchange for such Global Note.
(ii) The Company may at any time and in its sole discretion
determine that the Notes issued in the form of one or more Global Notes shall no
longer be represented by such Global Note or Notes. In such event the Company
will execute, and the Trustee, upon receipt of a written order of the Company
signed by two Officers for the authentication and delivery of individual
Definitive Notes in exchange in whole or in part for such Global Note, will
authenticate and deliver individual Definitive Notes of like tenor and terms in
an aggregate principal amount equal to the principal amount of such Global Note
or Notes in exchange for such Global Note or Notes.
(iii) If specified by the Company pursuant to a written order of the
Company signed by two Officers, the Depositary for a Global Note may surrender
such Global Note in exchange in whole or in part for individual Definitive Notes
of like tenor and terms on such terms as are acceptable to the Company and such
Depositary. Thereupon the Company shall execute, and the Trustee or an agent
thereof, upon a written order of the Company signed by two Officers, shall
authenticate and deliver, without service charge, (1) to each Person specified
by such Depositary a new Definitive Note or Notes of like tenor and terms and of
any authorized denomination as requested by such Person in an aggregate
principal amount equal to and in exchange for such Person's beneficial interest
as specified by such Depositary in the Global Note; and (2) to such Depositary a
new Global Note of like tenor and terms and in an authorized denomination equal
to the difference, if any, between the principal amount of the surrendered
Global Note and the aggregate principal amount of Definitive Notes delivered to
Holders thereof.
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(iv) In any exchange provided for in (i), (ii) or (iii) of this
paragraph (c), the Company will execute and the Trustee or an agent thereof will
authenticate and deliver individual Definitive Notes in registered form in
authorized denominations. Upon the exchange of the entire principal amount of a
Global Note for individual Definitive Notes, such Global Notes shall be
cancelled by the Trustee or an agent thereof. Except as provided in (iii) above,
Definitive Notes issued in exchange for a Global Note pursuant to this Section
shall be registered in such names and in such authorized denominations as the
Depositary for such Global Note, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct either the Trustee or the
Registrar. Such Trustee or the Registrar shall deliver such Definitive Notes to
the Persons in whose names such Notes are so registered.
ARTICLE 3
REDEMPTION AND PREPAYMENT
SECTION 3.01. NOTICES TO TRUSTEE.
If the Company elects to redeem Notes pursuant to the optional redemption
provisions of Section 3.07 hereof, it shall furnish to the Trustee, at least 30
days but not more than 60 days before a redemption date (unless a shorter period
is acceptable to the Trustee), an Officers' Certificate setting forth (i) the
Section of this Indenture pursuant to which the redemption shall occur, (ii) the
redemption date, (iii) the principal amount of Notes to be redeemed and (iv) the
redemption price.
If the Company is required to make an offer to purchase Notes pursuant to
the provisions of Sections 3.09 or 4.14 hereof, it shall furnish to the Trustee,
at least 30 days before the scheduled purchase date, an Officers' Certificate
setting forth (i) the Section of this Indenture pursuant to which the offer to
purchase shall occur, (ii) the terms of the offer, (iii) the Purchase price,
(iv) the principal amount of the Notes to be purchased, (v) the purchase date,
(vi) a statement to the effect that all conditions precedent required to be met
as part of such offers to purchase have been met and (vii) further setting forth
a statement to the effect that (a) the Company or one of its Restricted
Subsidiaries has effected an Asset Sale and there are Excess Proceeds
aggregating more than $5.0 million and the amount of such Excess Proceeds or (b)
a Change of Control has occurred, as applicable.
SECTION 3.02. SELECTION OF NOTES TO BE PURCHASED OR REDEEMED.
If less than all of the Notes are to be redeemed at any time, selection of
the Notes for redemption shall be made by the Trustee 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, on a pro rata basis, by lot
or by such other method as the Trustee deems fair and appropriate; provided that
no Notes with a principal amount of $1,000 or less shall be redeemed in part.
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The Trustee shall promptly notify the Company in writing of the Notes
selected for redemption and, in the case of any Note selected for partial
purchase or redemption, the principal amount thereof to be redeemed. Notes and
portions of Notes selected shall be in amounts of $1,000 or whole multiples of
$1,000; except that if all of the Notes of a Holder are to be purchased or
redeemed, the entire outstanding amount of Notes held by such Holder, even if
not a multiple of $1,000, shall be redeemed. Except as provided in the preceding
sentence, provisions of this Indenture that apply to Notes called for redemption
also apply to portions of Notes called for redemption.
SECTION 3.03. NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a redemption date, the
Company shall mail or cause to be mailed, by first class mail, a notice of
redemption to each Holder whose Notes are to be redeemed at its registered
address.
The notice shall identify the Notes to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price and accrued interest and Liquidated Damages, if
any;
(c) if any Note is being redeemed in part, the portion of the principal
amount of such Note to be redeemed and that, after the redemption
date upon surrender of such Note, a new Note or Notes in principal
amount equal to the unredeemed portion shall be issued upon
surrender of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
(f) that, unless the Company defaults in making such redemption payment,
interest and Liquidated Damages, if any, on Notes called for
redemption cease to accrue on and after the redemption date;
(g) the paragraph of the Notes and/or Section of this Indenture pursuant
to which the Notes called for redemption are being redeemed; and
(h) that no representation is made as to the correctness or accuracy of
the CUSIP number, if any, listed in such notice or printed on the
Notes.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at its expense; provided, however, that the Company
shall have
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delivered to the Trustee, at least 45 days prior to the redemption date (or such
shorter period as shall be acceptable to the Trustee), an Officers' Certificate
requesting that the Trustee give such notice and setting forth the information
to be stated in such notice as provided in the preceding paragraph. The notice
mailed in the manner herein provided shall be conclusively presumed to have been
duly given whether or not the Holder receives such notice. In any case, failure
to give such notice by mail or any defect in the notice to the Holder of any
Note shall not affect the validity of the proceeding for the redemption of any
other Note.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Notes called for redemption become irrevocably due and payable on the
Redemption Date at the redemption price, plus accrued and unpaid interest and
Liquidated Damages, if any, to such date. A notice of redemption may not be
conditional.
SECTION 3.05. DEPOSIT OF REDEMPTION OR PURCHASE PRICE.
On or before 12:00 p.m. (New York City time) on each redemption date or
the date on which Notes must be accepted for purchase pursuant to Section 3.09
or 4.14, the Company shall deposit with the Trustee or with the Paying Agent
money sufficient to pay the redemption price of and accrued and unpaid interest
and Liquidated Damages, if any, on all Notes to be redeemed or purchased on that
date. The Trustee or the Paying Agent shall promptly return to the Company upon
its written request any money deposited with the Trustee or the Paying Agent by
the Company in excess of the amounts necessary to pay the redemption price of
(including any applicable premium), accrued interest on and Liquidated Damages,
if any, all Notes to be redeemed or purchased.
If Notes called for redemption or tendered in an Asset Sale Offer or
Change of Control Offer are paid or if the Company has deposited with the
Trustee or Paying Agent money sufficient to pay the redemption or purchase price
of, unpaid and accrued interest and Liquidated Damages, if any, on all Notes to
be redeemed or purchased on and after the redemption or purchase date, interest
and Liquidated Damages, if any, shall cease to accrue on the Notes or the
portions of Notes called for redemption or tendered and not withdrawn in an
Asset Sale Offer or Change of Control Offer (regardless of whether certificates
for such securities are actually surrendered). Notwithstanding Sections 3.09 and
Sections 3.14, if a Note is redeemed or purchased on or after an interest record
date but on or prior to the related interest payment date, then any accrued and
unpaid interest and Liquidated Damages, if any, shall be paid to the Person in
whose name such Note was registered at the close of business on such record
date. If any Note called for redemption shall not be so paid upon surrender for
redemption because of the failure of the Company to comply with the preceding
paragraph, interest shall be paid on the unpaid principal, and Liquidated
Damages, if any, from the redemption or purchase date until such principal is
paid, and to the extent lawful, on any interest not paid on such unpaid
principal, in each case at the rate provided in the Notes and in Section 4.01
hereof.
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SECTION 3.06. NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, the Company shall issue
and, upon the Company's written request, the Trustee shall authenticate for the
Holder at the expense of the Company a new Note equal in principal amount to the
unredeemed portion of the Note surrendered.
SECTION 3.07. OPTIONAL REDEMPTION.
Except as set forth in the next paragraph, the Notes shall not be
redeemable at the Company's option prior to August 15, 2002. Thereafter, the
Notes shall be subject to redemption at the option of the Company, in whole or
in part, upon not less than 30 nor more than 60 days' notice, at the redemption
prices (expressed as percentages of principal amount) set forth below plus
accrued and unpaid interest and Liquidated Damages, if any, thereon to the
applicable redemption date, if redeemed during the twelve-month period beginning
on August 15 of the years indicated below:
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YEAR PERCENTAGE
---- ----------
2002.............................. 104.875%
2003.............................. 103.250%
2004.............................. 101.625%
2005 and thereafter............... 100.000%
Notwithstanding the foregoing, at any time prior to August 15, 2000, the
Company on one or more occasions may redeem up to 25% of the aggregate principal
amount of Notes originally issued with any of the net proceeds of one or more
public offerings of common stock of the Company at a redemption price of 109.75%
of the principal amount thereof plus accrued and unpaid interest and Liquidated
Damages, if any, thereon to the applicable date of redemption; provided that at
least 75% of the aggregate principal amount of the Notes remain outstanding
immediately after the occurrence of each such redemption.
Any redemption pursuant to this Section 3.07 shall be made pursuant to the
provisions of Sections 3.01 through 3.06 hereof.
SECTION 3.08. MANDATORY REDEMPTION.
Except as set forth under the Sections 3.09, 4.10 and 4.14 hereof, the
Company shall not be required to make mandatory redemption or sinking fund
payments with respect to the Notes.
SECTION 3.09. OFFER TO PURCHASE BY APPLICATION OF EXCESS PROCEEDS.
In the event that, pursuant to Section 4.10 hereof, the Company shall be
required to commence an offer to all Holders to purchase Notes (an "Asset Sale
Offer"), it shall follow the procedures specified below:
The Asset Sale Offer shall remain open for a period of twenty (20)
Business Days after the Commencement Date relating to such Asset Sale Offer,
except to the extent that a longer period is required by applicable law (as so
extended, the "Offer Period"). No later than five Business Days after the
termination of the Offer Period (the "Purchase Date"), the Company shall
purchase the principal amount of Notes required to be purchased pursuant to
Sections 3.02 and 4.10 hereof (the "Offer Amount") or, if less than the Offer
Amount has been tendered, all Notes tendered in response to the Asset Sale
Offer.
If the Purchase Date is on or after an interest record date and on or
before the related interest payment date, any accrued and unpaid interest and
Liquidated Damages, if any, shall be paid to the Person in whose name a Note is
registered at the close of business on such record date, and no additional
interest or Liquidated Damages, if any, shall be payable to Holders who tender
Notes pursuant to the Asset Sale Offer.
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No later than the date which is five (5) Business Days after the date on
which the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company
shall notify the Trustee of such Asset Sale Offer in accordance with Section
3.09 hereof and commence or cause to be commenced the Asset Sale Offer on a date
no later than fifteen (15) Business Days after such notice (the "Commencement
Date").
On the Commencement Date, as defined in Section 4.10, of any Asset Sale
Offer, the Company shall send or cause to be sent, by first class mail, a notice
to the Trustee and each of the Holders. Such notice, which shall govern the
terms of the Asset Sale Offer, shall contain all instructions and materials
necessary to enable such Holders to tender Notes pursuant to the Asset Sale
Offer and shall state:
(a) that the Asset Sale Offer is being made pursuant to this
Section 3.09 and Section 4.10 hereof and the length of time the Asset Sale
Offer shall remain open;
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that any Note not tendered or accepted for payment shall
continue to accrue interest;
(d) that, unless the Company defaults in the payment of the
purchase price, any Note accepted for payment pursuant to the Asset Sale
Offer shall cease to accrue interest and Liquidated Damages, if any, after
the Purchase Date;
(e) that Holders electing to have a Note purchased pursuant to any
Asset Sale Offer shall be required to surrender the Note, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Note
completed, or transfer by book-entry transfer, to the Company, a
depositary, if appointed by the Company, or a Paying Agent at the address
specified in the notice not later than the close of business on the last
day of the Offer Period;
(f) that Holders shall be entitled to withdraw their election if
the Company, the depositary or the Paying Agent, as the case may be,
receives, not later than the close of business on the last day of the
Offer Period, a telegram, telex, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of the Note the Holder
delivered for purchase and a statement that such Holder is withdrawing his
election to have such Note purchased;
(g) that, if the aggregate principal amount of Notes surrendered
by Holders exceeds the Offer Amount, the Company shall select the Notes to
be purchased on a pro rata basis (with such adjustments as may be deemed
appropriate by the Company so that only Notes in denominations of $1,000,
or integral multiples thereof, shall be purchased); and
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(h) that Holders whose Notes were purchased only in part shall be
issued new Notes equal in principal amount to the unpurchased portion of
the Notes surrendered (or transferred by book-entry transfer).
On or before 12:00 p.m. (New York City time) on each Purchase Date, the
Company shall irrevocably deposit with the Trustee or Paying Agent in
immediately available funds the aggregate purchase price with respect to a
principal amount of Notes equal to the Offer Amount, together with accrued and
unpaid interest and Liquidated Damages, if any, thereon, to be held for Payment
in accordance with the terms of this Section 3.09. On the Purchase Date, the
Company shall, to the extent lawful, (i) accept for payment, on a pro rata basis
to the extent necessary, the Offer Amount of Notes or portions thereof tendered
pursuant to the Asset Sale Offer, or if less than the Offer Amount has been
tendered, all Notes tendered, (ii) deliver or cause the Paying Agent or
depositary, as the case may be, to deliver to the Trustee Notes so accepted and
(iii) deliver to the Trustee an Officers' Certificate stating that such Notes or
portions thereof were accepted for payment by the Company in accordance with the
terms of this Section 3.09. The Company, the depository or the Paying Agent, as
the case may be, shall promptly (but in any case not later than three (3)
Business Days after the Purchase Date) mail or deliver to each tendering Holder
an amount equal to the purchase price of the Notes tendered by such Holder and
accepted by the Company for purchase, plus any accrued and unpaid interest and
Liquidated Damages, if any, thereon, and the Company shall promptly issue a new
Note, and the Trustee, shall authenticate and mail or deliver such new Note, to
such Holder, equal in principal amount to any unpurchased portion of such
Holder's Notes surrendered. Any Note not so accepted shall be promptly mailed or
delivered by the Company to the Holder thereof. The Company shall publicly
announce in a newspaper of general circulation or in a press release provided to
a nationally recognized financial wire service the results of the Asset Sale
Offer on the Purchase Date.
Other than as specifically provided in this Section 3.09, any purchase
pursuant to this Section 3.09 shall be made pursuant to the provisions of
Sections 3.01, 3.02, 3.05 and 3.06 hereof.
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ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF NOTES.
The Company shall pay or cause to be paid the principal of, premium, if
any, and interest on the Notes on the dates and in the manner provided in the
Notes. The Company shall pay all Liquidated Damages, if any, in the same manner
on the dates and in the amounts set forth in the Registration Rights Agreement.
Principal, premium, if any interest and Liquidated Damages, if any, shall be
considered paid for all purposes hereunder on the date the Paying Agent, if
other than the Company or a Subsidiary thereof, holds as of 10:00 a.m. (New York
City time) money deposited by the Company in immediately available funds and
designated for and sufficient to pay all such principal, premium, if any,
interest and Liquidated Damages, if any, then due.
The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at the rate equal to
1% per annum in excess of the then applicable interest rate on the Notes to the
extent lawful; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest and
Liquidated Damages (without regard to any applicable grace period) at the same
rate to the extent lawful.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in the Borough of Manhattan, the City of New
York, an office or agency (which may be an office of the Trustee or an affiliate
of the Trustee or Registrar) where Notes may be surrendered for registration of
transfer or for exchange and where notices and demands to or upon the Company in
respect of the Notes and this Indenture may be served. The Company shall give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other offices
or agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided, however,
that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in the Borough of Manhattan,
the City of New York for such purposes. The Company shall give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the Trustee as
one
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such office or agency of the Company in accordance with Section 2.03 hereof.
SECTION 4.03. REPORTS.
Whether or not required by the rules and regulations of the Commission, so
long as any Notes are outstanding, the Company shall furnish to the Holders of
Notes (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" that describes
the financial condition and results of operations of the Company and its
Restricted Subsidiaries 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, whether or
not required by the rules and regulations of the Commission, from and after the
consummation of the Exchange Offer or the effectiveness of the Shelf
Registration Statement (as defined in the Registration Rights Agreement), the
Company will file a copy of all such information and reports with the Commission
for public availability (unless the Commission will not accept such a filing)
and make such information available to securities analysts and prospective
investors upon request. In addition, the Company and the Guaranteeing
Subsidiaries have agreed that, for so long as any Notes remain outstanding, they
will furnish to Holders and to securities analysts and prospective investors,
upon their request, the information required to be delivered pursuant to Rule
144A(d)(4) under the Securities Act. The Company shall at all times comply with
TIA Section 314(a).
The financial information to be distributed to Holders of Notes shall be
filed with the Trustee and mailed to the Holders at their addresses appearing in
the register of Notes maintained by the Registrar, within 120 days after the end
of the Company's fiscal years and within 60 days after the end of each of the
first three quarters of each such fiscal year.
The Company shall provide the Trustee with a sufficient number of copies
of all reports and other documents and information and if requested by the
Company the Trustee will deliver such reports to the Holders under this Section
4.03.
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SECTION 4.04. COMPLIANCE CERTIFICATE.
