Exhibit T3C
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NATIONAL VISION, INC.,
as Issuer,
and
STATE STREET BANK AND TRUST COMPANY,
as Trustee
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INDENTURE
Dated as of ___________ __, 2001
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$120,000,000 of
12% Senior Secured Notes due 2009
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Table of Contents
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GRANTING CLAUSES.......................................................1
ARTICLE ONE DEFINITIONS AND INCORPORATION BY REFERENCE.................2
SECTION 1.01. Definitions....................................................................2
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SECTION 1.02. Incorporation by Reference of TIA.............................................22
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SECTION 1.03. Rules of Construction.........................................................23
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ARTICLE TWO THE NOTES ................................................23
SECTION 2.01. Form and Dating...............................................................23
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SECTION 2.02. Execution and Authentication; Aggregate Principal Amount......................24
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SECTION 2.03. Registrar and Paying Agent....................................................25
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SECTION 2.04. Paying Agent To Hold Assets in Trust..........................................26
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SECTION 2.05. Holder Lists..................................................................26
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SECTION 2.06. Transfer and Exchange.........................................................26
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SECTION 2.07. Replacement Notes.............................................................27
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SECTION 2.08. Outstanding Notes.............................................................27
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SECTION 2.09. Treasury Notes................................................................27
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SECTION 2.10. Temporary Notes...............................................................28
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SECTION 2.11. Cancellation..................................................................28
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SECTION 2.12. Defaulted Interest............................................................28
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SECTION 2.13. CUSIP Numbers.................................................................29
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SECTION 2.14. Deposit of Monies.............................................................29
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ARTICLE THREE REDEMPTION..............................................23
SECTION 3.01. Notices to Trustee............................................................30
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SECTION 3.02. Selection of Notes To Be Redeemed.............................................30
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SECTION 3.03. Optional Redemption...........................................................31
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SECTION 3.04. Notice of Redemption..........................................................31
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SECTION 3.05. Effect of Notice of Redemption................................................32
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SECTION 3.06. Mandatory Redemption..........................................................32
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SECTION 3.07. Deposit of Redemption Price...................................................33
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SECTION 3.08. Notes Redeemed in Part........................................................33
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ARTICLE FOUR COVENANTS................................................34
SECTION 4.01. Payment of Notes..............................................................34
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SECTION 4.02. Maintenance of Office or Agency...............................................34
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(i)
Table of Contents
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(continued)
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SECTION 4.03. Corporate Existence...........................................................34
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SECTION 4.04. Payment of Taxes and Other Claims.............................................34
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SECTION 4.05. Maintenance of Properties and Insurance.......................................35
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SECTION 4.06. Compliance Certificate; Notice of Default.....................................35
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SECTION 4.07. Compliance with Laws..........................................................36
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SECTION 4.08. Reports to Holders............................................................36
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SECTION 4.09. Waiver of Stay, Extension or Usury Laws.......................................37
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SECTION 4.10. Limitation on Restricted Payments.............................................37
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SECTION 4.11. Limitations on Transactions with Affiliates...................................38
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SECTION 4.12. Limitation on Incurrence of Additional Indebtedness...........................40
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SECTION 4.13. Limitation on Dividend and Other Payment Restrictions Affecting
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Subsidiaries..................................................................40
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SECTION 4.14. Change of Control.............................................................41
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SECTION 4.15. Limitation on Asset Sales.....................................................43
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SECTION 4.16. Limitation on Preferred Stock of Restricted Subsidiaries......................43
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SECTION 4.17. Limitation on Liens...........................................................44
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SECTION 4.18. INTENTIONALLY OMITTED.........................................................44
SECTION 4.19. DTC and PORTAL Eligibility....................................................44
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SECTION 4.20. Conduct of Business...........................................................44
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SECTION 4.21. Protection of Security; Acknowledgment of Pledge..............................44
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ARTICLE FIVE SUCCESSOR CORPORATION....................................46
SECTION 5.01. Merger, Consolidation and Sale of Assets......................................46
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SECTION 5.02. Successor Corporation Substituted.............................................47
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ARTICLE SIX REMEDIES..................................................47
SECTION 6.01. Events of Default.............................................................47
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SECTION 6.02. Acceleration..................................................................49
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SECTION 6.03. Other Remedies................................................................49
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SECTION 6.04. Waiver of Past Defaults.......................................................49
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SECTION 6.05. Control by Majority...........................................................50
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SECTION 6.06. Limitation on Suits...........................................................50
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SECTION 6.07. Right of Holders To Receive Payment...........................................51
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SECTION 6.08. Collection Suit by Trustee....................................................51
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SECTION 6.09. Trustee May File Proofs of Claim..............................................51
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SECTION 6.10. Priorities....................................................................51
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SECTION 6.11. Undertaking for Costs.........................................................52
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(ii)
Table of Contents
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(continued)
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ARTICLE SEVEN TRUSTEE.................................................52
SECTION 7.01. Duties of Trustee.............................................................52
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SECTION 7.02. Rights of Trustee.............................................................53
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SECTION 7.03. Individual Rights of Trustee..................................................54
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SECTION 7.04. Trustee's Disclaimer..........................................................55
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SECTION 7.05. Notice of Default.............................................................55
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SECTION 7.06. Reports by Trustee to Holders.................................................55
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SECTION 7.07. Compensation and Indemnity....................................................56
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SECTION 7.08. Replacement of Trustee........................................................57
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SECTION 7.09. Successor Trustee by Merger, Etc..............................................58
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SECTION 7.10. Eligibility; Disqualification.................................................58
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SECTION 7.11. Preferential Collection of Claims Against Company.............................58
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ARTICLE EIGHT DISCHARGE OF INDENTURE; DEFEASANCE......................58
SECTION 8.01. Termination of Company's Obligations..........................................58
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SECTION 8.02. Application of Trust Money....................................................61
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SECTION 8.03. Repayment to the Company......................................................61
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SECTION 8.04. Reinstatement.................................................................62
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SECTION 8.05. Release of Security...........................................................62
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SECTION 8.06. Acknowledgment of Discharge by Trustee........................................62
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ARTICLE NINE MODIFICATION OF THE INDENTURE............................63
SECTION 9.01. Without Consent of Holders....................................................63
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SECTION 9.02. With Consent of Holders.......................................................63
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SECTION 9.03. Compliance with TIA...........................................................64
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SECTION 9.04. Revocation and Effect of Consents.............................................65
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SECTION 9.05. Notation on or Exchange of Notes..............................................65
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SECTION 9.06. Trustee to Sign Amendments, Etc...............................................65
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SECTION 9.07. Effect on New Credit Facility.................................................66
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ARTICLE TEN SUBORDINATION OF NOTES....................................66
SECTION 10.01. Notes Subordinated to New Credit Facility.....................................66
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SECTION 10.02. Suspension of Payment When New Credit Facility is in Default..................66
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SECTION 10.03. Notes Subordinated to Prior Payment of New Credit Facility on
Dissolution, Liquidation or Reorganization of Company.........................68
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SECTION 10.04. Payments may be Paid Prior to Dissolution.....................................69
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Table of Contents
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(continued)
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SECTION 10.05. Holders to be Subrogated to Rights of Lender..................................70
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SECTION 10.06. Obligations of the Company Unconditional......................................70
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SECTION 10.07. Notice to Trustee.............................................................70
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SECTION 10.08. Reliance on Judicial Order or Certificate of Liquidating Agent................71
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SECTION 10.09. Trustee's Relation to New Credit Facility.....................................71
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SECTION 10.10. Subordination of Liens........................................................72
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SECTION 10.11 Subordination Rights Not Impaired by Acts or Omissions of the
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Company or Holders of the New Credit Facility.................................74
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SECTION 10.12. Noteholders Authorize Trustee to Effectuate Subordination of Notes............75
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SECTION 10.13. This Article Ten Not to Prevent Events of Default.............................76
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SECTION 10.14. Trustee's Compensation Not Prejudiced.........................................76
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ARTICLE ELEVEN MISCELLANEOUS..........................................76
SECTION 11.01. TIA Controls..................................................................76
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SECTION 11.02. Notices.......................................................................76
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SECTION 11.03. Communications by Holders with Other Holders..................................77
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SECTION 11.04. Certificate and Opinion as to Conditions Precedent............................77
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SECTION 11.05. Statements Required in Certificate or Opinion.................................78
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SECTION 11.06. Rules by Trustee, Paying Agent, Registrar.....................................78
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SECTION 11.07. Legal Holidays................................................................78
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SECTION 11.08. Governing Law.................................................................79
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SECTION 11.09. No Adverse Interpretation of Other Agreements.................................79
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SECTION 11.10. No Personal Liability.........................................................79
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SECTION 11.11. Successors....................................................................79
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SECTION 11.12. Duplicate Originals...........................................................79
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SECTION 11.13. Severability..................................................................79
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SECTION 11.14. Independence of Covenants.....................................................79
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Exhibit A - Form of Initial Note.........................................................A-1
Note: This Table of Contents shall not, for any purpose, be deemed to be part of this Indenture
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
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310(a)(1)............................................................................ 7.10
(a)(2)......................................................................... 7.10
(a)(3)......................................................................... N.A.
(a)(4)......................................................................... N.A.
(a)(5)......................................................................... 7.10
(b)............................................................................ 7.08; 7.10; 11.02
(c)............................................................................ N.A.
311(a)............................................................................... 7.11
(b)............................................................................ 7.11
(c)............................................................................ N.A.
312(a)............................................................................... 2.05
(b)............................................................................ 11.03
(c)............................................................................ 11.03
313(a)............................................................................... 7.06
(b)(1)......................................................................... N.A.
(b)(2)......................................................................... 7.06
(c)............................................................................ 7.06; 11.02
(d)............................................................................ 7.06
314(a)............................................................................... 4.06; 4.08; 11.02
(b)............................................................................ 4.21
(c)(1)......................................................................... 11.04
(c)(2)......................................................................... 11.04
(c)(3)......................................................................... N.A.
(d)............................................................................ N.A.
(e)............................................................................ 11.05
(f)............................................................................ N.A.
315(a)............................................................................... 7.01(b)
(b)............................................................................ 7.05; 11.02
(c)............................................................................ 7.01(a)
(d)............................................................................ 7.01(c)
(e)............................................................................ 6.11
316(a)(last sentence)................................................................ 2.09
(a)(1)(A)...................................................................... 6.05
(a)(1)(B)...................................................................... 6.04
(a)(2)......................................................................... N.A.
(b)............................................................................ 6.07
(c)............................................................................ 9.04
317(a)(1)............................................................................ 6.08
(a)(2)......................................................................... 6.09
(b)............................................................................ 2.04
318(a)............................................................................... 11.01
(c)............................................................................ 11.01
N.A. means Not Applicable.
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Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of this Indenture.
INDENTURE, dated as of _______ __, 2001, between NATIONAL VISION,
INC. (f/k/a Vista Eyecare, Inc.), a Georgia corporation (the "Company"), and
State Street Bank and Trust Company, as Trustee (the "Trustee").
The Company has duly authorized the creation of an issue of 12% Senior
Secured Notes due 2009 and, to provide therefor, the Company has duly authorized
the execution and delivery of this Indenture. All things necessary to make the
Notes (as defined), when duly issued and executed by the Company and
authenticated and delivered hereunder, the valid and binding obligations of the
Company and to make this Indenture a valid and binding agreement of the Company,
have been done.
Each party hereto agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of the Company's
12% Senior Secured Notes due 2009:
GRANTING CLAUSES
The Company hereby Grants to the Trustee as of the date hereof, as
trustee for the benefit of the Holders, all of the Company's right, title and
interest, subject to the provisions set forth below, whether now owned or
hereafter acquired in, to, and under (a) all tangible and intangible assets of
the Company; and (b) all present and future claims, demands, causes and choses
in action in respect of any or all of the foregoing and all payments on or under
and all proceeds of the conversion, voluntary or involuntary, into cash or other
liquid property, all cash proceeds, accounts, accounts receivable, notes,
drafts, acceptances, chattel paper, checks, deposit accounts, insurance
proceeds, condemnation awards, rights to payment of any and every kind and other
forms of obligations and receivables, instruments and other property which at
any time constitute all or part of or are included in the proceeds of any of the
foregoing (all of the foregoing referenced to in this paragraph being referred
to collectively herein as the "Security").
The Holders of the Notes are entitled to the benefit of Liens on the
Security, subject to the priorities, limitations and provisions set forth
herein. For as long as all or any portion of the Indebtedness under the New
Credit Facility remains outstanding, unpaid or unsatisfied, the Trustee, and by
accepting a Note, each Holder, acknowledge and agree that (i) the security
interest granted to the Trustee for the benefit of the Holders in the Security
shall, irrespective of the time of perfection or creation of any security
interests or other Liens in the Security on behalf of the Lender or Trustee, be
junior and subordinate to the interests of such Lender and (ii) to refrain from
taking any action to foreclose upon, take possession of, liquidate or otherwise
proceed against the Security.
The Grant made in the initial paragraph of the Granting Clause is made
in trust (as described above) to secure the payment of principal of and interest
on, and any other amounts owing in respect of the Notes, equally and ratably
without prejudice, priority or
distinction and to secure compliance with the
provisions of this Indenture, all as provided in this Indenture; and after
satisfaction of such obligations, amounts received as a result of such Grant
shall be available without restriction to the Company.
The Trustee, as trustee on behalf of the Holders, acknowledges such
Grant and accepts the trusts under this Indenture in accordance with the
provisions of this Indenture.
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
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SECTION 1.01 Definitions.
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"10% Issuees" means each holder of 10% or more of the outstanding
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principal amount of the Notes on the Effective Date.
"Acquired Indebtedness" means Indebtedness of a Person or any of its
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Subsidiaries existing at the time such Person becomes a Restricted Subsidiary of
the Company or at the time it merges or consolidates with the Company or any of
its Subsidiaries or is assumed in connection with the acquisition of assets from
such Person and in each case not incurred by such Person in connection with, or
in anticipation or in contemplation of, such Person becoming a Restricted
Subsidiary of the Company or such acquisition, merger or consolidation.
"Affiliate" means, with respect to any specified Person, any other
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Person who directly or indirectly through one or more intermediaries controls,
or is controlled by, or is under common control with, such specified Person. The
term "control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative of the
foregoing.
"Affiliate Transaction" has the meaning set forth in Section 4.11.
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"Agent" means any Registrar, Paying Agent or co-Registrar.
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"Asset Acquisition" means (a) an Investment by the Company or any
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Restricted Subsidiary of the Company in any other Person pursuant to which such
Person shall become a Restricted Subsidiary of the Company or any Restricted
Subsidiary of the Company, or shall be merged with or into the Company or any
Restricted Subsidiary of the Company, or (b) the acquisition by the Company or
any Restricted Subsidiary of the Company of the assets of any Person (other than
a Restricted Subsidiary of the Company) which constitute all or substantially
all of the assets of such Person or comprise any division or line of business of
such Person or any other properties or assets of such Person other than in the
ordinary course of the Company's or such Restricted Subsidiary's business.
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"Asset Sale" means any direct or indirect sale, issuance, conveyance,
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transfer, lease (other than operating leases entered into in the ordinary course
of business), assignment or other transfer for value by the Company or any of
its Restricted Subsidiaries (including any Sale and Leaseback Transaction) to
any Person other than the Company or a Wholly Owned Restricted Subsidiary of the
Company of (a) any Capital Stock of any Restricted Subsidiary of the Company; or
(b) any other property or assets of the Company or any Restricted Subsidiary of
the Company other than in the ordinary course of business; provided, however,
that Asset Sales shall not include (i) a transaction or series of related
transactions for which the Company or its Restricted Subsidiaries receive
aggregate consideration of less than $750,000, (ii) the sale, lease, conveyance,
disposition or other transfer of all or substantially all of the assets of the
Company as permitted under Section 5.01, (iii) the sale, lease, conveyance,
disposition or other transfer by the Company or any Restricted Subsidiary of
assets or property in transactions constituting Investments that are not
prohibited under Section 4.10, (iv) leases or subleases to third persons not
interfering in any material respect with the business of the Company or any of
its Restricted Subsidiaries, (v) the sale, conveyance, disposition, or other
transfer of the Capital Stock of ProCare Eye Exam, Inc. or (vi) the creation of
any Lien not prohibited by this Indenture.
"Authenticating Agent" has the meaning set forth in Section 2.02.
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"Bankruptcy Law" means Title 11, U.S. Code or any similar Federal,
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state or foreign law for the relief of debtors.
"Board of Directors" means, as to any Person, the board of directors of
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such Person or any duly authorized committee thereof.
"Board Resolution" means, with respect to any Person, a copy of a
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resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day" means any day other than a Saturday, Sunday or any other
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day on which commercial banking institutions in the City of New York or the city
in which the principal corporate trust office of the Trustee is located are
required or authorized by law or other governmental action to be closed.
"Capitalized Lease Obligation" means, as to any Person, the obligations
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of such Person under a lease that are required to be classified and accounted
for as capital lease obligations under GAAP and, for purposes of this
definition, the amount of such obligations at any date shall be the capitalized
amount of such obligations at such date, determined in accordance with GAAP.
"Capital Stock" means (i) with respect to any Person that is a
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corporation, any and all shares, interests, participations or other equivalents
(however designated and whether or not voting) of corporate stock, including
each class of Common Stock and Preferred Stock of such Person, and (ii) with
respect to any Person that is not a corporation, any and all partnership,
membership or other equity interests of such Person.
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"Cash Equivalents" means (i) marketable direct obligations issued by,
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or unconditionally guaranteed by, the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition thereof; (ii)
marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having one of the two highest ratings
obtainable from either S&P or Xxxxx'x; (iii) commercial paper maturing no more
than one year from the date of creation thereof and, at the time of acquisition,
having a rating of at least A-1 from S&P or at least P-1 from Xxxxx'x; (iv)
certificates of deposit or bankers' acceptances maturing within one year from
the date of acquisition thereof issued by any bank organized under the laws of
the United States of America or any state thereof or the District of Columbia or
any U.S. branch of a foreign bank having at the date of acquisition thereof
combined capital and surplus of not less than $500,000,000 and a Xxxxxxxx or
Xxxxx Bank Watch Rating of "B" or better; (v) repurchase obligations with a term
of not more than seven days for underlying securities of the types described in
clause (i) above entered into with any bank meeting the qualifications specified
in clause (iv) above; (vi) in the case of any foreign Restricted Subsidiary,
Investments: (a) in direct obligations of the sovereign nation (or any agency
thereof) in which such foreign Restricted Subsidiary is organized or is
conducting a substantial amount of business or in obligations fully and
unconditionally guaranteed by such sovereign nation (or any agency thereof), (b)
of the type and maturity described in clauses (i) through (v) above of foreign
obligors, which Investments or obligors (or the parents of such obligors) have
ratings described in such clauses or equivalent ratings from comparable foreign
rating agencies or (c) of the type and maturity described in clauses (i) through
(v) above of foreign obligors (or the parents of such obligors), which
Investments or obligors (or the parents of such obligors) are not rated as
provided in such clauses or in clause (vi)(b) but which are, in the reasonable
judgment of the Company, comparable in investment quality to such Investments
and obligors (or the parents of such obligors); and (vii) investments in money
market funds which invest substantially all their assets in securities of the
types described in clauses (i) through (vi) above.
"Change of Control" means the occurrence of one or more of the
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following events after the Effective Date: (i) any sale, lease, exchange or
other transfer (in one transaction or a series of related transactions) of all
or substantially all of the assets of the Company to any Person or group of
related Persons for purposes of Section 13(d) of the Exchange Act (a "Group"),
together with any Affiliates thereof (whether or not otherwise in compliance
with the provisions of this Indenture) other than the creation of a Lien
permitted pursuant to this Indenture; (ii) the approval by the holders of
Capital Stock of the Company of any plan or proposal for the liquidation or
dissolution of the Company (whether or not otherwise in compliance with the
provisions of this Indenture); (iii) any Person or Group shall become the owner,
directly or indirectly, beneficially or of record, of shares representing more
than 50% of the aggregate ordinary voting power represented by the issued and
outstanding Capital Stock of the Company; or (iv) the replacement of a majority
of the Board of Directors
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of the Company over a two-year period from the directors who constituted the
Board of Directors of the Company at the beginning of such period, and such
replacement shall not have been approved by a vote of at least a majority of the
Board of Directors of the Company then still in office who either were members
of such Board of Directors at the beginning of such period or whose election as
a member of such Board of Directors was previously so approved. Notwithstanding
anything to the contrary contained in the foregoing, a "Change of Control" shall
not be deemed to occur upon the consummation of the merger of the Company with
an Affiliate incorporated solely for the purpose of reincorporating the Company
in another jurisdiction.
"Change of Control Offer" has the meaning set forth in Section 4.14.
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"Change of Control Payment Date" has the meaning set forth in Section
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4.14.
"Commission" means the U.S. Securities and Exchange Commission.
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"Common Stock" of any Person means any and all shares, interests or
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other participations in, and other equivalents (however designated and whether
voting or non-voting) of such Person's common stock, whether outstanding on the
Effective Date or issued after the Effective Date, and includes, without
limitation, all series and classes of such common stock.
"Company" means National Vision, Inc. (f/k/a Vista Eyecare, Inc.), a
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Georgia corporation.
"Consolidated EBITDA" means, with respect to any Person, for any
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period, the sum (without duplication) of (i) Consolidated Net Income and (ii) to
the extent Consolidated Net Income has been reduced thereby, (A) all income
taxes of such Person and its Restricted Subsidiaries paid or accrued in
accordance with GAAP for such period (other than income taxes attributable to
extraordinary, unusual or nonrecurring gains or losses or taxes attributable to
sales or dispositions outside the ordinary course of business), (B) Consolidated
Interest Expense, (C) Consolidated Non-cash Charges less any non-cash items
increasing Consolidated Net Income for such period, all as determined on a
consolidated basis for such Person and its Restricted Subsidiaries in accordance
with GAAP, and (D) after-tax losses from Asset Sales or abandonments or reserves
relating thereto.
"Consolidated Fixed Charge Coverage Ratio" means, with respect to any
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Person, the ratio of Consolidated EBITDA of such Person during the four full
fiscal quarters for which financial statements are reasonably available (the
"Four Quarter Period") most recently ending on or prior to the date of the
transaction giving rise to the need to calculate the Consolidated Fixed Charge
Coverage Ratio (the "Transaction Date") to Consolidated Fixed Charges of such
Person for the Four Quarter Period as determined from an Officers' Certificate
delivered to the Trustee at the time that such calculation is required to be
made. In addition to and without limitation of the foregoing, for purposes of
this definition, "Consolidated EBITDA" and "Consolidated Fixed Charges" shall be
calculated after giving effect on a pro forma basis for the period of such
calculation to (i) the incurrence or repayment
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of any Indebtedness of such Person or any of its Restricted Subsidiaries (and
the application of the proceeds thereof) giving rise to the need to make such
calculation and any incurrence or repayment of other Indebtedness (and the
application of the proceeds thereof), other than the incurrence or repayment of
Indebtedness in the ordinary course of business for working capital purposes
pursuant to working capital facilities, occurring during the Four Quarter Period
or at any time subsequent to the last day of the Four Quarter Period and on or
prior to the Transaction Date, as if such incurrence or repayment, as the case
may be (and the application of the proceeds thereof), occurred on the first day
of the Four Quarter Period and (ii) any asset sales or other dispositions or
Asset Acquisitions (including, without limitation, any Asset Acquisition giving
rise to the need to make such calculation as a result of such Person or one of
its Restricted Subsidiaries (including any Person who becomes a Restricted
Subsidiary as a result of the Asset Acquisition) incurring, assuming or
otherwise being liable for Acquired Indebtedness and also including any
Consolidated EBITDA (including any pro forma expense and cost reductions
calculated on a basis consistent with Regulation S-X under the Exchange Act)
attributable to the assets which are the subject of the Asset Acquisition or
asset sale or other disposition during the Four Quarter Period) occurring during
the Four Quarter Period or at any time subsequent to the last day of the Four
Quarter Period and on or prior to the Transaction Date, as if such asset sale or
other disposition or Asset Acquisition (including the incurrence, assumption or
liability for any such Acquired Indebtedness) occurred on the first day of the
Four Quarter Period. If such Person or any of its Restricted Subsidiaries
directly or indirectly guarantees Indebtedness of a third Person, the preceding
sentence shall give effect to the incurrence of such guaranteed Indebtedness as
if such Person or any Restricted Subsidiary of such Person had directly incurred
or otherwise assumed such guaranteed Indebtedness; provided that if such
guarantee is limited to a principal amount that is less than the amount of such
Indebtedness, such effect shall be limited to the incurrence of such
Indebtedness in such limited amount. Furthermore, in calculating "Consolidated
Fixed Charges" for purposes of determining the denominator (but not the
numerator) of this "Consolidated Fixed Charge Coverage Ratio," (1) interest on
outstanding Indebtedness determined on a fluctuating basis as of the Transaction
Date and which will continue to be so determined thereafter shall be deemed to
have accrued at a fixed rate per annum equal to the rate of interest on such
Indebtedness in effect on the Transaction Date; (2) if interest on any
Indebtedness actually incurred on the Transaction Date may optionally be
determined at an interest rate based upon a factor of a prime or similar rate, a
eurocurrency interbank offered rate, or other rates, then the interest rate in
effect on the Transaction Date will be deemed to have been in effect during the
Four Quarter Period; and (3) notwithstanding clause (1) above, interest on
Indebtedness determined on a fluctuating basis, to the extent such interest is
covered by agreements relating to Interest Swap Obligations, shall be deemed to
accrue at the rate per annum resulting after giving effect to the operation of
such agreements.