(a) The Company shall deliver to the Trustee, within 120 days after the
end of each fiscal year, an Officers' Certificate stating that a review of the
activities of the Company and its Subsidiaries during the preceding fiscal year
has been made under the supervision of the signing Officers with a view to
determining whether each has kept, observed, performed and fulfilled its
obligations under this Indenture (including with respect to any Restricted
Payments made during such year, the basis upon which the calculations required
by Section 4.07 hereof were computed, which calculations may be based on the
Company's latest available financial statements), and further stating, as to
each such Officer signing such certificate, that to the best of his or her
knowledge each entity has kept, observed, performed and fulfilled each and every
covenant contained in this Indenture and is not in default in the performance or
observance of any of the terms, provisions and conditions of this Indenture (or,
if a Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which he or she may have knowledge and what
action the Company is taking or proposes to take with respect thereto) and that
to the best of his or her knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal of, interest
or Liquidated Damages, if any, on the Notes is prohibited or if such event has
occurred, a description of the event and what action the Company is taking or
proposes to take with respect thereto.
(b) So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accounts, in connection with the year-end
financial statements delivered pursuant to Section 4.03 hereof, the Company
shall use its best efforts to deliver a written statement of the Company's
independent public accountants (who shall be a firm of established national
reputation reasonably satisfactory to the Trustee) that in making the
examination necessary for certification of such financial statements, nothing
has come to their attention that would lead them to believe that the Company has
violated any provisions of Article Four or Section 5.01 hereof or, if any such
violation has occurred, specifying the nature and period of existence thereof,
it being understood that such accountants shall not be liable directly or
indirectly to any Person for any failure to obtain knowledge of any such
violation. In the event that such written statement of the Company's independent
public accountants cannot be obtained, the Company shall deliver an Officer's
Certificate certifying that it has used its best efforts to obtain such
statements and was unable to do so.
(c) The Company shall, so long as any of the Notes are outstanding,
deliver to the Trustee, forthwith upon any Officer becoming aware of any Default
or Event of Default, an Officers' Certificate specifying such Default or Event
of Default and what action the Company is taking or proposes to take with
respect thereto.
SECTION 4.05. TAXES.
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The Company shall pay, and shall cause each of its Subsidiaries to pay,
prior to delinquency, all material taxes, assessments, and governmental levies,
except such as are contested in good faith and by appropriate proceedings and
with respect to which appropriate reserves have been taken in accordance with
GAAP.
SECTION 4.06. STAY, EXTENSION AND USURY LAWS.
The Company and each Guaranteeing Subsidiary covenants (to the extent that
it may lawfully do so) that it shall not at any time insist upon, plead, or in
any manner whatsoever claim or take the benefit or advantage of, any stay,
extension or usury law wherever enacted, now or at any time hereafter in force,
that may affect the covenants or the performance of this Indenture; and the
Company and each Guaranteeing Subsidiary (to the extent that it may lawfully do
so) hereby expressly waives all benefit or advantage of any such law, and
covenants that it shall not, by resort to any such law, hinder, delay or impede
the execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law has been enacted.
SECTION 4.07. RESTRICTED PAYMENTS.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or make
any distribution (including in connection with any merger or consolidation) on
account of any Equity Interests of the Company or any of its Restricted
Subsidiaries (other than dividends or distributions payable in Equity Interests
(other than Disqualified Stock) of the Company or dividends or distributions
payable to the Company or any Wholly Owned Restricted Subsidiary of the
Company); (ii) purchase, redeem or otherwise acquire or retire for value any
Equity Interests of the Company, any of its Restricted Subsidiaries or any other
Affiliate of the Company (other than any such Equity Interests owned by the
Company or any Wholly Owned Restricted Subsidiary of the Company); (iii) make
any principal payment on, or purchase, redeem, defease or otherwise acquire or
retire for value any Indebtedness that is subordinated in right of payment to
the Notes or a Subsidiary Guarantee, except at the original final maturity
thereof or in accordance with the scheduled mandatory redemption or repayment
provisions set forth in the original documentation governing such Indebtedness
(but not pursuant to any mandatory offer to repurchase upon the occurrence of
any event); or (iv) make any Restricted Investment (all such payments and other
actions set forth in clauses (i) through (iv) above being collectively referred
to as "Restricted Payments"), unless, at the time of such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing
or would occur as a consequence thereof, and
(b) the Company would be able to incur at least $1.00 of additional
Indebtedness under the Fixed Charge Coverage Ratio test set forth in
the first paragraph of Section 4.09 hereof, and
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(c) such Restricted Payment, together with the aggregate of all other
Restricted Payments made by the Company and its Restricted
Subsidiaries after the date of this Indenture (excluding Restricted
Payments permitted by clauses (ii), (iii), (v), (vi) and (viii) of
the next succeeding paragraph), is less than the sum of (1) 50% of
the Consolidated Net Income of the Company for the period (taken as
one accounting period) beginning on April 1, 1997 to the end of the
Company's most recently ended fiscal quarter for which internal
financial statements are available at the time of such Restricted
Payment (or, if such Consolidated Net Income for such period is a
deficit, minus 100% of such deficit), plus (2) 100% of the aggregate
net cash proceeds received by the Company from contributions of
capital or the issue or sale since the date of the Indenture of
Equity Interests of the Company or of debt securities of the Company
that have been converted into such Equity Interests (other than
Equity Interests (or convertible debt securities) sold to a
Subsidiary of the Company and other than Disqualified Stock or debt
securities that have been converted into Disqualified Stock), plus
(3) to the extent that any Restricted Investment that was made after
the date of the Indenture is sold for cash or otherwise liquidated
or repaid for cash, the cash return of capital with respect to such
Restricted Investment (less the cost of disposition, if any);
provided that no cash proceeds received by the Company from the
issue or sale of any Equity Interests issued by the Company will be
counted in determining the amount available for Restricted Payments
under this clause (c) to the extent such proceeds were used to
redeem, repurchase, retire or acquire any Equity Interests of the
Company pursuant to clause (ii) of the next succeeding paragraph, to
defease, redeem or repurchase any subordinated Indebtedness pursuant
to clause (iii) of the next succeeding paragraph or to repurchase,
redeem or acquire any Equity Interests of the Company pursuant to
clause (iv) of the next succeeding paragraph.
The foregoing provisions will not prohibit any or all of the following
(each and all of which (1) constitutes an independent exception to the foregoing
provisions and (2) may occur in addition to any action permitted to occur under
any other exception): (i) the payment of any dividend within 60 days after the
date of declaration thereof, if at such date of declaration such payment would
have complied with the provisions of the Indenture; (ii) the redemption,
repurchase, retirement or other acquisition of any Equity Interests of the
Company in exchange for, or out of the net proceeds of, the substantially
concurrent sale (other than to a Subsidiary of the Company) of other Equity
Interests of the Company (other than Disqualified Stock); provided that the
amount of any such net cash proceeds that are utilized for any such redemption,
repurchase, retirement or other acquisition shall be excluded from clause (c)(2)
of the preceding paragraph; (iii) the defeasance, redemption or repurchase of
subordinated Indebtedness with the net proceeds from an incurrence of Permitted
Refinancing Indebtedness or the substantially concurrent sale (other than to a
Subsidiary of the Company) of Equity Interests of the Company (other than
Disqualified Stock); provided that the amount of any such net cash proceeds
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that are utilized for any such redemption, repurchase, retirement or other
acquisition shall be excluded from clause (c)(2) of the preceding paragraph;
(iv) the funding of loans (but not including the forgiveness of any such loan)
to executive officers, directors or shareholders for relocation loans, bonus
advances and other purposes consistent with past practices or the purchase,
redemption or other acquisition for value of shares of Capital Stock of the
Company (other than Disqualified Stock) or options on such shares held by the
Company's or the Restricted Subsidiaries' officers or employees or former
officers or employees (or their estates or trusts or beneficiaries under their
estates or trusts for the benefit of such beneficiaries) upon the death,
disability, retirement or termination of employment of such current or former
officers or employees pursuant to the terms of an employee benefit plan or any
other agreement pursuant to which such shares of Capital Stock or options were
issued or pursuant to a severance, buy-sell or right of first refusal agreement
with such current or former officers or employees provided that the aggregate
amount of any such loans funded and cash consideration paid, or distributions
made, pursuant to this clause (iv) does not in any one fiscal year exceed $1.0
million; (v) the payment of dividends by a Restricted Subsidiary on any class of
common stock of such Restricted Subsidiary if such dividend is paid pro rata to
all holders of such class of common stock; (vi) the repurchase of any class of
common stock of a Restricted Subsidiary if such repurchase is made pro rata with
respect to such class of common stock; (vii) any other Restricted Payment (other
than (A) a dividend or other distribution on account of any Equity Interests of
the Company or any of its Restricted Subsidiaries and (B) a purchase, redemption
or other acquisition of any Equity Interests of the Company, any of its
Restricted Subsidiaries or any Affiliate of the Company) if the amounts thereof,
together with all other Restricted Payments made pursuant to this clause since
the date of the Indenture do not exceed $5.0 million; and (viii) the redemption,
repurchase, or other acquisition of Notes.
The Board of Directors may designate any Restricted Subsidiary to be an
Unrestricted Subsidiary; provided, however, that (i) no Default or Event of
Default shall have occurred and be continuing or would arise therefrom, (ii)
such designation, when considered as an Investment as described in the next
sentence, is at that time permitted under this Section 4.07 and (iii)
immediately after giving effect to such designation, the Company would be able
to incur at least $1.00 of additional Indebtedness under the Fixed Charge
Coverage Ratio set forth in the first paragraph of Section 4.09 hereof. All such
outstanding Investments shall be deemed to constitute Restricted Investments in
an amount equal to the greater of (i) the net book value of such Investments at
the time of such designation and (ii) the fair market value of such Investments
at the time of such designation. Such designation shall only be permitted if
such Restricted Investment would be permitted at such time and if such
Restricted Subsidiary otherwise meets the definition of an Unrestricted
Subsidiary.
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 by this Section 4.07 were computed, which calculations
shall be based upon the Company's latest
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available financial statements.
SECTION 4.08. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING RESTRICTED
SUBSIDIARIES.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or consensual restriction on the
ability of any Restricted Subsidiary to: (i)(A) pay dividends or make any other
distributions to the Company or any of its Restricted Subsidiaries on its
Capital Stock or (B) pay any Indebtedness owed to the Company or any of its
Restricted Subsidiaries; (ii) make loans or advances to the Company or any of
its Restricted Subsidiaries; or (iii) transfer any of its properties or assets
to the Company or any of its Restricted Subsidiaries, except for such
encumbrances or restrictions existing under or by reason of (a) Existing
Indebtedness, as in effect on the date of the Indenture; (b) the Credit Facility
as in effect on the date of the Indenture and any amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or
refinancings thereof; provided that such amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacement or
refinancings are not more restrictive in the aggregate than those contained in
the Credit Facility as in effect on the date of the Indenture; (c) the Indenture
and the Notes; (d) applicable law; (e) any instrument governing Indebtedness or
Capital Stock of a Person acquired by the Company or any of its Restricted
Subsidiaries, as in effect at the time of acquisition (except to the extent such
Indebtedness was incurred in connection with, or in contemplation of, such
acquisition), which encumbrance or restriction is not applicable to any Person,
or the properties or assets of any Person, other than the Person, or the
property or assets of the Person, so acquired, provided that in the case of
Indebtedness, such Indebtedness was permitted by the terms of the Indenture to
be incurred; (f) customary non-assignment provisions in leases and other
agreements entered into in the ordinary course of business and consistent with
past practices; (g) purchase money obligations for property acquired in the
ordinary course of business that impose restrictions of the nature described in
clause (iii) above on the property so acquired; (h) Permitted Refinancing
Indebtedness; provided that the restrictions contained in the agreements
governing such Permitted Refinancing Indebtedness are no more restrictive in the
aggregate than those contained in the agreements governing the Indebtedness
being refinanced; (i) an agreement that has been entered into for the sale or
disposition of all or substantially all of the Equity Interests or property or
assets of a Restricted Subsidiary; provided that such restrictions are limited
to the Restricted Subsidiary that is the subject of such agreement; or (j)
restrictions applicable to any Foreign Subsidiary pursuant to Indebtedness
permitted to be incurred pursuant to clause (x) of the second paragraph of
Section 4.09 hereof; provided that such restrictions shall be limited to
customary net worth, leverage, cash flow and other financial ratios applicable
to such Foreign Subsidiary, customary restrictions on mergers and consolidations
involving such Foreign Subsidiary, customary restrictions on transactions with
affiliates of such Foreign Subsidiary and customary provisions subordinating the
payment of intercompany Indebtedness owed by such Foreign Subsidiary to the
Company or any of its Restricted
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Subsidiaries upon the occurrence of a default in respect of Indebtedness of such
Foreign Subsidiary or its Subsidiaries and/or events of insolvency with respect
to such Foreign Subsidiary or its Subsidiaries; and provided further that in no
event shall any Indebtedness incurred by a Foreign Subsidiary prohibit such
Foreign Subsidiary from making any dividend or other distribution to the Company
or its Restricted Subsidiaries or from otherwise making any loan to the Company
or its Restricted Subsidiaries in the absence of a breach by such Foreign
Subsidiary of the covenants contained in such Indebtedness.
SECTION 4.09. INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF PREFERRED STOCK.
The Company shall not, and shall not permit any of its Guaranteeing
Subsidiaries to, directly or indirectly, Incur, contingently or otherwise, any
Indebtedness (including Acquired Debt) and the Company will not issue any
Disqualified Stock and will not permit any of its Guaranteeing Subsidiaries to
issue any shares of preferred stock; provided, however, that the Company and its
Guaranteeing Subsidiaries may Incur Indebtedness (including Acquired Debt) and
the Company may issue shares of Disqualified Stock if the Fixed Charge Coverage
Ratio for the Company's most recently ended four full fiscal quarters for which
internal financial statements are available (or where such incurrence or
issuance occurs on or prior to March 31, 1998, the Fixed Charge Coverage Ratio
shall be determined for the period beginning on January 1, 1997 through the most
recently ended fiscal quarter for which internal financial statements are
available) immediately preceding the date on which such additional Indebtedness
is incurred or such Disqualified Stock issued would have been at least (x) 2.00
to 1 if such incurrence or issuance occurs on or before June 30, 1999, or (y)
2.25 to 1 if such incurrence or issuance occurs at any time thereafter, in each
case, determined on a pro forma basis (including a pro forma application of the
net proceeds therefrom), as if the additional Indebtedness had been incurred, or
the Disqualified Stock had been issued, as the case may be, at the beginning of
such four-quarter period, provided that, if such incurrence or issuance was
incurred or issued on or prior to March 31, 1998, the aforementioned pro forma
calculations shall be made assuming such incurrence or issuance occurred on
January 1, 1997 rather than at the beginning of such four-quarter period.
The foregoing provisions will not apply to any of the following (each and
all of which (1) may be issued or incurred, (2) constitute an independent
exception to the foregoing provisions and (3) may be incurred in addition to any
other Indebtedness permitted to be incurred under any other exception): (i) the
incurrence by the Company or any Guaranteeing Subsidiary of Indebtedness and
letters of credit pursuant to any Credit Facility (with letters of credit being
deemed to have a principal amount equal to the maximum potential liability of
the Company or the relevant Guaranteeing Subsidiary thereunder) in an aggregate
principal amount outstanding at any one time not to exceed $75.0 million (A)(1)
less the aggregate amount of all mandatory repayments (a "Mandatory Repayment")
of the principal of any term Indebtedness under the Credit Facility that have
been made since the date of the Indenture pursuant to the amortization schedule
of any Credit Facility (other than any Mandatory Repayment made concurrently
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with refinancing or refunding of the Credit Facility), (B) plus the Excess
Amount and (C) less the aggregate amount of all Net Proceeds of Asset Sales
applied pursuant to clause (a) of the first sentence of the second paragraph
under Section 4.10 hereof to permanently reduce Indebtedness (and, in the case
of revolving Indebtedness, the commitments) under the Credit Facility or to cash
collateralize letters of credit and permanently reduce commitments with respect
to revolving Indebtedness under the Credit Facility; provided that the amount of
Indebtedness permitted to be incurred pursuant to the Credit Facility in
accordance with this clause (i) shall be in addition to any Indebtedness
permitted to be incurred pursuant to the Credit Facility or otherwise in
reliance on, and in accordance with, clause (ix) of this paragraph; (ii) the
incurrence by the Company and any Guaranteeing Subsidiary of Indebtedness
represented by the Notes and any Subsidiary Guarantee; (iii) the incurrence by
the Company or any of its Restricted Subsidiaries of Indebtedness represented by
Capital Lease Obligations, mortgage financings, purchase money obligations or
sale and leaseback transactions, in each case incurred for the purpose of
financing all or any part of the purchase price or cost of construction or
improvement of property used in the business of the Company or such Restricted
Subsidiary, in an aggregate principal amount not to exceed $15.0 million at any
time outstanding; provided that in no event shall the aggregate principal amount
of Indebtedness incurred in connection with sale and leaseback transactions
pursuant to this clause exceed $7.5 million at any time outstanding; (iv)
Existing Indebtedness; (v) the incurrence by the Company or any of its
Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for,
or the net proceeds of which are used to extend, refinance, renew, replace,
defease or refund, Indebtedness that was permitted by the Indenture; (vi) the
incurrence by the Company or any of its Restricted Subsidiaries of intercompany
Indebtedness between or among the Company and any of its Restricted
Subsidiaries; provided, however, that (a) any subsequent issuance or transfer
(other than for security purposes) of Equity Interests and (b) any subsequent
sale or other transfer (including for security purposes other than to secure
Indebtedness permitted to be incurred pursuant to clause (i) of this paragraph)
of such Indebtedness, in each case, that results in any such Indebtedness being
held by a Person other than the Company or any of its Restricted Subsidiaries
shall be deemed to constitute an incurrence of such Indebtedness by the Company
or such Restricted Subsidiary, as the case may be; (vii) the incurrence by the
Company or any of its Restricted Subsidiaries of Hedging Obligations that are
incurred for the purpose of fixing or hedging (a) interest rate risk with
respect to any floating rate Indebtedness of such Person so long as such
floating rate Indebtedness is permitted by the terms of the Indenture to be
outstanding or (b) exchange rate risk with respect to agreements or indebtedness
of such Person payable or denominated in a currency other than U.S. dollars;
(viii) the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse
Debt; provided, however, that if any such Indebtedness ceases to be Non-Recourse
Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an
incurrence of Indebtedness by a Restricted Subsidiary of the Company; (ix) the
incurrence by the Company and any Guaranteeing Subsidiary of Indebtedness in an
aggregate principal amount at any time outstanding not to exceed $10.0 million;
(x) the incurrence by any Foreign Subsidiary of Indebtedness and letters of
credit to fund working capital and capital expenditure requirements (with
letters of credit being deemed
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to have a principal amount equal to the maximum potential liability of such
Foreign Subsidiary thereunder) in an aggregate maximum principal amount
outstanding at any one time not to exceed $5.0 million; (xi) Obligations in
respect of performance and surety bonds provided by the Company or any
Guaranteeing Subsidiary in the ordinary course of business and (xii) the
incurrence or issuance by any Restricted Subsidiary of the Company of
Indebtedness (in addition to Indebtedness that may be incurred or issued
pursuant to any other clause of this paragraph) in an aggregate principal amount
not to exceed $1.0 million.
SECTION 4.10. ASSET SALES.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the
Restricted Subsidiary, as the case may be) receives consideration at the time of
such Asset Sale at least equal to the fair market value (as determined in good
faith by the Board of Directors of the Company and set forth in an Officers'
Certificate delivered to the Trustee) of the assets or Equity Interests issued
or sold or otherwise disposed of and (ii) at least 75% of the consideration
therefor received by the Company or such Restricted Subsidiary is in the form of
cash or Cash Equivalents; provided that the amount of (x) any liabilities (as
shown on the Company's or such Restricted Subsidiary's most recent balance
sheet), of the Company or any Restricted Subsidiary (other than liabilities that
are by their terms subordinated to the Notes or, in the case of liabilities of a
Restricted Subsidiary, the Subsidiary Guarantee of such Subsidiary) that are
assumed by the transferee of any such assets and (y) any securities, notes or
other obligations received by the Company or any such Restricted Subsidiary from
such transferee that are converted by the Company or such Restricted Subsidiary
into cash (to the extent of the cash received) within 180 days after receipt,
shall be deemed to be cash for purposes of this provision.
Within 360 days after the receipt of any Net Proceeds from an Asset Sale,
the Company may apply such Net Proceeds, at its option, (a) to repay Senior Debt
or Pari Passu Indebtedness (provided that if the Company shall so reduce Pari
Passu Indebtedness, it will equally and ratably make an Asset Sale Offer (in
accordance with the procedures set forth below for an Asset Sale Offer) to all
Holders) and/or (b) to an investment in another business, the making of a
capital expenditure or the acquisition of other tangible assets, product
distribution rights or intellectual property or rights thereto, in each case, in
a line of business permitted by Section 4.17. Pending the final application of
any such Net Proceeds, the Company may temporarily reduce borrowings under the
Credit Facility or otherwise invest such Net Proceeds in any manner that is not
prohibited by the Indenture. Any Net Proceeds from Asset Sales that are not
applied or invested as provided in the first sentence of this paragraph will be
deemed to constitute "Excess Proceeds."
If and when the aggregate amount of Excess Proceeds exceeds $5.0 million,
the Company shall (i) make an offer to all Holders of Notes and (ii) prepay,
purchase or redeem (or make an offer to do so) any other Pari Passu Indebtedness
of the Company in
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accordance with provisions requiring the Company to prepay, purchase or redeem
such Indebtedness with the proceeds from any asset sales (or offer to do so),
the maximum principal amount of Notes and of such indebtedness that may be
purchased out of such Excess Proceeds, pro rata in proportion to the respective
principal amounts (or accreted value, as applicable) of the Notes and such other
Indebtedness required to be prepaid, purchased or redeemed or tendered for
pursuant to such offer (an "Asset Sale Offer"), at an offer price in cash in an
amount equal to 100% of the principal amount thereof plus accrued and unpaid
interest and Liquidated Damages thereon, if any to the date of purchase, in
accordance with the procedures set forth in Section 3.09.
An Asset Sale Offer shall be made pursuant to the provisions of Section
3.09. hereof.
The Asset Sale Offer shall be made by the Company in compliance with all
applicable laws, including, without limitation, Rule 14e-1 under the Exchange
Act and the rules thereunder, to the extent applicable, and all other applicable
federal and state securities laws.
SECTION 4.11. TRANSACTIONS WITH AFFILIATES.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, sell, lease, transfer or otherwise dispose of any of its
properties or assets to, or purchase any property or assets from, or enter into
any contract, agreement, understanding, loan, advance or guarantee with, or for
the benefit of, any Affiliate (each of the foregoing, an "Affiliate
Transaction"), unless (i) such Affiliate Transaction is on terms that are no
less favorable to the Company or such Restricted Subsidiary than those that
could have been obtained in a comparable transaction by the Company or such
Restricted Subsidiary with an unrelated Person; (ii) if such Affiliate
Transaction involves aggregate consideration in excess of $2.0 million, the
Company delivers to the Trustee a resolution of the Board of Directors of the
Company set forth in an Officers' Certificate certifying that such Affiliate
Transaction complies with clause (i) above and such Affiliate Transaction is
approved by a majority of the disinterested members of the Board of Directors of
the Company; and (iii) if such Affiliate Transaction involves aggregate
consideration in excess of $5.0 million, the Company delivers to the Trustee an
opinion as to the fairness of such Affiliate Transaction from a financial
point-of-view issued by an investment bank or accounting firm of national
standing, provided, however, that (a) any employment, consulting or similar
agreement entered into by the Company or any of its Restricted Subsidiaries in
the ordinary course of business of the Company or such Restricted Subsidiary,
(b) transactions between or among the Company and/or its Restricted
Subsidiaries, (c) payment of employee benefits, including wages, salary,
bonuses, retirement plans and stock options and director fees in the ordinary
course of business and (d) Restricted Payments described under clauses (i),
(iv), (v), (vi), (vii) and (viii) of the second paragraph of Section 4.07
hereof, in each case, shall not be deemed Affiliate Transactions.
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SECTION 4.12. LIENS.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Lien (other than Permitted Liens) securing any Obligations on any
property or asset now owned or hereafter acquired, or on any income or profits
therefrom or assign or convey any right to receive income therefrom, unless the
Notes, and the Subsidiary Guarantees, as applicable, are either (i) secured by a
Lien on such property, assets, income or profits that is senior in priority to
the Lien securing such other Obligations, if such other Obligations are
subordinated in right of payment to the Notes and/or the Subsidiary Guarantees,
that is senior in priority to the Lien securing such other Obligations or (ii)
equally and ratably secured by a Lien on such property, assets, income or
profits with the Lien securing such other Obligations if such other Obligations
are pari passu in right of payment to the Notes and/or the Subsidiary
Guarantees.
SECTION 4.13. SALE AND LEASEBACK TRANSACTIONS.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, enter into any sale and leaseback transaction; provided that
the Company and any Guaranteeing Subsidiary may enter into a sale and leaseback
transaction if (i) the Company or such Guaranteeing Subsidiary could have
incurred Indebtedness in an amount equal to the Attributable Debt relating to
such sale and leaseback transaction pursuant to (a) the Fixed Charge Coverage
Ratio test set forth in the first paragraph of Section 4.09 hereof and/or (b)
clause (iii) of the second paragraph of Section 4.09 hereof (as limited by the
proviso to such clause), (ii) the Lien to secure such Indebtedness does not
extend to or cover any assets of the company or such Guaranteeing Subsidiary
other than the assets which are the subject of the sale and leaseback
transaction, (iii) the gross cash proceeds of such sale and leaseback
transaction are at least equal to the fair market value (as determined in good
faith by the Board of Directors of the Company and set forth in an Officers'
Certificate delivered to the Trustee) of the property that is the subject of
such sale and leaseback transaction and (iv) the transfer of assets in such sale
and leaseback transaction is permitted by, and the proceeds of such transaction
are applied in compliance with, Section 4.10 hereof.
SECTION 4.14. OFFER TO PURCHASE UPON CHANGE OF CONTROL.
Upon the occurrence of a Change of Control, each Holder of Notes shall
have the right to require the Company to repurchase all or any part (equal to
$1,000 or an integral multiple thereof) of such Holder's Notes pursuant to the
offer described below (the "Change of Control Offer") at an offer price in cash
equal to 101% of the aggregate principal amount thereof plus accrued and unpaid
interest and Liquidated Damages, if any, thereon to the date of purchase (the
"Change of Control Payment"). Within 30 days following any Change of Control,
the Company shall mail a notice to each Holder stating:
(a) that the Change of Control Offer is being made pursuant to this
Section
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4.14 and that all Notes properly tendered will be accepted for
payment;
(b) the purchase price and the purchase date (the "Change of Control
Payment Date"), which will be no earlier than 30 days nor later than
60 days from the date such notice is mailed;
(c) that any Note not properly tendered will continue to accrue
interest;
(d) that, unless the Company defaults in the payment of the Change of
Control Payment, all Notes accepted for payment pursuant to the
Change of Control Offer will cease to accrue interest, and
Liquidated Damages, if any, after the Change of Control Payment
Date;
(e) that Holders electing to have any Notes purchased pursuant to a
Change of Control Offer will be required to surrender the Notes,
with the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Notes completed, or transfer by book-entry, to the
Paying Agent at the address specified in the notice not later than
the close of business on the Change of Control Payment Date;
(f) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than the close of business on the
Change of Control Payment Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the
principal amount of Notes delivered for purchase, and a statement
that such Holder is withdrawing his election to have such Notes
purchased;
(g) that Holders whose Notes are being purchased only in part will be
issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered (or transferred by book-entry),
which unpurchased portion must be equal to $1,000 in principal
amount or an integral multiple thereof; and
(h) the circumstances and material facts regarding such Change of
Control (including, but not limited to, information with respect to
pro forma and historical financial information after giving effect
to such Change of Control, and information regarding the Person or
Persons acquiring control).
On the Change of Control Payment Date, the Company shall, to the extent
lawful, (1) accept for payment all Notes or portions thereof properly tendered
pursuant to the Change of Control Offer, (2) deposit with the Paying Agent an
amount equal to the Change of Control Payment in respect of all Notes or
portions thereof so tendered and (3) deliver or cause to be delivered to the
Trustee the Notes so accepted together with an Officers' Certificate stating the
aggregate principal amount of Notes or portions thereof
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being purchased by the Company. The Paying Agent shall promptly mail to each
Holder of Notes so tendered the Change of Control Payment for such Notes, and
the Trustee shall promptly authenticate and mail (or cause to be transferred by
book entry) to each Holder a new Note equal in principal amount to any
unpurchased portion of the Notes surrendered, if any; provided that each such
new Note will be in a principal amount of $1,000 or an integral multiple
thereof. Prior to being required to comply with the provisions of this Section
4.14, but in any event within 90 days following a Change of Control, the Company
shall either repay all outstanding Senior Debt or obtain the requisite consents,
if any, under all agreements governing outstanding Senior Debt to permit the
repurchase of Notes required by this Section 4.14. The Company shall publicly
announce in a newspaper of national circulation or in a press release provided
to a nationally recognized financial wire service the results of the Change of
Control Offer on or as soon as practicable after the Change of Control Payment
Date.
The Change of Control provisions described above shall be applicable
whether or not any other provisions of this Indenture are applicable.
The Company shall comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of the Notes as a result of a Change of Control.
SECTION 4.15. CORPORATE EXISTENCE.
Subject to Section 4.14 and Article 5 hereof, as the case may be, the
Company and each of the Guaranteeing Subsidiaries shall do or cause to be done
all things necessary to preserve and keep in full force and effect (i) its
corporate existence, and the corporate, partnership or other existence of each
of its Subsidiaries, in accordance with the respective organizational documents
(as the same may be amended from time to time) of the Company or any such
Subsidiary and (ii) the rights (charter and statutory), licenses and franchises
of the Company and its Subsidiaries; provided, that the Company shall not be
required to preserve any such right, license or franchise, or the corporate,
partnership or other existence of any of its Subsidiaries, if the Board of
Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company and its Subsidiaries, taken as a
whole, and that the loss thereof is not adverse in any material respect to the
Holders of the Notes.
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SECTION 4.16. ANTI-LAYERING.
The Company shall not incur, create, issue, assume, guarantee or otherwise
become liable for any Indebtedness that is both (a) subordinate or junior in
right of payment to any Senior Debt and (b) senior in any respect in right of
payment to the Notes; and no Guaranteeing Subsidiary shall incur, create, issue,
assume, guarantee or otherwise become liable for any Indebtedness that is both
(a) subordinate or junior in right of payment to its Senior Debt and (b) senior
in any respect in right of payment to its Subsidiary Guarantee.
SECTION 4.17. LINE OF BUSINESS.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, engage to any substantial extent in any
line or lines of business activity other than that which, in the reasonable good
faith judgment of the Board of Directors of the Company, is a Related Business;
provided that the Company shall not be deemed to be in violation of this
covenant if the Company acquires a business which derives substantial revenues
from a Related Business, regardless of whether such acquired business includes a
line or lines of business that are not a Related Business.
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ARTICLE 5
SUCCESSORS
SECTION 5.01. MERGER, CONSOLIDATION, OR SALE OF ASSETS.
The Company shall not consolidate or merge with or into (whether or not
the Company is the surviving entity), or sell, assign, transfer, lease, convey
or otherwise dispose of all or substantially all of its properties or assets in
one or more related transactions to, another Person unless (i) the Company is
the surviving corporation or the Person formed by or surviving any such
consolidation or merger (if other than the Company) or by which such sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made is a corporation organized and existing under the laws of the United
States, any state hereof or the District of Columbia; (ii) immediately after
giving effect to such transaction or series of transactions on a pro forma basis
(including, without limitation, any Indebtedness incurred or anticipated to be
incurred in connection with or in respect of such transaction or series of
transactions), the Consolidated Net Worth of the Company or the surviving
entity, as the case may be, is at least equal to the Consolidated Net Worth of
the Company immediately before such transaction or series of transactions; (iii)
the Person formed by or surviving any such consolidation or merger (if other
than the Company) or the Person to which such sale, assignment, transfer, lease,
conveyance or other disposition will have been made assumes all the obligations
of the Company under the Notes and the Indenture pursuant to a supplemental
indenture in form reasonably satisfactory to the Trustee; (iv) immediately after
such transaction, no Default or Event of Default exists; and (v) the Company or
the Person formed by or surviving any such consolidation or merger, or to which
such sale, assignment, transfer, lease, conveyance or other disposition will
have been made will, at the time of such transaction after giving pro forma
effect thereto as if such transaction had occurred at the beginning of the
applicable four-quarter period, be permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set
forth in the first paragraph of Section 4.09 hereof. The foregoing will not
prohibit a consolidation or merger between the Company and a Wholly Owned
Restricted Subsidiary, the transfer of all or substantially all of the
properties or assets of the Company to a Wholly Owned Restricted Subsidiary or
the transfer of all or substantially all of the properties or assets of a Wholly
Owned Restricted Subsidiary to the Company; provided that if the Company is not
the surviving entity of such transaction or to the Person to which such transfer
is made, the surviving entity or the Person to which such transfer is made shall
comply with clause (iii) of this paragraph.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the assets
of the Company in accordance with Section 5.01 hereof, the successor corporation
formed by such consolidation or into or with which the Company is merged or to
which such sale,
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assignment, transfer, lease, conveyance or other disposition is made shall
succeed to, and be substituted for (so that from and after the date of such
consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Indenture referring to the "Company" shall refer instead to
the successor corporation and not to the Company), and may exercise every right
and power of the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein; provided, that, (i)
solely for the purposes of computing Consolidated Net Income for purposes of
clause (b) of the first paragraph of Section 4.07 hereof, the Consolidated Net
Income of any person other than the Company and its Restricted Subsidiaries
shall be included only for periods subsequent to the effective time of such
merger, consolidation, combination or transfer of assets; and (ii) in the case
of any sale, assignment, transfer, lease, conveyance, or other disposition of
less than all of the assets of the predecessor Company, the predecessor Company
shall not be released or discharged from the obligation to pay the principal of
or interest on the Notes.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
Each of the following constitutes an "Event of Default":
(i) default for 30 days in the payment when due of interest or
Liquidated Damages, if any, with respect to the Notes (whether or
not prohibited by Article 10 or Article 12 hereof);
(ii) default in payment when due of principal or premium, if any, on the
Notes at maturity, upon redemption or otherwise (whether or not
prohibited by Article 10 or Article 12 hereof);
(iii) failure by the Company or any Guaranteeing Subsidiary for 30 days
after receipt of notice from the Trustee or Holders of at least 25%
in principal amount of the Notes then outstanding to comply with the
provisions described under Sections 4.07, 4.09, 4.10, 4.13, 4.14 or
5.01 hereof;
(iv) failure by the Company or any Guaranteeing Subsidiary for 60 days
after notice from the Trustee or the Holders of at least 25% in
principal amount of the Notes then outstanding to comply with its
other agreements in this Indenture or the Notes;
(v) default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed by the Company or any of its
Restricted Subsidiaries (or the payment of which is guaranteed by
the Company or any of its Restricted Subsidiaries), whether such
Indebtedness or
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Guarantee now exists, or is created after the date hereof, which
default (A) (i) is caused by a failure to pay when due at final
stated maturity (giving effect to any grace period related thereto)
principal of such Indebtedness (a "Payment Default") or (ii) results
in the acceleration of such Indebtedness prior to its express
maturity and (B) in each case, the principal amount of such
Indebtedness, together with the principal amount of any other such
Indebtedness under which there has been a Payment Default or the
maturity of which has been accelerated as a result of any matter
contemplated in clause (v)(A)(i) or (v)(A)(ii), aggregates $7.5
million or more;
(vi) failure by the Company or any of its Restricted Subsidiaries to pay
final judgments (to the extent not covered by insurance or as to
which the insurer has not acknowledged coverage in writing)
aggregating in excess of $7.5 million, which judgments are not paid,
fully bonded, discharged or stayed within 60 days after their entry;
(vii) the Company or any Restricted Subsidiary that is a Significant
Subsidiary or group of Restricted Subsidiaries that, together would
constitute a Significant Subsidiary, pursuant to or within the
meaning of any Bankruptcy Law:
(a) commences a voluntary case,
(b) consents to the entry of an order for relief against it in an
involuntary case in which it is the debtor,
(c) consents to the appointment of a Custodian of it or for all or
substantially all of its property,
(d) makes a general assignment for the benefit of its creditors, or
(e) admits in writing its inability generally to pay its debts as
the same become due;
(viii) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(a) is for relief against the Company or any Restricted Subsidiary
that is a Significant Subsidiary or group of Restricted Subsidiaries
that, together, would constitute a Significant Subsidiary of the
Company in an involuntary case in which it is the debtor,
(b) appoints a Custodian of the Company or any Restricted Subsidiary
that is a Significant Subsidiary or group of Restricted Subsidiaries
that,
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together, would constitute a Significant Subsidiary of the Company
or for all or substantially all of the property of the Company or
any Restricted Subsidiary that is a Significant Subsidiary or group
of Restricted Subsidiaries that, together, would constitute a
Significant Subsidiary of the Company, or
(c) orders the liquidation of the Company or any Restricted
Subsidiary that is a Significant Subsidiary or group of Restricted
Subsidiaries that, together, would constitute a Significant
Subsidiary of the Company and the order or decree contemplated in
clauses (i), (ii) or (iii) remains unstayed and in effect for 60
consecutive days; or
(ix) the termination of the Subsidiary Guarantee(s) of either a
Guaranteeing Subsidiary that is a Significant Subsidiary or group of
Guaranteeing Subsidiaries that together constitute a Significant
Subsidiary for any reason not permitted by this Indenture, or the
denial of any Person acting on behalf of any such Guaranteeing
Subsidiary or Group of Guaranteeing Subsidiaries of its Obligations
under any such Subsidiary Guarantee(s).