"Consolidated Fixed Charges" means, with respect to any Person for any
---------------------------
period, the sum, without duplication, of (i) Consolidated Interest Expense, plus
(ii) the product of (x) the amount of all dividend payments on any series of
Preferred Stock of such Person (other than dividends paid in Qualified Capital
Stock) paid, accrued or scheduled to be paid or accrued during such period times
(y) a fraction, the numerator of which is one and the
-6-
denominator of which is one minus the then current effective consolidated
federal, state and local tax rate of such Person, expressed as a decimal.
"Consolidated Interest Expense" means, with respect to any Person for
-------------------------------
any period, the sum of, without duplication: (i) the aggregate of the interest
expense of such Person and its Restricted Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP, including without
limitation, (a) any amortization of debt discount and amortization or write-off
of deferred financing costs, (b) the net costs under Interest Swap Obligations,
(c) all capitalized interest and (d) the interest portion of any deferred
payment obligation; and (ii) the interest component of Capitalized Lease
Obligations paid, accrued and/or scheduled to be paid or accrued by such Person
and its Restricted Subsidiaries during such period as determined on a
consolidated basis in accordance with GAAP.
"Consolidated Net Income" means, with respect to any Person, for any
------------------------
period, the aggregate net income (or loss) of such Person and its Restricted
Subsidiaries for such period on a consolidated basis, determined in accordance
with GAAP; provided that there shall be excluded therefrom (a) after-tax gains
from Asset Sales or abandonments or reserves relating thereto, (b) after-tax
items classified as extraordinary or nonrecurring gains, (c) the net income of
any Person acquired in a "pooling of interests" transaction accrued prior to the
date it becomes a Restricted Subsidiary of the referent Person or is merged or
consolidated with the referent Person or any Restricted Subsidiary of the
referent Person, (d) the net income (but not loss) of any Restricted Subsidiary
of the referent Person to the extent that the declaration of dividends or
similar distributions by that Restricted Subsidiary of that income is restricted
by a contract, operation of law or otherwise, (e) the net income of any Person,
other than a Restricted Subsidiary of the referent Person, except to the extent
of cash dividends or distributions paid to the referent Person or to a Wholly
Owned Restricted Subsidiary of the referent Person by such Person, (f) any
restoration to income of any contingency reserve, except to the extent that
provision for such reserve was made out of Consolidated Net Income accrued at
any time following the Effective Date, (g) income or loss attributable to
discontinued operations (including, without limitation, operations disposed of
during such period whether or not such operations were classified as
discontinued), and (h) in the case of a successor to the referent Person by
consolidation or merger or as a transferee of the referent Person's assets, any
earnings of the successor corporation prior to such consolidation, merger or
transfer of assets.
"Consolidated Net Worth" of any Person means the consolidated
-------------------------
stockholders' equity of such Person, determined on a consolidated basis in
accordance with GAAP, less (without duplication) amounts attributable to
Disqualified Capital Stock of such Person.
"Consolidated Non-cash Charges" means, with respect to any Person, for
------------------------------
any period, the aggregate depreciation, amortization and other non-cash expenses
of such Person and its Restricted Subsidiaries reducing Consolidated Net Income
of such Person and its Restricted Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP (excluding any such charge which
requires an accrual of or a reserve for cash charges for any future period).
-7-
"Consolidated Tangible Assets" means, with respect to any Person, as of
----------------------------
any date of determination, the total assets, less goodwill, deferred financing
costs and other intangibles and less accumulated amortization, shown on the most
recent balance sheet of such Person, determined on a consolidated basis in
accordance with GAAP.
"Corporate Trust Office" means the office of the Trustee at which at
------------------------
any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is located
at Xxxxxxx Square, 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxx, XX 00000, except
that with respect to presentation of Notes for payment or for registration of
transfer or exchange, such term shall mean any office or agency of the Trustee
at which, at any particular time, its corporate agency business shall be
conducted.
"Covenant Defeasance" has the meaning set forth in Section 8.01.
-------------------
"Currency Agreement" means any foreign exchange contract, currency swap
------------------
agreement or other similar agreement or arrangement designed to protect the
Company or any Restricted Subsidiary of the Company against fluctuations in
currency values.
"Custodian" means any receiver, trustee, assignee, liquidator,
---------
sequestrator or similar official under any Bankruptcy Law.
"Default" means an event or condition the occurrence of which is, or
-------
with the lapse of time or the giving of notice or both would be, an Event of
Default.
"Default Interest" has the meaning set forth in Section 2.12.
----------------
"Default Interest Payment Date" has the meaning set forth in Section
--------------------------------
2.12.
"Default Notice" has the meaning set forth in Section 10.02.
--------------
"Depository" means The Depository Trust Company, its nominees and
----------
successors.
"Disclosure Statement" means the Disclosure Statement to Accompany
--------------------
Joint Plan of Reorganization Under Chapter 00, Xxxxx 00, Xxxxxx Xxxxxx Code
Filed by Vista Eyecare, Inc. and Certain of its Debtor Subsidiaries and Joint
Plan of Reorganization Under Chapter 11, Xxxxx 00, Xxxxxx Xxxxxx Code, Filed by
Frame-N-Lens Optical, Inc.; Midwest Vision, Inc.; New West Eyeworks, Inc.; and
Certain of their Debtor Subsidiaries dated April 13, 2001 of the Company
relating to certain matters including the issuance of the Notes.
-8-
"Disqualified Capital 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, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the sole option of the holder
thereof on or prior to the final maturity date of the Notes.
"Dollars" and "$" means U.S. Legal Tender.
------- -
"EBITDA" means earnings before interest, taxes, depreciation, and
------
amortization.
"Effective Date" means May 31, 2001.
--------------
"Enforcement Expenses" means all reasonable costs and expenses incurred
--------------------
by Lender in connection with its enforcement of any rights or remedies
under the New Credit Facility, the documentation of any workout, restructuring
or forbearance arrangement with respect to the New Credit Facility, the
collection of any indebtedness under the New Credit Facility or the protection
of, or realization upon, any security under the New Credit Facility after the
occurrence and during the continuance of a default or event of default under the
New Credit Facility including, by way of example, attorney's fees, court costs,
appraisal and consulting fees, auctioneers' fees, rent, storage, insurance
premiums, costs of completing work-in-progress or refurbishing Security under
the New Credit Facility, advertising costs and shipping expenses, whether or not
such amounts are allowed as a claim against the Company in any proceeding under
Bankruptcy Law.
"Equity Offering" means a sale of Qualified Capital Stock of the
----------------
Company other than Indebtedness or Disqualified Capital Stock convertible or
exchangeable into Capital Stock of the Company.
"Event of Default" has the meaning set forth in Section 6.01.
----------------
"Excess Cash Flow" shall have the meaning set forth in Section 3.06.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
------------
or any successor statute or statutes thereto.
"fair market value" means, with respect to any asset or property, the
-----------------
price which could be negotiated in an arm's-length, free market transaction, for
cash, between a willing seller and a willing and able buyer, neither of whom is
under undue pressure or compulsion to complete the transaction. Unless the TIA
otherwise requires, fair market value shall be determined by the Board of
Directors of the Company acting reasonably and in good faith and shall be
evidenced by a Board Resolution of the Board of Directors of the Company
delivered to the Trustee.
"GAAP" means generally accepted accounting principles set forth in the
----
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board 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 as of the Effective Date
and consistently applied.
-9-
"Grant" means mortgage, pledge, bargain, sell, warrant, alienate,
-----
remise, release, convey, assign, transfer, create, and xxxxx x xxxx upon and a
security interest in and right of set-off against, deposit, set over and confirm
pursuant to this Indenture. A Grant of any property hereunder shall include all
rights, powers and options (but none of the obligations) of the Granting party
thereunder or with respect thereto, including the immediate and continuing right
to claim for, collect, receive and give receipt for principal and interest
payments in respect of such property and all other moneys payable thereunder, to
give and receive notices and other communications, to make waivers or other
agreements, to exercise all rights and options, to bring suits in equity, action
of law, or other judicial or administrative proceedings in the name of the
Granting party or otherwise and generally to do and receive anything that the
Granting party is or may be entitled to do or receive thereunder or with respect
thereto.
"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.
"Holder" means the Person, in its capacity as a holder of a Note, in
------
whose name a Note is registered on the Registrar's books.
"incur" has the meaning set forth in Section 4.12.
-----
"Indebtedness" means with respect to any Person, without duplication,
------------
(i) all Obligations of such Person for borrowed money, (ii) all Obligations of
such Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all Capitalized Lease Obligations of such Person, (iv) all Obligations of
such Person issued or assumed as the deferred purchase price of property, all
conditional sale obligations and all Obligations under any title retention
agreement (but excluding trade accounts payable and other accrued liabilities
arising in the ordinary course of business that are not overdue by 90 days or
more or are being contested in good faith by appropriate proceedings promptly
instituted and diligently conducted), (v) all Obligations for the reimbursement
of any obligor on any letter of credit (other than a letter of credit relating
to a trade account payable that is not considered Indebtedness pursuant to
clause (iv) above), banker's acceptance or similar credit transaction, (vi)
guarantees and other contingent obligations in respect of Indebtedness referred
to in clauses (i) through (v) above and clause (viii) below, (vii) all
Obligations of any other Person of the type referred to in clauses (i) through
(vi) which are secured by any lien on any property or asset of such Person, the
amount of such Obligation being deemed to be the lesser of the fair market value
of such property or asset or the amount of the Obligation so secured, (viii) all
net Obligations of such Person under currency agreements and interest swap
agreements, (ix) all Disqualified Capital Stock issued by such Person with the
amount of Indebtedness represented by such Disqualified Capital Stock being
equal to the greater of its voluntary or involuntary liquidation preference and
its maximum fixed repurchase price, but excluding accrued dividends, if any. For
purposes hereof, the "maximum fixed repurchase price" of any Disqualified
Capital Stock which does not have a fixed repurchase price shall be calculated
in accordance with the terms of such
-10-
Disqualified Capital Stock as if such Disqualified Capital Stock were purchased
on any date on which Indebtedness shall be required to be determined pursuant to
this Indenture, and if such price is based upon, or measured by, the fair market
value of such Disqualified Capital Stock, such fair market value shall be
determined reasonably and in good faith by the Board of Directors of the issuer
of such Disqualified Capital Stock.
"Indenture" means this Indenture, as amended or supplemented from time
---------
to time in accordance with the terms hereof.
"interest" when used with respect to any Note means the amount of all
--------
interest accruing on such Note, including any applicable Default Interest
pursuant to Section 2.12.
"Interest Payment Date" means the stated maturity of an installment of
----------------------
interest on the Notes.
"Interest Swap 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, and (ii) other
agreements or arrangements designed to protect such Person against fluctuations
in interest rates.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
-----------------------
amended to the date hereof and from time to time hereafter.
"Investment" by any Person in any other Person means, with respect to
----------
any Person, any direct or indirect loan or other extension of credit (including,
without limitation, a guarantee) or capital contribution to (by means of any
transfer of cash or other property to others or any payment for property or
services for the account or use of others), or any purchase or acquisition by
such Person of any Capital Stock, bonds, notes, debentures or other securities
or evidences of Indebtedness issued by, such other Person. "Investment" shall
exclude extensions of trade credit by the Company and its Restricted
Subsidiaries on commercially reasonable terms in accordance with normal trade
practices of the Company or such Restricted Subsidiary, as the case may be. For
the purposes of Section 4.10, (i) "Investment" shall include and be valued at
the fair market value of the net assets of any Restricted Subsidiary at the time
that such Restricted Subsidiary is designated an Unrestricted Subsidiary and
shall exclude the fair market value of the net assets of any Unrestricted
Subsidiary at the time that such Unrestricted Subsidiary is designated a
Restricted Subsidiary and (ii) the amount of any Investment shall be the
original cost of such Investment plus the cost of all additional Investments by
the Company or any of its Restricted Subsidiaries, without any adjustments for
increases or decreases in value, or write-ups, write-downs or write-offs with
respect to such Investment, reduced by the payment of dividends or distributions
in connection with such Investment or any other amounts received in respect of
such Investment; provided that no such payment of dividends or distributions or
receipt of any such other amounts shall reduce the amount of any Investment if
such payment of dividends or distributions or receipt of any such amounts would
be included in Consolidated Net Income. If the Company or any Restricted
Subsidiary of the Company sells or otherwise disposes of any
-11-
Common Stock of any direct or indirect Restricted Subsidiary of the Company such
that, after giving effect to any such sale or disposition, the Company no longer
owns, directly or indirectly, greater than 50% of the outstanding Common Stock
of such Restricted Subsidiary, the Company shall be deemed to have made an
Investment on the date of any such sale or disposition equal to the fair market
value of the Common Stock of such Restricted Subsidiary not sold or disposed of.
"Issuance" means the issuance of the Notes on the Effective Date.
--------
"Legal Defeasance" has the meaning set forth in Section 8.01.
----------------
"Legal Holiday" has the meaning set forth in Section 11.07.
-------------
"Lender" means the lender under the New Credit Facility.
------
"Lien" means any lien, mortgage, deed of trust, pledge, security
----
interest, charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof and any
agreement to give any security interest).
"Managed Care Entity" means (i) NVAL VisionCare Systems of California,
-------------------
Inc., ProCare Eye Exam, Inc. and NVAL VisionCare Systems of North Carolina, Inc.
and (ii) any other Subsidiary of the Company whose financial condition or
activities are regulated under the laws of any state in connection with the
provision of health or vision care products or services (or related
administrative services) and shall include, without limitation, a health
maintenance organization (whether single or multi service), third party
administrator, or any entity similar to any of the foregoing.
"Maturity Date" means March 30, 2009.
-------------
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
-------
"Net Cash Proceeds" means, with respect to any Asset Sale, the proceeds
-----------------
in the form of cash or Cash Equivalents including payments in respect of
deferred payment obligations when received in the form of cash or Cash
Equivalents (other than the portion of any such deferred payment constituting
interest) received by the Company or any of its Restricted Subsidiaries from
such Asset Sale net of (a) reasonable out-of-pocket expenses and fees relating
to such Asset Sale (including, without limitation, legal, accounting and
investment banking fees and sales commissions), (b) taxes paid or payable after
taking into account any reduction in consolidated tax liability due to available
tax credits or deductions and any tax sharing arrangements, (c) repayment of
Indebtedness that is required to be repaid in connection with such Asset Sale
and (d) appropriate amounts to be provided by the Company or any Restricted
Subsidiary, as the case may be, as a reserve, in accordance with GAAP, against
any liabilities associated with such Asset Sale and retained by the Company or
any Restricted Subsidiary, as the case may be, after such Asset Sale, including,
without limitation, pension and
-12-
other post-employment benefit liabilities, liabilities related to environmental
matters and liabilities under any indemnification obligations associated with
such Asset Sale.
"New Credit Facility" means the Loan and Security Agreement dated as of
-------------------
May 30, 2001, between the Company and Fleet Capital Corporation, together with
the related documents thereto (including, without limitation, any security
documents), in each case as such agreements may be amended (including any
amendment and restatement thereof), supplemented or otherwise modified from time
to time, including any agreement extending the maturity of, refinancing,
replacing or otherwise restructuring (including increasing the amount of
available borrowings thereunder in excess of the amount that would be permitted
at any time pursuant to subsection (ii) of the definition of Permitted
Indebtedness in Section 1.01 (provided that such increase in borrowings is
permitted by Section 4.12) or adding Restricted Subsidiaries of the Company as
additional borrowers or guarantors thereunder) all or any portion of the
Indebtedness under such agreement or any successor or replacement agreement and
whether by the same or any other agent, lender or group of lenders. Indebtedness
under the New Credit Facility shall be deemed to include (i) all loans at any
time made, and all of the indebtedness, liabilities and obligations at any time
incurred by the Company or its Restricted Subsidiaries or otherwise existing,
under the New Credit Facility, (ii) any and all loans made or other credit
extended by the Lender to the Company or its Restricted Subsidiaries during the
pendency of any proceeding under Bankruptcy Law, (iii) all interest at any time
accrued with respect to any of the foregoing (including any interest that
accrues during the pendency of any proceeding under Bankruptcy Law, whether or
not the Lender is authorized under Bankruptcy Law to collect such interest from
the Company or any Restricted Subsidiary) and (iv) all Enforcement Expenses for
which the Company or its Restricted Subsidiaries is at any time obligated to pay
to the Lender under any agreement or applicable law (whether or not the Lender
is authorized under Bankruptcy Law to collect such Enforcement Expenses from the
Company or its Restricted Subsidiaries).
"Non-Payment Default" has the meaning set forth in Section 10.02.
-------------------
"Notes" means the 12% Senior Secured Notes due 2009 of the Company,
-----
issued on the Effective Date, as amended or supplemented from time to time in
accordance with the terms of this Indenture, that are issued pursuant to this
Indenture.
"Obligations" means all obligations for principal, interest, penalties,
-----------
fees, indemnification, reimbursements, damages and other liabilities payable
under the documentation governing any Indebtedness.
"Officer" means, with respect to any Person, the Chairman of the Board
-------
of Directors, any Vice Chairman of the Board of Directors, the Chief Executive
Officer, the President, any Vice President, the Chief Financial Officer, the
Treasurer, the Controller, or the Secretary of such Person, or any other officer
designated by the Board of Directors serving in a similar capacity.
-13-
"Officers' Certificate" means, with respect to any Person, a
-----------------------
certificate signed by the Chief Executive Officer, the President or any Vice
President and the Chief Financial Officer or any Treasurer of such Person that
shall comply with applicable provisions of this Indenture.
"Opinion of Counsel" means a written opinion, in form and substance
------------------
reasonably acceptable to the Trustee, from legal counsel who is reasonably
acceptable to the Trustee complying with the requirements of Sections 11.04 and
11.05, as they relate to the giving of an Opinion of Counsel, and delivered to
the Trustee.
"Paying Agent" has the meaning set forth in Section 2.03.
------------
"Payment Blockage Period" has the meaning set forth in Section 10.02.
-----------------------
"Payment Default" has the meaning set forth in Section 10.02.
---------------
"Permitted Indebtedness" means, without duplication, each of the
-----------------------
following:
(i) Indebtedness under the Notes issued in the Issuance and this
Indenture not to exceed $120,000,000 in aggregate principal amount;
(ii) Indebtedness incurred by the Company and its Restricted
Subsidiaries pursuant to or in connection with the New Credit Facility in an
amount at any time outstanding not to esceed the sum of (a) an aggregate
principal amount at any time outstanding not to exceed the greater of (x)
$15,000,000 and (y) the sum, at such time, of (I) 85% of the consolidated
book value of accounts receivable of the Company and its Restricted
Subsidiaries and (II) 60% of the consolidated book value of inventory of the
Company and its Restricted Subsidiaries, plus (b) accrued interest in
respect of the New Credit Facility and fees at any time owing to Lender, in
each case as and to the extent provided under the New Credit Facility; plus
(c) Enforcement Expenses;
(iii) other Indebtedness of the Company and its Restricted Subsidiaries
outstanding on the Effective Date reduced by the amount of any scheduled
amortization payments or mandatory prepayments, when actually paid (except
to the extent paid from the proceeds of Refinancing Indebtedness);
(iv) Interest Swap Obligations of the Company covering Indebtedness of
the Company or any of its Restricted Subsidiaries and Interest Swap
Obligations of any Restricted Subsidiary of the Company covering
Indebtedness of such Restricted Subsidiary; provided, however, that such
Interest Swap Obligations are entered into to protect the Company and its
Restricted Subsidiaries from fluctuations in interest rates on Indebtedness
incurred in accordance with this Indenture;
(v) Indebtedness under Currency Agreements; provided that in the case of
Currency Agreements which relate to Indebtedness, such Currency Agreements
do not increase the Indebtedness of the Company and its Restricted
Subsidiaries outstanding
-14-
other than as a result of fluctuations in foreign currency exchange rates or
by reason of fees, indemnities and compensation payable thereunder;
(vi) Indebtedness of a Wholly Owned Restricted Subsidiary of the Company
to the Company or to a Wholly Owned Restricted Subsidiary of the Company for
so long as such Indebtedness is held by the Company or a Wholly Owned
Restricted Subsidiary of the Company, in each case subject to no Lien other
than Liens permitted under this Indenture; provided that if as of any date
any Person other than the Company or a Wholly Owned Restricted Subsidiary of
the Company owns or holds any such Indebtedness or holds a Lien in respect
of such Indebtedness other than a Lien permitted under this Indenture, such
date shall be deemed the incurrence of Indebtedness not constituting
Permitted Indebtedness by the issuer of such Indebtedness;
(vii) Indebtedness of the Company to a Wholly Owned Restricted
Subsidiary of the Company for so long as such Indebtedness is held by a
Wholly Owned Restricted Subsidiary of the Company, in each case subject to
no Lien other than a Lien permitted under this Indenture; provided that (a)
any Indebtedness of the Company to any Wholly Owned Restricted Subsidiary of
the Company is unsecured and subordinated, pursuant to a written agreement,
to the Company's obligations under this Indenture and the Notes (including
any Indebtedness that is pari passu with this Indenture and the Notes) and
(b) if as of any date any Person other than a Wholly Owned Restricted
Subsidiary of the Company owns or holds any such Indebtedness or any Person
holds a Lien in respect of such Indebtedness other than a Lien permitted
under this Indenture, such date shall be deemed the incurrence of
Indebtedness not constituting Permitted Indebtedness by the Company;
(viii) Indebtedness arising from the honoring by a bank or other
financial institution of a daylight overdraft or Indebtedness arising from
the honoring by a bank or other financial institution of a check, draft or
similar instrument inadvertently drawn against insufficient funds in the
ordinary course of business; provided, however, that such Indebtedness is
extinguished within two business days of incurrence;
(ix) Indebtedness of the Company or any of its Restricted Subsidiaries
represented by reimbursement obligations in respect of letters of credit for
the account of the Company or such Restricted Subsidiary, as the case may
be, which letters of credit were issued in order to provide security for
workers' compensation claims, payment obligations in connection with
self-insurance or similar requirements in the ordinary course of business;
(x) Indebtedness in respect of trade letters of credit, standby letters
of credit or performance, surety or appeal bonds, in each case incurred in
the ordinary course of business and securing obligations not constituting
Indebtedness;
(xi) Indebtedness represented by Capitalized Lease Obligations and
Purchase Money Indebtedness of the Company and its Restricted Subsidiaries
not to exceed the
-15-
greater of (i) $2,500,000 and (ii) 5% of Consolidated Tangible Assets of the
Company and its Restricted Subsidiaries at any one time outstanding;
(xii) Refinancing Indebtedness; and
(xiii) additional Indebtedness of the Company and its Restricted
Subsidiaries in an aggregate principal amount not to exceed $[2,500,000] at
any one time outstanding (which amount may, but need not, be incurred in
whole or in part under the New Credit Facility).
"Permitted Investments" means (i) Investments by the Company or any
----------------------
Restricted Subsidiary of the Company in any Person that is or will become
immediately after such Investment a Wholly Owned Restricted Subsidiary of the
Company or that will merge or consolidate into the Company or a Wholly Owned
Restricted Subsidiary of the Company, (ii) Investments in the Company by any
Restricted Subsidiary of the Company; provided that any Indebtedness evidencing
such Investment is unsecured and subordinated, pursuant to a written agreement,
to the Company's obligations under the Notes and this Indenture; (iii)
investments in cash and Cash Equivalents; (iv) loans and advances to employees
and officers of the Company and its Restricted Subsidiaries in the ordinary
course of business for bona fide business purposes not in excess of $500,000 at
any one time outstanding; (v) Currency Agreements and Interest Swap Obligations
entered into in the ordinary course of the Company's or its Restricted
Subsidiaries' businesses and otherwise in compliance with this Indenture; (vi)
additional Investments not to exceed $500,000 at any one time outstanding; (vii)
Investments in securities of trade creditors or customers received pursuant to
any workout, compromise, plan of reorganization or similar arrangement upon the
bankruptcy or insolvency or financial distress of such trade creditors or
customers; (viii) Investments made by the Company or its Restricted Subsidiaries
as a result of consideration received in connection with an Asset Sale made in
compliance with Section 4.15; and (ix) Investments by the Company or its
Restricted Subsidiaries in joint ventures in an aggregate amount not in excess
of $1,000,000 at any time outstanding.
"Permitted Liens" means the following types of Liens:
(i) Liens for taxes, assessments or governmental charges or claims
either (a) not delinquent or (b) contested in good faith by appropriate
action and as to which the Company or its Restricted Subsidiaries shall have
set aside on its books such reserves, if any, as may be required pursuant to
GAAP;
(ii) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, suppliers, materialmen, repairmen and other Liens imposed by law
incurred in the ordinary course of business for sums not yet delinquent or
being contested in good faith, if such reserve or other appropriate
provision, if any, as shall be required by GAAP shall have been made in
respect thereof;
(iii) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other types of
-16-
social security, or to secure the performance of tenders, statutory
obligations, surety and appeal bonds, bids, leases, government contracts,
performance and return-of-money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money), including any
Lien securing letters of credit issued in connection with any of the
foregoing;
(iv) judgment Liens not giving rise to an Event of Default;
(v) easements, rights-of-way, zoning restrictions and other similar
charges or encumbrances in respect of real property not interfering in any
material respect with the ordinary conduct of the business of the Company
or any of its Restricted Subsidiaries;
(vi) any interest or title of a lessor under any Capitalized Lease
Obligation; provided that such Liens do not extend to any property or asset
which is not leased property subject to such Capitalized Lease Obligation;
(vii) Liens upon specific items of inventory or other goods and
proceeds of any Person securing such Person's obligations in respect of
bankers' acceptances issued or created for the account of such Person to
facilitate the purchase, shipment or storage of such inventory or other
goods;
(viii) Liens securing reimbursement obligations with respect to
commercial letters of credit which encumber documents and other property
relating to such letters of credit and products and proceeds thereof;
-17-
(ix) Liens encumbering deposits made to secure obligations arising
from statutory, regulatory, contractual, or warranty requirements of the
Company or any of its Restricted Subsidiaries, including rights of offset
and set-off;
(x) Liens securing Interest Swap Obligations which Interest Swap
Obligations relate to Indebtedness that is otherwise permitted under this
Indenture;
(xi) Liens securing Purchase Money Indebtedness permitted pursuant to
clause (xi) of the definition of "Permitted Indebtedness"; provided,
however, that (A) the Indebtedness shall not exceed the cost of such
property or assets and shall not be secured by any property or assets of
the Company or any Restricted Subsidiary of the Company other than the
property and assets so acquired or constructed and (B) the Lien securing
such Indebtedness shall be created within 180 days of such acquisition or
construction or, in the case of a refinancing of any Purchase Money
Indebtedness, within 180 days of such refinancing;
(xii) Liens securing obligations under Currency Agreements;
(xiii) any lease or sublease not interfering in any material respect
with the business of the Company and its Subsidiaries;
(xiv) Liens with respect to obligations that do not in the aggregate
exceed $1,500,000 at any one time outstanding;
(xv) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of custom duties in connection with the
importation of goods;
(xvi) Liens on the assets of a Managed Care Entity pursuant to the
applicable rules, or regulations of, or undertakings made to, any
regulatory entity having jurisdiction and authority over such Managed Care
Entity;
(xvii) Liens arising under customary provisions in joint venture
agreements and other similar agreements; and
(xviii) Liens securing Acquired Indebtedness incurred in accordance
with Section 4.12; provided that (A) such Liens secured such Acquired
Indebtedness at the time of and prior to the incurrence of such Acquired
Indebtedness by the Company or a Restricted Subsidiary of the Company and
were not granted in connection with, or in anticipation of, the incurrence
of such Acquired Indebtedness by the Company or a Restricted Subsidiary of
the Company and (B) such Liens do not extend to or cover any property or
assets of the Company or of any of its Restricted Subsidiaries other than
the property or assets that secured the Acquired Indebtedness prior to the
time such Indebtedness became Acquired Indebtedness of the Company or a
Restricted Subsidiary of the Company and are no more favorable to the
lienholders than those securing the Acquired Indebtedness prior to the
incurrence of such Acquired Indebtedness by the Company or a Restricted
Subsidiary of the Company.
"Person" means an individual, partnership, corporation, unincorporated
------
organization, limited liability company, trust or joint venture, or a
governmental agency or political subdivision thereof.
"Physical Notes" has the meaning set forth in Section 2.01.
--------------
"Plan of Liquidation" means, with respect to any Person, a plan
---------------------
(including by operation of law) that provides for, contemplates or the
effectuation of which is preceded or accompanied by (whether or not
substantially contemporaneously) (a) the sale, lease, conveyance or other
disposition of all or substantially all of the assets of such Person otherwise
than as an entirety or substantially as an entirety and (b) the distribution of
all or substantially all of the proceeds of such sale, lease, conveyance or
other disposition and all or substantially all of the remaining assets of such
Person to holders of Capital Stock of such Person.
"Preferred Stock" of any Person means any Capital Stock of such Person
----------------
that has preferential rights to any other Capital Stock of such Person with
respect to dividends or redemptions or upon liquidation.
"principal" of any Indebtedness (including the Notes) means the
---------
principal amount of such Indebtedness.
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"pro forma" means, with respect to any calculation made or required to
---------
be made pursuant to the terms of this Indenture, a calculation in accordance
with Article 11 of Regulation S-X under the Securities Act, as determined by the
Board of Directors of the Company in consultation with its independent public
accountants.
"Purchase Money Indebtedness" means Indebtedness of the Company or its
----------------------------
Restricted Subsidiaries incurred for the purpose of financing all or any part of
the purchase price or the cost of installation, construction or improvement of
property or equipment.
"Qualified Capital Stock" means any Capital Stock that is not
--------------------------
Disqualified Capital Stock.
"Qualified Proceeds" means any of the following or any combination of
-------------------
the following: (i) cash, (ii) Cash Equivalents, (iii) assets that are used or
usable in the business of the Company and its Subsidiaries as existing on the
Effective Date or a business reasonably related or complementary thereto and
(iv) Capital Stock of any Person engaged primarily in the business of the
Company and its Subsidiaries as existing on the Effective Date or a business
reasonably related or complementary thereto if, in connection with the receipt
by the Company or any Restricted Subsidiary of the Company of such Capital
Stock: (A) such Person becomes a Restricted Subsidiary; 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 any
Restricted Subsidiary of the Company.
"Record Date" means the Record Date specified in the Notes.
-----------
"Redemption Date" when used with respect to any Note to be fully or
----------------
partially redeemed, means the date fixed for such redemption pursuant to this
Indenture and the Notes.
"redemption price" when used with respect to any Note to be redeemed,
-----------------
means the price fixed for such redemption, including principal, pursuant to this
Indenture and the Notes.
"Reference Date" has the meaning set forth in Section 4.10.
--------------
"Refinance" means, in respect of any security or Indebtedness, to
---------
refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or
to issue a security or Indebtedness in exchange or replacement for, such
security or Indebtedness in whole or in part. "Refinanced" and "Refinancing"
shall have correlative meanings.
"Refinancing Indebtedness" means any Refinancing by the Company or any
-------------------------
Restricted Subsidiary of the Company of Indebtedness incurred in accordance with
Section 4.12 or clauses (i) and (iii) of the definition of Permitted
Indebtedness, in each case that does not (1) result in an increase in the
aggregate principal amount of Indebtedness of such Person as of the date of such
proposed Refinancing (plus the amount of any accrued interest required to be
paid under the terms of the instrument governing such Indebtedness and plus the
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amount of reasonable fees and expenses incurred by the Company in connection
with such Refinancing) or (2) create Indebtedness with (A) a Weighted Average
Life to Maturity that is less than the Weighted Average Life to Maturity of the
Indebtedness being Refinanced or (B) a final maturity earlier than the final
maturity of the Indebtedness being Refinanced; provided that (x) if such
Indebtedness being Refinanced is Indebtedness of the Company only, then such
Refinancing Indebtedness shall be Indebtedness solely of the Company, (y) if
such Indebtedness being Refinanced is subordinate or junior to the Notes, then
such Refinancing Indebtedness shall be subordinate or junior to the Notes at
least to the same extent and in the same manner as the Indebtedness being
Refinanced, and (z) if the full amount of such Indebtedness incurred is used to
make optional redemptions pursuant to Section 3.03, and such Indebtedness is
pari passu with or subordinate to the Notes, such Indebtedness may have a
Weighted Average Life to Maturity that is less than the Weighted Average Life to
Maturity of the Indebtedness being Refinanced.
"Registrar" has the meaning set forth in Section 2.03.
---------
"Registration Rights Agreement" means the Registration Rights Agreement
-----------------------------
dated as of the Effective Date among the Company and the 10% Issuees.
"Restricted Payment" shall have the meaning set forth in Section 4.10.
------------------
"Restricted Security" has the meaning assigned to such term in Rule
--------------------
144(a)(3) under the Securities Act; provided, however, that the Trustee shall be
entitled to request and conclusively rely on an Opinion of Counsel with respect
to whether any Note constitutes a Restricted Security.
"Restricted Subsidiary" of any Person means any Subsidiary of such
----------------------
Person which at the time of determination is not an Unrestricted Subsidiary.
"Restructuring Expenses" means restructuring and reorganization costs,
-----------------------
including professional fees, payments under retention and severance plans and
programs, payments to settle claims, including claims of landlords under leases,
expenses associated with the disposition or closing of facilities, including
retail locations, and any other costs and expenses associated with the plans of
reorganization described in the Disclosure Statement, including any amounts
placed in any claims reserve.
"Sale and Leaseback Transaction" means any direct or indirect
----------------------------------
arrangement with any Person or to which any such Person is a party, providing
for the leasing to the Company or a Restricted Subsidiary of any property,
whether owned by the Company or any Restricted Subsidiary at the Effective Date
or later acquired, which has been or is to be sold or transferred by the Company
or such Restricted Subsidiary to such Person or to any other Person from whom
funds have been or are to be advanced by such Person on the security of such
Property.
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"S&P" means Standard & Poor's Ratings Services, a division of The
---
McGraw Hill Companies, Inc., and its successors.
"Securities Act" means the Securities Act of 1933, as amended, and the
--------------
rules and regulations of the Commission promulgated thereunder.
"Security" has the meaning set forth in the Granting Clause.
--------
"Significant Subsidiary," with respect to any Person, means any
-----------------------
Restricted Subsidiary of such Person that satisfies the criteria for a
"Significant Subsidiary" set forth in Rule 1.02(w) of Regulation S-X under the
Exchange Act.
"Subsidiary," with respect to any Person, means (i) any corporation of
----------
which the outstanding Capital Stock having at least a majority of the votes
entitled to be cast in the election of directors under ordinary circumstances
shall at the time be owned, directly or indirectly, by such Person or (ii) any
other Person of which at least a majority of the voting interest under ordinary
circumstances is at the time, directly or indirectly, owned by such Person.
"Surviving Entity" shall have the meaning set forth in Section 5.01.
----------------
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
---
Sections 77aaa-77bbbb), as amended, as in effect on the date of this Indenture,
except as otherwise provided in Section 9.03.
"Trust Officer" means any officer of the Trustee assigned by the
--------------
Trustee to administer this Indenture, or in the case of a successor trustee, an
officer assigned to the department, division or group performing the corporate
trust work of such successor and assigned to administer this Indenture.
"Trustee" means the party named as such in this Indenture until a
-------
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"UCC" means the Uniform Commercial Code, as in effect in New York, as
---
amended.
"Unrestricted Subsidiary" of any Person means (i) any Subsidiary of
------------------------
such Person that at the time of determination shall be or continue to be
designated an Unrestricted Subsidiary by the Board of Directors of such Person
in the manner provided below and (ii) any Subsidiary of an Unrestricted
Subsidiary. The Board of Directors may designate any Subsidiary (including any
newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary
unless such Subsidiary owns any Capital Stock of, or owns or holds any Lien on
any property of, the Company or any other Subsidiary of the Company that is not
a Subsidiary of the Subsidiary to be so designated; provided that (x) the
Company certifies to the Trustee
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that such designation complies with Section 4.10 and (y) each Subsidiary to be
so designated and each of its Subsidiaries has not at the time of designation,
and does not thereafter, create, incur, issue, assume, guarantee or otherwise
become directly or indirectly liable with respect to any Indebtedness pursuant
to which the lender has recourse to any of the assets of the Company or any of
its Restricted Subsidiaries. The Board of Directors may designate any
Unrestricted Subsidiary to be a Restricted Subsidiary only if (x) immediately
after giving effect to such designation, the Company is able to incur at least
$1.00 of additional Indebtedness (other than Permitted Indebtedness) in
compliance with Section 4.12 and (y) immediately before and immediately after
giving effect to such designation, no Default or Event of Default shall have
occurred and be continuing. Any such designation by the Board of Directors shall
be evidenced to the Trustee by promptly filing with the Trustee a copy of the
Board Resolution giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the foregoing provisions.
"U.S. Government Obligations" mean direct obligations of, and
-------------------------------
obligations guaranteed by, the United States of America for the payment of which
the full faith and credit of the United States of America is pledged.
"U.S. Legal Tender" means such coin or currency of the United States of
-----------------
America as at the time of payment shall be legal tender for the payment of
public and private debts.
"Weighted Average Life to Maturity" means, when applied to any
-------------------------------------
Indebtedness at any date, the number of years obtained by dividing (a) the then
outstanding aggregate principal amount of such Indebtedness into (b) the sum of
the total of the products obtained by multiplying (i) the amount of each then
remaining installment, sinking fund, serial maturity or other required payment
of principal, including payment at final maturity, in respect thereof, by (ii)
the number of years (calculated to the nearest one-twelfth) which will elapse
between such date and the making of such payment.
"Wholly Owned Restricted Subsidiary" of any Person means any Restricted
----------------------------------
Subsidiary of such Person of which all the outstanding voting securities (other
than in the case of a foreign Restricted Subsidiary, directors' qualifying
shares or an immaterial amount of shares required to be owned by other Persons
pursuant to applicable law) are owned by such Person or any Wholly Owned
Restricted Subsidiary of such Person.
"Working Capital" means the sum of accounts receivable (net of
----------------
reserves), inventories, and other current assets (exclusive of cash), less the
sum of accounts payable and accrued expenses.
SECTION 1.02 Incorporation by Reference of TIA.
---------------------------------
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in, and made a part of, this Indenture.
The following TIA terms used in this Indenture have the following meanings:
-22-
"indenture securities" means the Notes.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the Indenture securities means the Company or any other
obligor on the Notes.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rule and
not otherwise defined herein have the meanings assigned to them therein.
SECTION 1.03 Rules of Construction.
---------------------
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP as of any date of determination;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the plural
include the singular;
(5) "herein," "hereof" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision; and
(6) any reference to a statute, law or regulation means that statute,
law or regulation as amended and in effect from time to time and includes
any successor statute, law or regulation; PROVIDED, HOWEVER, that any
reference to the Bankruptcy Law shall mean the Bankruptcy Law as applicable
to the relevant case.
ARTICLE TWO
THE NOTES
---------
SECTION 2.01. Form and Dating.
---------------
The Notes and the Trustee's certificate of authentication relating
thereto shall be substantially in the form of EXHIBIT A. The Notes may have
notations, legends or
-23-
endorsements required by law, stock exchange rule or depository rule or usage.
The Company and the Trustee shall approve the form of the Notes and any
notation, legend or endorsement on them. If required, the Notes may bear the
appropriate legend regarding any original issue discount for federal income tax
purposes. Each Note shall be dated the date of its issuance and shall show the
date of its authentication.
The terms and provisions contained in the Note, annexed hereto as
EXHIBIT A, shall constitute, and are hereby expressly made, a part of this
Indenture and, to the extent applicable, the Company and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.
Notes shall be issued in the form of permanent certificated Notes in
definitive registered form in substantially the form set forth in EXHIBIT A (the
"Physical Notes"). The aggregate principal amount of each Note may from time to
time be decreased as a result of prepayments of principal pursuant to Sections
3.03 and 3.06 by adjustments made on the records of the Trustee.
SECTION 2.02 Execution and Authentication;
Aggregate Principal Amount.
-----------------------------
Two Officers, or an Officer and an Assistant Secretary, shall sign, or
one Officer or an Assistant Secretary (each of whom shall, in each case, have
been duly authorized by all requisite corporate actions) shall attest to, the
Notes for the Company by manual or facsimile signature.
If an Officer or Assistant Secretary whose signature is on a Note was
an Officer or Assistant Secretary at the time of such execution but no longer
holds that office or position at the time the Trustee authenticates the Note,
the Note shall nevertheless be valid.
A Note shall not be valid until an authorized signatory of the Trustee
manually signs the certificate of authentication on the Note. The signature
shall be conclusive evidence that the Note has been authenticated under this
Indenture.
The Trustee shall authenticate Notes for original issue in the
aggregate principal amount not to exceed $120,000,000 upon a written order of
the Company in the form of an Officers' Certificate of the Company. Each such
written order shall specify the amount of Notes to be authenticated and the date
on which the Notes are to be authenticated and such other information as the
Trustee may reasonably request. The aggregate principal amount of Notes
outstanding at any time may not exceed $120,000,000, except as provided in
Sections 2.07 and 2.08.
In the event that the Company shall issue and the Trustee shall
authenticate any Notes issued under this Indenture subsequent to the Effective
Date pursuant to the first sentence of the immediately preceding paragraph, the
Company shall use its reasonable efforts to obtain the same "CUSIP" number for
such Notes as is printed on the Notes outstanding at
-24-
such time; PROVIDED, HOWEVER, that if any series of Notes issued under this
Indenture subsequent to the Effective Date is determined, pursuant to an Opinion
of Counsel of the Company in a form satisfactory to the Trustee to be a
different class of security than the Notes outstanding at such time for federal
income tax purposes, the Company may obtain a "CUSIP" number for such Notes that
is different than the "CUSIP" number printed on the Notes then outstanding.
Notwithstanding the foregoing, all Notes issued under this Indenture
shall vote and consent together on all matters (as to which any of such Notes
may vote or consent) as one class and no series of Notes will have the right to
vote or consent as a separate class on any matter.
The Trustee may appoint an authenticating agent (the "Authenticating
Agent") reasonably acceptable to the Company to authenticate Notes. Unless
otherwise provided in the appointment, 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 Authenticating
Agent. An Authenticating Agent has the same rights as an Agent to deal with the
Company or with any Affiliate of the Company.
The Notes shall be issuable in fully registered form only, without
coupons, in denominations of $1,000 and any integral multiple thereof.
SECTION 2.03. Registrar and Paying Agent.
--------------------------
The Company shall maintain an office or agency (which shall be located
in the Borough of Manhattan in the City of New York, State of New York) where
(a) Notes may be presented or surrendered for registration of transfer or for
exchange ("Registrar"), (b) Notes may be presented or surrendered for payment
("Paying Agent") and (c) notices and demands to or upon the Company in respect
of the Notes and this Indenture may be served. The Company hereby initially
designates the office of State Street Bank and Trust Company N.A., 00 Xxxxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Corporate Trust Division, as its
office or agency in the Borough of Manhattan, the City of New York. The
Registrar shall keep a register of the Notes and of their transfer and exchange.
The Company, upon prior written notice to the Trustee, may have one or more
co-Registrars and one or more additional paying agents acceptable to the
Trustee. The term "Paying Agent" includes any additional Paying Agent. The
Company may act as its own Paying Agent, except that for the purposes of
payments on the Notes pursuant to Sections 4.14 and 4.15, neither the Company
nor any Affiliate of the Company may act as Paying Agent.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture, which agreement shall incorporate the
provisions of the TIA and implement the provisions of this Indenture that relate
to such Agent. The Company shall notify the Trustee, in advance, of the name and
address of any such Agent. If the Company fails to maintain a Registrar or
Paying Agent, or fails to give the foregoing notice, the Trustee shall act as
such and shall be entitled to appropriate compensation in accordance with
Section 7.07.
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The Company initially appoints the Trustee as Registrar, Paying Agent
and agent for service of demands and notices in connection with the Notes, until
such time as the Trustee has resigned or a successor has been appointed. Any of
the Registrar, the Paying Agent or any other agent may resign upon 30 days'
notice to the Company.
SECTION 2.04. Paying Agent To Hold Assets in Trust.
------------------------------------
The Company shall require each Paying Agent other than the Trustee to
agree in writing that, subject to Article Ten, such Paying Agent shall hold in
trust for the benefit of the Holders or the Trustee all assets held by the
Paying Agent for the payment of principal of or interest on, the Notes (whether
such assets have been distributed to it by the Company or any other obligor on
the Notes), and the Company and the Paying Agent shall notify the Trustee of any
Default by the Company (or any other obligor on the Notes) in making any such
payment. The Company at any time may require a Paying Agent to distribute all
assets held by it to the Trustee and account for any assets disbursed and the
Trustee may at any time during the continuance of any payment Default, upon
written request to a Paying Agent, require such Paying Agent to distribute all
assets held by it to the Trustee and to account for any assets distributed. Upon
distribution to the Trustee of all assets that shall have been delivered by the
Company to the Paying Agent, the Paying Agent shall have no further liability
for such assets.
SECTION 2.05. Holder Lists.
------------
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
the Holders. If the Trustee is not the Registrar, the Company shall furnish or
cause the Registrar to furnish to the Trustee five (5) Business Days before each
Interest Payment Date and at such other times as the Trustee may request in
writing a list as of such date and in such form as the Trustee may require of
the names and addresses of the Holders, which list may be conclusively relied
upon by the Trustee.
SECTION 2.06. Transfer and Exchange.
---------------------
When Notes are presented to the Registrar or a co-Registrar with a
request to register the transfer of such Notes or to exchange such Notes for an
equal principal amount of Notes or other authorized denominations, the Registrar
or co-Registrar shall register the transfer or make the exchange as requested if
its requirements for such transaction are met; PROVIDED, HOWEVER, that the Notes
presented or surrendered for registration of transfer or exchange shall be duly
endorsed or accompanied by a written instrument of transfer in form satisfactory
to the Company, the Trustee and the Registrar or co-Registrar, duly executed by
the Holder thereof or his attorney duly authorized in writing. To permit
registration of transfers and exchanges, the Company shall execute and the
Trustee shall authenticate Notes. No service charge shall be made for any
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any transfer tax, fee or similar governmental charge
payable in connection therewith (other than any such transfer taxes or similar
governmental charge payable upon exchanges or transfers pursuant to Sections
2.10, 3.04, 4.14, 4.15 or 9.05, in which event the Company shall be responsible
for the payment of such taxes).
-00-
Xxx Xxxxxxxxx or co-Registrar shall not be required to register the
transfer of or exchange of any Note (i) during a period beginning at the opening
of business 15 days before the mailing of a notice of redemption of Notes and
ending at the close of business on the day of such mailing, (ii) selected for
redemption in whole or in part pursuant to Article Three, except the unredeemed
portion of any Note being redeemed in part or (iii) between a Record Date and
the next succeeding Interest Payment Date.
SECTION 2.07. Replacement Notes.
-----------------
If a mutilated Note is surrendered to the Trustee or if the Holder of a
Note claims that the Note has been lost, destroyed or wrongfully taken, the
Company shall issue and the Trustee shall authenticate a replacement Note if the
Trustee's requirements are met. If required by the Trustee or the Company, such
Holder must provide satisfactory evidence of such loss, destruction or taking,
and an indemnity bond or other indemnity of reasonable tenor, sufficient in the
reasonable judgment of the Company and the Trustee, to protect the Company, the
Trustee or any Agent from any loss which any of them may suffer if a Note is
replaced. Every replacement Note shall constitute an obligation of the Company.
The Company and the Trustee each may charge such Holder for its expenses in
replacing such Note.
SECTION 2.08. Outstanding Notes.
-----------------
Notes outstanding at any time are all the Notes that have been
authenticated by the Trustee except those canceled by it, those delivered to it
for cancellation and those described in this Section as not outstanding. Subject
to the provisions of Section 2.09, a Note does not cease to be outstanding
because the Company or any of its Affiliates holds the Note.
If a Note is replaced pursuant to Section 2.07 (other than a mutilated
Note surrendered for replacement), it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Note is held by a
BONA FIDE purchaser. A mutilated Note ceases to be outstanding upon surrender of
such Note and replacement thereof pursuant to Section 2.07.
If on a Redemption Date or the Maturity Date the Paying Agent holds
U.S. Legal Tender or U.S. Government Obligations sufficient to pay all of the
principal and interest due on the Notes payable on that date and is not
prohibited from paying such money to the Holders thereof pursuant to the terms
of this Indenture, then on and after that date such Notes shall be deemed not to
be outstanding and interest on them shall cease to accrue.
SECTION 2.09. Treasury Notes.
--------------
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver, consent or notice, Notes owned by
the Company or
-27-
an Affiliate of the Company shall be considered as though they are 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 a Trust Officer of the Trustee actually knows are so owned shall be
so considered. The Company shall notify the Trustee, in writing, when it or, to
its knowledge, any of its Affiliates repurchases or otherwise acquires Notes, of
the aggregate principal amount of such Notes so repurchased or otherwise
acquired and such other information as the Trustee may request and the Trustee
shall be entitled to rely thereon.
SECTION 2.10. Temporary Notes.
---------------
Until definitive Notes are ready for delivery, the Company may prepare
and the Trustee shall authenticate temporary Notes upon receipt of a written
order of the Company in the form of an Officers' Certificate. The Officers'
Certificate shall specify the amount of temporary Notes to be authenticated and
the date on which the temporary Notes are to be authenticated. Temporary Notes
shall be substantially in the form of definitive Notes but may have variations
that the Company considers appropriate for temporary Notes and so indicate in
the Officers' Certificate. Without unreasonable delay, the Company shall prepare
and execute and the Trustee shall authenticate, upon receipt of a written order
of the Company pursuant to Section 2.02, definitive Notes in exchange for
temporary Notes.
SECTION 2.11. Cancellation.