To the extent that the last day of the period referred to in clauses (i),
(iii), (iv) or (vi) of the immediately preceding paragraph is not a Business
Day, then the first Business Day following such day shall be deemed to be the
last day of the period referred to in such clauses. Any "day" will be deemed to
end as of 11:59 p.m., New York City time.
SECTION 6.02. ACCELERATION.
If an Event of Default (other than an Event of Default with respect to the
company specified in clauses (vii) and (viii) of Section 6.01 hereof) occurs and
is continuing, the Trustee or the Holders of at least 25% in principal amount of
the then outstanding Notes may declare the unpaid principal of, premium, if any,
accrued and unpaid interest and Liquidated Damages, if any, on all the Notes to
be due and payable by notice in writing to the Company (and the Trustee, if
given by the Holders) specifying the respective Event of Default and that it is
a "notice of acceleration" (the "Acceleration Notice"), and the same (i) shall
become immediately due and payable or (ii) if there are any amounts outstanding
under the Credit Facility, shall become immediately due and payable upon the
first to occur of an acceleration under the Credit Facility or 5 Business Days
after receipt by the Company and the Representative under the Credit Facility of
such Acceleration Notice but only if such Event of Default is then continuing.
If an Event of Default with respect to the Company specified in clauses (vii) or
(viii) of Section 6.01 hereof occurs, all outstanding Notes shall ipso facto
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder. The Holders of a majority in principal
amount of the then outstanding Notes by written notice to the Trustee may
rescind an acceleration and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Events of Default
(except nonpayment of principal or interest that has become due solely because
of the
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acceleration) have been cured or waived.
SECTION 6.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal, premium, if any,
interest and Liquidated Damages, if any, on the Notes or to enforce the
performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Notes or does not produce any of them in the proceeding. A delay or omission
by the Trustee or any Holder of a Note in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
SECTION 6.04. WAIVER OF PAST DEFAULTS.
Holders of at least a majority in principal amount of the Notes then
outstanding (including consents obtained in connection with a tender offer or
exchange for Notes) by notice to the Trustee may on behalf of the Holders of all
of the Notes waive an existing Default or Event of Default and its consequences
hereunder, except a continuing Default or Event of Default in the payment of
principal of or premium, if any, or interest or Liquidated Damages, if any, on
the Notes. Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.
SECTION 6.05. CONTROL BY MAJORITY.
Holders of a majority in principal amount of the then outstanding Notes
may direct the time, method and place of conducting any proceeding for
exercising any remedy available to the Trustee or exercising any trust or power
conferred on it. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture that the Trustee determines may be unduly
prejudicial to the rights of other Holders of Notes or that may involve the
Trustee in personal liability. The Trustee may take any other action which it
deems proper which is not inconsistent with any such direction.
SECTION 6.06. LIMITATION ON SUITS.
A Holder of a Note may pursue a remedy with respect to this Indenture, the
Subsidiary Guarantees or the Notes only if:
(a) the Holder of a Note gives to the Trustee written notice of a
continuing
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Event of Default or the Trustee receives such notice from the
Company;
(b) the Holders of at least 25% in principal amount of the then
outstanding Notes make a written request to the Trustee to pursue
the remedy;
(c) such Holder of a Note or Holders of Notes offer and, if requested,
provide to the Trustee indemnity satisfactory to the Trustee against
any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the
provision of indemnity; and
(e) during such 60-day period the Holders of a majority in principal
amount of the then outstanding Notes do not give the Trustee a
direction inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the rights of
another Holder of a Note or to obtain a preference or priority over another
Holder of a Note.
SECTION 6.07. RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of principal, premium, if any, interest, and
Liquidated Damages, if any, on the Note, on or after the respective due dates
expressed in the Note (including in connection with an offer to purchase), or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(i) or (ii) hereof occurs
and is continuing, the Trustee is authorized to recover judgment in its own name
and as trustee of an express trust against the Company for the whole amount of
principal of, premium and Liquidated Damages, if any, and interest remaining
unpaid on the Notes and interest on overdue principal and, to the extent lawful,
interest and such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and
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advances of the Trustee, its agents and counsel) and the Holders of the Notes
allowed in any judicial proceedings relative to the Company (or any other
obliger upon the Notes), its creditors or its property and shall be entitled and
empowered to collect, receive and distribute any money or other securities or
property payable or deliverable upon the conversion or exchange of the Notes or
on any such claims and any custodian 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 to the Trustee any amount due to 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 7.07 hereof. To
the extent that the payment of any such compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 7.07 hereof out of the estate in any such proceeding,
shall be denied for any reason, payment of the same shall be secured by a Lien
on, and shall be paid out of, any and all distributions, dividends, money,
securities and other properties that the Holders may be entitled to receive in
such proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. 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, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.10. PRIORITIES.
If the Trustee collects any money pursuant to this Article 6, it shall pay
out the money in the following order:
FIRST: to the Trustee, its agents and attorneys for amounts due under
Section 7.07 hereof, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the costs and
expenses of collection;
SECOND: to holders of Senior Debt to the extent required by Article 10 or
12 hereof;
THIRD: to Holders of Notes for amounts due and unpaid on the Notes for
principal, premium, if any, interest, and Liquidated Damages, if any, ratably,
without preference or priority of any kind, according to the amounts due and
payable on the Notes for principal, premium, if any, interest, and Liquidated
Damages, if any, respectively;
FOURTH: without duplication, to the Holders for any other Obligations
owing to the Holders under this Indenture and the Notes; and
FIFTH: to the Company, the Guaranteeing Subsidiaries or to such party as a
court of competent jurisdiction shall direct.
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The Trustee may fix a record date and payment date for any payment to Holders of
Notes pursuant to this Section 6.10.
SECTION 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.11
does not apply to a suit by the Trustee, a suit by a Holder of a Note pursuant
to Section 6.07 hereof, or a suit by Holders of more than 10% in principal
amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing of which it
has knowledge, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture and use the same degree of
case and skill in its exercise, as a prudent man would exercise of
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 or the TIA and the
Trustee need preform only those duties that are specifically
set forth in this Indenture or the TIA 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 requirements of this Indenture. However, the
Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of
this Indenture.
(c) The Trustee may not be relieved from liabilities for its own
negligent
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action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of
this Section 7.01;
(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 6.05 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 7.01.
(e) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or incur any liability. The Trustee shall be
under no obligation to exercise any of its rights and powers under
this Indenture at the request of any Holders, unless such Holder
shall have offered to the Trustee security and indemnity
satisfactory to it against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by law.
SECTION 7.02. RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely on the truth of the statements and
correctness of the opinions contained in, and shall be protected
from acting or refraining from acting upon, any document believed by
it to be genuine and to have been signed or presented by the proper
Person. The Trustee need not investigate any fact or matter stated
in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good
faith in reliance on such Officers' Certificate or Opinion of
Counsel. Prior to taking, suffering or admitting any action, the
Trustee may consult with counsel of the Trustee's own choosing and
the written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection
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from liability in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not
be responsible for the misconduct or negligence of any agent
appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within the
rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company or any
Guaranteeing Subsidiary shall be sufficient if signed by an Officer
of the Company or Guaranteeing Subsidiary, as applicable.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders unless such Holders shall have
offered to the Trustee reasonable security or indemnity satisfactory
to the Trustee against the costs, expenses and liabilities that
might be incurred by it in compliance with such request or
direction.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the owner
of Notes and may otherwise deal with the Company, the Guaranteeing Subsidiaries
or any Affiliate of the Company with the same rights it would have if it were
not Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the Commission
for permission to continue as Trustee or resign. Any Agent may do the same with
like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11
hereof.
SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no representation as to
the validity or adequacy of this Indenture, the Subsidiary Guarantees or the
Notes, it shall not be accountable for the Company's use of the proceeds from
the Notes or any money paid to the Company or upon the Company's direction under
any provision of this Indenture, it shall not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee,
and it shall not be responsible for any statement or recital herein or any
statement in the Notes or any other document in connection with the sale of the
Notes or pursuant to this Indenture other than its certificate of
authentication.
SECTION 7.05. NOTICE OF DEFAULTS.
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If a Default or Event of Default occurs and is continuing and if it is
known to a Responsible Officer of the Trustee, the Trustee shall mail to Holders
of Notes a notice of the Default or Event of Default within 90 days after it
occurs. Except in the case of a Default or Event of Default in payment on any
Note pursuant to Section 6.01(i) or (ii) hereof, the Trustee may withhold the
notice if and so long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of the Holders of the
Notes.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES.
Within 60 days after each May 15 beginning with the May 15 following the
date of this Indenture, and for so long as Notes remain outstanding, the Trustee
shall mail to the Holders of the Notes a brief report dated as of such reporting
date that complies with TIA -section- 313(a) (but if no event described in TIA
-section- 313(a) has occurred within the twelve months preceding the reporting
date, no report need be transmitted). The Trustee also shall comply with TIA
-section- 313(b). The Trustee shall also transmit by mail all reports as
required by TIA -section- 313(c).
A copy of each report at the time of its mailing to the Holders of Notes
shall be mailed to the Company and filed with the Commission and each stock
exchange on which the Company has informed the Trustee in writing the Notes are
listed in accordance with TIA -section- 313(d). The Company shall promptly
notify the Trustee when the Notes are listed on any stock exchange and of any
delisting thereof.
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company and the Guaranteeing Subsidiaries shall pay to the Trustee
from time to time reasonable compensation for its acceptance of this Indenture
and services hereunder. To the extent permitted by law, the Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Company shall reimburse the Trustee promptly upon request for
all reasonable disbursements, advances and expenses incurred or made by it in
addition to the compensation for its services. Such expenses shall include the
reasonable compensation, disbursements and expenses of the Trustee's agents and
counsel.
The Company and the Guaranteeing Subsidiaries shall indemnify, jointly and
severally, the Trustee against any and all losses, liabilities or expenses
incurred by it arising out of or in connection with the acceptance or
administration of its duties under this Indenture, including the costs and
expenses of enforcing this Indenture against the Company and the Guaranteeing
Subsidiaries (including this Section 7.07) and defending itself against any
claim (whether asserted by the Company, the Guaranteeing Subsidiaries or any
Holder or any other person) or liability in connection with the exercise or
performance of any of its powers or duties hereunder except to the extent any
such loss, liability or expense may be attributable to its negligence or bad
faith. The Trustee shall
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notify the Company and the Guaranteeing Subsidiaries promptly of any claim for
which it may seek indemnity. Failure by the Trustee to so notify the Company and
the Guaranteeing Subsidiaries shall not relieve the Company and the Guaranteeing
Subsidiaries of its obligations hereunder. The Company and the Guaranteeing
Subsidiaries shall defend the claim and the Trustee shall cooperate in the
defense. The Trustee may have separate counsel and the Company and the
Guaranteeing Subsidiaries shall pay the reasonable fees and expenses of such
counsel. The Company and the Guaranteeing Subsidiaries need not pay for any
settlement made without its consent, which consent shall not be unreasonably
withheld.
The obligations of the Company and the Guaranteeing Subsidiaries under
this Section 7.07 shall survive the satisfaction and discharge of this
Indenture.
To secure the Company's and the Guaranteeing Subsidiaries' payment
obligations in this Section 7.07, the Trustee shall have a Lien prior to the
Notes on all money or property held or collected by the Trustee, except that
held in trust to pay principal, interest and Liquidated Damages, if any, on
particular Notes. Such Lien shall survive the satisfaction and discharge of this
Indenture and the resignation or removal of the Trustee.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(vii) or (viii) hereof occurs, the expenses and
the compensation for the services (including the fees and expenses of its agents
and counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
The Trustee shall comply with the provisions of TIA -section- 313(b)(2) to
the extent applicable.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.08.
The Trustee may resign in writing at any time and be discharged from the
trust hereby created by so notifying the Company. The Holders of Notes of a
majority in principal amount of the then outstanding Notes may remove the
Trustee by so notifying the Trustee and the Company in writing. The Company may
remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy
Law;
(c) a Custodian or public officer takes charge of the Trustee or its
property; or
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(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company, or
the Holders of Notes of at least 10% in principal amount of the then outstanding
Notes may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee, after written request by any Holder of a Note who has been
a Holder of a Note for at least six months, fails to comply with Section 7.10,
such Holder of a Note may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Thereupon, the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and the duties of the Trustee under
this Indenture. The successor Trustee shall mail a notice of its succession to
the Holders of the Notes. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, provided that all sums
owing to the Trustee hereunder have been paid and subject to the Lien provided
for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant
to this Section 7.08, the Company's obligations under Section 7.07 hereof shall
continue for the benefit of the retiring Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee or any Agent consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee or any Agent.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power, that is subject to supervision or examination by federal or state
authorities. The Trustee and its direct parent shall at all times have a
combined capital surplus of at least $10.0 million as set forth in its most
recent annual report of condition.
This Indenture shall always have a Trustee who satisfies the requirements
of TIA
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-section- 310(a)(1), (2) and (5). The Trustee is subject to TIA -section-
310(b).
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE COMPANY.
The Trustee is subject to TIA -section- 311(a), excluding any creditor
relationship listed in TIA -section- 311(b). A Trustee who has resigned or been
removed shall be subject to TIA -section- 311(a) to the extent indicated
therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
The Company may, at the option of its Board of Directors evidenced by a
resolution set forth in an Officers' Certificate, at any time, elect to have
either Section 8.02 or 8.03 hereof be applied to all outstanding Notes and
Subsidiary Guarantees upon compliance with the conditions set forth below in
this Article 8.
SECTION 8.02. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company and each Guaranteeing Subsidiary
shall, subject to the satisfaction of the conditions set forth in Section 8.04
hereof, be deemed to have been discharged from its obligations with respect to
all outstanding Notes and Subsidiary Guarantees on the date the conditions set
forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose,
Legal Defeasance means that the Company and each Guaranteeing Subsidiary shall
be deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Notes and Subsidiary Guarantees, which shall thereafter be deemed to
be "outstanding" only for the purposes of Section 8.05 hereof 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 Subsidiary Guarantees
and this Indenture (and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging the same), except for
the following provisions which shall survive until otherwise terminated or
discharged hereunder:
(a) the rights of Holders of outstanding Notes to receive payments
in respect of the principal of, premium, if any, interest and Liquidated
Damages, if any, on such Notes when such payments are due or on the
redemption date, as the case may be, from the trust referred to in Section
8.04(a),
(b) the Company's obligations with respect to such Notes under
Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.10 and 4.02 hereof,
(c) the rights, powers, trusts, duties and immunities of the Trustee
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including without limitation thereunder Section 7.07, 8.05 and 8.07
hereunder and the Company's obligations in connection therewith, and
(d) the provisions of this Article 8.
Subject to compliance with this Article 8, the Company may exercise its option
under this Section 8.02 notwithstanding the prior exercise of its option under
Section 8.03 hereof.