------------
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for transfer, exchange or payment. The Trustee, or
at the direction of the Trustee, the Registrar or the Paying Agent, and no one
else, shall cancel and, at the written direction of the Company, shall dispose,
in its customary manner, of all Notes surrendered for transfer, exchange,
payment or cancellation. Subject to Section 2.07, the Company may not issue new
Notes to replace Notes that it has paid or delivered to the Trustee for
cancellation. If the Company shall acquire any of the Notes, such acquisition
shall not operate as a redemption or satisfaction of the Indebtedness
represented by such Notes unless and until the same are surrendered to the
Trustee for cancellation pursuant to this Section 2.11.
SECTION 2.12. Defaulted Interest.
------------------
The Company shall pay interest on overdue principal and on overdue
installments of interest (without regard to any applicable grace periods), to
the extent lawful, from time to time on demand at the rate then borne by the
Notes plus 2%. Interest will be computed on the basis of a 360-day year
comprised of twelve 30-day months, and, in the case of a partial month, the
actual number of days elapsed.
If the Company defaults in a payment of interest on the Notes, it shall
pay the defaulted amounts, plus (to the extent lawful) any interest payable on
the defaulted amounts (collectively, "Default Interest"), to the Persons who are
Holders on a subsequent special record date, which special record date shall be
the fifteenth day next preceding the date fixed
-28-
by the Company for the payment of Default Interest or the next succeeding
Business Day if such date is not a Business Day. The Company shall notify the
Trustee in writing of the amount of Default Interest proposed to be paid on each
Note and the date of the proposed payment (a "Default Interest Payment Date"),
and at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Default Interest or shall make arrangements satisfactory to the Trustee for such
deposit on or prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to such
Default Interest as provided in this Section; PROVIDED, HOWEVER, that in no
event shall the Company deposit monies proposed to be paid in respect of Default
Interest later than 11:00 a.m. New York City time of the proposed Default
Interest Payment Date. At least 15 days before the subsequent special record
date, the Company shall mail (or cause to be mailed) to each Holder, as of a
recent date selected by the Company, with a copy to the Trustee, a notice that
states the subsequent special record date, the payment date and the amount of
Default Interest to be paid. Notwithstanding the foregoing, any Default Interest
which is paid prior to the expiration of the 30-day period set forth in Section
6.01(a) shall be paid to Holders as of the regular record date for the Interest
Payment Date for which interest has not been paid. Notwithstanding the
foregoing, the Company may make payment of any Default Interest in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Notes may be listed, and upon such notice as may be required by
such exchange.
SECTION 2.13. CUSIP Numbers.
-------------
The Company in issuing the Notes may use one or more "CUSIP" numbers,
and, if so, the Trustee shall use the CUSIP numbers in notices of redemption or
exchange as a convenience to Holders; PROVIDED, HOWEVER, that no representation
is hereby deemed to be made by the Trustee as to the correctness or accuracy of
the CUSIP number printed in the notice or on the Notes, and that reliance may be
placed only on the other identification numbers printed on the Notes. The
Company shall promptly notify the Trustee of any change in the CUSIP numbers.
SECTION 2.14. Deposit of Monies.
-----------------
Prior to 11:00 a.m. New York City time on each Interest Payment Date,
Maturity Date, Redemption Date and Change of Control Payment Date, the Company
shall have deposited with the Paying Agent in immediately available funds money
sufficient to make cash payments, if any, due on such Interest Payment Date,
Maturity Date, Redemption Date and Change of Control Payment Date, as the case
may be, in a timely manner which permits the Paying Agent to remit payment to
the Holders on such Interest Payment Date, Maturity Date, Redemption Date and
Change of Control Payment Date, as the case may be.
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ARTICLE THREE
REDEMPTION
----------
SECTION 3.01. Notices to Trustee.
------------------
If the Company elects to redeem Notes pursuant to Paragraph 5 of the
Notes and Section 3.03, it shall notify the Trustee and the Paying Agent in
writing of the Redemption Date and the principal amount of the Notes to be
redeemed.
The Company shall give each notice provided for in this Section 3.01 at
least 45 but not more than 90 days before the Redemption Date (unless a shorter
notice period shall be satisfactory to the Trustee, as evidenced in a writing
signed on behalf of the Trustee), together with an Officers' Certificate stating
that such redemption shall comply with the conditions contained herein and in
the Notes, the Redemption Date, the redemption price and the principal amount of
the Notes to be redeemed.
If the Company is required to make an offer to redeem Notes pursuant to
the provisions of Section 4.14 or 4.15 hereof, it shall furnish to the Trustee
at least 45 days but not more than 90 days before a Redemption Date (or such
shorter period as may be agreed to by the Trustee in writing), 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, (iv) the redemption price and (v) a statement to the
effect that (a) the Company or one of its Subsidiaries has effected an Asset
Sale and the conditions set forth in Section 4.15 have been satisfied or (b) a
Change of Control has occurred and the conditions set forth in Section 4.14 have
been satisfied, as applicable.
SECTION 3.02. Selection of Notes To Be Redeemed.
---------------------------------
In the event that less than all of the Notes are to be redeemed at any
time, selection of such Notes for redemption will be made by the Trustee in
compliance with the requirements of the principal national securities exchange,
if any, on which such Notes are listed or, if such Notes are not then listed on
a national securities exchange, on a pro rata basis; provided, however, that no
Notes of a principal amount of $1,000 or less shall be redeemed in part;
provided, further, that if a partial redemption is made with the proceeds of an
Equity Offering, selection of the Notes or portions thereof for redemption shall
be made by the Trustee only on a pro rata basis or on as nearly a pro rata basis
as is practicable (subject to DTC procedures), unless such method is otherwise
prohibited. Notice of redemption shall be mailed by first-class mail at least 30
but not more than 60 days before the redemption date to each Holder of Notes to
be redeemed at its registered address. If any Note is to be redeemed in part
only, the notice of redemption that relates to such Note shall state the portion
of the principal amount thereof to be redeemed. A new Note in a principal amount
equal to the unredeemed portion thereof will be issued in the name of the Holder
thereof upon cancellation of the original Note. On and after the redemption
date, interest will cease to accrue on Notes or portions thereof called for
redemption as long as the Company has deposited with the
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Paying Agent funds in satisfaction of the applicable redemption price pursuant
to this Indenture.
SECTION 3.03. Optional Redemption.
-------------------
The Notes will be redeemable after the Effective Date, at the Company's
option, in whole at any time or in part from time to time, upon not less than 30
nor more than 60 days' notice, at a redemption price equal to 100% of the
principal amount thereof, plus, in each case, accrued and unpaid interest
thereon, if any, to the date of redemption. If the Company shall consummate an
Equity Offering, the proceeds of such offering shall be used to (i) pay (subject
to waiver by the Lender) amounts owing under the New Credit Facility and (ii)
make principal payments (subject to waiver by the Holders of a majority in
aggregate principal amount of the Notes) on the Notes. In order to effect the
foregoing redemption with the proceeds of any Equity Offering, the Company shall
make such redemption not more than 120 days after the consummation of any such
Equity Offering.
SECTION 3.04. Notice of Redemption.
--------------------
At least 30 days but not more than 60 days before any Redemption Date,
the Company shall mail or cause to be mailed a notice of redemption by first
class mail to each Holder of Notes to be redeemed at its registered address,
with a copy to the Trustee and any Paying Agent. At the Company's request, the
Trustee shall give the notice of redemption in the Company's name and at the
Company's expense. The Company shall provide such notices of redemption to the
Trustee at least ten days before the intended mailing date. In any case, failure
to give such notice 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.
Each notice of redemption shall identify (including the CUSIP number)
the Notes to be redeemed and shall state:
(1) the Redemption Date;
(2) the redemption price and the amount of accrued interest, if any, to
be paid;
(3) the name and address of the Paying Agent;
(4) the subparagraph of the Notes pursuant to which such redemption is
being made;
(5) that Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price plus accrued interest, if any;
(6) that, unless the Company defaults in making the redemption payment,
interest on Notes or applicable portions thereof called for redemption
ceases to accrue on and after the Redemption Date, and the only remaining
right of the Holders of such
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Notes is to receive payment of the redemption price plus accrued interest as
of the Redemption Date, if any, upon surrender to the Paying Agent of the
Notes redeemed;
(7) 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, and
upon surrender of such Note, a new Note or Notes in the aggregate principal
amount equal to the unredeemed portion thereof will be issued; and
(8) if fewer than all the Notes are to be redeemed, the identification
of the particular Notes (or portion thereof) to be redeemed, as well as the
aggregate principal amount of Notes to be redeemed and the aggregate
principal amount of Notes to be outstanding after such partial redemption.
No representation is made as to the accuracy of the CUSIP numbers
listed in such notice or printed on the Notes.
-24-
The Company will 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 purchase
of Notes.
SECTION 3.05. Effect of Notice of Redemption.
------------------------------
Once notice of redemption is mailed in accordance with Section 3.04,
such notice of redemption shall be irrevocable and Notes called for redemption
become due and payable on the Redemption Date and at the redemption price plus
accrued interest as of such date, if any. Upon surrender to the Trustee or
Paying Agent, such Notes called for redemption shall be paid at the redemption
price plus accrued interest thereon to the Redemption Date, but installments of
interest, the maturity of which is on or prior to the Redemption Date, shall be
payable to Holders of record at the close of business on the relevant record
dates referred to in the Notes. Interest shall accrue on or after the Redemption
Date and shall be payable only if the Company defaults in payment of the
redemption price.
SECTION 3.06. Mandatory Redemption.
--------------------
The Notes shall be redeemed, in whole or in part, on each February 28
and August 31 (each such date, a "Mandatory Redemption Payment Date"), by
payment of 100% of Excess Cash Flow in accordance with the provisions of Section
3.07. "Excess Cash Flow" shall mean Consolidated EBITDA for the fiscal six month
period expiring on the last day of each December and June, respectively, prior
to each Mandatory Redemption Payment Date (such last day, the "Balance Sheet
Date", provided, however, that the initial "Balance Sheet Date" shall be
designated as December 31, 2001 and the initial Mandatory Redemption Payment
Date shall be February 28, 2002), plus (to the extent made, incurred or accrued
during such six month period) decreases in Working Capital, but less (to the
extent made, incurred or accrued during such six month period), without
duplication, (i) the items described in clause (ii) of the definition of
"Consolidated EBITDA" (exclusive of depreciation and amortization), (ii)
expenditures on capital assets, (iii) increases in Working Capital, (iv)
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payments or prepayments of principal and fees or other amounts under the New
Credit Facility, (v) any optional redemption amount paid by the Company pursuant
to Section 3.03 since the most recent Mandatory Redemption Payment Date, (vi)
payments of Restructuring Expenses, and (vii) any payments made pursuant to
Section 4.14; provided, however, that any payment of Excess Cash Flow shall be
reduced to the extent necessary so that, after giving effect to such payment,
the amount of cash possessed by the Company as of each respective Balance Sheet
Date is at least $3,000,000. Cash possessed by the Company is determined on a
consolidated basis in accordance with GAAP. The Company shall provide at least
five Business Days notice to the Trustee prior to each Mandatory Redemption
Payment Date setting forth the amount, if any, of Excess Cash Flow to be
distributed. The Trustee may rely on such notice with respect to the amount of
such Excess Cash Flow without further inquiry. If the Trustee does not receive
such a notice setting forth an amount of Excess Cash Flow to be distributed
prior to any Mandatory Redemption Payment Date, it may assume, without further
inquiry, that no mandatory redemption pursuant to this Section 3.06 shall be
made for such Mandatory Redemption Payment Date. If, after any Mandatory
Redemption Payment Date, it is determined, by audit or otherwise, to record
adjustments to the Company's financial statements as of the related Balance
Sheet Date (such adjustments, the "Financial Adjustments"), no adjustment shall
be made to the related calculation of Excess Cash Flow, but the calculation of
Excess Cash Flow next succeeding the recording of such Financial Adjustments
shall be adjusted to give effect to such Financial Adjustments, with the effect
that the dollar amount resulting from the calculation of Excess Cash Flow
related to such Mandatory Redemption Payment Date plus the dollar amount of such
succeeding calculation of Excess Cash Flow shall be equal to the aggregate
dollar amount which would have been calculated if the applicable Financial
Adjustments had been made as of the initial relevant Balance Sheet Date and not
as of such succeeding Balance Sheet Date.
SECTION 3.07. Deposit of Redemption Price.
---------------------------
On or before 11:00 a.m. New York City time on the Redemption Date and
in accordance with Section 2.14, the Company shall deposit with the Paying Agent
U.S. Legal Tender sufficient to pay the redemption price plus accrued interest,
if any, of all Notes to be redeemed on that date. The Paying Agent shall
promptly return to the Company any U.S. Legal Tender so deposited which is not
required for that purpose, except with respect to monies owed as obligations to
the Trustee pursuant to Article Seven.
Unless the Company fails to comply with the preceding paragraph and
defaults in the payment of such redemption price plus accrued interest, if any,
interest on the Notes to be redeemed will cease to accrue on and after the
applicable Redemption Date, whether or not such Notes are presented for payment.
SECTION 3.08. Notes Redeemed in Part.
----------------------
Upon surrender of a Note that is to be redeemed in part, the Trustee
shall authenticate for the Holder a new Note or Notes equal in principal amount
to the unredeemed portion of the Note surrendered.
-33-
ARTICLE FOUR
COVENANTS
---------
SECTION 4.01. Payment of Notes.
----------------
(a) The Company shall pay the principal of, Default Interest, if any,
and interest on the Notes on the dates and in the manner provided in the Notes
and in this Indenture.
(b) An installment of principal of or interest on the Notes shall be
considered paid on the date it is due if the Trustee or Paying Agent (other than
the Company or any of its Affiliates) holds, prior to 11:00 a.m. New York City
time on that date, U.S. Legal Tender designated for and sufficient to pay the
installment in full and is not prohibited from paying such money to the Holders
pursuant to the terms of this Indenture or the Notes.
(c) Notwithstanding anything to the contrary contained in this
Indenture, the Company may, to the extent it is required to do so by law, deduct
or withhold income or other similar taxes imposed by the United States of
America from principal or interest payments hereunder.
SECTION 4.02. Maintenance of Office or Agency.
-------------------------------
The Company shall maintain the office or agency required under Section
2.03. The Company shall give prior written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the
Trustee set forth in Section 11.02.
SECTION 4.03. Corporate Existence.
-------------------
Except as provided in Article Five, the Company shall do or shall cause
to be done all things necessary to preserve and keep in full force and effect
its corporate existence and the corporate, partnership or other existence of
each of its Restricted Subsidiaries in accordance with the respective
organizational documents of the Company and each such Restricted Subsidiary and
the rights (charter and statutory) and material franchises of the Company and
its Restricted Subsidiaries.
SECTION 4.04. Payment of Taxes and Other Claims.
---------------------------------
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (i) all material taxes, assessments and
governmental charges (including withholding taxes and any penalties, interest
and additions to taxes) levied or imposed upon the Company or any of the
Subsidiaries or properties of the Company or any of the Subsidiaries and (ii)
all material lawful claims for labor, materials and supplies that, if
-34-
unpaid, might by law become a Lien upon the property of the Company or any of
the Subsidiaries; PROVIDED, HOWEVER, that the Company shall not be required to
pay or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate negotiations or proceedings properly instituted and
diligently conducted for which adequate reserves, to the extent required under
GAAP, have been taken.
SECTION 4.05. Maintenance of Properties
and Insurance.
-------------
(a) The Company and each of its Subsidiaries shall cause all material
properties owned by or leased to it and used or useful in the conduct of its
business to be maintained and kept in normal condition, repair and working order
and supplied with all necessary equipment and shall cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in the judgment of the Company or such Subsidiary may be necessary so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing in this
Section shall prevent the Company or any of its Subsidiaries from discontinuing
the use, operation or maintenance of any of such properties, or disposing of any
of them, if such discontinuance or disposal is, in the judgment of the Board of
Directors of the Company or of the Board of Directors of the Subsidiary
concerned, or of an officer (or other agent employed by the Company or any of
its Subsidiaries) of the Company or such Subsidiary having managerial
responsibility for any such property, desirable in the conduct of the business
of the Company or any of its Subsidiaries.
(b) The Company and the Subsidiaries shall cause to be provided
insurance (including appropriate self-insurance) against loss or damage of the
kinds that, in the good faith judgment of the respective Boards of Directors or
other governing body or officer or other agent of the Company or such
Subsidiaries, as the case may be, are adequate and appropriate for the conduct
of the business of the Company or such Subsidiaries, as the case may be, with
reputable insurers or with the government of the United States of America or an
agency or instrumentality thereof, in such amounts, with such deductibles, and
by such methods as shall be customary, in the good faith judgment of the
respective Boards of Directors or other governing body or officer or other agent
of the Company or such Subsidiary, as the case may be, for companies similarly
situated in the industry.
SECTION 4.06. Compliance Certificate;
Notice of Default.
-----------------------
(a) The Company shall deliver to the Trustee, within 90 days after the
end of each of the Company's fiscal years, an Officers' Certificate (signed by
the principal executive officer, principal financial officer and/or principal
accounting officer) stating that a review of its activities and the activities
of its Restricted Subsidiaries during the preceding fiscal year has been made
under the supervision of the signing officers with a view to determining whether
it has kept, observed, performed and fulfilled its obligations under this
Indenture and further stating, as to each such officer signing such certificate,
that to the best of such officers' knowledge the Company during such preceding
fiscal year has kept, observed, performed and fulfilled each and every such
obligation and no Default or Event of Default occurred during
-35-
such year and at the date of such certificate there is no Default or Event of
Default that has occurred and is continuing or, if such signers do know of such
Default or Event of Default, the certificate shall describe the Default or Event
of Default and its status with particularity. The Officers' Certificate shall
also notify the Trustee should the Company elect to change the manner in which
it fixes its fiscal year end.
(b) The annual financial statements delivered pursuant to Section 4.08
shall be accompanied by a written report of the Company's independent certified
public accountants (who shall be a firm of established national reputation)
stating (A) that their audit examination has included a review of the terms of
this Indenture and the form of the Notes as they relate to accounting matters,
and (B) whether, in connection with their audit examination, any Default or
Event of Default has come to their attention and if such a Default or Event of
Default has come to their attention, specifying the nature and period of
existence thereof; provided, however, that, without any restriction as to the
scope of the audit examination, such independent certified public accountants
shall not be liable by reason of any failure to obtain knowledge of any such
Default or Event of Default that would not be disclosed in the course of an
audit examination conducted in accordance with generally accepted auditing
standards.
(c) So long as any of the Notes are outstanding (i) if any Default or
Event of Default has occurred and is continuing or (ii) if any Holder seeks to
exercise any remedy hereunder with respect to a claimed Default under this
Indenture or the Notes, the Company shall promptly deliver to the Trustee by
registered or certified mail or by telegram, telex or facsimile transmission
followed by hard copy by registered or certified mail an Officers' Certificate
specifying such event, notice or other action promptly of its becoming aware of
such occurrence.
SECTION 4.07. Compliance with Laws.
--------------------
The Company shall comply, and shall cause each of its Subsidiaries to
comply, with all applicable statutes, rules, regulations, orders and
restrictions of the United States of America, all states and municipalities
thereof and of any governmental department, commission, board, regulatory
authority, bureau, agency and instrumentality of the foregoing, in respect of
the conduct of their respective businesses and the ownership of their respective
properties, except for such noncompliances as could not singly or in the
aggregate reasonably be expected to have a material adverse effect on the
financial condition, business or results of operations of the Company and its
Subsidiaries taken as a whole.
SECTION 4.08. Reports to Holders.
------------------
The Company shall deliver to the Trustee within 15 days after the
filing of the same with the Commission, copies of the quarterly and annual
reports and of the information, documents and other reports, if any, which the
Company is required to file with the Commission pursuant to Section 13 or 15(d)
of the Exchange Act. Notwithstanding that the Company may not be subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company
shall file with the Commission, to the extent permitted, and provide the Trustee
and Holders with such annual reports and such information, documents
-36-
and other reports specified in Sections 13 and 15(d) of the Exchange Act. The
Company shall also comply with the other provisions of TIA Section 314(a).
SECTION 4.09. Waiver of Stay, Extension
or Usury Laws.
--------------
The Company 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 or extension law or any usury law
or other law that would prohibit or forgive the Company from paying all or any
portion of the principal of or interest on the Notes as contemplated herein,
wherever enacted, now or at any time hereafter in force, or which may affect the
covenants or the performance of this Indenture; and (to the extent that it may
lawfully do so) the Company hereby expressly waives all benefit or advantage of
any such law, and covenants that it shall not 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 had been enacted.
SECTION 4.10. Limitation on Restricted Payments.
---------------------------------
The Company shall not, and shall not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, (a) declare or pay any
dividend or make any distribution (other than dividends or distributions payable
in Qualified Capital Stock of the Company) on or in respect of shares of the
Company's Capital Stock to holders of such Capital Stock, (b) purchase, redeem
or otherwise acquire or retire for value any Capital Stock of the Company or any
warrants, rights or options to purchase or acquire shares of any class of such
Capital Stock, (c) make any principal payment on, purchase, defease, redeem,
prepay, decrease or otherwise acquire or retire for value, prior to any
scheduled final maturity, scheduled repayment or scheduled sinking fund payment,
any Indebtedness of the Company that is subordinate or junior in right of
payment to the Notes or (d) make any Investment (other than Permitted
Investments) (each of the foregoing actions set forth in clauses (a), (b) (c)
and (d) being referred to as a "Restricted Payment"), if at the time of such
Restricted Payment or immediately after giving effect thereto, (i) a Default or
an Event of Default shall have occurred and be continuing or (ii) the Company is
not able to incur at least $1.00 of additional Indebtedness (other than
Permitted Indebtedness) in compliance with Section 4.12 or (iii) the aggregate
amount of Restricted Payments (including such proposed Restricted Payment) made
subsequent to the Effective Date (the amount expended for such purposes, if
other than in cash, being the fair market value of such property as determined
reasonably and in good faith by the Board of Directors of the Company) shall
exceed the sum of: (w) 50% of the cumulative Consolidated Net Income (or if
cumulative Consolidated Net Income shall be a loss, minus 100% of such loss) of
the Company earned subsequent to the Effective Date and on or prior to the date
the Restricted Payment occurs (the "Reference Date") (treating such period as a
single accounting period); plus (x) 100% of the aggregate net cash proceeds
received by the Company from any Person (other than a Subsidiary of the Company)
from the issuance and sale subsequent to the Effective Date and on or prior to
the Reference Date of Qualified Capital Stock of the Company; plus (y) without
duplication of any amounts included in clause (iii)(x) above, 100% of the
aggregate net cash proceeds of any equity contribution
-37-
received by the Company from a holder of the Company's Capital Stock (excluding,
in the case of clauses (iii)(x) and (y), any net cash proceeds from an Equity
Offering to the extent used to redeem the Notes); plus (z) without duplication,
the sum of (1) the aggregate amount returned in cash on or with respect to
Investments (other than Permitted Investments) made subsequent to the Effective
Date whether through interest payments, principal payments, dividends or other
distributions or payments, (2) the net cash proceeds received by the Company or
any of its Restricted Subsidiaries from the disposition of all or any portion of
such Investments (other than to a Subsidiary of the Company) and (3) upon
redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, the fair
market value of such Subsidiary; provided, however, that the sum of clauses (1),
(2) and (3) above shall not exceed the aggregate amount of all such Investments
made subsequent to the Effective Date.
Notwithstanding the foregoing, the provisions set forth in the
immediately preceding paragraph do not prohibit: (1) the payment of any dividend
within 60 days after the date of declaration of such dividend if the dividend
would have been permitted on the date of declaration; (2) if no Default or Event
of Default shall have occurred and be continuing, the acquisition of any shares
of Capital Stock of the Company, either (i) solely in exchange for shares of
Qualified Capital Stock of the Company or (ii) through the application of net
proceeds of a substantially concurrent sale for cash (other than to a Subsidiary
of the Company) of shares of Qualified Capital Stock of the Company; (3) if no
Default or Event of Default shall have occurred and be continuing, the
acquisition of any Indebtedness of the Company that is subordinate or junior in
right of payment to the Notes either (i) solely in exchange for shares of
Qualified Capital Stock of the Company, or (ii) through the application of net
proceeds of a substantially concurrent sale for cash (other than to a Subsidiary
of the Company) of (A) shares of Qualified Capital Stock of the Company or (B)
Refinancing Indebtedness; and (4) so long as no Default or Event of Default
shall have occurred and be continuing, repurchases by the Company of Common
Stock of the Company from employees of the Company or any of its Subsidiaries or
their authorized representatives or successors upon the death, disability or
termination of employment of such employees, in an aggregate amount not to
exceed $500,000 in any calendar year. In determining the aggregate amount of
Restricted Payments made subsequent to the Effective Date in accordance with
clause (iii) of the immediately preceding paragraph, amounts expended pursuant
to clauses (1), (2)(ii), 3(ii)(A), (4) and (5) shall be included in such
calculation.
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 complies with this Indenture and setting forth in reasonable
detail the basis upon which the required calculations were computed, which
calculations may be based upon the Company's latest available internal quarterly
financial statements.
SECTION 4.11. Limitations on Transactions
with Affiliates.
---------------
(a) The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, enter into or permit to exist any
transaction or series of related transactions (including, without limitation,
the purchase, sale, lease or exchange of any
-38-
property or the rendering of any service) with, or for the benefit of, any of
its Affiliates (each an "Affiliate Transaction"), other than (x) Affiliate
Transactions permitted under paragraph (b) below and (y) Affiliate Transactions
on terms that are no less favorable than those that might reasonably have been
obtained in a comparable transaction at such time on an arm's-length basis from
a Person that is not an Affiliate of the Company or such Restricted Subsidiary.