SECTION 8.03. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company and each Guaranteeing Subsidiary
shall, subject to the satisfaction of the conditions set forth in Section 8.04
hereof, be released from its obligations under the covenants contained in
Sections 3.09, 4.05, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16,
4.17, 5.01 and 11.01 hereof with respect to the outstanding Notes and Subsidiary
Guarantees on and after the date the conditions set forth below are satisfied
(hereinafter, "Covenant Defeasance"), and the Notes and Subsidiary Guarantees
shall thereafter be deemed not "outstanding" for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
"outstanding" for all other purposes hereunder (it being understood that such
Notes and Subsidiary Guarantees shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes and Subsidiary Guarantees, the Company, its Subsidiaries or
any Guaranteeing Subsidiary 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 6.01 hereof,
but, except as specified above, the remainder of this Indenture and such Notes
and Subsidiary Guarantees shall be unaffected thereby. In addition, upon the
Company's exercise under Section 8.01 hereof of the option applicable to this
Section 8.03 hereof, subject to the satisfaction of the conditions set forth in
Section 8.04 hereof, Sections 6.01(iii) through 6.01(vi) and Section 6.01(ix)
hereof shall not constitute Events of Default.
SECTION 8.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of either Section
8.02 or 8.03 hereof to the outstanding Notes and Subsidiary Guarantees:
(a) the Company must irrevocably deposit with the Trustee, in trust,
for the benefit of the Holders of the Notes, (i) cash in United States
dollars, (ii) non-callable Government Securities which through the
scheduled payment of principal, premium, if any, interest and Liquidated
Damages, if any, in respect thereof in accordance with their terms will
provide, not later than one day before
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the due date of payment, cash in United States dollars in an amount, or
(iii) a combination thereof, in such amounts as shall be sufficient, in
the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay and discharge the principal of, premium, if any, interest
and Liquidated Damages, if any, on the outstanding Notes on the stated
maturity or on the applicable redemption date, as the case may be, and the
Company must specify whether the Notes are being defeased to maturity or
to a particular redemption date;
(b) in the case of an election under Section 8.02 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Trustee confirming that (A) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the date hereof, there has been a
change in the applicable federal income tax law, in either case to the
effect that, and based thereon such Opinion of Counsel shall confirm that,
the Holders of the outstanding Notes shall not recognize income, gain or
loss for federal income tax purposes as a result of such Legal Defeasance
and shall be subject to federal income tax on the same amounts, in the
same manner and at the same time as would have been the case if such Legal
Defeasance had not occurred;
(c) in the case of an election under Section 8.03 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Trustee confirming that the
Holders of the outstanding Notes shall not recognize income, gain or loss
for federal income tax purposes as a result of such Covenant Defeasance
and shall be subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such
Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or insofar as Section 6.01(vii) and
(viii) hereof are concerned, at any time in the period ending on the 91st
day after the date of deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such period);
(e) such Legal Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a default under any material
agreement or instrument (other than this Indenture) to which the Company
or any of its Subsidiaries is a party or by which the Company or any of
its Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that after the 91st day following the deposit, the
trust funds shall not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally;
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(g) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders of Notes over the other creditors of the
Company with the intent of defeating, hindering, delaying or defrauding
any other creditors of the Company or others;
(h) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the Legal Defeasance or the Covenant
Defeasance have been complied with; and
(i) the Trustee shall have received such other documents and
assurances as the Trustee shall have reasonably required.
SECTION 8.05. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.06 hereof, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.05, the
"Trustee") pursuant to Section 8.04 hereof 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 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 premium, if any, interest and
Liquidated Damages, if any, 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 cash or non-callable Government
Securities deposited pursuant to Section 8.04 hereof or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article 8 to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon the written request
of the Company and be relieved of all liability with respect to any money or
non-callable Government Securities held by it as provided in Section 8.04 hereof
which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee (which may be the opinion delivered under Section 8.04(a) hereof), are
in excess of the amount thereof that would then be required to be deposited to
effect an equivalent Legal Defeasance or Covenant Defeasance.
SECTION 8.06. REPAYMENT TO THE COMPANY.
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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, premium, if any,
interest or Liquidated Damages, if any, on any Note and remaining unclaimed for
one year after such principal, and premium, if any, or interest or Liquidated
Damages, if any, has become due and payable shall be paid to the Company on its
written 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 the
New York Times and The Wall Street Journal (national edition), 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 notification or publication, any
unclaimed balance of such money then remaining shall be repaid to the Company.
SECTION 8.07. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United States
dollars or non-callable Government Securities in accordance with Section 8.02 or
8.03 hereof, as the case may be, by reason of any order or judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the obligations of the Company and the Guaranteeing
Subsidiaries under this Indenture, the Notes and the Subsidiary Guarantees shall
be revived and reinstated as though no deposit had occurred pursuant to Section
8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is permitted
to apply all such money in accordance with Section 8.02 or 8.03 hereof, as the
case may be; provided, however, that, if the Company makes any payment of
principal of, premium, if any, interest or Liquidated Damages, if any, 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 9
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. WITHOUT CONSENT OF HOLDERS OF THE NOTES.
Notwithstanding Section 9.02 of this Indenture, without the consent
of any Holder of Notes the Company, the Guaranteeing Subsidiaries and the
Trustee may amend or supplement this Indenture, the Subsidiary Guarantees or the
Notes:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in place
of
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certificated Notes;
(c) to provide for the assumption of the Company's or a
Guaranteeing Subsidiary's obligations to the Holders of the
Notes in the case of a merger, transfer of assets or
consolidation pursuant to Article 5 or Article 11 hereof;
(d) to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not
adversely affect the legal rights hereunder of any Holder of
the Note;
(e) to comply with requirements of the Commission in order to
effect or maintain the qualification of this Indenture under
the TIA;
(f) to allow any Guaranteeing Subsidiary to guarantee the Notes;
Upon the written request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
Indenture, and upon receipt by the Trustee of the documents described in Section
9.06 hereof, the Trustee shall join with the Company and the Guaranteeing
Subsidiaries in the execution of any amended or supplemental Indenture
authorized or permitted by the terms of this Indenture and to make any further
appropriate agreements and stipulations that may be therein contained, but the
Trustee shall not be obligated to enter into such amended or supplemental
Indenture that affects its own rights, duties or immunities under this Indenture
or otherwise.
SECTION 9.02. WITH CONSENT OF HOLDERS OF NOTES.
Except as provided in (i) the fourth and fifth paragraphs of this Section
9.02 and (ii) Sections 8.02, 8.03 and 8.04 hereof, in connection with clause (b)
below, with the consent of the Holders of at least a majority in principal
amount of the Notes then outstanding (including consents obtained in connection
with a tender offer or exchange offer for Notes):
(a) this Indenture, the Notes or the Subsidiary Guarantees may be
amended or supplemented;
(b) the Guaranteeing Subsidiaries may be released from their
obligations under the Subsidiary Guarantees; and
(c) subject to Sections 6.02, 6.04 and 6.07 hereof, any existing
Default or Event of Default (other than a Default or Event of Default in the
payment of the principal of, or premium, if any, or interest or Liquidated
Damages, if any, on the Notes
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(except a payment default resulting from an acceleration that has been
rescinded) or compliance with any provision of this Indenture, the Notes or the
Subsidiary Guarantees may be waived
Upon the request of the Company accompanied by a resolution of its Board
of Directors authorizing the execution of any such amended or supplemental
indenture, and upon the filing with the Trustee of evidence aforesaid, and upon
receipt by the Trustee of the documents described in Section 9.06 hereof, the
Trustee shall join with the Company and the Guaranteeing Subsidiaries in the
execution of such amended or supplemental Indenture unless such amended or
supplemental indenture affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may, but shall not
be obligated to, enter into such amended or supplemental indenture.
It shall not be necessary for the consent of the Holders of Notes
under this Section 9.02 to approve the particular form of any proposed amendment
or waiver, but it shall be sufficient if such consent approves the substance
thereof. After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company shall mail to the Holders of each Note affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amended or
supplemental Indenture or waiver.
Subject to Sections 6.02, 6.04 and 6.07 hereof, the Holders of a
majority in aggregate principal amount of the Notes then outstanding may waive
compliance in a particular instance by the Company or the Guaranteeing
Subsidiaries with any provision of this Indenture, the Notes or the Subsidiary
Guarantees. However, without the consent of each Holder affected, an amendment,
or waiver may not (with respect to any Note or Subsidiary Guarantee held by a
non-consenting Holder):
(a) reduce the principal amount of Notes;
(b) reduce the principal of or change the fixed maturity of any Note or
alter the provisions with respect to the redemption of the Notes or
any Change of Control Offer;
(c) reduce the rate of or change the time for payment of interest or
Liquidated Damages, if any, on any Notes;
(d) waive a Default or Event of Default in the payment of principal of
or premium, if any, or interest or Liquidated Damages, if any, on
the Notes (except a rescission of acceleration of the Notes by the
Holders of at least a majority in aggregate principal amount of the
Notes and a waiver of the payment default that resulted form such
acceleration);
(e) make any Note payable in money other than that stated in the Notes;
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(f) make any change in Section 6.04 or 6.07 hereof;
(g) waive a redemption or repurchase payment with respect to any Note;
(h) make any change in the foregoing amendment and waiver provisions of
this Article 9; or
(i) except as provided in Sections 8.02, 8.03 and 11.04 hereof, release
any of the Guaranteeing Subsidiaries from their obligations under
the Subsidiary Guarantees or make any change in the Subsidiary
Guarantees that would adversely affect the Holders.
Notwithstanding the foregoing, Sections 3.09 and 4.10 may be amended or
supplemented only with the consent of the Holders of at least two-thirds in
principal amount of the Notes then outstanding (including consents obtained in
connection with a tender offer or exchange offer for the Notes). In addition,
any amendment to the provisions of Article 10 or Article 12 of this Indenture
shall require the consent of the Holders of at least 75% in aggregate amount of
Notes then outstanding (including consents obtained in connection with a tender
offer or exchange offer for the Notes) if such amendment would adversely affect
the rights of the Holders of Notes.
Without obtaining any necessary consents under the Credit Facility, the
Company may not amend or supplement the provisions contained in Article 10 and
Article 12 hereof.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture, the Subsidiary
Guarantees or the Notes shall be set forth in an amended or supplemental
Indenture that complies with the TIA as then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a consent to
it by a Holder of a Note is a continuing consent by the Holder and every
subsequent Holder of a Note or portion of a Note that evidences the same debt as
the consenting Holder's Note, even if notation of the consent is not made on any
Note. However, any such Holder or subsequent Holder of a Note may revoke the
consent as to its Note if the Trustee receives written notice of revocation
before the date the waiver, supplement or amendment becomes effective. An
amendment, supplement or waiver becomes effective in accordance with its terms
and thereafter binds every Holder.
The Company may, but shall not be obligated to, fix a record date for
determining which Holders of the Notes must consent to such amendment,
supplement or waiver. If
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the Company fixes a record date, the record date shall be fixed at (i) the later
of 30 days prior to the first solicitation of such consent or the date of the
most recent list of Holders of Notes furnished for the Trustee prior to such
solicitation pursuant to Section 2.05 hereof or (ii) such other date as the
Company shall designate.
SECTION 9.05. NOTATION ON OR EXCHANGE OF NOTES.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee shall authenticate new Notes
that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental Indenture authorized
pursuant to this Article 9 if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. The Company
may not sign an amendment or supplemental Indenture until the Board of Directors
approves it. In signing or refusing to sign any amended or supplemental
indenture the Trustee shall be entitled to receive and (subject to Section 7.01)
shall be fully protected in relying upon, in addition to the documents required
by Section 13.04 hereof, an Officer's Certificate and an Opinion of Counsel
stating that the execution of such amended or supplemental indenture is
authorized or permitted by this Indenture, that it is not inconsistent herewith,
and that it will be valid and binding upon the Company and the Guaranteeing
Subsidiaries in accordance with its terms.
ARTICLE 10
SUBORDINATION
SECTION 10.01. AGREEMENT TO SUBORDINATE.
The Company agrees, and each Holder by accepting a Note agrees, that all
Obligations on the Notes shall be subordinated in right of payment, to the
extent and in the manner provided in this Article 10, to the prior payment in
full in cash or Cash Equivalents of all Senior Debt, whether outstanding on the
date hereof or thereafter incurred.
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SECTION 10.02. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
Upon any distribution to creditors of the Company in a liquidation or
dissolution of the Company or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Company or its property, an
assignment for the benefit of creditors or any marshalling of the Company's
assets and liabilities:
(a) the holders of Senior Debt will be entitled to receive payment
in full in cash or Cash Equivalents of all Obligations due in respect of
such Senior Debt (including interest after the commencement of any such
proceeding at the rate specified in the applicable Senior Debt, whether or
not such interest is in an allowed claim under applicable law) before the
Holders of Notes will be entitled to receive any payment with respect to
the Notes (except that Holders of Notes may receive (i) Permitted Junior
Securities and any other Permitted Junior Securities issued in exchange
for any Permitted Junior Securities and (ii) payments made from the
defeasance trust created pursuant to Article 8 hereof); and
(b) until all Obligations with respect to Senior Debt are paid in
full in cash or Cash Equivalents, any distribution to which the Holders of
Notes would be entitled shall be made to the holders of Senior Debt
(except that Holders of Notes may receive (i) Permitted Junior Securities
and any other Permitted Junior Securities issued in exchange for any
Permitted Junior Securities and (ii) payments made from the defeasance
trust created pursuant to Article 8 hereof).
SECTION 10.03. DEFAULT ON DESIGNATED SENIOR DEBT.
The Company also may not make any payment upon or in respect of the Notes
(except that Holders of Notes may receive (i) Permitted Junior Securities and
any other Permitted Junior Securities issued in exchange for any Permitted
Junior Securities and (ii) payments made from the defeasance trust created
pursuant to Article 8 hereof) if:
(i) a default in the payment of the principal of, premium, if
any, or interest on Designated Senior Debt occurs and is continuing; or
(ii) any other default occurs and is continuing with respect
to Designated Senior Debt that permits holders of the Designated Senior
Debt as to which such default relates to accelerate its maturity and the
Trustee receives a notice of such default (a "Payment Blockage Notice")
from a Representative with respect to such Designated Senior Debt. If the
Trustee receives any such Payment Blockage Notice, no subsequent Payment
Blockage Notice shall be effective for purposes of this Section 10.03
unless and until (i) 360 days have elapsed since the effectiveness of the
immediately prior Payment Blockage Notice and (ii) all scheduled payments
of principal, premium, if any, interest and Liquidated Damages,
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if any, on the Notes that have come due have been paid in full in cash. No
nonpayment 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.
The Company may and shall resume payments on the Notes:
(a) in the case of a payment default described in clause (i) above,
upon the date on which such default is cured or waived, and
(b) in case of a nonpayment default described in clause (ii) above,
the earlier of the date on which such nonpayment default is cured or
waived or 179 days after the date on which the applicable Payment Blockage
Notice is received, unless the maturity of any Designated Senior Debt has
been accelerated.
SECTION 10.04. ACCELERATION OF NOTES.
If payment of the Notes is accelerated because of an Event of Default, the
Company shall provide the names of the Representatives of the Senior Debt to the
Trustee and the Trustee shall promptly notify such Representatives of Senior
Debt of the acceleration.
SECTION 10.05. WHEN DISTRIBUTION MUST BE PAID OVER.
In the event that the Trustee receives any payment of any Obligations with
respect to the Notes at a time when the Trustee has actual knowledge that such
payment is prohibited by Section 10.02 or 10.03 hereof, such Payment shall be
held by the Trustee, in trust for the benefit of, and shall be paid forthwith
over and delivered, upon written request to, the holders of Senior Debt as their
interest may appear or their Representative under the indenture or other
agreement (if any) pursuant to which Senior Debt may have been issued, as their
interest may appear, for application to the payment of all Obligations with
respect to Senior Debt remaining unpaid to the extent necessary to pay such
Obligations in full in accordance with their terms, after giving effect to any
concurrent payment or distribution to or for the holders of Senior Debt.
In the event that any Holder receives any payment of any Obligations with
respect to the Notes at a time when such payment is prohibited by Section 10.02
or 10.03 hereof, such payment shall be held by such Holder, in trust for the
benefit of, and shall be paid forthwith over and delivered, upon written request
to, the holders of Senior Debt as their interest may appear or their
Representative under the indenture or other agreement (if any) pursuant to which
Senior Debt may have been issued, as their interest may appear, for application
to the payment of all Obligations with respect to Senior Debt remaining unpaid
to the extent necessary to pay such Obligations in full in accordance with their
terms, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Debt.
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With respect to the holders of Senior Debt, the Trustee undertakes to
perform only such obligations on the part of the Trustee as are specifically set
forth in this Article 10, and no implied covenants or obligations with respect
to the holders of Senior Debt shall be read into this Indenture against the
Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt, and shall not be liable to any such holders if the
Trustee shall pay over or distribute to or on behalf of Holders or the Company
or any other Person money or assets to which any holders of Senior Debt shall be
entitled by virtue of this Article 10, except if such payment is made as a
result of the willful misconduct or gross negligence of the Trustee.
SECTION 10.06. NOTICE BY COMPANY.
The Company shall promptly notify the Trustee and the Paying Agent of any
facts known to the Company that would cause a payment of any Obligations with
respect to the Notes to violate this Article 10, but failure to give such notice
shall not affect the subordination of the Notes to the Senior Debt as provided
in this Article 10.
SECTION 10.07. SUBROGATION.
After all Senior Debt is paid in full in cash or Cash Equivalents and
until the Notes are paid in full, Holders shall be subrogated (equally and
ratably with all other Indebtedness pari passu with the Notes) to the rights of
holders of Senior Debt to receive distributions applicable to Senior Debt to the
extent that distributions otherwise payable to the Holders have been applied to
the payment of Senior Debt. A distribution made under this Article 10 to holders
of Senior Debt that otherwise would have been made to Holders is not, as between
the Company and Holders, a payment by the Company on the Senior Debt.
SECTION 10.08. RELATIVE RIGHTS.
This Article 10 defines the relative rights of the Holders and holders of
Senior Debt. Nothing in this Indenture shall:
(i) impair, as between the Company and the Holders, the
obligation of the Company, which is absolute and unconditional, to
pay principal of, premium, if any, interest and Liquidated Damages,
if any, on the Notes in accordance with their terms;
(ii) affect the relative rights of Holders and creditors of
the Company other than their rights in relation to holders of Senior
Debt; or
(iii) prevent the Trustee or any Holder from exercising its
available remedies upon a Default or an Event of Default, subject to
the rights of holders and owners of Senior Debt to receive
distributions and
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payments otherwise payable to Holders.
If the Company fails because of this Article 10 to pay principal of,
premium, if any, interest or Liquidated Damages, if any, on a Note on the due
date, the failure is nevertheless a Default or an Event of Default.
SECTION 10.09. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY.
No right of any holder of Senior Debt to enforce the subordination of the
Indebtedness evidenced by the Notes shall be prejudiced or impaired by any act
or failure to act by the Company or any Holder or by the failure of the Company
or any Holder to comply with this Indenture.
SECTION 10.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to holders of
Senior Debt, the distribution may be made and the notice given to their
Representative.
Upon any payment or distribution of assets of the Company referred to in
this Article 10, the Trustee and the Holders shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction or upon any
certificate of such Representative or of the liquidating trustee or agent or
other Person making any distribution to the Trustee or to the Holders for the
purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Debt and other Indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article 10.
SECTION 10.11. RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding the provisions of this Article 10 or any other provision
of this Indenture, the Trustee shall not be charged with knowledge of the
existence of any facts that would prohibit the making of any payment or
distribution by the Trustee, and the Trustee and the Paying Agent may continue
to make payments on the Notes, unless the Trustee shall have received at its
Corporate Trust Office at least two Business Days prior to the date of such
payment written notice that the payment of any Obligations with respect to the
Notes would violate this Article 10, provided that this Section 10.11 shall not
limit or modify the rights of holders of Senior Debt to recover any such
payments from the Holders of the Notes pursuant to Sections 10.02, 10.03 and/or
10.05. Only the Company or a Representative may give the notice. Nothing in this
Article 10 shall impair the claims of, or payments to, the Trustee under or
pursuant to Section 7.07 hereof.
The Trustee in its individual or any other capacity may hold Senior Debt
with the same rights it would have if it were not Trustee. Any Agent may do the
same with like rights.
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SECTION 10.12. AUTHORIZATION TO EFFECT SUBORDINATION.
Each Holder of a Note by the Holder's acceptance thereof authorizes and
directs the Trustee on the Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this
Article 10, and appoints the Trustee to act as the Holder's attorney-in-fact for
any and all such purposes. If the Trustee does not file a proper proof of claim
or proof of debt in the form required in any proceeding referred to in Section
6.09 hereof at least 30 days before the expiration of the time to file such
claim, a Representative of Designated Senior Debt is hereby authorized to file
an appropriate claim for and on behalf of the Holders of the Notes.
SECTION 10.13. AMENDMENTS.
Any amendment to the provisions of this Article 10 shall require the
consent of the Holders of at least 75% in aggregate amount of Notes then
outstanding if such amendment would adversely affect the rights of the Holders
of Notes.
ARTICLE 11
GUARANTEE OF NOTES
SECTION 11.01. SUBSIDIARY GUARANTEE.
Subject to Section 11.06 hereof, each of the Guaranteeing
Subsidiaries hereby, jointly and severally, unconditionally guarantees to each
Holder of a Note authenticated and delivered by the Trustee and to the Trustee
and its successors and assigns, irrespective of the validity and enforceability
of this Indenture, the Notes and the Obligations of the Company hereunder and
thereunder, that:
(a) the principal of, premium, if any, interest and Liquidated
Damages, if any, on the Notes will be promptly paid in full when due,
subject to any applicable grace period, whether at maturity, by
acceleration, redemption or otherwise, and interest on the overdue
principal, premium, if any (to the extent permitted by law), interest on
any interest, if any, and Liquidated Damages, if any, on the Notes, and
all other payment Obligations of the Company to the Holders or the Trustee
hereunder or thereunder will be promptly paid in full and 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 any of such other Obligations, the same will be promptly paid in
full when due or performed in accordance with the terms of the extension
or renewal, subject to any applicable grace period, whether at stated
maturity, by acceleration, redemption or otherwise. Failing payment when
so due of any amount so guaranteed or any performance so guaranteed for
whatever reason the
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Guaranteeing Subsidiaries will be jointly and severally obligated to pay
the same immediately.
An Event of Default under this Indenture or the Notes shall
constitute an event of default under the Subsidiary Guarantees, and shall
entitle the Holders to accelerate the Obligations of the Guaranteeing
Subsidiaries hereunder in the same manner and to the same extent as the
Obligations of the Company. The Guaranteeing Subsidiaries hereby agree that
their 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
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
Guaranteeing Subsidiary.
Each Guaranteeing Subsidiary hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the
Company, protest, notice and all demands whatsoever and covenants that this
Subsidiary Guarantee will not be discharged except by complete performance of
the Obligations contained in the Notes and this Indenture. If any Holder or the
Trustee is required by any court or otherwise to return to the Company, the
Guaranteeing Subsidiaries, or any Note Custodian, Trustee, liquidator or other
similar official acting in relation to either the Company or the Guaranteeing
Subsidiaries, any amount paid by either the Trustee or such Holder, this
Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated
in full force and effect. Each Guaranteeing Subsidiary agrees that it shall not
be entitled to, and hereby waives, any right of subrogation in relation to the
Holders in respect of any Obligations Guaranteed hereby.
Each Guaranteeing Subsidiary further agrees that, as between the
Guaranteeing Subsidiaries, 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 6 for the purposes of this Subsidiary
Guarantee, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the Obligations guaranteed hereby, and (y) in
the event of any declaration of acceleration of such Obligations as provided in
Article 6 hereof, such Obligations (whether or not due and payable) shall
forthwith become due and payable by the Guaranteeing Subsidiaries for the
purpose of this Subsidiary Guarantee. The Guaranteeing Subsidiaries shall have
the right to seek contribution from any non-paying Guaranteeing Subsidiary so
long as the exercise of such right does not impair the rights of the Holders
under the Subsidiary Guarantees.
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SECTION 11.02. EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTEE.
To evidence its Subsidiary Guarantee set forth in Section 11.01, each
Guaranteeing Subsidiary hereby agrees that a notation of such Subsidiary
Guarantee substantially in the form of Exhibit D shall be endorsed by an Officer
of such Guaranteeing Subsidiary on each Note authenticated and delivered by the
Trustee and that this Indenture shall be executed on behalf of such Guaranteeing
Subsidiary, by manual or facsimile signature, by an Officer of such Guaranteeing
Subsidiary.
Each Guaranteeing Subsidiary hereby agrees that its Subsidiary Guarantee
set forth in Section 11.01 shall remain in full force and effect notwithstanding
any failure to endorse on each Note a notation of such Subsidiary Guarantee.
If an Officer whose signature is on this Indenture or on the Subsidiary
Guarantee no longer holds that office at the time the Trustee authenticates the
Note on which a Subsidiary Guarantee is endorsed, the Subsidiary Guarantee shall
be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of the Subsidiary Guarantee set forth
in this Indenture on behalf of the Guaranteeing Subsidiaries.
SECTION 11.03. GUARANTEEING SUBSIDIARIES MAY CONSOLIDATE, ETC., ON CERTAIN
TERMS.
(a) Except as set forth in Articles 4 and 5 hereof, nothing contained in
this Indenture shall prohibit a merger between a Guaranteeing Subsidiary and
another Guaranteeing Subsidiary or a merger between a Guaranteeing Subsidiary
and the Company.
(b) Except as provided in Section 11.03(a) hereof or in a transaction
referred to in Section 11.04 hereof, no Guaranteeing Subsidiary may consolidate
with or merge with or into (whether or not such Guaranteeing Subsidiary is the
surviving Person), another corporation, Person or entity whether or not
affiliated with such Guaranteeing Subsidiary, or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its assets to another
corporation, Person or entity unless:
(i) subject to the provisions of Section 11.04, the Person formed by
or surviving any such consolidation or merger (if other than such
Guaranteeing Subsidiary) assumes all the obligations of such Guaranteeing
Subsidiary under the Notes and the Indenture pursuant to a supplemental
indenture in form and substance reasonably satisfactory to the Trustee in
the Form of Exhibit E hereto;
(ii) immediately after giving effect to such transaction, no Default
or Event of Default exists;
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(iii) immediately after giving effect to such transaction or series
of transactions on a pro forma basis (including, without limitation, any
Indebtedness incurred or anticipated to be incurred in connection with or
in respect of such transaction or series of transactions), the
Consolidated Net Worth of the Guaranteeing Subsidiary or the surviving
entity, as the case may be, is at least equal to the Consolidated Net
Worth of the Guaranteeing Subsidiary immediately before such transaction
or series of transactions; and
(iv) the Company would be permitted by virtue of the Company's pro
forma Fixed Charge Coverage Ratio, immediately after giving effect to such
transaction, to incur at least $1.00 of additional Indebtedness pursuant
to the Fixed Charge Coverage Ratio set forth in Section 4.09 hereof.
(c) In the case of any such consolidation, merger, sale or conveyance and
upon the assumption by the successor Person, by supplemental indenture, executed
and delivered to the Trustee and substantially in the form of Exhibit E hereto,
of the Subsidiary Guarantee and the due and punctual performance of all of the
covenants and conditions of this Indenture to be performed by the Guaranteeing
Subsidiary, such successor Person shall succeed to and be substituted for the
Guaranteeing Subsidiary with the same effect as if it had been named herein as a
Guaranteeing Subsidiary; provided that, solely for purposes of computing
Consolidated Net Income for purposes of clause (b) of the first paragraph of
Section 4.07 hereof, the Consolidated Net Income of any Person other than the
Company and its Restricted Subsidiaries shall only be included for periods
subsequent to the effective time of such merger, consolidation, combination or
transfer of assets. Such successor Person thereupon may cause to be signed any
or all of the Subsidiary Guarantees to be endorsed upon all of the Notes
issuable hereunder which theretofore shall not have been signed by the Company
and delivered to the Trustee. All of the Subsidiary Guarantees so issued shall
in all respects have the same legal rank and benefit under this Indenture as the
Subsidiary Guarantees theretofore and thereafter issued in accordance with the
terms of this Indenture as though all of such Subsidiary Guarantees had been
issued at the date of the execution hereof.
SECTION 11.04. RELEASES FOLLOWING SALE OF ASSETS.
Concurrently with the sale or other disposition of all or substantially
all of the assets of any Guaranteeing Subsidiary or all of the Capital Stock of
any Guaranteeing Subsidiary, such Guaranteeing Subsidiary (in the event of a
sale or other disposition of all of the Capital Stock of such Guaranteeing
Subsidiary) or the Person acquiring the property (in the event of a sale or
other disposition of all or substantially all of the assets of a Guaranteeing
Subsidiary) shall be released from and relieved of its Obligations under its
Subsidiary Guarantee or Section 11.03 hereof, as the case may be; provided that
(i) In the event of an Asset Sale, the Net Proceeds from such sale
or other disposition are treated in accordance with the provisions of
Section 4.10
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hereof and
(ii) the Company is in compliance with all other provisions of this
Indenture applicable to such disposition. Upon delivery by the Company to
the Trustee of an Officers' Certificate to the effect of the foregoing,
the Trustee shall execute any documents reasonably required in order to
evidence the release of any Guaranteeing Subsidiary from its Obligation
under its Subsidiary Guarantee. Any Guaranteeing Subsidiary not released
from its Obligations under its Subsidiary Guarantee shall remain liable
for the full amount of principal of, premium, If any, interest and
Liquidated Damages, if any, on the Notes and for the other Obligations of
such Guaranteeing Subsidiary under the Indenture as provided in this
Article 11.
SECTION 11.05. ADDITIONAL GUARANTEEING SUBSIDIARIES.
Any Person that was not a Guaranteeing Subsidiary on the date of this
Indenture may become a Guaranteeing Subsidiary by executing and delivering to
the Trustee (a) a supplemental indenture in substantially the form of Exhibit E
and (b) an Opinion of Counsel to the effect that such supplemental indenture has
been duly authorized and executed by such Person and constitutes the legal,
valid, binding and enforceable obligation of such Person (subject to such
customary exceptions concerning creditors rights', fraudulent transfers, public
policy and equitable principles as may be acceptable to the Trustee in its
discretion).
SECTION 11.06. LIMITATION ON GUARANTEEING SUBSIDIARY LIABILITY.
For purposes hereof, each Guaranteeing Subsidiary's liability shall be
limited to the lesser of (i) the aggregate amount of the Obligations of the
Company under the Notes and this Indenture and (ii) the amount, if any, which
would not have (A) rendered such Guaranteeing Subsidiary "insolvent" (as such
term is defined in the United States Bankruptcy Code and in the Debtor and
Creditor Law of the State of New York) or (B) left such Guaranteeing Subsidiary
with unreasonably small capital at the time its Subsidiary Guarantee of the
Notes was entered into; provided that, it will be a presumption in any lawsuit
or other proceeding in which a Guaranteeing Subsidiary is a party that the
amount guaranteed pursuant to the Subsidiary Guarantee is the amount set forth
in clause (i) above unless any creditor, or representative of creditors of such
Guaranteeing Subsidiary, or debtor in possession or trustee in bankruptcy of the
Guaranteeing Subsidiary, otherwise proves in such a lawsuit that the aggregate
liability of the Guaranteeing Subsidiary is the amount set forth in clause (ii)
above. In making any determination as to solvency or sufficiency of capital of a
Guaranteeing Subsidiary in accordance with the previous sentence, the right of
such Guaranteeing Subsidiary to contribution from other Guaranteeing
Subsidiaries, and any other rights such Guaranteeing Subsidiary may have,
contractual or otherwise, shall be taken into account.
SECTION 11.07. "TRUSTEE" TO INCLUDE PAYING AGENT.
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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 11 shall in each case (unless the context shall
otherwise require) be construed as extending to and including such Paying Agent
within its meaning as fully and for all intents and purposes as if such Paying
Agent were named in this Article 11 in place of the Trustee.
ARTICLE 12
SUBORDINATION OF SUBSIDIARY GUARANTEE
SECTION 12.01. AGREEMENT TO SUBORDINATE.
The Guaranteeing Subsidiaries agree, and each Holder by accepting a Note
agrees, that all Guarantee Obligations, shall be subordinated in right of
payment, to the extent and in the manner provided in this Article 12, to the
prior payment in full in cash or Cash Equivalents of all Senior Debt, whether
outstanding on the date hereof or thereafter incurred.
SECTION 12.02. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
Upon any distribution to creditors of any Guaranteeing Subsidiary in a
liquidation or dissolution of such Guaranteeing Subsidiary or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to such
Guaranteeing Subsidiary or its property, an assignment for the benefit of
creditors or any marshalling of such Guaranteeing Subsidiary's assets and
liabilities:
(a) the holders of Senior Debt of such Guaranteeing Subsidiary will
be entitled to receive payment in full in cash or Cash Equivalents of all
Obligations due in respect of such Senior Debt (including interest after
the commencement of any such proceeding at the rate specified in the
applicable Guarantor Senior Debt, whether or not such interest is in an
allowed claim under applicable law) before the Holders of Notes will be
entitled to receive any payment under the Subsidiary Guarantee of such
Guaranteeing Subsidiary; and
(b) until all Obligations with respect to Senior Debt of any
Guaranteeing Subsidiary are paid in full in cash or Cash Equivalents, any
distribution under the Subsidiary Guarantee of such Guaranteeing
Subsidiary to which the Holders of Notes would be entitled shall be made
by such Guaranteeing Subsidiary to the holders of Senior Debt of such
Guaranteeing Subsidiary (except that Holders of Notes may receive (i)
Permitted Junior Securities and any other Permitted Junior Securities
issued in exchange for any Permitted Junior Securities and (ii) payments
made from the defeasance trust created pursuant to Article 8 hereof).
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SECTION 12.03. DEFAULT ON DESIGNATED GUARANTOR SENIOR DEBT.
No Guaranteeing Subsidiary may make any payment upon or in respect of such
Guaranteeing Subsidiary's Subsidiary Guarantee (except that Holders of Notes may
receive (i) Permitted Junior Securities and any other Permitted Junior
Securities issued in exchange for any Permitted Junior Securities and (ii)
payments and other distributions made from the defeasance trust created pursuant
to Article 8 hereof if:
(i) a default in the payment of the principal of, premium, if any,
or interest on Designated Guarantor Senior Debt of such Guaranteeing
Subsidiary occurs and is continuing; or
(ii) any other default occurs and is continuing with respect to
Designated Guarantor Senior Debt of such Guaranteeing Subsidiary that
permits holders of such Designated Guarantor Senior Debt as to which such
default relates to accelerate its maturity and the Trustee receives a
notice of such default (a "Payment Blockage Notice") from a Representative
with respect to such Designated Guarantor Senior Debt. If the Trustee
receives any such Payment Blockage Notice, no subsequent Payment Blockage
Notice shall be effective for purposes of this Section 12.03 unless and
until (i) 360 days have elapsed since the effectiveness of the immediately
prior Payment Blockage Notice and (ii) all scheduled payments of
principal, premium, if any, interest and Liquidated Damages, if any, on
the Notes and the Subsidiary Guarantee that have come due have been paid
in full in cash. No nonpayment 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.
Such Guaranteeing Subsidiary may and shall resume payments on its
Subsidiary Guarantee:
(a) in the case of a payment default described in clause (i) above,
upon the date on which such default is cured or waived, and
(b) in case of a nonpayment default described in clause (ii) above,
the earlier of the date on which such nonpayment default is cured or
waived or 179 days after the date on which the applicable Payment Blockage
Notice is received, unless the maturity of any Designated Guarantor Senior
Debt of such Guaranteeing Subsidiary has been accelerated.
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SECTION 12.04. ACCELERATION OF NOTES.