All Affiliate Transactions (and each series of related Affiliate Transactions
which are similar or part of a common plan) involving aggregate payments or
other property with a fair market value in excess of $250,000 shall be approved
by a majority of non-interested directors of the Board of Directors or a
majority of non-interested directors of a committee of the Board of Directors of
the Company or such Restricted Subsidiary, as the case may be, such approval to
be evidenced by a Board Resolution stating that such majority of non-interested
directors of the Board of Directors or such majority of non-interested directors
of the committee of the Board of Directors, as the case may be, have determined
that such transaction complies with the foregoing provisions. If the Company or
any Restricted Subsidiary of the Company enters into an Affiliate Transaction
(or a series of related Affiliate Transactions related to a common plan) that
involves an aggregate fair market value of more than $5,000,000, the Company or
such Restricted Subsidiary, as the case may be, shall, prior to the consummation
thereof, obtain a favorable opinion as to the fairness of such transaction or
series of related transactions to the Company or the relevant Restricted
Subsidiary, as the case may be, from a financial point of view, from an
independent nationally recognized investment banking firm and file the same with
the Trustee.
(b) The restrictions set forth in clause (a) shall not apply to (i)
reasonable fees and compensation paid to and indemnity provided on behalf of,
officers, directors, employees or consultants of the Company or any Restricted
Subsidiary of the Company as determined in good faith by the Company's Board of
Directors or a committee thereof or senior management; (ii) transactions
exclusively between or among the Company and any of its Wholly Owned Restricted
Subsidiaries or exclusively between or among such Wholly Owned Restricted
Subsidiaries, PROVIDED such transactions are not otherwise prohibited by this
Indenture; (iii) any agreement as in effect as of the Effective Date or any
amendment thereto or any transaction contemplated thereby (including pursuant to
any amendment thereto) in any replacement agreement thereto so long as any such
amendment or replacement agreement is not more disadvantageous to the Holders in
any material respect than the original agreement as in effect on the Effective
Date; (iv) Restricted Payments permitted by this Indenture; (v) any payment,
issuance of securities or other payments, awards or grants, in cash or
otherwise, pursuant to, or the funding of, employment arrangements and stock
option and stock ownership plans approved by the Board of Directors, or the
appropriate committee of the Board of Directors, of the Company; and (vi) loans
or advances to officers, directors or employees of the Company or its Restricted
Subsidiaries not in excess of $500,000 at any one time outstanding.
-39-
SECTION 4.12. Limitation on Incurrence
of Additional Indebtedness.
--------------------------
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume, guarantee,
acquire, become liable, contingently or otherwise, with respect to, or otherwise
become responsible for payment of (collectively, "incur") any Indebtedness
(other than Permitted Indebtedness); PROVIDED, HOWEVER, that if no Default or
Event of Default shall have occurred and be continuing at the time of or as a
consequence of the incurrence of any such Indebtedness, the Company may incur
Indebtedness (including, without limitation, Acquired Indebtedness) if on the
date of the incurrence of such Indebtedness, after giving effect to the
incurrence thereof, the Consolidated Fixed Charge Coverage Ratio of the Company
is greater than 2.5 to 1.0 if such incurrence is on or prior to March 30,
2003 and 3.0 to 1.0 if such incurrence is thereafter and; PROVIDED FURTHER,
that the no incurrence of Permitted Indebtedness shall be subject to the
Consolidated Fixed Charge Coverage Ratio.
For purposes of determining any particular amount of Indebtedness under
this Section 4.12, guarantees, Liens or obligations with respect to letters of
credit supporting Indebtedness otherwise included in the determination of such
particular amount shall not be included.
Indebtedness of any Person which is outstanding at the time such Person
becomes a Restricted Subsidiary or is merged with or into or consolidated with
the Company or a Restricted Subsidiary shall be deemed to have been incurred at
the time such Person becomes a Restricted Subsidiary or is merged with or into
or consolidated with the Company or a Restricted Subsidiary, and Indebtedness
which is assumed at the time of the acquisition of any asset shall be deemed to
have been incurred at the time of such acquisition.
The Company shall not incur any Indebtedness which by its terms (or by
the terms of any agreement governing such Indebtedness) is subordinated in right
of payment to any other Indebtedness of the Company unless such Indebtedness is
also by its terms (or by the terms of any agreement governing such Indebtedness)
made expressly subordinate in right of payment to the Notes pursuant to
subordination provisions that are substantively identical to the subordination
provisions of such Indebtedness (or such agreement) that are most favorable to
the holders of any other Indebtedness of the Company.
SECTION 4.13. Limitation on Dividend and
Other Payment Restrictions
Affecting Subsidiaries.
--------------------------
The Company shall not, and shall not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or
permit to exist or become effective any encumbrance or restriction on the
ability of any Restricted Subsidiary of the Company to (a) pay dividends or make
any other distributions on or in respect of its Capital Stock; (b) make loans or
advances or to pay any Indebtedness or other obligation owed to the Company or
any other Restricted Subsidiary of the Company; or (c) transfer any of its
-40-
property or assets to the Company or any other Restricted Subsidiary of the
Company; except for such encumbrances or restrictions existing under or by
reason of: (1) applicable law; (2) this Indenture; (3) any instrument governing
Acquired Indebtedness, which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other than the Person or the
properties or assets of the Person so acquired; (4) agreements existing on the
Effective Date to the extent and in the manner such agreements are in effect on
the Effective Date; (5) any security or pledge agreements, leases or options (or
similar agreements) containing customary restrictions on transfers of the assets
encumbered thereby or leased or subject to option or on the transfer or
subletting of the leasehold interest represented thereby to the extent such
agreements, leases or options are not otherwise prohibited under this Indenture;
(6) restrictions on cash or other deposits or net worth and prohibitions on
assignment imposed by leases that are permitted under this Indenture; (7)
customary provisions in joint venture agreements and other similar agreements;
(8) the New Credit Facility and any instruments issued pursuant thereto; (9) any
agreement or instrument governing Capital Stock of any Person that is acquired
after the Effective Date; (10) Liens permitted to be incurred pursuant to
Section 4.17; (11) any restrictions on a Managed Care Entity pursuant to the
applicable rules or regulations of, or undertakings made to, any regulatory
entity having jurisdiction and authority over such Managed Care Entity; or (12)
an agreement governing Indebtedness incurred to Refinance the Indebtedness
issued, assumed or incurred pursuant to an agreement referred to in clauses (2)
through (11) above; PROVIDED, HOWEVER, that the provisions relating to such
encumbrance or restriction contained in any such Indebtedness are no less
favorable to the Company in any material respect as determined by the Board of
Directors of the Company in their reasonable and good faith judgment than the
provisions relating to such encumbrance or restriction contained in agreements
referred to in such clauses (2) through (11).
SECTION 4.13. Change of Control.
-----------------
(a) Upon the occurrence of a Change of Control, each Holder shall have
the right to require that the Company purchase all or a portion of such Holder's
Notes pursuant to the offer described below (the "Change of Control Offer"), at
a purchase price equal to 100% of the principal amount thereof plus accrued and
unpaid interest, if any, thereon to the date of purchase.
(b) Within 30 days following the date upon which the Change of Control
occurred, the Company shall send, by first class mail, a notice to each Holder
at such Holder's last registered address, with a copy to the Trustee, which
notice shall govern the terms of the Change of Control Offer. The notice to the
Holders shall contain all instructions and materials necessary to enable such
Holders to tender Notes pursuant to the Change of Control Offer. Such notice
shall state:
(i) that the Change of Control Offer is being made pursuant to this
Section 4.14 and that all Notes tendered and not withdrawn shall be accepted
for payment;
(ii) the purchase price (including the amount of accrued interest) and
the purchase date (which shall be no earlier than 30 days nor later than 45
days from the
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date such notice is mailed, other than as may be required by law) (the
"Change of Control Payment Date");
(iii) that any Note not tendered shall continue to accrue interest;
(iv) that, unless the Company defaults in making payment therefor, any
Note accepted for payment pursuant to the Change of Control Offer shall
cease to accrue interest after the Change of Control Payment Date;
(v) that Holders electing to have a Note purchased pursuant to a Change
of Control 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, to the Paying Agent at the address specified in the notice prior
to the close of business on the third Business Day prior to the Change of
Control Payment Date;
(vi) that Holders shall be entitled to withdraw their election if the
Paying Agent receives, not later than the second Business Day prior to the
Change of Control Payment Date, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the principal amount of the
Notes the Holder delivered for purchase and a statement that such Holder is
withdrawing his election to have such Notes purchased;
(vii) that Holders whose Notes are purchased only in part shall be
issued new Notes in a principal amount equal to the unpurchased portion of
the Notes surrendered; provided, however, that each Note purchased and each
new Note issued shall be in an original principal amount of $1,000 or
integral multiples thereof; and
(viii) the circumstances and relevant facts regarding such Change of
Control.
On the Change of Control Payment Date, the Company shall, to the extent
permitted by law, (i) accept for payment all Notes or portions thereof properly
tendered pursuant to the Change of Control Offer, (ii) deposit with the Paying
Agent an amount equal to the aggregate Change of Control Payment in respect of
all Notes or portions thereof so tendered and (iii) deliver, or cause to be
delivered, to the Trustee for cancellation the Notes so accepted together with
an Officers' Certificate stating that such Notes or portions thereof have been
tendered to and purchased by the Company. The Paying Agent shall promptly mail
to each Holder of Notes the Change of Control Payment for such Notes, and the
Trustee shall promptly authenticate and deliver to each Holder new Physical
Notes equal in principal amount to any unpurchased portion of the Notes
surrendered, if any, provided that each new Physical Note shall be in a
principal amount of $1,000 or an integral multiple thereof. The Company shall
notify the Trustee and the Holders of the results of the Change of Control Offer
on or as soon as practicable after the Change of Control Payment Date.
Neither the Board of Directors of the Company nor the Trustee may waive
the provisions of this Section 4.14 relating to the Company's obligation to make
a Change of Control Offer or a Holder's right to redemption upon a Change of
Control.
-42-
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 Notes pursuant to a Change of Control Offer. To the extent that
the provisions of any securities laws or regulations conflict with the
provisions of this Section 4.14, the Company shall comply with the applicable
securities laws and regulations and shall not be deemed to have breached their
obligations under the provisions of this Section 4.14 by virtue thereof.
SECTION 4.15. Limitation on 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
applicable Restricted Subsidiary, as the case may be, receives consideration at
the time of such Asset Sale at least equal to the fair market value of the
assets sold or otherwise disposed of (as determined in good faith by the
Company's Board of Directors), (ii) at least 75% of the consideration received
by the Company or the Restricted Subsidiary, as the case may be, from such Asset
Sale shall be in the form of Qualified Proceeds and shall be received at the
time of such disposition; and (iii) upon the consummation of an Asset Sale, the
Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash
Proceeds relating to such Asset Sale within 360 days of receipt thereof (A)
first to prepay (subject to waiver by the Lender) Indebtedness under the New
Credit Facility and (B) then to make (subject to waiver by the Holders of a
majority in aggregate principal amount of the Notes) redemptions of principal on
the Notes by means of a redemption notice as described in Section 3.04.
In the event of the transfer of substantially all (but not all) of the
property and assets of the Company and its Restricted Subsidiaries as an
entirety to a Person in a transaction permitted pursuant to Section 5.01, the
surviving entity shall be deemed to have sold the properties and assets of the
Company and its Restricted Subsidiaries not so transferred for purposes of this
Section 4.15, and shall comply with the provisions of this Section 4.15 with
respect to such deemed sale as if it were an Asset Sale. In addition, the fair
market value of such properties and assets of the Company or its Restricted
Subsidiaries deemed to be sold shall be for cash in an Asset Sale for purposes
of this Section 4.15.
SECTION 4.16. Limitation on Preferred Stock
of Restricted Subsidiaries.
---------------------------
The Company shall not permit any of its Restricted Subsidiaries to
issue any Preferred Stock (other than to the Company or to a Wholly Owned
Restricted Subsidiary of the Company) or permit any Person (other than the
Company or a Wholly Owned Restricted Subsidiary of the Company) to own any
Preferred Stock of any Restricted Subsidiary of the Company.
-43-
SECTION 4.17. Limitation on Liens.
-------------------
The Company shall not, and shall not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, assume or
permit or suffer to exist any Liens of any kind against or upon any property or
assets of the Company or any of its Restricted Subsidiaries whether owned on the
Effective Date or acquired after the Effective Date, or any proceeds therefrom,
or assign or otherwise convey any right to receive income or profits therefrom
unless (i) in the case of Liens securing Indebtedness that is expressly
subordinate or junior in right of payment to the Notes, the Notes are secured by
a Lien on such property, assets or proceeds that is senior in priority to such
Liens and (ii) in all other cases, the Notes are equally and ratably secured,
except for (A) Liens existing as of the Effective Date to the extent and in the
manner such Liens are in effect on the Effective Date; (B) Liens securing
Indebtedness and other obligations under the New Credit Facility; (C) Liens
securing the Notes; (D) Liens in favor of the Company or a Wholly Owned
Restricted Subsidiary of the Company on assets of any Restricted Subsidiary of
the Company; (E) Liens securing Refinancing Indebtedness which is incurred to
Refinance any Indebtedness which has been secured by a Lien permitted under this
Indenture and which has been incurred in accordance with the provisions of this
Indenture; PROVIDED, HOWEVER, that such Liens (I) are no less favorable to the
Holders and are not more favorable to the lienholders with respect to such Liens
than the Liens in respect of the Indebtedness being Refinanced and (II) do not
extend to or cover any property or assets of the Company or any of its
Restricted Subsidiaries not securing the Indebtedness so Refinanced; and (F)
Permitted Liens.
SECTION 4.18. INTENTIONALLY OMITTED.
SECTION 4.19. DTC and PORTAL Eligibility.
---------------------------
The Company shall use its reasonable efforts to cause the Notes, or a
portion thereof, to be registered for book-entry with the Depository Trust
Company, its nominee or successors ("DTC") as soon as is practicable but in any
event within 30 days from the Effective Date. The Trustee shall act as custodian
for DTC with respect to the Notes. To the extent that the Notes are eligible for
qualification on the PORTAL MARKET, the Company shall use its reasonable efforts
to cause the Notes to be so qualified.
SECTION 4.20. Conduct of Business.
-------------------
The Company and its Restricted Subsidiaries shall not engage in any
businesses which are not the same, similar or reasonably related to the
businesses in which the Company and its Restricted Subsidiaries are engaged on
the Effective Date.
SECTION 4.21. Protection of Security; Acknowledgment of Pledge
------------------------------------------------
(a) The Company shall, from time to time, execute and deliver all such
supplements and amendments hereto and all such financing statements,
continuation statements, instruments of further assurance and other instruments,
and shall take such other action necessary or advisable to:
-44-
(i) maintain or preserve the lien and security interest (and the
priority thereof) of this Indenture or carry out more effectively the
purposes hereof;
(ii) perfect, publish notice of or protect the validity of any Grant
made or to be made by this Indenture; or
(iii) preserve and defend title to the Security and the several rights
of the Trustee and the Holders in the Security (as their several interests
appear as set in the Granting Clauses) against the claims of all persons and
parties;
and the Company hereby designates the Trustee its agent and attorney-in-fact to
execute any financing statement, continuation statement or other instrument
required by the Trustee pursuant to this Section 4.21.
(b) The Company shall not take any action and shall use its best
efforts not to permit any action to be taken by others that would release any
Person from any of such Person's material covenants or obligations under any
instrument or agreement included in the Security or that would result in the
amendment, hypothecation, subordination, termination or discharge of, or impair
the validity or effectiveness of, any such instrument or agreement, except as
expressly provided in this Indenture or such other instrument or agreement.
(c) The Company shall punctually perform and observe all of its
obligations and agreements included in the Security, including but not limited
to filing or causing to be filed all UCC financing statements and continuation
statements required to be filed by the terms of this Indenture in accordance
with and within the time periods provided for herein.
(d) The Company shall cause to be furnished to the Trustee, promptly
after the execution and delivery of this Indenture, and promptly after the
execution and delivery of any amendment hereto or any other instrument of
further assurance, an Opinion of Counsel stating that, in the opinion of such
counsel, subject to customary exclusions and exceptions reasonably acceptable to
the Trustee, either (i) this Indenture has been properly recorded, registered
and filed so as to make effective the Lien intended to be created hereby and
reciting the details of such action, or (ii) no such action is necessary to make
such Lien and assignment effective.
(e) The Company shall cause to be furnished to the Trustee, on or
before each anniversary of the execution of this Indenture, an Opinion of
Counsel, dated as of such date, stating that, in the opinion of such counsel,
subject to customary exclusions and exceptions reasonably acceptable to the
Trustee, either (i) all such action has been taken with respect to the
recording, registering, filing, re-recording, re-registering and refilling of
the Indenture, all supplemental indentures, financing statements, continuation
statements and all other instruments of further assurance as are necessary to
maintain the Lien of this Indenture and reciting the details of such action, or
(ii) no such action is necessary to maintain such Lien and assignment effective.
-45-
ARTICLE FIVE
SUCCESSOR CORPORATION
---------------------
SECTION 5.01. Merger, Consolidation
and Sale of Assets.
-------------------
(a) The Company shall not, in a single transaction or series of related
transactions, consolidate or merge with or into any Person, or sell, assign,
transfer, lease, convey or otherwise dispose of (or cause or permit any
Restricted Subsidiary of the Company to sell, assign, transfer, lease, convey or
otherwise dispose of) all or substantially all of the Company's assets
(determined on a consolidated basis for the Company and the Company's Restricted
Subsidiaries) whether as an entirety or substantially as an entirety to any
Person unless: (i) either (1) the Company shall be the surviving or continuing
corporation or (2) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or the Person which acquires
by sale, assignment, transfer, lease, conveyance or other disposition the
properties and assets of the Company and of the Company's Restricted
Subsidiaries substantially as an entirety (the "Surviving Entity") (x) shall be
a corporation organized and validly existing under the laws of the United States
or any State thereof or the District of Columbia and (y) shall expressly assume,
by supplemental indenture (in form and substance satisfactory to the Trustee),
executed and delivered to the Trustee, the due and punctual payment of the
principal of and interest on all of the Notes and the performance of every
covenant of the Notes, this Indenture [and the Registration Rights Agreement] on
the part of the Company to be performed or observed; (ii) immediately after
giving effect to such transaction and the assumption contemplated by clause
(i)(2)(y) above (including giving effect to any Indebtedness and Acquired
Indebtedness incurred or anticipated to be incurred in connection with or in
respect of such transaction), the Company or such Surviving Entity, as the case
may be, (1) shall have a Consolidated Net Worth equal to or greater than the
Consolidated Net Worth of the Company immediately prior to such transaction and
(2) shall be able to incur at least $1.00 of additional Indebtedness (other than
Permitted Indebtedness) pursuant to Section 4.12; (iii) immediately before and
immediately after giving effect to such transaction and the assumption
contemplated by clause (i)(2)(y) above (including, without limitation, giving
effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to
be incurred and any Lien granted in connection with or in respect of the
transaction), no Default or Event of Default shall have occurred or be
continuing; and (iv) the Company or the Surviving Entity shall have delivered to
the Trustee an Officers' Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, sale, assignment, transfer, lease, conveyance
or other disposition and, if a supplemental indenture is required in connection
with such transaction, such supplemental indenture comply with the applicable
provisions of this Indenture and that all conditions precedent in this Indenture
relating to such transaction have been satisfied. Notwithstanding the foregoing
clauses (ii) and (iii), (a) any Restricted Subsidiary may consolidate with,
merge into or transfer all or part of its properties and assets to the Company
or to another Restricted Subsidiary and (b) the Company may merge with or
transfer all of its properties and assets to an Affiliate incorporated or formed
solely for the purpose of either reincorporating or reforming the Company in
another State of the United
-46-
States so long as the amount of Indebtedness of the Company and its
Restricted Subsidiaries is not increased thereby.
(b) For purposes of this Section 5.01, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of transactions
but excluding the creation of any Lien permitted to be incurred pursuant to
Section 4.17) of all or substantially all of the properties or assets of one or
more Restricted Subsidiaries of the Company the Capital Stock of which
constitutes all or substantially all of the properties and assets of the
Company, shall be deemed to be the transfer of all or substantially all of the
properties and assets of the Company.
(c) The creation of a Lien permitted to be incurred pursuant to Section
4.17 shall not constitute a disposition for the purposes of this Section 5.01.
-35-
SECTION 5.02. Successor Corporation Substituted.
---------------------------------
Upon any consolidation, combination or merger or any transfer of all or
substantially all of the assets of the Company in accordance with Section 5.01,
in which the Company is not the continuing corporation, the successor Person
formed by such consolidation or into which the Company is merged or to which
such conveyance, lease or transfer is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Indenture
and the Notes with the same effect as if such surviving entity had been named as
such.
ARTICLE SIX
REMEDIES
--------
SECTION 6.01. Events of Default.
-----------------
An "Event of Default" means any of the following events:
(a) the failure to pay interest on any Notes when the same becomes due
and payable and the default continues for a period of 30 days (whether or not
such payment shall be prohibited by Article Ten of this Indenture);
(b) the failure to pay the principal on any Notes, when such principal
becomes due and payable, at maturity, upon redemption or otherwise (including
the failure to make a payment to purchase Notes tendered pursuant to a Change of
Control Offer or the failure to make a mandatory redemption pursuant to Section
3.06) (whether or not such payment shall be prohibited by Article Ten of this
Indenture);
(c) a default in the observance or performance of any other covenant or
agreement contained in this Indenture which default continues for a period of 30
days after the Company receives written notice specifying the default (and
demanding that such default be remedied) from the Trustee or the Holders of at
least 25% of the outstanding principal amount
-47-
of the Notes (except in the case of a default with respect to Section 5.01,
which shall constitute an Event of Default with such notice requirement but
without such passage of time requirement);
(d) the failure to pay at final maturity (giving effect to any
applicable grace periods and any extensions thereof) the principal amount of any
Indebtedness of the Company or any Restricted Subsidiary of the Company, or the
acceleration of the final stated maturity of any such Indebtedness (which
acceleration is not rescinded, annulled or otherwise cured within 20 days of
receipt by the Company or such Restricted Subsidiary of notice of any such
acceleration) if the aggregate principal amount of such Indebtedness, together
with the principal amount of any other such Indebtedness in default for failure
to pay principal at final maturity or which has been accelerated, aggregates
$5,000,000 or more at any time;
(e) one or more judgments in an aggregate amount in excess of
$5,000,000 shall have been rendered against the Company or any of its Restricted
Subsidiaries and such judgments remain undischarged, unpaid or unstayed for a
period of 60 days after such judgment or judgments become final and
non-appealable;
(f) the Company or any of its Significant Subsidiaries pursuant to or
under or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case or proceeding;
(ii) consents to the entry of an order for relief against it in an
involuntary case or proceeding;
(iii) consents to the appointment of a Custodian of it or for all or
substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) shall generally not pay its debts when such debts become due or
shall admit in writing its inability to pay its debts generally; or
(g) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(i) is for relief against the Company or any of its Significant
Subsidiaries in an involuntary case or proceeding,
(ii) appoints a Custodian of the Company or any of its Significant
Subsidiaries for all or substantially all of their properties taken as a
whole, or
(iii) orders the liquidation of the Company or any of its Significant
Subsidiaries,
and in each case the order or decree remains unstayed and in effect for 60 days.
-48-
SECTION 6.02. Acceleration.
------------
If an Event of Default (other than an Event of Default specified in
Section 6.01 (f) or (g) relating to the Company) shall occur and be continuing,
the Trustee or the Holders of at least 25% in principal amount of outstanding
Notes may declare the principal of and accrued interest on 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 declaration of acceleration,
and the same shall become immediately due and payable. If an Event of Default
specified in Section 6.01 (f) or (g) with respect to the Company occurs and is
continuing, then all unpaid principal of and accrued and unpaid interest on all
of the 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.
At any time after a declaration of acceleration with respect to the
Notes as described in the preceding paragraph, the Holders of a majority in
principal amount of the Notes may rescind and cancel such declaration and its
consequences (a) if the rescission would not conflict with any judgment or
decree, (b) if all existing Events of Default have been cured or waived except
nonpayment of principal or interest that has become due solely because of the
acceleration, (c) to the extent the payment of such interest is lawful, interest
on overdue installments of interest and overdue principal, which has become due
otherwise than by such declaration of acceleration, has been paid, (d) if the
Company has paid the Trustee its reasonable compensation and reimbursed the
Trustee for its expenses, disbursements and advances and (e) in the event of the
cure or waiver of an Event of Default of the type described in Section 6.01, the
Trustee shall have received an Officers' Certificate and an Opinion of Counsel
that such Event of Default has been cured or waived. No such rescission shall
affect any subsequent Default or impair any right consequent thereto.
SECTION 6.03. Other Remedies.
--------------
(a) If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of the principal of or interest on the Notes or to enforce the
performance of any provision of the Notes or this Indenture.
(b) All rights of action and claims under this Indenture or the Notes
may be enforced by the Trustee even if it does not possess any of the Notes or
does not produce any of them in the proceeding. A delay or omission by the
Trustee or any Holder in exercising any right or remedy accruing upon an Event
of Default shall not impair the right or remedy or constitute a waiver of or
acquiescence in the Event of Default. No remedy is exclusive of any other
remedy. All available remedies are cumulative to the extent permitted by law.
SECTION 6.04. Waiver of Past Defaults.
-----------------------
Prior to the acceleration of the Notes, 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 the Notes, waive any existing
Default or Event of Default and its consequences
-49-
under this Indenture, except a Default or Event of Default specified in Section
6.01(a) or (b) or in respect of any provision hereof which cannot be modified or
amended without the consent of the Holder so affected pursuant to Section 9.02.
When a Default or Event of Default is so waived, it shall be deemed cured and
shall cease to exist. This Section 6.04 shall be in lieu of Section316(a)(1)(B)
of the TIA and such Section316(a)(1)(B) of the TIA is hereby expressly excluded
from this Indenture and the Notes, as permitted by the TIA.
SECTION 6.05. Control by Majority.
-------------------
Holders of the Notes may not enforce this Indenture or the Notes except
as provided in this Article Six and under the TIA. The Holders of a majority in
aggregate principal amount of the then outstanding Notes have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee, provided, however, that the Trustee may refuse to follow any direction
(a) that conflicts with any rule of law or this Indenture, (b) that the Trustee,
in its sole discretion, determines may be unduly prejudicial to the rights of
another Holder (it being understood that the Trustee shall have no duty to
ascertain whether or not such actions or forbearances are unduly prejudicial to
such Holders), or (c) that may expose the Trustee to personal liability for
which adequate indemnity provided to the Trustee against such liability is not
reasonably assured to it; provided, further, however, that the Trustee may take
any other action deemed proper by the Trustee that is not inconsistent with such
direction or this Indenture. This Section 6.05 shall be in lieu of
Section316(a)(1)(A) of the TIA, and such Section316(a)(1)(A) of the TIA is
hereby expressly excluded from this Indenture and the Notes, as permitted by the
TIA.
SECTION 6.06. Limitation on Suits.
-------------------
No Holder of any Notes shall have any right to institute any proceeding
with respect to this Indenture or the Notes or any remedy hereunder, unless the
Holders of at least 25% in aggregate principal amount of the outstanding Notes
have made written request, and offered reasonable indemnity, to the Trustee to
institute such proceeding as Trustee under the Notes and this Indenture, the
Trustee has failed to institute such proceeding within 30 days after receipt of
such notice, request and offer of indemnity and the Trustee, within such 30-day
period, has not received directions inconsistent with such written request by
Holders of a majority in aggregate principal amount of the outstanding Notes.
The foregoing limitations shall not apply to a suit instituted by a
Holder of a Note for the enforcement of the payment of the principal of or
interest on such Note on or after the respective due dates expressed or provided
for in such Note.
A Holder may not use this Indenture to prejudice the rights of any
other Holders or to obtain priority or preference over such other Holders.
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SECTION 6.07. Right of Holders To Receive Payment.
-----------------------------------
Notwithstanding any other provision in this Indenture, the right of any
Holder of a Note to receive payment of the principal of and interest on such
Note, on or after the respective due dates expressed or provided for in such
Note, or to bring suit for the enforcement of any such payment on or after the
respective due dates, is absolute and unconditional and shall not be impaired or
affected without the consent of the Holder.
SECTION 6.08. Collection Suit by Trustee.
--------------------------
If an Event of Default specified in paragraph (a) or (b) of Section
6.01 occurs and is continuing, the Trustee may recover judgment in its own name
and as trustee of an express trust against the Company, or any other obligor on
the Notes for the whole amount of the principal of and accrued interest
remaining unpaid, together with interest on overdue principal and interest on
overdue installments of interest, to the extent lawful, in each case at the rate
per annum provided for by the Notes and such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel and any other amounts due the Trustee pursuant to the
provisions of Section 7.07.
SECTION 6.09. Trustee May File Proofs of Claim.
--------------------------------
The Trustee may file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents, counsel, accountants and experts) and
the Holders allowed in any judicial proceedings relative to the Company (or any
other obligor upon the Notes), its creditors or its property and shall be
entitled and empowered to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same, and any
Custodian in any such judicial proceedings is hereby authorized by each 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 agent and counsel, and any other
amounts due the Trustee under Section 7.07. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 6.10. Priorities.
----------
If the Trustee collects any money pursuant to this Article Six it shall
pay out such money in the following order:
-51-
First: to the Trustee, its agents and attorneys for amounts due under
Section 7.07, including payment of all compensation, expense and liabilities
incurred, and all advances made, by the Trustee and the cost and expenses of
collection;
Second: to Holders for interest accrued on the Notes, ratably, without
preference or priority of any kind, according to the amounts due and payable
on the Notes for interest;
Third: to Holders for the principal amounts owing under the Notes,
ratably, without preference or priority of any kind, according to the
amounts due and payable on the Notes for the principal; and
Fourth: the balance, if any, to the Company.
The Trustee, upon prior written notice to the Company, may fix a record
date and payment date for any payment to Holders pursuant to this Section 6.10.
SECTION 6.11. Undertaking for Costs.
---------------------
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court may in its discretion require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to any suit by the Trustee, any suit by a
Holder pursuant to Section 6.07, or a suit by a Holder or Holders of more than
10% in aggregate principal amount of the outstanding Notes.
ARTICLE SEVEN
TRUSTEE
-------
SECTION 7.01. Duties of Trustee.
-----------------
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture and
use the same degree of care and skill in its exercise thereof as a prudent
person would exercise or use under the circumstances in the conduct of his own
affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties as are specifically set
forth in this Indenture and no covenants or obligations shall be
implied in this Indenture that are adverse to the Trustee.
-52-
(2) The Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture. However, in the case of any such
certificates or opinions that by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall examine the
certificates and opinions to determine whether or not they conform to
the requirements of this Indenture, but need not verify the contents
thereof.
(c) Notwithstanding anything to the contrary herein contained, the
Trustee may not be relieved from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of this
Section 7.01.
(2) The Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it takes
or omits to take in good faith in accordance with a direction received
by it pursuant to Section 6.02, 6.04 or 6.05.
(d) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c), (d), and (f) of this Section
7.01 and Section 7.02.
(f) The Trustee shall not be liable for interest on any money or assets
received by it except as the Trustee may agree in writing with the Company.
Assets held in trust by the Trustee need not be segregated from other assets
except to the extent required by law.
SECTION 7.02. Rights of Trustee.
-----------------
Subject to Section 7.01:
(a) The Trustee may rely and shall be fully protected in
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
consult with counsel of its selection and may require an Officers'
Certificate or an Opinion of Counsel,
-53-
which shall conform to Sections 11.04 and 11.05. 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. The
Trustee may consult with counsel and the written advice of such counsel
or any Opinion of Counsel shall be full and complete authorization and
protection from liability in respect to 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 that it
takes or omits to take in good faith which it reasonably believes to be
authorized or within its rights or powers.
(e) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, notice, request, direction, consent,
order, bond, debenture, or other paper or document, but the Trustee, in
its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled, upon reasonable notice to the Company, to examine the books,
records, and premises of the Company, personally or by agent or
attorney and to consult with the officers and representatives of the
Company, including the Company's accountants and attorneys.
(f) The Trustee shall be under no obligation to exercise any
of its rights or powers vested in it by this Indenture at the request,
order or direction of any of the Holders pursuant to the provisions of
this Indenture, unless such Holders have offered to the Trustee
reasonable indemnity satisfactory to the Trustee against the costs,
expenses and liabilities which may be incurred by it in compliance with
such request, order or direction.
(g) The Trustee shall not be required to give any bond or
surety in respect of the performance of its powers and duties
hereunder.
(h) Delivery of reports, information and documents to the
Trustee under Section 4.08 is for informational purposes only and the
Trustee's receipt of the foregoing shall not constitute constructive
notice of any information contained therein or determinable from
information contained therein, including the Company's compliance with
any of their covenants hereunder (as to which the Trustee is entitled
to rely exclusively on Officers' Certificates).
SECTION 7.03. Individual Rights of Trustee.
----------------------------
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company, or any of its
Subsidiaries, or their
-54-
respective Affiliates with the same rights it would have if it were not Trustee.
Any Agent may do the same with like rights. However, the Trustee must comply
with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer.
--------------------
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Notes, and it shall not be accountable for the Company's
use of the proceeds from the Notes, 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 of the Company in this
Indenture or the Notes other than the Trustee's certificate of authentication.
SECTION 7.05. Notice of Default.
-----------------
If a Default or an Event of Default occurs and is continuing and if it
is known to a Trust Officer, the Trustee shall mail to each Holder notice of the
uncured Default or Event of Default within 90 days after obtaining knowledge
thereof. Except in the case of a Default or an Event of Default in payment of
principal of, or interest on, any Note, including an accelerated payment, a
Default in payment on the Change of Control Payment Date pursuant to a Change of
Control Offer and a Default in compliance with Article Five hereof, the Trustee
may withhold the notice if and so long as its Board of Directors, the executive
committee of its Board of Directors or a committee of its directors and/or Trust
Officers in good faith determines that withholding the notice is in the interest
of the Holders. The foregoing sentence of this Section 7.05 shall be in lieu of
the proviso to Section 315(b) of the TIA and such proviso to Section 315(b) of
the TIA is hereby expressly excluded from this Indenture and the Notes, as
permitted by the TIA.
SECTION 7.06. Reports by Trustee to Holders.
-----------------------------
Within 60 days after May 15 of each year beginning with 2002, the
Trustee shall, to the extent that any of the events described in TIA Section
313(a) occurred within the previous twelve months, but not otherwise, mail to
each Holder a brief report dated as of such date that complies with TIA Section
313(a). The Trustee also shall comply with TIA Sections 313(b), (c) and (d).
A copy of each report at the time of its mailing to Holders shall be
mailed to the Company and filed with the Commission and each stock exchange, if
any, on which the Notes are listed.
The Company shall promptly notify the Trustee if the Notes become
listed on any stock exchange and the Trustee shall comply with TIA
Section 313(d).
-55-
SECTION 7.07. Compensation and Indemnity.
--------------------------
The Company shall pay to the Trustee from time to time such
compensation for its services as has been agreed to in writing signed by the
Company and the Trustee. The Trustee's compensation shall not be limited by any
law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses
incurred or made by it in connection with the performance of its duties under
this Indenture. Such expenses shall include the reasonable fees and expenses of
the Trustee's agents, counsel, accountants and experts.
The Company shall indemnify each of the Trustee (or any predecessor
Trustee) and its agents, employees, stockholders, Affiliates and directors and
officers for, and hold them each harmless against, any and all loss, liability,
damage, claim or expense (including reasonable fees and expenses of counsel),
including taxes (other than taxes based on the income of the Trustee) incurred
by them except for such actions to the extent caused by any negligence or
willful misconduct on their part, arising out of or in connection with the
acceptance or administration of this trust including the reasonable costs and
expenses of defending themselves against any claim or liability in connection
with the exercise or performance of any of their rights, powers or duties
hereunder. The Trustee shall notify the Company promptly of any claim asserted
against the Trustee for which it may seek indemnity. Failure by the Trustee to
so notify the Company shall not relieve the Company of its Obligations hereunder
except to the extent such failure shall have prejudiced the Company. The Company
shall have the right upon written notice to the Trustee, to assume, at its own
expense, the defense of such claim, including the employment of counsel
reasonably satisfactory to the Trustee; PROVIDED, HOWEVER, that any settlement
of a claim shall be approved in writing by the Trustee if such settlement would
result in an admission of liability by the Trustee or if such settlement would
not be accompanied by a full release of the Trustee for all liability arising
out of the events giving rise to such claim. If, however, the Company declines
or fails to assume the defense, or to employee counsel reasonably satisfactory
to the Trustee, in either case in a timely manner, then the Trustee may employ
separate counsel of its own choosing and the Company shall pay the reasonable
fees and expenses of such counsel.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a lien prior to the Notes on all assets or money held or
collected by the Trustee, in its capacity as Trustee. The obligations of the
Company under this Section shall not be subordinated to the payment of amounts
due under the New Credit Facility pursuant to Article Ten except assets or money
held in trust to pay principal of or interest on particular Notes.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01 (f) or (g) occurs, such expenses and the
compensation for such services are intended to constitute expenses of
administration under any Bankruptcy Law.
The provisions of this Section 7.07 shall survive the termination of
this Indenture.
-56-
SECTION 7.08. Replacement of Trustee.
----------------------
The Trustee may resign at any time by so notifying the Company. The
Holders of a majority in principal amount of the outstanding Notes may remove
the Trustee and appoint a successor Trustee with the Company's consent, by so
notifying the Company and the Trustee. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee becomes incapable of performing its obligations under
this Indenture.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall notify each Holder of such
event and shall promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in aggregate principal
amount of the outstanding Notes may appoint a successor Trustee to replace the
successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided in Section 7.07, the resignation
or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The Company shall mail notice of such successor Trustee's appointment
to each Holder.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in aggregate principal amount of the outstanding Notes
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding any resignation or replacement of the Trustee pursuant
to this Section 7.08, the Company's obligations under Section 7.07 shall
continue for the benefit of the retiring Trustee.
-57-
SECTION 7.09. Successor Trustee by Merger, Etc.
---------------------------------
If the Trustee consolidates with, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee; provided, however, that
such corporation shall be otherwise qualified and eligible under this Article
Seven.
SECTION 7.10. Eligibility; Disqualification.
-----------------------------
This Indenture shall always have a Trustee who satisfies the
requirement of TIA Sections 310(a)(1), (2) and (5). The Trustee (or, in the case
of a Trustee that is a subsidiary of another bank or a corporation included in a
bank holding company system, the related bank or bank holding company) shall
have a combined capital and surplus of at least $100,000,000 as set forth in its
most recent published annual report of condition, and have (or one of its
Affiliates shall have) a corporate trust office in the City of New York. In
addition, if the Trustee is a subsidiary of another bank or a corporation
included in a bank holding company system, the Trustee, independently of such
bank or bank holding company, shall meet the capital requirements of TIA Section
310(a)(2). The Trustee shall comply with TIA Section 310(b); PROVIDED, HOWEVER,
that there shall be excluded from the operation of TIA Section 310(b)(1) any
indenture or indentures under which other securities, or certificates of
interest or participation in other securities, of the Company are outstanding,
if the requirements for such exclusion set forth in TIA Section 310(b)(1) are
met. The provisions of TIA Section 310 shall apply to the Company, as obligor of
the Notes.
SECTION 7.11. Preferential Collection of
Claims Against Company.
-----------------------
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
----------------------------------
SECTION 8.01. Termination of Company's Obligations.
------------------------------------
This Indenture shall be discharged and shall cease to be of further
effect (except as to surviving rights or registration of transfer or exchange of
the Notes, as expressly provided for in this Indenture) as to all outstanding
Notes when (a) either (i) all Notes, theretofore authenticated and delivered
(except lost, stolen or destroyed Notes which have been replaced or paid and
Notes for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the Company
or discharged from such trust) have been delivered to the Trustee for
cancellation or (ii) all Notes
-58-
not theretofore delivered to the Trustee for cancellation have become due and
payable and the Company has irrevocably deposited or caused to be deposited with
the Trustee funds in an amount sufficient to pay and discharge the entire
Indebtedness on the Notes not theretofore delivered to the Trustee for
cancellation, for principal of and interest on the Notes to the date of deposit
together with irrevocable instructions from the Company directing the Trustee to
apply such funds to the payment thereof at maturity or redemption, as the case
may be; PROVIDED that from and after the time of deposit, the money deposited
shall not be subject to the rights of the Lender pursuant to the provisions of
Article Ten; (b) the Company has paid all other sums payable under this
Indenture by the Company; and (c) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel stating that all conditions
precedent under this Indenture relating to the satisfaction and discharge of
this Indenture have been complied with; PROVIDED, HOWEVER, that such counsel may
rely, as to matters of fact, on an Officers' Certificate of the Company.
The Company may, at its option and at any time, elect to have its
obligations discharged with respect to the outstanding Notes ("Legal
Defeasance"). Such Legal Defeasance means that the Company shall be deemed to
have paid and discharged the entire indebtedness represented by the outstanding
Notes and Holders and any amounts deposited under this Section 8.01, shall cease
to be subject to any obligations to, or the rights of, the Lender under Article
Ten once such deposit has been made, except for (a) the rights of Holders to
receive payments in respect of the principal of and interest on the Notes when
such payments are due, (b) the Company's obligations with respect to the Notes
concerning issuing temporary Notes, registration of Notes, mutilated, destroyed,
lost or stolen Notes and the maintenance of an office or agency for payments,
(c) the rights, powers, trust, duties and immunities of the Trustee and the
Company's obligations in connection therewith and (d) the Legal Defeasance
provisions of this Section 8.01. In addition, the Company may, at its option and
at any time, elect to have the obligations of the Company released with respect
to covenants contained in Sections 4.04, 4.05, 4.08 and 4.10 through 4.20 and
Article Five ("Covenant Defeasance") and Holders and any amounts deposited under
this Section 8.01, shall cease to be subject to any obligations to, or the
rights of, the Lender under Article Ten once such deposit has been made, and
thereafter any omission to comply with such obligations shall not constitute a
Default or Event of Default with respect to the Notes. In the event of Covenant
Defeasance, those events described under Section 6.01 (except those events
described in Section 6.01(a), (b), (f) and (g)) shall no longer constitute an
Event of Default with respect to the Notes.
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders cash in United States dollars,
non-callable U.S. Government Obligations, or a combination thereof, in
such amounts as shall be sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to pay the principal
of and interest on the Notes on the stated date for payment thereof or
on the applicable Redemption Date, as the case may be;
-59-
(b) in the case of Legal Defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee (which may be counsel to the
Company) confirming that (i) the Company has received from, or there
has been published by, the Internal Revenue Service a ruling or (ii)
since the date of this Indenture, there has been a change in the
applicable federal income tax law, in either case to the effect that,
and based thereon such Opinion of Counsel shall confirm that, the
Holders shall not recognize income, gain or loss for federal income tax
purposes as a result of such Legal Defeasance and shall be subject to
U.S. federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such Legal Defeasance had
not occurred;
(c) in the case of Covenant Defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee (which may be counsel to the
Company) confirming that the Holders shall not recognize income, gain
or loss for federal income tax purposes as a result of such Covenant
-45-
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 (other than a Default or Event
of Default with respect to the Indenture resulting from the incurrence
of Indebtedness, all or a portion of which will be used to defease the
Notes concurrently with such incurrence) or insofar as Events of
Default under Section 6.01 (f) or (g) from bankruptcy or insolvency
events are concerned, at any time in the period ending on the 91st day
after the date of deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under this
Indenture or any other material agreement or instrument to which the
Company or any of its Subsidiaries is a party or by which the Company
or any of its Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the
Company with the intent of preferring the Holders over any other
creditors of the Company or with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Company or others;
(g) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for or relating to the Legal Defeasance
or the Covenant Defeasance, as the case may be, have been complied
with; and
-60-
(h) 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.
Notwithstanding the foregoing, the Opinion of Counsel required by
clause (b) with respect to Legal Defeasance need not be delivered if all the
Notes not theretofore delivered to the Trustee for cancellation (i) have become
due and payable, (ii) shall become due and payable on the maturity date within
one year or (iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of redemption
by such Trustee in the name, and at the expense, of the Company.
SECTION 8.02. Application of Trust Money.
--------------------------
The Trustee or Paying Agent shall hold in trust U.S. Legal Tender or
U.S. Government Obligations deposited with it pursuant to Section 8.01, and
shall apply the deposited U.S. Legal Tender and the money from U.S. Government
Obligations in accordance with this Indenture to the payment of the principal of
and interest on the Notes. The Trustee shall be under no obligation to invest
said U.S. Legal Tender or U.S. Government Obligations except that, upon request
of the Company, the Trustee shall invest said U.S. Legal Tender in U.S.
Government Obligations.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Legal Tender or U.S. Government
Obligations deposited pursuant to Section 8.01 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 outstanding Notes.
SECTION 8.03. Repayment to the Company.
------------------------
Subject to Sections 7.07 and 8.01, the Trustee and the Paying Agent
shall promptly pay to the Company upon request any excess U.S. Legal Tender or
U.S. Government Obligations held by them at any time and thereupon shall be
relieved from all liability with respect to such money. The Trustee and the
Paying Agent shall pay to the Company upon request any money held by them for
the payment of principal or interest that remains unclaimed for one year after
the due date for payment of such principal or interest; provided, however, that
the Company shall, if requested by the Trustee or Paying Agent, give to the
Trustee or Paying Agent, indemnification reasonably satisfactory to it against
any and all liability which may be incurred by it by reason of such paying;
provided, further, that the Trustee or such Paying Agent, before being required
to make any payment, may at the expense of the Company cause to be published
once in a newspaper of general circulation in the City of New York or mail to
each Holder entitled to such money notice that such money remains unclaimed and
that after a date specified therein which shall be at least 30 days from the
date of such publication or mailing any unclaimed balance of such money then
remaining shall be repaid to the Company. After payment to the Company, Holders
entitled to such money must look to the
-61-
Company for payment as general creditors unless an applicable law designates
another Person, and all liability of the Trustee and such Paying Agent with
respect to such money shall cease.
SECTION 8.04. Reinstatement.
-------------
If the Trustee or Paying Agent is unable to apply any U.S. Legal Tender
or U.S. Government Obligations in accordance with Section 8.01 by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Notes shall
be revived and reinstated as though no deposit had occurred pursuant to Section
8.01 until such time as the Trustee or Paying Agent is permitted to apply all
such U.S. Legal Tender or U.S. Government Obligations in accordance with Section
8.01; provided, however, that if the Company has made any payment of interest on
or principal of any Notes because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the U.S. Legal Tender or U.S. Government Obligations
held by the Trustee or Paying Agent.
SECTION 8.05. Release of Security.
-------------------
The Trustee may and, when required by the provisions of this Indenture,
shall execute instruments to release property from the lien of this Indenture,
or convey the Trustee's interest in the same, in a manner and under
circumstances that are consistent with the provisions of this Indenture. No
party relying upon an instrument executed by the Trustee as provided in this
Article Eight shall be bound to ascertain the Trustee's authority, inquire into
the satisfaction of any conditions precedent or see to the application of any
moneys.
SECTION 8.06. Acknowledgment of Discharge
by Trustee.
---------------------------
After (i) the conditions of Section 8.01 have been satisfied, (ii) the
Company has paid or caused to be paid all other sums payable hereunder by the
Company and (iii) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent referred to in clause (i) above relating to the satisfaction and
discharge of this Indenture have been complied with, the Trustee upon request
shall acknowledge in writing the discharge of the Company's obligations under
this Indenture except for those surviving obligations specified in Section 8.01
and release the Security in accordance with Section 8.05, PROVIDED the legal
counsel delivering such Opinion of Counsel may rely as to matters of fact on one
or more Officers' Certificates of the Company.
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ARTICLE NINE
MODIFICATION OF THE INDENTURE
-----------------------------
SECTION 8.07. Without Consent of Holders.
--------------------------
Subject to the provisions of Section 9.02, the Company and the Trustee
may amend, waive or supplement this Indenture without notice to or consent of
any Holder: (a) to cure any ambiguity, defect or inconsistency; (b) to comply
with Section 5.01 of this Indenture; (c) to provide for uncertificated Notes in
addition to certificated Notes; (d) to comply with any requirements of the
Commission in order to effect or maintain the qualification of this Indenture
under the TIA; or (e) to make any change that would provide any additional
benefit or rights to the Holders or that does not adversely affect the rights of
any Holder. Notwithstanding the foregoing, the Trustee and the Company may not
make any change pursuant to this Section 9.01 that adversely affects the rights
of any Holder under this Indenture without the consent of such Holder. In
formulating its determination on such matters, the Trustee shall be entitled to
rely on such evidence as it deems appropriate, including, without limitation,
solely on an Opinion of Counsel (which may be counsel to the Company) or an
Officers' Certificate, and may not be held liable therefor.
Upon the request of the Company accompanied by a Board Resolution
authorizing the execution of any such amended or supplemental Indenture, and
upon receipt by the Trustee of the documents described in Section 9.06, the
Trustee shall join with the Company 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 which may be
therein contained, but the Trustee may but shall not be obligated to enter into
such amended or supplemental Indenture which affects its own rights, duties or
immunities under this Indenture or otherwise.
SECTION 9.02. With Consent of Holders.
-----------------------
The Company and the Trustee may amend or supplement this Indenture or
the Notes or any amended or supplemental Indenture with the written consent of
the Holders of Notes of not less than a majority in aggregate principal amount
of the Notes then outstanding.
Upon the request of the Company accompanied by a Board Resolution
authorizing the execution of any such amended or supplemental Indenture, and
upon the filing with the Trustee of evidence satisfactory to the Trustee of the
consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee of
the documents described in Section 9.06, the Trustee shall join with the Company
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 in its sole
discretion, but shall not be obligated to, enter into such amended or
supplemental Indenture.