If payment of the Notes is accelerated because of an Event of Default, the
Guaranteeing Subsidiary shall provide the names of the Representatives of the
Senior Debt to the Trustee and the Trustee shall promptly notify such
Representatives of Senior Debt of the acceleration.
SECTION 12.05. WHEN DISTRIBUTION MUST BE PAID OVER.
In the event that the Trustee receives any payment of any Guarantee
Obligations with respect to a Guaranteeing Subsidiary at a time when the Trustee
has actual knowledge that such payment is prohibited by Section 12.02 or 12.03
hereof, such Payment shall be held by the Trustee, in trust for the benefit of,
and shall be paid forthwith over and delivered, upon written request to, the
holders of Senior Debt of such Guaranteeing Subsidiary as their interest may
appear or their Representative under the indenture or other agreement (if any)
pursuant to which such Senior Debt may have been issued, as their interest may
appear, for application to the payment of all Obligations with respect to such
Senior Debt remaining unpaid to the extent necessary to pay such Obligations in
full in accordance with their terms, after giving effect to any concurrent
payment or distribution to or for the holders of such Senior Debt.
In the event that any Holder receives any payment of any Guarantee
Obligations of a Guaranteeing Subsidiary at a time when such payment is
prohibited by Section 12.02 or 12.03 hereof, such payment shall be held by such
Holder, in trust for the benefit of, and shall be paid forthwith over and
delivered, upon written request to, the holders of Senior Debt of such
Guaranteeing Subsidiary as their interest may appear or their Representative
under the indenture or other agreement (if any) pursuant to which such Senior
Debt may have been issued, as their interest may appear, for application to the
payment of all Obligations with respect to such Senior Debt remaining unpaid to
the extent necessary to pay such Obligations in full in accordance with their
terms, after giving effect to any concurrent payment or distribution to or for
the holders of such Senior Debt.
With respect to the holders of Senior Debt, the Trustee undertakes to
perform only such obligations on the part of the Trustee as are specifically set
forth in this Article 12, and no implied covenants or obligations with respect
to the holders of Senior Debt shall be read into this Indenture against the
Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt, and shall not be liable to any such holders if the
Trustee shall pay over or distribute to or on behalf of Holders or the
Guaranteeing Subsidiaries or any other Person money or assets to which any
holders of Senior Debt shall be entitled by virtue of this Article 12, except if
such payment is made as a result of the willful misconduct or gross negligence
of the Trustee.
SECTION 12.06. NOTICE BY GUARANTEEING SUBSIDIARY.
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Each Guaranteeing Subsidiary shall promptly notify the Trustee and the
Paying Agent of any facts known to such Guaranteeing Subsidiary that would cause
a payment of any Guarantee Obligations to violate this Article 12, but failure
to give such notice shall not affect the subordination of the Subsidiary
Guarantees to the Senior Debt as provided in this Article 12.
SECTION 12.07. SUBORDINATION.
After all Senior Debt is paid in full in cash or Cash Equivalents and
until the Subsidiary Guarantees are paid in full, Holders shall be subrogated
(equally and ratably with all other Indebtedness pari passu with the Subsidiary
Guarantees) to the rights of holders of Senior Debt to receive distributions
applicable to Senior Debt to the extent that distributions otherwise payable to
the Holders have been applied to the payment of Senior Debt. A distribution made
under this Article 12 to holders of Senior Debt that otherwise would have been
made to Holders is not, as between the Guaranteeing Subsidiaries and Holders, a
payment by the Guaranteeing Subsidiaries on the Senior Debt.
SECTION 12.08. RELATIVE RIGHTS.
This Article 12 defines the relative rights of the Holders and holders of
Senior Debt. Nothing in this Indenture shall:
(i) impair, as between the Guaranteeing Subsidiaries and the
Holders, the obligation of the Guaranteeing Subsidiaries, which is
absolute and unconditional, to pay principal of, premium, if any, interest
and Liquidated Damages, If any, on the Notes in accordance with the terms
of the Subsidiary Guarantees;
(ii) affect the relative rights of Holders and creditors of the
Guaranteeing Subsidiaries other than their rights in relation to holders
of Senior Debt; or
(iii) prevent the Trustee or any Holder from exercising its
available remedies upon a Default or an Event of Default, subject to the
rights of holders and owners of Senior Debt to receive distributions and
payments otherwise payable to Holders.
If any Guaranteeing Subsidiary fails because of this Article 12 to pay its
Guarantee Obligations in accordance with its Subsidiary Guarantee on the due
date, the failure is nevertheless a Default or an Event of Default.
SECTION 12.09. SUBORDINATION MAY NOT BE IMPAIRED BY GUARANTEEING SUBSIDIARY.
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No right of any holder of Senior Debt to enforce the subordination of the
Guarantee Obligations shall be prejudiced or impaired by any act or failure to
act by the Guaranteeing Subsidiaries or any Holder or by the failure of the
Guaranteeing Subsidiaries or any Holder to comply with this Indenture.
SECTION 12.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to holders of
Senior Debt, the distribution may be made and the notice given to their
Representative.
Upon any payment or distribution of assets of a Guaranteeing Subsidiary
referred to in this Article 12, the Trustee and the Holders shall be entitled to
rely upon any order or decree made by any court of competent jurisdiction or
upon any certificate of such Representative or of the liquidating trustee or
agent or other Person making any distribution to the Trustee or to the Holders
for the purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Debt and other Indebtedness of such
Guaranteeing Subsidiary, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent thereto or to
this Article 12.
SECTION 12.11. RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding the provisions of this Article 12 or any other provision
of this Indenture, the Trustee shall not be charged with knowledge of the
existence of any facts that would prohibit the making of any payment or
distribution by the Trustee, and the Trustee and the Paying Agent may continue
to make payments on the Subsidiary Guarantees, unless the Trustee shall have
received at its Corporate Trust Office at least 5 Business Days prior to the
date of such payment written notice that the payment of any Obligations with
respect to the Subsidiary Guarantees would violate this Article 12. Only the
Guaranteeing Subsidiaries or a Representative may give the notice. Nothing in
this Article 12 shall impair the claims of, or payments to, the Trustee under or
pursuant to Section 7.07 hereof.
The Trustee in its individual or any other capacity may hold Senior Debt
with the same rights it would have if it were not Trustee. Any Agent may do the
same with like rights.
SECTION 12.12. AUTHORIZATION TO EFFECT SUBORDINATION.
Each Holder of a Note by the Holder's acceptance thereof authorizes and
directs the Trustee on the Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this
Article 12, and appoints the Trustee to act as the Holder's attorney-in-fact for
any and all such purposes. If the Trustee does not file a proper proof of claim
or proof of debt in the form required in any proceeding referred to in Section
6.09 hereof at least 30 days before the expiration of the time to file
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such claim, a Representative of Designated Guarantor Senior Debt is hereby
authorized to file an appropriate claim for and on behalf of the Holders of the
Notes.
SECTION 12.13. AMENDMENTS.
Any amendment to the provisions of this Article 12 shall require the
consent of the Holders of at least 75% in aggregate amount of Notes then
outstanding if such amendment would adversely affect the rights of the Holders
of Notes.
ARTICLE 13
MISCELLANEOUS
SECTION 13.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by TIA Section 318(c), the imposed duties shall control.
SECTION 13.02. NOTICES.
Any notice or communication by the Company, any Guaranteeing Subsidiary or
the Trustee to the others is duly given if in writing and delivered in Person or
mailed by first class mail registered or certified, return receipt requested),
telecopier or overnight air courier guaranteeing next day delivery, to the
others' address:
If to the Company or any Guaranteeing Subsidiary:
Xxxxxx-Field Health Products, Inc.
000 Xxxxx Xxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: General Counsel
With a copy to:
Milbank, Tweed, Xxxxxx & XxXxxx
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx Xxxxx, Esq.
If to the Trustee:
American Stock Transfer & Trust
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
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The Company, any Guaranteeing Subsidiary or the Trustee, by notice to the
others may designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to Holders) shall be
deemed to have been duly given: at the time delivered by hand, if personally
delivered; 5 Business Days after being deposited in the mail, postage prepaid,
if mailed; when receipt acknowledged, if telecopied; and the next Business Day
after timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first class
mail to its address shown on the register kept by the Registrar. Any notice or
communication shall also be so mailed to any Person described in TIA Section
313(c), to the extent required by the TIA. Failure to mail a notice or
communication to a Holder or any defect in it shall not affect its sufficiency
with respect to other Holders.
If a notice or communication is mailed in the manner provided above within
the time prescribed, it is duly given, whether or not the addressee receives it.
If the Company mails a notice or communication to Holders, it shall mail a
copy to the Trustee and each Agent at the same time.
SECTION 13.03. COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES.
Holders may communicate pursuant to TIA Section 312(b) with other Holders
with respect to their rights under this Indenture or the Notes. The Company, the
Trustee, the Registrar and anyone else shall have the protection of TIA Section
312(c).
SECTION 13.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company or any Guaranteeing
Subsidiary to the Trustee to take any action under this Indenture, the Company
or such Guaranteeing Subsidiary shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 13.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 13.05 hereof) stating that, in the opinion of such counsel, all
such conditions precedent and covenants have been satisfied.
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SECTION 13.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA Section 314(a)(4)) shall comply with the provisions of TIA
Section 314(e) and shall include:
(a) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she 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 satisfied; and
(d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been satisfied.
SECTION 13.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 13.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS.
No director, officer, employee, incorporator or stockholder of the Company
or any Guaranteeing Subsidiary, as such, shall have any liability for any
obligations of the Company under the Notes, any Subsidiary Guarantee, this
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Notes by accepting a Note waives
and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes and any Subsidiary Guarantee. Such
waiver may not be effective to waive liabilities under the federal securities
laws and it is the view of the Commission that such a waiver is against public
policy.
SECTION 13.08. GOVERNING LAW.
The internal law of the State of New York shall govern and be used to
construe this Indenture, the Subsidiary Guarantees and the Notes.
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SECTION 13.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other indenture, loan or
debt agreement of the Company or its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
SECTION 13.10. SUCCESSORS.
All agreements of the Company and the Guaranteeing Subsidiaries in this
Indenture and the Notes shall bind their respective successors and assigns. All
agreements of the Trustee in this Indenture shall bind its successors and
assigns.
SECTION 13.11. SEVERABILITY.
In case any provision in this Indenture or in the Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 13.12. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together represent the same
agreement.
SECTION 13.13. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of the Articles
and Sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part of this Indenture and shall in no way
modify or restrict any of the terms or provisions hereof.
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100
SIGNATURES
Dated as of August 4, 1997
XXXXXX-FIELD HEALTH
PRODUCTS, INC.
Attest: By:
----------------- --------------------------------
Name:
Title:
AQUA-THERM CORP.
Attest: By:
----------------- --------------------------------
Name:
Title:
BRISTOLINE, INC.
Attest: By:
----------------- --------------------------------
Name:
Title:
EVEREST & XXXXXXXX
CANADIAN LTD.
Attest: By:
----------------- --------------------------------
Name:
Title:
92
101
EVEREST & XXXXXXXX
DE MEXICO S.A. DE C.V.
Attest: By:
----------------- --------------------------------
Name:
Title:
EVEREST & XXXXXXXX, INC.
Attest: By:
----------------- --------------------------------
Name:
Title:
EVEREST & XXXXXXXX
INTERNATIONAL LTD.
Attest: By:
----------------- --------------------------------
Name:
Title:
EVEREST & XXXXXXXX LIFESTYLES
Attest: By:
----------------- --------------------------------
Name:
Title:
EXNEWT, INC.
Attest: By:
----------------- --------------------------------
Name:
Title:
93
102
FREEWAY INVESTMENT CORP.
Attest: By:
----------------- --------------------------------
Name:
Title:
G.F.E. HEALTHCARE PRODUCTS CORP.
Attest: By:
----------------- --------------------------------
Name:
Title:
XXXXXX-FIELD BANDAGE, INC.
Attest: By:
----------------- --------------------------------
Name:
Title:
XXXXXX-FIELD DISTRIBUTION, INC.
Attest: By:
----------------- --------------------------------
Name:
Title:
XXXXXX-FIELD EUROPEAN
DISTRIBUTION CORPORATION
LIMITED
Attest: By:
----------------- --------------------------------
Name:
Title:
94
103
XXXXXX-FIELD EXPRESS, INC.
Attest: By:
----------------- --------------------------------
Name:
Title:
XXXXXX-FIELD EXPRESS (DALLAS), INC.
Attest: By:
----------------- --------------------------------
Name:
Title:
XXXXXX-FIELD EXPRESS
(PUERTO RICO) INC.
Attest: By:
----------------- --------------------------------
Name:
Title:
XXXXXX-FIELD, INC.
Attest: By:
----------------- --------------------------------
Name:
Title:
XXXXXX-FIELD TEMCO, INC.
Attest: By:
----------------- --------------------------------
Name:
Title:
95
104
HEALTH AND MEDICAL
TECHNIQUES, INC.
Attest: By:
----------------- --------------------------------
Name:
Title:
HEALTHTEAM, INC.
Attest: By:
----------------- --------------------------------
Name:
Title:
INTERNATIONAL MEDICAL
EQUIPMENT CORP.
Attest: By:
----------------- --------------------------------
Name:
Title:
THE XXXXXXXX INVESTMENT COMPANY
Attest: By:
----------------- --------------------------------
Name:
Title:
KUSCHALL OF AMERICA, INC.
Attest: By:
----------------- --------------------------------
Name:
Title:
96
105
LABAC SYSTEMS, INC.
Attest: By:
----------------- --------------------------------
Name:
Title:
LABTRON SCIENTIFIC CORP.
Attest: By:
----------------- --------------------------------
Name:
Title:
M.E. TEAM, INC.
Attest: By:
----------------- --------------------------------
Name:
Title:
MCT ACQUISITION CORP.
Attest: By:
----------------- --------------------------------
Name:
Title:
MEDISCO, INC.
Attest: By:
----------------- --------------------------------
Name:
Title:
METAL PRODUCTS CORP.
Attest: By:
----------------- --------------------------------
Name:
97
106
Title:
PATIENT TECHNOLOGY, INC.
Attest: By:
----------------- --------------------------------
Name:
Title:
PROFESSIONAL SECURITIES CORP.
Attest: By:
----------------- --------------------------------
Name:
Title:
RABSON MEDICAL SALES, LTD.
Attest: By:
----------------- --------------------------------
Name:
Title:
XXXXX & XXXXX MANUFACTURING
COMPANY
Attest: By:
----------------- --------------------------------
Name:
Title:
XXXXXXXX XXXXX, INC.
Attest: By:
----------------- --------------------------------
Name:
Title:
98
107
VENTILATOR CORP.
Attest: By:
----------------- --------------------------------
Name:
Title:
99
108
Dated as of August 4, 1997
[SEAL]
AMERICAN STOCK TRANSFER &
TRUST COMPANY
as Trustee
Attest: By:
----------------- --------------------------------
Name:
Title:
100
109
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES
IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY
TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR
ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) ("XXX"), TO
THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
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 REOFFERED, 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, REGISTRATION UNDER SUCH LAWS.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH SECURITY PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATED PERSON OF THE COMPANY WAS THE OWNER OF THIS SECURITY UNLESS SUCH
OFFER, SALE OR OTHER TRANSFER IS (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 SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A, TO A PERSON WHO IS OR WHO THE HOLDER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT 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) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF
110
SUBPARAGRAPH (a)(1), (a)(2), (a)(3) OR (a)(7) OF RULE 501 UNDER THE SECURITIES
ACT THAT IS PURCHASING 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 (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, AND IN EACH OF THE FOREGOING
CASES SUCH OFFER, SALE OR OTHER TRANSFER IS IN COMPLIANCE WITH ANY APPLICABLE
STATE SECURITIES LAWS, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE
OF TRANSFER IN THE FORM PROVIDED FOR IN THE INDENTURE (A COPY OF WHICH MAY BE
OBTAINED FROM THE TRUSTEE) IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE
TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE THEN HOLDER OF THIS
SECURITY AFTER THE RESALE RESTRICTION TERMINATION DATE. ANY TRANSFEREE OF THIS
SECURITY SHALL BE DEEMED TO HAVE REPRESENTED EITHER (X) THAT IT IS NOT USING THE
ASSETS OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT ("ERISA") OR THE INTERNAL REVENUE CODE (THE "CODE") TO PURCHASE
THIS SECURITY OR (Y) THAT ITS PURCHASE AND CONTINUED HOLDING OF THE SECURITY
WILL BE COVERED BY A U.S. DEPARTMENT OF LABOR CLASS EXEMPTION (WITH RESPECT TO
PROHIBITED TRANSACTIONS UNDER SECTION 406(a) OF ERISA).
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9-3/4% SENIOR SUBORDINATED NOTES DUE 2007
Cusip No. 384 632 AA3 $100,000,000
XXXXXX-FIELD HEALTH PRODUCTS, INC.
promises to pay to
CEDE & CO.
or registered assigns,
the principal sum of $100,000,000
Dollars or such greater or lesser amount as indicated on the Schedule of
Exchanges of Definitive Notes on the reverse hereof on August 15, 2007
Interest Payment Dates: February 15 and August 15
Record Dates: February 1 and August 1
Authentication: Dated: August 4, 1997
This is one of the Notes referred
to in the within-mentioned Indenture.
AMERICAN STOCK TRANSFER
& TRUST COMPANY,
as Trustee XXXXXX-FIELD HEALTH PRODUCTS, INC.
By: By:
------------------- ------------------------------
Authorized Officer
By:
-------------------------
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9-3/4% SENIOR SUBORDINATED NOTES DUE 2007
1. INTEREST. XXXXXX-FIELD HEALTH PRODUCTS, INC., a Delaware
corporation, or its successor (the "Company"), promises to pay interest on the
principal amount of this Note at the rate of 9-3/4% per annum and shall pay the
Liquidated Damages, if any, payable pursuant to Section 5 of the Registration
Rights Agreement referred to below. The Company will pay interest and Liquidated
Damages in United States dollars (except as otherwise provided herein)
semi-annually in arrears on February 15 and August 15, commencing on February
15, 1998 or if any such day is not a Business Day, on the next succeeding
Business Day (each an "Interest Payment Date"). Interest on the Notes shall
accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from the date of original issuance; provided that if
there is no existing Default or Event of Default in the payment of interest, and
if this Note is authenticated between a record date referred to on the face
hereof and the next succeeding Interest Payment Date, interest shall accrue from
such next succeeding Interest Payment Date, except in the case of the original
issuance of Notes, in which case interest shall accrue from the date of
authentication. The Company shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue principal and premium, if
any, from time to time on demand at a rate that is 1.0% per annum in excess of
the rate then in effect; it shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue installments of interest
and Liquidated Damages, if any (without regard to any applicable grace periods),
from time to time on demand at the same rate to the extent lawful. Interest
shall be computed on the basis of a 360-day year comprised of twelve 30-day
months.
2. METHOD OF PAYMENT. The Company will pay interest on the Notes
(except defaulted interest) and Liquidated Damages, if any, to the Persons who
are registered Holders of Notes at the close of business on the February 1 or
August 1 next preceding the Interest Payment Date, even if such Notes are
cancelled after such record date and on or before such Interest Payment Date,
except as provided in Section 2.11 of the Indenture with respect to defaulted
interest. The Notes shall be payable as to principal, premium, if any, interest
and Liquidated Damages, if any, at the office or agency of the Company
maintained for such purpose within the City and State of New York, or, at the
option of the Company, payment of interest may be made by check mailed to the
Holders at their addresses set forth in the register of Holders; provided that
payment by wire transfer of immediately available funds shall be required with
respect to principal of, and interest, premium and Liquidated Damages, if any,
on, all Global Notes and all other Notes the Holders of which shall have
provided written wire transfer instructions to the Company or the Paying Agent.
Such payment shall be in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private
debts.
3. PAYING AGENT AND REGISTRAR. Initially, American
Stock Transfer & Trust Company, the Trustee under the Indenture, shall
act as Paying Agent and Registrar. The Company may change any Paying
Agent or Registrar without notice
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to any Holder. The Company or any of its Subsidiaries may act in any such
capacity.
4. INDENTURE. The Company issued the Notes under an Indenture dated
as of August 4, 1997 ("Indenture") between the Company, the Guaranteeing
Subsidiaries and the Trustee. The terms of the Notes include those stated in the
Indenture and those made a part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (15 U.S. Code Sections 77aaa-77bbbb) (the
"TIA"). The Notes are subject to all such terms, and Holders are referred to the
Indenture and such Act for a statement of such terms. The Notes are general
unsecured Obligations of the Company limited to $100,000,000 in aggregate
principal amount, plus amounts, if any, sufficient to pay premium, if any,
interest or Liquidated Damages, if any, on outstanding Notes as set forth in
Paragraph 2 hereof.
5. OPTIONAL REDEMPTION.
Except as set forth in the next paragraph, the Notes shall not be
redeemable at the Company's option prior to August 15, 2002. Thereafter, the
Notes shall be subject to redemption at the option of the Company, in whole or
in part, upon not less than 30 nor more than 60 days' notice, at the redemption
prices (expressed as percentages of principal amount) set forth below together
with accrued and unpaid Interest and any Liquidated Damages, if any, thereon to
the applicable redemption date, if redeemed during the twelve-month period
beginning on August 15 of the years indicated below:
Year Percentage
---- ----------
2002...................................... 104.875%
2003...................................... 103.250%
2004...................................... 101.625%
2005 and thereafter....................... 100.000%
Notwithstanding the foregoing, at any time prior to August 15, 2000,
the Company on one or more occasions may redeem up to 25% of the aggregate
principal amount of originally issued Notes with any of the net proceeds of one
or more public offerings of common stock of the Company at a redemption price of
109.75% of the principal amount thereof plus accrued and unpaid interest and
Liquidated Damages, if any, thereon to the applicable date of redemption;
provided that at least 75% of the aggregate principal amount of the Notes remain
outstanding immediately after the occurrence of each such redemption.
Any redemption pursuant to Section 3.07 of the Indenture shall be
made pursuant to the provisions of Section 3.01 through 3.06 thereof.
X-0
000
0. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, the Company shall not be
required to make mandatory redemption or sinking fund payments with respect to
the Notes.
7. REPURCHASE AT OPTION OF HOLDER.
(a) Upon the occurrence of a Change of Control, each Holder of Notes
will have the right to require the Company to repurchase all or any part (equal
to $1,000 or an integral multiple thereof) of such Holder's Notes pursuant to
the offer described below (the "Change of Control Offer") at an offer price in
cash equal to 101% of the aggregate principal amount thereof plus accrued and
unpaid interest and Liquidated Damages, if any, thereon to the date of purchase.
Within 30 days following any Change of Control, the Company will
mail a notice to each Holder describing the transaction or transactions that
constitute the Change of Control setting forth the procedures governing the
Change of Control Offer required by the Indenture.
(b) When the aggregate amount of Excess Proceeds held by the Company
in connection with an Asset Sale exceeds $5.0 million, the Company shall,
pursuant to Section 3.09 of the Indenture, (i) make an offer to all Holders of
Notes to purchase and (ii) prepay, purchase or redeem (or make an offer to do
so) any other Pari Passu Indebtedness of the Company in accordance with
provisions requiring the Company to prepay, purchase or redeem such Indebtedness
with the proceeds from any asset sales (or offer to do so), the maximum
principal amount of Notes and of such Indebtedness that may be purchased out of
the Excess Proceeds, pro rata in proportion to the respective principal amounts
(or accreted value, as applicable) of the Notes and such other Indebtedness
required to be prepaid, purchased or redeemed or tendered for pursuant to such
offer (an "Asset Sale Offer"), at an offer price in cash in an amount equal to
100% of the principal amount thereof plus accrued and unpaid interest and
Liquidated Damages thereon, if any to the date of purchase, in accordance with
the procedures set forth in Section 3.09 of the Indenture.
(c) Holders of the Notes that are the subject of an offer to
purchase will receive a Change of Control Offer or Asset Sale Offer from the
Company prior to any related purchase date and may elect to have such Notes
purchased by completing the form titled "Option of Holder to Elect Purchase"
appearing below.
8. NOTICE OF REDEMPTION. Notice of redemption shall be mailed at
least 30 days but not more than 60 days before the redemption date to each
Holder whose Notes are to be redeemed at its registered address. Notes in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Notes held by a Holder are to be
redeemed. On and after the redemption date, interest and Liquidated Damages, if
any, cease to accrue on the Notes or portions thereof
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called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered
form without coupons in initial denominations of $1,000 and integral multiples
of $1,000. The transfer of the Notes may be registered and the Notes may be
exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay any taxes and
fees required by law or permitted by the Indenture. The Company need not
exchange or register the transfer of any Note or portion of a Note selected for
redemption, except for the unredeemed portion of any Note being redeemed in
part. Also, it need not exchange or register the transfer of any Notes for a
period of 15 days before a selection of Notes to be redeemed or during the
period between a record date and the corresponding Interest Payment Date.
10. SUBORDINATION. Each Holder by accepting a Note agrees that the
payment of principal of, premium and Liquidated Damages, if any, and interest on
each Note is subordinated in right of payment, to the extent and in the manner
provided in Article 10 of the Indenture, to the prior payment in full of all
Senior Debt (whether outstanding on the date of the Indenture or thereafter
created, incurred, assumed or guaranteed), and the subordination is for the
benefit of the holders of Senior Debt.
11. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
12. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to the following
paragraphs, the Indenture, the Notes and the Subsidiary Guarantees may be
amended or supplemented with the consent of the Holders of at least a majority
in principal amount of the Notes then outstanding (including consents obtained
in connection with a tender offer or exchange offer for Notes), and any existing
Default or Event of Default (other than a Default or Event of Default in the
payment of the principal of, premium, if any, interest or Liquidated Damages, if
any, on the Notes, except a payment default resulting from an acceleration that
has been rescinded) or compliance with any provision of the Indenture, the Notes
or the Subsidiary Guarantees may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes (including consents
obtained in connection with a tender offer or exchange offer for Notes).
Notwithstanding the foregoing, the provisions with respect to Asset
Sales may be amended or supplemented with the consent of the Holders of at least
two-thirds in principal amount of the Notes then outstanding (including consents
obtained in connection with a tender offer or exchange offer for the Notes). In
addition, any amendment to the provisions of Article 10 and Article 12 of the
Indenture (which relate to subordination) will require the consent of the
Holders of at least 75% in aggregate amount of Notes then outstanding (including
consents obtained in connection with a tender offer or exchange offer for the
Notes) if such amendment would adversely affect the rights of Holders of Notes.
Without obtaining any necessary consents under the Credit Facility, the Company
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116
may not amend or supplement the subordination provisions with respect to the
Notes.
Without the consent of each Holder affected, however, an amendment
or waiver may not (with respect to any Note held by a non-consenting Holder):
(i) reduce the principal amount of Notes; (ii) reduce the principal of or change
the fixed maturity of any Note or alter the provisions with respect to the
redemption of the Notes or any Change of Control Offer; (iii) reduce the rate of
or change the time for payment of interest or Liquidated Damages, if any, on any
Notes; (iv) waive a Default or Event of Default in the payment of principal of
or premium, if any, or interest or Liquidated Damages, if any, on the Notes
(except a rescission of acceleration of the Notes by the Holders of at least a
majority in aggregate principal amount of the Notes and a waiver of the payment
default that resulted from such acceleration); (v) make any Note payable in
money other than that stated in the Notes; (vi) waive a redemption or repurchase
payment with respect to any Note; or (vii) make any change in the foregoing
amendment and waiver provisions.
Without the consent of any Holder of Notes, the Company, the
Guaranteeing Subsidiaries and the Trustee may amend or supplement the Indenture,
the Subsidiary Guarantees or the Notes to cure any ambiguity, defect or
inconsistency, to provide for uncertificated Notes in addition to or in place of
certificated Notes, to provide for the assumption of the Company's or a
Guaranteeing Subsidiary's obligations to Holders of the Notes in case of a
merger, transfer of assets or consolidation, to make any change that would
provide any additional rights or benefits to the Holders of the Notes or that
does not adversely affect the legal rights under the Indenture of any such
Holder, to comply with the requirements of the Commission in order to effect or
maintain the qualification of the Indenture under the TIA or to allow any
Guaranteeing Subsidiary to guarantee the Notes.
13. DEFAULTS AND REMEDIES. Events of Default include: (i) default for
30 days in the payment when due of interest or Liquidated Damages, if any, with
respect to the Notes (whether or not prohibited by Article 10 or Article 12 of
the Indenture); (ii) default in payment when due of principal or premium, if
any, on the Notes at maturity, upon redemption or otherwise (whether or not
prohibited by Article 10 or Article 12 of the Indenture); (iii) failure by the
Company or any Guaranteeing Subsidiary for 30 days after receipt of notice from
the Trustee or Holders of at least 25% in principal amount of the Notes then
outstanding to comply with the provisions described in Sections 4.07, 4.09,
4.13, 4.14, or 5.01 of the Indenture; (iv) failure by the Company or any
Guaranteeing Subsidiary for 60 days after notice from the Trustee or the Holders
of at least 25% in principal amount of the Notes then outstanding to comply with
its other agreements in the Indenture or the Notes; (v) default under any
mortgage, indenture or instrument under which there may be issued or by which
there may be secured or evidenced any Indebtedness for money borrowed by the
Company or any of its Restricted Subsidiaries (or the payment of which is
guaranteed by the Company or any of its Restricted Subsidiaries) whether such
Indebtedness or Guarantee now exists, or is created after the date of the
Indenture, which default (A)(i) is caused by a failure to pay when due at final
stated maturity (giving effect to any grace period related thereto) principal of
such
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Indebtedness (a "Payment Default") or (ii) results in the acceleration of such
Indebtedness prior to its express maturity and (B) in each case, the principal
amount of any such Indebtedness, together with the principal amount of any other
such Indebtedness under which there has been a Payment Default or the maturity
of which has been accelerated as a result of any matter contemplated in clause
(v)(A)(i) or (v)(A)(ii), aggregates $7.5 million or more; (vi) failure by the
Company or any of its respective Restricted Subsidiaries to pay final judgments
(to the extent not covered by insurance and as to which the insurer has not
acknowledged coverage in writing) aggregating in excess of $7.5 million, which
judgments are not paid, fully bonded, discharged or staved within 60 days after
their entry; (vii) certain events of bankruptcy or insolvency with respect to
the Company or any Restricted Subsidiary of the company that is a Significant
Subsidiary or group of Restricted Subsidiaries of the Company that, together,
would constitute a Significant Subsidiary; and (viii) the termination of the
Subsidiary Guarantee(s) of either a Guaranteeing Subsidiary that is a
Significant Subsidiary or group of Guaranteeing Subsidiaries that together
constitute a Significant Subsidiary for any reason not permitted by the
Indenture, or the denial of any Person acting on behalf of any such Guaranteeing
Subsidiary or group of Guaranteeing Subsidiaries of its Obligations under any
such Subsidiary Guarantee(s).
If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Notes may
declare all the Notes to be due and payable by notice in writing to the Company
and the Trustee specifying the respective Event of Default and that it is a
"notice of acceleration" (the "Acceleration Notice") and the same (i) shall
become immediately due and payable or (ii) if there are any amounts outstanding
under the Credit Facility, shall become immediately due and payable upon the
first to occur of an acceleration under the Credit Facility or 5 Business Days
after receipt by the Company and the Representative under the Credit Facility of
such Acceleration Notice but only if such Event of Default is then continuing.
Notwithstanding the foregoing, in the case of an Event of Default arising from
certain events of bankruptcy or insolvency with respect to the Company, all
outstanding Notes will become due and payable without further action or notice.
Holders of the Notes may not enforce the Indenture or the Notes except as
provided in the Indenture.
Subject to certain limitations, Holders of a majority in principal
amount of the then outstanding Notes may direct the Trustee in its exercise of
any trust or Power. The Holders of a majority in aggregate principal amount of
the Notes then outstanding, by notice to the Trustee, may on behalf of the
Holders of all of the Notes waive any existing Default or Event of Default and
its consequences under the Indenture, except a continuing Default or Event of
Default in the payment of interest or premium, if any, on, or principal of, the
Notes. The Trustee may withhold from Holders of the Notes notice of any
continuing Default or Event of Default (except a Default or Event of Default
relating to the payment of principal or interest) if it determines that
withholding notice is in such Holders' interest. The Company is required to
deliver to the Trustee annually a statement regarding compliance with the
Indenture, and the Company is required upon becoming aware of any Default or
Event of Default to deliver to the Trustee a statement specifying such Default
or Event of Default.
X-0
000
00. SUBSIDIARY GUARANTEES. The Notes will be guaranteed (the
"Subsidiary Guarantees"), jointly and severally, on a senior subordinated basis
by the Guaranteeing Subsidiaries. The Subsidiary Guarantees will be subordinated
in right of payment to all existing and future Senior Debt of the Guaranteeing
Subsidiaries.
15. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not the Trustee.
16. NO RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator or stockholder, of the Company or any Guaranteeing Subsidiary, as
such, shall have any liability for any obligations of the Company under the
Notes, any 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 the issuance of the Notes and any
Subsidiary Guarantee. Such waiver may not be effective to waive liabilities
under the federal securities laws and it is the view of the Commission that such
a waiver is against public policy.
17. AUTHENTICATION. This Note shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
18. ERISA MATTERS. Each Holder of Securities, by its acceptance
thereof, will be deemed to certify that (i) no part of the funds used by such
Holder to purchase the Securities constitutes assets of an employee benefit plan
or (ii) the acquisition and continued holding of the Securities will be covered
by a U.S. Department of Labor class exemption (with respect to prohibited
transactions set forth under Section 406(a) of ERISA).
19. 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).
20. Additional Rights of Holders of Transfer Restricted Securities.
In addition to the rights provided to Holders of the Notes under the Indenture,
Holders of Transferred Restricted Securities shall have all the rights set forth
in the Registration Rights Agreement dated as of the date hereof, among the
Company, the Guaranteeing Subsidiary and the parties named on the signature
pages thereof (the "Registration Rights Agreement").
21. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has
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caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP
numbers in notices of redemption as a convenience to the Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Notes or as contained in any notice of redemption and reliance may be placed
only on the other identification numbers placed thereon.
The Company shall furnish to any Holder upon written request and
without charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
Xxxxxx-Field Health Products, Inc.
000 Xxxxx Xxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: General Counsel
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ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and
transfer this Note to
________________________________________________________________
(Insert assignee's Soc. Sec. or Tax I.D. no.)
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________ to transfer
this Note on the books of the Company. The agent may substitute another to act
for him.
Date: ______________
Your Signature:_____________________________
(Sign exactly as your name appears
on the face of this Note)
Signature Guarantee:____________________________
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.10 or 4.14 of the Indenture, check the appropriate box:
/ / Section 4.10 / / Section 4.14
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.10 or 4.14 of the Indenture, state the amount you
elect to have purchased: $____________.
Date: __________
Your Signature:__________________________
(Sign exactly as your name appears
on the face of this Note)
Signature Guarantee:____________________
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SCHEDULE OF EXCHANGES OF DEFINITIVE NOTES
The following exchanges of a part of this Global Note for Definitive
Notes have been made.
Amount of Amount of Principal
decrease in increase in Amount of this
Principal Principal Global Note Signature of
Amount of Amount of following such authorized
Date of this Global this Global decrease (or officer of
Exchange Note Note increase) Trustee
-------- ----------- ----------- -------------- ------------
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
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