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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 becomes
effective, the Company shall mail to the Holders of Notes affected thereby a
notice 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 6.04 and 6.07, the Holders of a majority in
aggregate principal amount of the Notes then outstanding may waive compliance in
a particular instance by the Company with any provision of this Indenture or the
Notes. However, without the consent of each Holder of the Notes affected
thereby, an amendment or waiver may not, directly or indirectly: (i) reduce the
amount of Notes whose Holders must consent to an amendment; (ii) reduce the rate
of or change or have the effect of changing the time for payment of and
interest, including Default Interest, on any Notes; (iii) reduce the principal
of or change or have the effect of changing the fixed maturity of any Notes, or
change the date on which any Notes may be subject to redemption or repurchase,
or reduce the redemption or repurchase price therefor; (iv) make any Notes
payable in money other than that stated in the Notes; (v) make any change in
provisions of this Indenture protecting the right of each Holder to receive
payment of principal of and interest on such Note on or after the due date
thereof or to bring suit to enforce such payment, or permitting Holders of a
majority in principal amount of the Notes to waive Defaults or Events of
Default; (vi) after the Company's obligation to purchase Notes arises
thereunder, amend, change or modify in any material respect the obligation of
the Company to make and consummate a Change of Control Offer in the event of a
Change of Control which has occurred or modify any of the provisions or
definitions with respect thereto; (vii) modify or amend Section 3.03 or Section
4.15; (viii) modify or change any provision of this Indenture or the related
definitions affecting the subordination or ranking of the Notes in a manner
which adversely affects the Holders; or (ix) permit the creation of any Lien
ranking prior to or on parity with the lien of this Indenture (other than as set
forth in Article 10) with respect to any part of the Security or, except as
otherwise permitted or contemplated herein, terminate the lien of this Indenture
on any such property at any time subject hereto or deprive any Holder of the
security provided by the lien of this Indenture.
SECTION 9.03. Compliance with TIA.
-------------------
Every amendment, waiver or supplement of this Indenture or the Notes
shall comply with the TIA as then in effect; PROVIDED, HOWEVER, that this
Section 9.03 shall not of itself require that this Indenture or the Trustee be
qualified under the TIA or constitute any admission or acknowledgment by any
party hereto that any such qualification is required prior to the time this
Indenture and the Trustee are required by the TIA to be so qualified.
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SECTION 9.04. Revocation and Effect of Consents.
---------------------------------
Until an amendment, waiver or supplement becomes effective, a consent
to it by a Holder is a continuing consent by 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. Subject to the following paragraph, any such Holder or subsequent Holder
may revoke the consent as to such Holder's Note or portion of such Note by
notice to the Trustee or the Company received before the date on which the
Trustee receives an Officers' Certificate certifying that the Holders of the
requisite principal amount of Notes have consented (and not theretofore revoked
such consent) to the amendment, supplement or waiver. An amendment, supplement
or waiver becomes effective upon receipt by the Trustee of such Officers'
Certificate and evidence of consent by the Holders of the requisite percentage
in principal amount of outstanding Notes.
The Company may, but shall not be obligated to, fix a Record Date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a Record Date is fixed, then notwithstanding the second
sentence of the immediately preceding paragraph, those Persons who were Holders
at such Record Date (or their duly designated proxies), and only those Persons,
shall be entitled to revoke any consent previously given, whether or not such
Persons continue to be Holders after such Record Date. No such consent shall be
valid or effective for more than 90 days after such Record Date unless consents
from Holders of the requisite percentage in principal amount of outstanding
Notes required hereunder for the effectiveness of such consents shall have also
been given and not revoked within such 90 day period.
SECTION 9.05. Notation on or Exchange of Notes.
--------------------------------
If an amendment, supplement or waiver changes the terms of a Note, the
Trustee may require the Holder of such Note to deliver it to the Trustee. The
Trustee may place an appropriate notation on the Note about the changed terms
and return it to the Holder. Alternatively, if the Company or the Trustee so
determine, the Company in exchange for the Note shall issue and the Trustee
shall authenticate a new Note that reflects the changed terms.
SECTION 9.06. Trustee to Sign Amendments, Etc.
--------------------------------
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article Nine; provided, however, that the Trustee
may, but shall not be obligated to, execute any such amendment, supplement or
waiver which affects the Trustee's own rights, duties or immunities under this
Indenture. In executing such amendment, supplement or waiver the Trustee shall
be entitled to receive indemnity reasonably satisfactory to it, and shall be
fully protected in relying upon an Opinion of Counsel and an Officers'
Certificate of the Company, stating that no Event of Default shall occur as a
result of such amendment, supplement or waiver and that the execution of such
amendment, supplement or waiver is authorized or permitted by this Indenture;
provided, however, that the legal counsel
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delivering such Opinion of Counsel may rely as to matters of fact on one or more
Officers' Certificates of the Company. Such Opinion of Counsel shall not be an
expense of the Trustee.
SECTION 9.07. Effect on New Credit Facility.
-----------------------------
No amendment of, or supplement or waiver to, this Indenture shall
adversely affect the rights of the Lender under Article Ten of this Indenture
without the consent of such holder.
ARTICLE TEN
SUBORDINATION OF NOTES
----------------------
SECTION 10.01. Notes Subordinated to New Credit Facility.
-----------------------------------------
Anything herein to the contrary notwithstanding, the Company, for
itself and its successors, and each Holder, by his or her acceptance of Notes,
agrees that the payment of all Obligations owing to the Holders in respect of
the Notes is subordinated, to the extent and in the manner provided in this
Article Ten, to the prior payment in full in cash or Cash Equivalents , or such
payment duly provided for, of the New Credit Facility to the satisfaction of the
Lender; provided, however, that once the Trustee has received payments from the
Company for the benefit of the Holders in accordance with the provisions of
Section 8.01, such payments shall not be subject to this Article Ten.
Notwithstanding anything to the contrary in this Article Ten or otherwise in
this Indenture, at no time shall the Notes be subordinated to any portion of the
indebtedness under the New Credit Facility in excess of the sum of (i)
$15,000,000, plus (ii) accrued interest in respect of the New Credit Facility
and fees at any time owing to Lender, in each case as and to the extent provided
under the New Credit Facility, plus (iii) Enforcement Expenses.
This Article Ten is made for the benefit of the Lender and such holder
is made an obligee hereunder and may enforce such provisions.
SECTION 10.02. Suspension of Payment When New Credit Facility is in
Default.
----------------------------------------------------
(a) Unless Section 10.03 shall be applicable, if any default occurs and
is continuing in the payment when due, whether at maturity, upon any redemption,
by declaration or otherwise, of any principal of, interest on, unpaid drawings
for letters of credit issued in respect of, or regularly accruing fees with
respect to, the New Credit Facility (a "Payment Default"), then no payment or
distribution of any kind or character shall be made by or on behalf of the
Company or any other Person on its or their behalf with respect to any
Obligations on the Notes or to acquire any of the Notes for cash or property or
otherwise and until such Payment Default shall have been cured or waived or
shall have ceased to exist on the New Credit Facility as to which such Payment
Default relates shall have been paid in full in cash or Cash Equivalents, after
which the Company shall (subject to other provisions of this
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Article Ten) resume making any and all required payments in respect of the
Notes, including any missed payments.
(b) Unless Section 10.03 shall be applicable, if any other event of
default (other than a Payment Default) occurs and is continuing with respect to
the New Credit Facility permitting the Lender to accelerate the maturity thereof
(a "Non-Payment Default") and if an officer of the Lender gives written notice
of the event of default to the Trustee (a "Default Notice"), then, unless and
until all events of default have been cured or waived or have ceased to exist or
the Trustee receives notice thereof from such officer of the Lender terminating
the Payment Blockage Period, during the 180 days after the delivery of such
Default Notice (the "Payment Blockage Period"), then neither the Company nor any
other Person on its behalf shall (x) make any payment or distribution of any
kind or character with respect to any Obligations on or with the respect to the
Notes or (y) acquire any of the Notes for cash or property or otherwise.
Notwithstanding anything herein to the contrary, (i) in no event will a Payment
Blockage Period extend beyond 180 days from the date the applicable Default
Notice is received by the Trustee and (ii) only one such Payment Blockage Period
may be commenced within any 360 consecutive days. For all purposes of this
Section 10.02(b), no event of default which existed or was continuing on the
date of the commencement of any Payment Blockage Period with respect to the New
Credit Facility shall be, or be made, the basis for the commencement of a second
Payment Blockage Period by a representative of the Lender whether or not within
a period of 360 consecutive days, unless such event of default shall have been
cured or waived for a period of not less than 90 consecutive days (it being
acknowledged that any subsequent action, or any breach of any financial
covenants for a period commencing after the date of commencement of such Payment
Blockage Period that, in either case, would give rise to an event of default
pursuant to any provisions under which an event of default previously existed or
was continuing shall constitute a new event of default for this purpose). The
Company shall promptly notify the Lender if payment of the Notes is accelerated
because of an Event of Default.
(c) In the event that, notwithstanding the foregoing, any payment shall
be received by the Trustee or any Holder when such payment is prohibited by the
foregoing provisions of this Section 10.02, such payment shall be held in trust
for the benefit of, and shall be paid over or delivered to, the Lender. The
Trustee shall be entitled to rely on information regarding amounts then due and
owing on the New Credit Facility, if any, received from the Lender (or its
representative) or, if such information is not received from the Lender or its
representative, from the Company and only amounts included in the information
provided to the Trustee shall be paid to the Lender.
Nothing contained in this Article Ten shall limit the right of the
Trustee or the Holders of Notes to take any action to accelerate the maturity of
the Notes pursuant to Section 6.02 or to pursue any rights or remedies
hereunder; provided that all amounts thereafter due or declared to be due with
respect to the New Credit Facility shall first be paid in full in cash or Cash
Equivalents before the Holders are entitled to receive any payment of any kind
or character with respect to Obligations on the Notes. In no event shall the
honoring of any request for loans or extensions under the New Credit Facility
after the occurrence or during the continuance of a default or an event of
default under the New Credit Facility be construed
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to be a waiver of such default or event of default, unless such default or event
of default is expressly waived in writing by the Lender. Notwithstanding
anything in this Section 10.02, once the Trustee has received payments from the
Company for the benefit of the Holders in accordance with the provisions of
Section 8.01, such payments shall not be subject to this Article Ten.
SECTION 10.03. Notes Subordinated to Prior Payment of New Credit
Facility on Dissolution, Liquidation or Reorganization
of Company.
--------------------------------------------------------
(a) Upon any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities, to creditors upon
any liquidation, dissolution, winding-up, reorganization, assignment for the
benefit of creditors or marshaling of assets of the Company or in a bankruptcy,
reorganization, insolvency, receivership or other similar proceeding relating to
the Company or its property, whether voluntary or involuntary, partial or
complete, or by operation of law or otherwise, all Obligations due or to become
due under the New Credit Facility shall first be paid in full in cash or Cash
Equivalents, or such payment duly provided for to the satisfaction of the
Lender, before any payment or distribution of any kind or character is made on
account of any Obligations on the Notes, or for the acquisition of any of the
Notes for cash or property or otherwise. Upon any such dissolution, winding-up,
liquidation, reorganization, receivership or similar proceeding, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, to which the Holders of the Notes or the Trustee under
this Indenture would be entitled, except for the provisions hereof, shall be
paid by the Company or by any receiver, trustee in bankruptcy, liquidating
trustee, agent or other Person making such payment or distribution, or by the
Holders or by the Trustee under this Indenture if received by them, directly to
the Lender, or to the lender under any credit agreement pursuant to which the
New Credit Facility may have been issued, for application to the payment of
amounts remaining unpaid until the New Credit Facility has been paid in full in
cash or Cash Equivalents after giving effect to any concurrent payment,
distribution or provision therefor to or for the Lender.
(b) To the extent any payments of principal or interest on the New
Credit Facility (whether by or on behalf of the Company, as proceeds of security
or enforcement of any right of setoff or otherwise) are declared to be
fraudulent or preferential, set aside or required to be paid to any receiver,
trustee in bankruptcy, liquidating trustee, agent or other similar Person under
any bankruptcy, insolvency, receivership, fraudulent conveyance or similar law,
then, if such payment is recovered by, or paid over to, such receiver, trustee
in bankruptcy, liquidating trustee, agent or other similar Person, the New
Credit Facility or part thereof originally intended to be satisfied shall be
deemed to be reinstated and outstanding as if such payment had not occurred.
(c) In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, shall be received by any Holder when such payment or
distribution is prohibited by this Section 10.03, such payment or distribution
shall be held in trust for the benefit of, and shall be paid over or delivered
to, the Lender, or to the lender under any credit agreement pursuant to which
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the New Credit Facility may have been issued, for application to the payment of
amounts remaining unpaid until the New Credit Facility has been paid in full in
cash or Cash Equivalents, after giving effect to any concurrent payment,
distribution or provision therefor to or for the Lender.
(d) The consolidation of the Company with, or the merger of the Company
with or into, another corporation or the liquidation or dissolution of the
Company following the conveyance or transfer of all or substantially all of its
assets, to another corporation upon the terms and conditions provided in Article
Five hereof and as long as permitted under the terms of the New Credit Facility
shall not be deemed a dissolution, winding-up, liquidation or reorganization for
the purposes of this Section if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, assume the Company's obligations
hereunder in accordance with Article Five hereof.
For purposes of this Article Ten, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment, the payment of which
(i) is subordinated or junior, at least to the extent provided in this Article
Ten, with respect to the payment of the New Credit Facility and to the payment
in full of all securities issued in exchange therefore to the Lender and (ii) is
not payable prior to payment in full of the Indebtedness under the New Credit
Facility; provided, however, that (x) the indebtedness under the New Credit
Facility is assumed by any new corporation or other entity resulting from any
such proceeding and (y) the rights of Lender are not, without the consent of
Lender, altered in or as the result of any such proceeding. The consolidation of
the Company with, or the merger of the Company into, another corporation or the
liquidation or dissolution of the Company following the conveyance or transfer
of its property as an entirety, or substantially as an entirety, to another
corporation upon the terms and conditions provided for in Article Five shall not
be deemed a dissolution, winding-up, liquidation or reorganization for the
purposes of this Section 10.03 if such other corporation shall, as part of such
consolidation, merger, conveyance or transfer, comply with the conditions set
forth in Article Five.
SECTION 10.04. Payments may be Paid Prior to Dissolution.
-----------------------------------------
Nothing contained in this Article Ten or elsewhere in this Indenture
shall prevent (i) the Company, except under the conditions described in Sections
10.02 and 10.03, from making payments at any time for the purpose of making
payments of principal of and interest on the Notes, or from depositing with the
Trustee any moneys for such payments, or (ii) in the absence of actual knowledge
by the Trustee that a given payment would be prohibited by Section 10.02 or
10.03, the application by the Trustee of any moneys deposited with it for the
purpose of making such payments of principal of, and interest on, the Notes to
the Holders entitled thereto unless at least two Business Days prior to the date
upon which such payment would otherwise become due and payable a corporate trust
officer of the Trustee shall have actually received the written notice provided
for in the first sentence of Section 10.02(b) or in Section 10.07 (PROVIDED
that, notwithstanding the foregoing, the Holders
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receiving any payments made in contravention of Section 10.02 and/or 10.03 (and
the respective such payments) shall otherwise be subject to the provisions of
Section 10.02 and Section 10.03). The Company shall give prompt written notice
to the Trustee of any dissolution, winding-up, liquidation or reorganization of
the Company, although any delay or failure to give any such notice shall have no
effect on the subordination provisions contained herein.
SECTION 10.05. Holders to be Subrogated to Rights of Lender.
--------------------------------------------
Subject to the payment in full in cash or Cash Equivalents of the New
Credit Facility, the Holders of the Notes shall be subrogated to the rights of
the Lender to receive payments or distributions of cash, property or securities
of the Company applicable to the New Credit Facility until the Notes shall be
paid in full; and, for the purposes of such subrogation, no such payments or
distributions to the Lender of any cash, property or securities to which the
Holders or the Trustee would be entitled except for the provisions of this
Article Ten, and no payment pursuant to the provisions of this Article Ten to or
for the benefit of the Lender by the Holders or the Trustee shall, as between
the Company, its creditors other than the Lender, and the Holders be deemed to
be a payment by the Company to or on account of the New Credit Facility; and no
payments or distributions of cash, property or securities to or for the benefit
of the Holders pursuant to the subrogation provisions of this Article Ten, which
would otherwise have been paid to the Lender, shall be deemed to be a payment by
the Company to or for the account of the Notes. It is understood that the
provisions of this Article Ten are and are intended solely for the purpose of
defining the relative rights of the Holders, on the one hand, and the Lender, on
the other hand. Notwithstanding anything to the contrary in this Section 10.05,
the Holders shall, under no circumstances, have any rights or claims against the
Lender for any alleged impairment of subrogation of rights of the Holders.
SECTION 10.06. Obligations of the Company Unconditional.
----------------------------------------
Nothing contained in this Article Ten or elsewhere in this Indenture or
in the Notes is intended to or shall impair, as among the Company, its creditors
other than the Lender, and the Holders, the obligation of the Company, which is
absolute and unconditional, to pay to the Holders the principal of and any
interest on the Notes as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative
rights of the Holders and creditors of the Company other than the Lender, nor
shall anything herein or therein prevent the Holder of any Note or the Trustee
on its behalf from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, of the Lender
under this Article Ten in respect of cash, property or securities of the Company
received upon the exercise of any such remedy, and further subject to the
provisions of Section 10.10.
SECTION 10.07. Notice to Trustee.
-----------------
The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by the
Trustee in
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respect of the Notes pursuant to the provisions of this Article Ten, although
any delay or failure to give any such notice shall have no effect on the
subordination provisions contained herein. If the Trustee shall not have
received any such notice at least two Business Days prior to its making or
receipt of such a payment in respect of the Notes, it may make or receive such
payment without further inquiry. Regardless of anything to the contrary
contained in this Article Ten or elsewhere in this Indenture, the Trustee shall
not be charged with knowledge of the existence of any default or event of
default with respect to the New Credit Facility or of any other facts which
would prohibit the making of any payment to or by the Trustee unless and until
the Trustee shall have received notice in writing from the Company, or from the
Lender or a representative therefor, and, prior to the receipt of any such
written notice, the Trustee shall be entitled to assume (in the absence of
actual knowledge to the contrary) that no such facts exist. The Trustee shall be
entitled to rely on the delivery to it of any notice pursuant to this Section
10.07 to establish that such notice has been given by a Lender (or a
representative therefor).
SECTION 10.08. Reliance on Judicial Order or Certificate of
Liquidating Agent.
--------------------------------------------
Upon any payment or distribution of assets of the Company referred to
in this Article Ten, the Trustee, subject to the provisions of Article Seven
hereof, and the Holders of the Notes shall be entitled to rely upon any order or
decree made by any court of competent jurisdiction in which any insolvency,
bankruptcy, receivership, dissolution, winding-up, liquidation, reorganization
or similar case or proceeding is pending, or upon a certificate of the receiver,
trustee in bankruptcy, liquidating trustee, assignee for the benefit of
creditors, agent or other Person making such payment or distribution, delivered
to the Trustee or the Holders of the Notes, for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the Lender and
other Indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article Ten.
SECTION 10.09. Trustee's Relation to New Credit Facility.
-----------------------------------------
The Trustee and any agent of the Company or the Trustee shall be
entitled to all the rights set forth in this Article Ten with respect to the New
Credit Facility and nothing in this Indenture shall deprive the Trustee or any
such agent of any of its rights as such holder.
With respect to the Lender, the Trustee undertakes to perform or to
observe only such of its covenants and obligations as are specifically set forth
in this Article Ten, and no implied covenants or obligations with respect to the
Lender shall be read into this Indenture against the Trustee. The Trustee shall
not be deemed to owe any fiduciary duty to the Lender.
Whenever a distribution is to be made or a notice given to the Lender,
the distribution may be made and the notice may be given to its representative,
if any.
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SECTION 10.10. Subordination of Liens.
----------------------
(a) The Holders agree at all times, whether before, after or during the
pendency of any proceeding under Bankruptcy Law and notwithstanding the
priorities which would ordinarily result from the order of granting or
perfection of any Liens, that any Liens which the Lender may at any time have in
or with respect to any of the Security shall constitute first priority Liens in
such Security to secure the payment and performance of the New Credit Facility
and shall be superior to any Lien or other interest at any time held by the
Trustee in the Security arising pursuant to the Granting Clause of this
Indenture, by operation of applicable law or otherwise; and any Lien or other
interests at any time held by the Trustee in any of the Security shall be
subordinate and junior in priority to any Liens at any time held by the Lender
therein. For as long as all or any portion of the Indebtedness under the New
Credit Facility remains outstanding, unpaid or unsatisfied and the commitment of
the Lender thereunder has not been terminated, the Trustee and each Holder
agrees to refrain from taking any action to foreclose upon, take possession of,
liquidate or otherwise proceed against the Security.
(b) For purposes of the priorities set forth in Section 10.10(a), any
claim of right of setoff by the Trustee shall be treated in all respects as a
Lien and no claim to right of setoff by the Trustee shall be asserted to defeat
or diminish the rights or priorities provided for herein in favor of the Lender.
(c) In no event shall the Trustee institute, encourage, or join as a
party in the institution of, or assist in the prosecution of, any action, suit
or proceeding seeking a determination that the Lien of the Lender is invalid,
unperfected or unavoidable, or is or should be subordinated to the interests of
any other person.
(d) If at any time the Lender shall subordinate, in whole or in part,
its Lien upon any of the Collateral to or in favor of any other Person, the
priority of the Lender's Lien in the Security vis-a-vis the Trustee shall not be
affected thereby and the Lender's Lien shall continue to be superior to the
Trustee's Lien or Liens in the Security as provided in this Section 10.10.
(e) Except as otherwise permitted by this Indenture or the Notes, if
the Trustee shall receive any proceeds from any sale, liquidation, casualty or
other disposition of any of the Security, whether in connection with the
initiation of any action by the Lender or the Trustee to enforce or foreclose
upon its Lien or otherwise, the Trustee shall be obligated to hold such proceeds
in trust and promptly turn over such proceeds, less their costs and expenses
incurred in connection with any such action, to the Lender for application to
the New Credit Facility until the New Credit Facility is paid in full and any
commitments by the Lender under the New Credit Facility have been terminated or
expired.
(f) Without impairing, abrogating or in any way affecting the rights of
the Lender hereunder, including the relative priorities established in Section
10.10(a) hereof, the Lender may, during any proceeding under Bankruptcy Law,
give or withhold its consent to the Company's or any bankruptcy trustee's use or
consumption of any of the Security (including cash proceeds of any of the
Security) or may provide financing or otherwise extend credit to the Company or
any bankruptcy trustee secured by a senior Lien upon any or all of the
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Security, whether created, acquired or arising prior to or after the
commencement of any such proceeding, and the Trustee and the Holders shall be
deemed to have consented to the Company's or any bankruptcy trustee's use of
such portion of the Security if and to the extent consented to by the Lender.
Nothing contained in this Article Ten, including this Section 10.10, shall
prohibit the Holders or the Trustee from (i) seeking adequate protection solely
in the form of a priority claim under Bankruptcy Law subordinate to any similar
claim now or hereafter held by the Lender provided that such priority claim is
subject to the terms of this Article Ten, (ii) objecting to the reasonableness
of the terms of any proposed financing by the Lender to the Company after the
commencement of any proceeding under Bankruptcy Law by or against the Company or
(iii) requesting a replacement lien subordinate to any lien now or hereafter
held by the Lender provided that such replacement lien is subject to the
provisions of this Article Ten. Any Lien at any time granted to or otherwise
acquired by the Trustee in any of the Security, whether such Security is
created, acquired or arises prior to or after the commencement of any such
proceeding under Bankruptcy Law, shall be subject to all of the terms of this
Section 10.10 and shall be subordinate in priority to all Liens granted to or
otherwise obtained by the Lender with respect to any such Security, including
Liens granted to or conferred upon the Lender to secure financings in any such
proceeding.
(g) If the Lender consents to the sale of any or all of the Security
during any proceeding under Bankruptcy Law (whether such sale is to be made
pursuant to 11 U.S.C. Section 363, pursuant to a plan of reorganization or
otherwise), then the Holders shall be deemed to have consented to any such sale
and all of the terms applicable to thereto and the Trustee shall, if requested
to do so by the Lender in connection with any such sale, promptly execute and
deliver to the Lender a release of the Holders' Liens with respect to the
Security to be sold. Notwithstanding the foregoing, the Trustee shall not be
obligated to release or terminate its Lien on any proceeds of the sale, transfer
or disposition of any Security to the extent that such proceeds are (i) not
applied to the payment of the New Credit Facility in accordance with the terms
of the New Credit Facility or (ii) in excess of the amount necessary to repay
the New Credit Facility in full.
(h) If in or as a result of any proceeding under Bankruptcy Law the
Lender returns, refunds or repays to the Company or any trustee or committee
appointed in such proceeding any payment or proceeds of any Security in
connection with any action, suit or proceeding alleging that the Lender's
receipt of such payment or proceeds was a transfer voidable under state or
federal law, then the Lender shall not be deemed ever to have received such
payment or proceeds for purposes of this Section 10.10 in determining whether
and when the New Credit Facility has been paid in full.
(i) The Trustee shall (1) upon the request of the Lender and whether or
not an event of default exists under the New Credit Facility, release its Liens
in any of the Security concurrently with the Lender's release of its Lien
therein in connection with the Company's authorized disposition of such Security
pursuant to the terms of the New Credit Facility and (2) if requested to do so
by the Lender after and during the continuance of an event of default under the
New Credit Facility, release its Liens in the Security in connection with and in
order to facilitate any orderly liquidation sale of such Security by the Company
or any bankruptcy trustee or receiver for the Company, and promptly upon the
request of the Lender the Trustee
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shall execute and deliver such documents, instruments and agreements as are
necessary to effectuate such release and to evidence such release in the
appropriate public records. Notwithstanding the foregoing, the Trustee shall not
be obligated to release or terminate its Lien on any proceeds of the sale,
transfer or disposition of any Security to the extent that such proceeds are (i)
not applied to the payment of the New Credit Facility in accordance with the
terms of the New Credit Facility or (ii) in excess of the amount necessary to
repay the New Credit Facility in full.
(j) With respect to any insurance proceeds that may be received on the
Security, the Lender shall have the sole and exclusive right, as against the
Trustee, to adjust settlement of insurance claims in the event of any covered
loss, theft or destruction of the Security. All proceeds of such insurance shall
inure to the Lender. If such proceeds are applied to the New Credit Facility,
any proceeds remaining after payment of the New Credit Facility and all expenses
of collection, including reasonable attorney's costs, fees and expenses, shall
be promptly remitted to the Trustee for payment of the Notes, or to the Company,
as applicable.
SECTION 10.11. Subordination Rights Not Impaired by Acts or
Omissions of the Company or Holders of the New
Credit Facility.
-----------------------------------------------
No right of any present or future Lender to enforce subordination as
provided herein shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or by any act or failure to
act, in good faith, by any such holder, or by any noncompliance by the Company
with the terms of this Indenture, regardless of any knowledge thereof which any
such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph,
the Lender may, at any time and from time to time, without the consent of or
notice to the Trustee, without incurring responsibility to the Trustee or the
Holders of the Notes and without impairing or releasing the subordination
provided in this Article Ten or the obligations hereunder of the Holders of the
Notes to the Lender, do any one or more of the following: (i) change the manner,
place or terms of payment or extend the time of payment of, or renew or alter,
the New Credit Facility, or otherwise amend or supplement in any manner the New
Credit Facility, or any instrument evidencing the same or any agreement under
which the New Credit Facility is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing the
New Credit Facility; PROVIDED, that the Lender shall promptly deliver to the
Trustee (unless otherwise directed in writing by the Trustee or by a court of
competent jurisdiction) any proceeds remaining from the sale transfer or other
disposition of the Security after the payment in full of the New Credit Facility
or, if the Lender shall still be in possession of all or part of the Security
after such repayment, the Security or such part thereof remaining, without
representation or warranty on the part of the Lender; (iii) add or release any
Person liable in any manner for the payment or collection of the New Credit
Facility; (iv) exercise or refrain from exercising any rights against the
Company and any other Person; (v) waive any default or event of default under
the New Credit Facility; and (vi) increase or decrease the amount of
Indebtedness or the rate of interest or the amount of any
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other charges payable in connection with the New Credit Facility. The Company,
Trustee, and the Holders each hereby waives any defense based on the adequacy of
a remedy at law which might be asserted as a bar to the remedy of specific
performance of this Article Ten and any action brought therefore by the Lender.
To the fullest extent permitted by applicable law, the Company, Trustee, and
Holders each hereby further waives: (A) presentment, demand, protest, notice of
protest, notice of default or dishonor, notice of payment or nonpayment and any
and all other notices and demands of any kind in connection with all negotiable
instruments evidencing all or any portion of the Indebtedness under the New
Credit Facility; (B) the right to require the Lender to enforce any Lien that
the Lender may now or hereafter have in any collateral given as security for the
Indebtedness under the New Credit Facility or to pursue any claim it may have
against any guarantor of the Indebtedness under the New Credit Facility, as a
condition to the Lender's entitlement to receive any payment on account of the
Indebtedness under the New Credit Facility; and (C) notice of any loans or other
credit made available to the Company or Restricted Subsidiaries, extensions of
time granted, amendments to the New Credit Facility or any instrument evidencing
the same or any agreement under which the New Credit Facility is outstanding or
other action taken in reliance on the provisions of this Article Ten.
SECTION 10.12. Noteholders Authorize Trustee to Effectuate
Subordination of Notes.
-------------------------------------------
Each Holder of Notes by its acceptance of them authorizes and expressly
directs the Trustee on its behalf to take such action as may be necessary or
appropriate to effectuate, as between the Lender and the Holders of Notes, the
subordination provided in this Article Ten, and appoints the Trustee its
attorney-in-fact for such purposes, including, (i) in the event of any
dissolution, winding-up, liquidation or reorganization of the Company (whether
in bankruptcy, insolvency, receivership, reorganization or similar proceedings
or upon an assignment for the benefit of creditors or otherwise) tending towards
liquidation of the business and/or assets of the Company, the filing of a claim
for the unpaid balance of its Notes and accrued interest in the form required in
those proceedings and (ii) the execution of amendments to financing statements
necessary to reflect of record the provisions of this Article Ten and the
relative priorities set forth therein.
If the Trustee does not file a proper claim or proof of debt in the
form required in such proceeding prior to 30 days before the expiration of the
time to file such claim or claims, then the Lender or its representative are or
is hereby authorized to have the right to file and are or is hereby authorized
to file an appropriate claim for and on behalf of the Holders of said Notes.
Nothing herein contained shall be deemed to authorize the Trustee or the Lender
or its representative to authorize or consent to or accept or adopt on behalf of
any Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof, or to authorize the
Trustee or the Lender or its representative to vote in respect of the claim of
any Holder in any such proceeding.
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SECTION 10.13. This Article Ten Not to Prevent Events of Default.
-------------------------------------------------
The failure to make a payment on account of principal of or interest on
the Notes by reason of any provision of this Article Ten will not be construed
as preventing the occurrence of an Event of Default.
SECTION 10.14. Trustee's Compensation Not Prejudiced.
-------------------------------------
Nothing in this Article Ten will apply to amounts due to the Trustee
pursuant to other sections of this Indenture.
ARTICLE ELEVEN
MISCELLANEOUS
-------------
SECTION 11.01. TIA Controls.
------------
If any provision of this Indenture limits, qualifies, or conflicts with
another provision which is required to be included in this Indenture by the TIA,
the required provision shall control; provided, however, that this Section 11.01
shall not of itself require that this Indenture or the Trustee be qualified
under the TIA or constitute any admission or acknowledgment by any party hereto
that any such qualification is required prior to the time this Indenture and the
Trustee are required by the TIA to be so qualified.
SECTION 11.02. Notices.
-------
Any notices or other communications required or permitted hereunder
shall be in writing, and shall be sufficiently given if made by hand delivery,
by telex, by telecopier or registered or certified mail, postage prepaid, return
receipt requested, addressed as follows:
if to the Company:
National Vision, Inc.
000 Xxxxxxx Xxxxxxx
Xxxxxxxxxxxxx, XX 00000-0000
Facsimile No. (000) 000-0000
Attention: General Counsel
with a copy to:
Xxxxxxxxxx Xxxxxxxx LLP
Suite 2800, 0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Facsimile No. (000) 000-0000
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Attention: Xxxxx X. Xxxxxxxx
if to the Trustee:
State Street Bank and Trust Company
Xxxxxxx Square
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Corporate Trust Division National Vision, Inc. 12% Senior
Secured Notes due 2009
The Company and the Trustee by written notice to the other may
designate additional or different addresses for notices to such Person. Any
notice or communication to the Company or the Trustee shall be deemed to have
been given or made as of the date so delivered if hand delivered; when answered
back, if telexed; when receipt is acknowledged, if faxed; one (1) Business Day
after mailing by reputable overnight courier and five (5) calendar days after
mailing if sent by registered or certified mail, postage prepaid (except that a
notice of change of address shall not be deemed to have been given until
actually received by the addressee).
Any notice or communication mailed to a Holder shall be mailed to him
by first class mail or other equivalent means at his address as it appears on
the registration books of the Registrar ten (10) days prior to such mailing and
shall be sufficiently given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders. If a notice
or communication is mailed in the manner provided above, it is duly given,
whether or not the addressee receives it.
SECTION 11.03. Communications by Holders
with Other Holders.
-------------------------
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and any other Person shall have the
protection of TIA Section 312(c).
SECTION 11.04 Certificate and Opinion as
to Conditions Precedent.
--------------------------
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
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(1) an Officers' Certificate, in form and substance satisfactory to the
Trustee, stating that, in the opinion of the signers, all conditions
precedent to be performed by the Company, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such counsel,
all such conditions precedent to be performed by the Company, if any,
provided for in this Indenture relating to the proposed action have
been complied with (which counsel, as to factual matters, may rely on
an Officers' Certificate).
SECTION 11.05 Statements Required in
Certificate or Opinion.
-----------------------
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture, other than the Officers' Certificate
required by Section 4.06, shall include:
(1) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(5) a statement that, in the opinion of such Person, he has made such
examination or investigation as is reasonably necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(6) a statement as to whether or not, in the opinion of each such
Person, such condition or covenant has been complied with.
SECTION 11.06. Rules by Trustee, Paying
Agent, Registrar.
------------------------
The Trustee may make reasonable rules in accordance with the Trustee's
customary practices for action by or at a meeting of Holders. The Paying Agent
or Registrar may make reasonable rules for its functions.
SECTION 11.07. Legal Holidays.
--------------
A "LEGAL HOLIDAY" used with respect to a particular place of payment is
a Saturday, a Sunday or a day on which banking institutions in New York, New
York or at such place of payment are not required to be open. If a payment date
is a Legal Holiday at such place, payment may be made at such place on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue for the
intervening period.
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SECTION 11.08. Governing Law.
-------------
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW.
SECTION 11.09. No Adverse Interpretation
of Other Agreements.
--------------------
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or any of its Subsidiaries. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
SECTION 11.10. No Personal Liability.
---------------------
No director, officer, partner, member, employee, agent or stockholder,
as such, of the Company shall have any liability for any obligations of the
Company under the Notes, this Indenture or the Registration Rights Agreement 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.
SECTION 11.11. Successors.
----------
All agreements of the Company in this Indenture and the Notes shall
bind its successors. All agreements of the Trustee in this Indenture shall bind
its successors.
SECTION 11.12. Duplicate Originals.
-------------------
All parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together shall represent the
same agreement.
SECTION 11.13. Severability.
------------
In case any one or more of the provisions in this Indenture or in the
Notes shall be held invalid, illegal or unenforceable, in any respect for any
reason, the validity, legality and enforceability of any such provision in every
other respect and of the remaining provisions shall not in any way be affected
or impaired thereby, it being intended that all of the provisions hereof shall
be enforceable to the full extent permitted by law.
SECTION 11.14. Independence of Covenants.
-------------------------
All covenants and agreements in this Indenture and the Notes shall be
given independent effect so that if any particular action or condition is not
permitted by any of such covenants, the fact that it would be permitted by an
exception to, or otherwise be within the
-79-
limitations of, another covenant shall not avoid the occurrence of a Default or
an Event of Default if such action is taken or condition exists.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the date first written above.
NATIONAL VISION, INC.,
as Issuer
By:
-------------------------------------
Name:
Title:
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By:
-------------------------------------
Name:
Title:
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EXHIBIT A
CUSIP No.: [ ]
NATIONAL VISION, INC.
12% SENIOR SECURED NOTE DUE 2009
No. [ ] $_______________
NATIONAL VISION, INC., a Georgia corporation (the "Company"), for value
received promises to pay to ____________ or registered assigns the principal sum
of _________________________ Dollars, as described in the Indenture, but not
later than March 30, 2009.
Interest Payment Dates: March 30 and September 30, commencing September
30, 2001.
Record Dates: March 15 and September 15
Reference is made to the further provisions of this Note contained
herein, which will for all purposes have the same effect as if set forth at this
place. The Notes under the Indenture are being issued pursuant to the Plan which
provides among other things, that the Notes are being issued in exchange for and
in satisfaction of certain claims against the Company. All terms used in these
Notes which are defined in the Indenture have the meanings assigned to them in
the Indenture.
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
NATIONAL VISION, INC.
By:
------------------------------------------
Name:
Title:
By:
------------------------------------------
Name:
Title:
Dated: [ ]
A-1
CERTIFICATE OF AUTHENTICATION
This is one of the 12% Senior Secured Notes due 2009 referred to in the
within-mentioned Indenture.
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By:
-------------------------------------
Authorized Signatory
Date of Authentication: [ ]
A-2
(REVERSE OF SECURITY)
12% Senior Secured Note due 2009
1. Interest. NATIONAL VISION, INC. (f/k/a Vista Eyecare, Inc.), a
--------
Georgia corporation (the "Company"), promises to pay interest on the principal
amount of this Note at the rate per annum shown above. Interest on the Notes
will accrue from the most recent date on which interest has been paid or, if no
interest has been paid, from the Effective Date. The Company will pay interest
semiannually in arrears on each Interest Payment Date, commencing September 30,
2001. Interest will be computed on the basis of a 360-day year of twelve 30-day
months and, in the case of a partial month, the actual number of days elapsed.
The Company shall pay interest on overdue principal and on overdue
installments of interest (without regard to any applicable grace periods), to
the extent lawful, from time to time on demand at the rate borne by the Notes
plus 2%.
2. Method of Payment. The Company shall pay interest on the Notes
------------------
(except Default Interest) to the Persons who are the registered Holders at the
close of business on the Record Date immediately preceding the Interest Payment
Date even if the Notes are cancelled on registration of transfer or registration
of exchange after such Record Date. The Company will pay principal and accrued
interest on the Notes to the persons who are registered holders of the Notes on
March 30, 2009. Holders must surrender Notes to a Paying Agent to collect
principal payments. The Company shall pay principal and interest in money of the
United States that at the time of payment is legal tender for payment of public
and private debts ("U.S. Legal Tender"). However, the Company may pay principal
and interest by its check payable in such U.S. Legal Tender. The Company may
deliver any such interest payment to the Paying Agent or to a Holder at the
Holder's registered address.
3. Paying Agent and Registrar. Initially, State Street Bank and Trust
--------------------------
Company (the "Trustee") will act as Paying Agent and Registrar. The Company may
change any Paying Agent, Registrar or co-Registrar without notice to the
Holders.
4. Indenture. The Company issued the Notes under an Indenture, dated as
---------
of ______ __, 2001 (the "Indenture"), among the Company and the Trustee. This
Note is one of a duly authorized issue of Notes of the Company designated as its
12% Senior Secured Notes due 2009 (the "Notes"). The Notes are limited (except
as otherwise provided in the Indenture) in aggregate principal amount to
$120,000,000. Capitalized terms herein are used as defined in the Indenture
unless otherwise defined herein. The terms of the Notes include those stated in
the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) (the "TIA"), as in
effect on the date of the Indenture. Notwithstanding anything to the contrary
herein, the Notes are subject to all such terms, and Holders of Notes are
referred to the Indenture and said Act for a statement of them.
Each Holder, by accepting a Note, agrees to be bound by all of the
terms and provisions of the Indenture, as the same may be amended from time to
time in accordance with its terms.
5. Optional Redemption. The Notes will be redeemable, at the Company's
-------------------
option, in whole at any time or in part from time to time, upon not less than 30
nor more than 60 days' notice, at a redemption price equal to 100% of the
principal amount thereof, plus, in each case, accrued and unpaid interest
thereon, if any, to the date of redemption. If the Company shall consummate an
Equity Offering, the proceeds of such offering shall be used to (i) pay (subject
to waiver by the Lender) amounts owing under the New Credit Facility and (ii)
make principal payments (subject to waiver by the Holders of a majority in
aggregate principal amount of the Notes) on the Notes. In order to effect the
foregoing redemption with the proceeds of any Equity Offering, the Company shall
make such redemption not more than 120 days after the consummation of any such
Equity Offering.
At any time, or from time to time, the Company may, at its option,
redeem any portion of the aggregate principal amount of the Notes issued under
the Indenture after the Effective Date, on one or more occasions with the net
A-3
cash proceeds of one or more Equity Offerings at a redemption price equal to
100% of the principal amount thereof, plus accrued and unpaid interest, if any,
to the redemption date. In order to effect the foregoing redemption with the
proceeds of any Equity Offering, the Company shall make such redemption not more
than 120 days after the consummation of any such Equity Offering.
6. Notice of Redemption. Notice of redemption will be mailed at least
30 days but not more than 60 days before the Redemption Date to each Holder of
Notes to be redeemed at such Holder's registered address. Notes in denominations
larger than $1,000 may be redeemed in part.
Except as set forth in the Indenture, if monies for the redemption of
the Notes called for redemption shall have been deposited with the Paying Agent
for redemption on such Redemption Date, then, unless the Company defaults in the
payment of such redemption price plus accrued interest, if any, the Notes called
for redemption will cease to bear interest from and after such Redemption Date
and the only right of the Holders of such Notes will be to receive payment of
the redemption price plus accrued interest, if any.
7. Mandatory Redemption. The Notes shall be redeemable, in whole or in
--------------------
part, on each February 28 and August 31 (each such date, a "Mandatory Redemption
Payment Date"), by payment of 100% of Excess Cash Flow in accordance with the
provisions of Section 3.07. "Excess Cash Flow" shall mean Consolidated EBITDA
for the fiscal six month period expiring on the last day of each December and
June, respectively, prior to each Mandatory Redemption Payment Date (such last
day, the "Balance Sheet Date", provided, however, that the initial "Balance
Sheet Date" shall be designated as December 31, 2001 and the initial Mandatory
Redemption Payment Date shall be February 28, 2002), plus (to the extent made,
incurred or accrued during such six month period) decreases in Working Capital,
but less (to the extent made, incurred or accrued during such six month period),
without duplication, (i) the items described in clause (ii) of the definition of
"Consolidated EBITDA" (exclusive of depreciation and amortization), (ii)
expenditures on capital assets, (iii) increases in Working Capital, (iv)
payments or prepayments of principal and fees or other amounts under the New
Credit Facility, (v) any optional redemption amount paid by the Company pursuant
to Section 3.03 since the most recent Mandatory Redemption Payment Date, (vi)
payments of Restructuring Expenses, and (vii) any payments made pursuant to
Section 4.14; provided, however, that any payment of Excess Cash Flow shall be
reduced to the extent necessary so that, after giving effect to such payment,
the amount of cash possessed by the Company as of each respective Balance Sheet
Date is at least $3,000,000. Cash possessed by the Company is determined on a
consolidated basis in accordance with GAAP. If, after any Mandatory Redemption
Payment Date, it is determined, by audit or otherwise, to record adjustments to
the Company's financial statements as of the related Balance Sheet Date (such
adjustments, the "Financial Adjustments"), no adjustment shall be made to the
related calculation of Excess Cash Flow, but the calculation of Excess Cash Flow
next succeeding the recording of such Financial Adjustments shall be adjusted to
give effect to such Financial Adjustments, with the effect that the dollar
amount resulting from the calculation of Excess Cash Flow related to such
Mandatory Redemption Payment Date plus the dollar amount of such succeeding
calculation of Excess Cash Flow shall be equal to the aggregate dollar amount
which would have been calculated if the applicable Financial Adjustments had
been made as of the initial relevant Balance Sheet Date and not as of such
succeeding Balance Sheet Date.
8. Subordination. The Notes are subordinated in right of payment, in
-------------
the manner and to the extent set forth in the Indenture, to the prior payment in
full in cash or Cash Equivalents of the New Credit Facility of the Company. Each
Holder by his acceptance hereof agrees to be bound by such provisions and
authorizes and expressly directs the Trustee, on his behalf, to take such action
as may be necessary or appropriate to effectuate the subordination provided for
in the Indenture and appoints the Trustee his attorney-in-fact for such
purposes.
9. Notes Secured. The Holder of this Note is entitled to the benefit of
-------------
Liens on the Security provided by the Company pursuant to the Indenture, subject
to the priorities, limitations and provisions set forth therein. For as long as
all or any portion of the Indebtedness under the New Credit Facility remains
outstanding, unpaid or unsatisfied and the commitment to the Lender thereunder
has not been terminated, the Trustee, and by accepting a Note, each Holder,
acknowledge and agree that (i) the security interest granted to the Trustee for
the benefit of the Holders in the Security shall, irrespective of the time of
perfection or creation of any security interests or other Liens in the Security
on behalf of the Lender under the New Credit Facility or the Trustee, be junior
and subordinates to the interests of such Lender and (ii) to refrain from taking
any action to foreclose upon, take possession of, liquidate or otherwise proceed
against the Security. The Notes are issued pursuant to the Indenture and are
secured by the specified tangible and intangible assets constituting the
Security to the extent provided in the Indenture.
A-4
10. Offer to Purchase. Section 4.14 of the Indenture provides that,
-----------------
upon the occurrence of a Change of Control , and subject to further limitations
contained therein, the Company will make an offer to purchase certain amounts of
the Notes in accordance with the procedures set forth in the Indenture.
11. Registration Rights. Pursuant to a Registration Rights Agreement
-------------------
among the Company and certain Holders, the Company will be obligated to
consummate a registration for resale of such Notes.
12. Denominations; Transfer; Exchange. The Notes are in registered
-----------------------------------
form, without coupons, and in denominations of $1,000 and integral multiples of
$1,000. A Holder shall register the transfer of or exchange Notes in accordance
with the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay certain
transfer taxes or similar governmental charges payable in connection therewith
as permitted by the Indenture. The Registrar need not register the transfer of
or exchange of any Notes or portions thereof selected for redemption.
13. Persons Deemed Owners. The registered Holder of a Note shall be
---------------------
treated as the owner of it for all purposes.
14. Unclaimed Money. If money for the payment of principal or interest
---------------
remains unclaimed for one year, the Trustee and the Paying Agent will pay the
money back to the Company. After that, all liability of the Trustee and such
Paying Agent with respect to such money shall cease.
15. Discharge Prior to Redemption or Maturity. If the Company at any
------------------------------------------
time deposits with the Trustee U.S. Legal Tender or U.S. Government Obligations
sufficient to pay the principal of and interest on the Notes to redemption or
maturity and complies with the other provisions of the Indenture relating
thereto, the Company will be discharged from certain provisions of the Indenture
and the Notes (including certain covenants and including, under certain
circumstances, its obligation to pay the principal of and interest on the Notes
but without affecting the rights of the Holders to receive such amounts from
such deposits).
16. Amendment; Supplement; Waiver. Subject to certain exceptions set
-------------------------------
forth in the Indenture, the Indenture or the Notes may be amended or
supplemented with the written consent of the Holders of a majority in aggregate
principal amount of the Notes then outstanding, and any past Default or Event of
Default or noncompliance with any provision may be waived with the written
consent of the Holders of a majority in aggregate principal amount of the Notes
then outstanding. Without notice to or consent of any Holder, the parties
thereto may amend or supplement the Indenture or the Notes to, among other
things, cure any ambiguity, defect or inconsistency, provide for uncertificated
Notes in addition to or in place of certificated Notes, comply with any
requirements of the Commission in order to effect or maintain the qualification
of the Indenture under the TIA or comply with Article Five of the Indenture or
make any other change that does not adversely affect the rights of any Holder of
a Note.
17. Restrictive Covenants. The Indenture imposes certain limitations on
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the ability of the Company and its Subsidiaries to, among other things, incur
additional Indebtedness, pay dividends or make certain other Restricted
Payments, consummate certain Asset Sales, enter into certain transactions with
Affiliates, incur liens, impose restrictions on the ability of a Subsidiary to
pay dividends or make certain payments to the Company and its Subsidiaries,
merge or consolidate with any other Person or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of the assets of the
Company. Such limitations are subject to a number of important qualifications
and exceptions. Pursuant to Section 4.06 of the Indenture, the Company must
annually report to the Trustee on compliance with such limitations.
18. Successors. When a successor assumes, in accordance with the
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Indenture, all the obligations of its predecessor under the Notes and the
Indenture, the predecessor, subject to certain exceptions, will be released from
those obligations.
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19. Defaults and Remedies. If an Event of Default occurs and is
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continuing, the Trustee or the Holders of not less than 25% in aggregate
principal amount of Notes then outstanding may declare all the Notes to be due
and payable in the manner, at the time and with the effect provided in the
Indenture. Holders of Notes may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee is not obligated to enforce the Indenture
or the Notes unless it has received indemnity reasonably satisfactory to it. The
Indenture permits, subject to certain limitations therein provided, Holders of a
majority in aggregate principal amount of the Notes then outstanding to direct
the Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of Notes notice of any continuing Default or Event of Default (except a
Default in payment of principal or interest when due, for any reason or a
Default in compliance with Article Five of the Indenture) if it determines that
withholding notice is in their interest.
20. Trustee Dealings with the Company and Its Subsidiaries. The Trustee
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under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Notes and may otherwise deal with the Company, its
Subsidiaries or their respective Affiliates as if it were not the Trustee.
21. No Recourse Against Others. No partner, director, officer,
-----------------------------
employee, member or stockholder, as such, of the Company shall have any
liability for any obligation of the Company under the Notes, the Indenture or
the Registration Rights Agreement 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.
22. Authentication. This Note shall not be valid until the Trustee or
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Authenticating Agent manually signs the certificate of authentication on this
Note.
23. Governing Law. This Note and the Indenture shall be governed by and
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construed in accordance with the laws of the State of New York, as applied to
contracts made and performed within the State of New York, without regard to
principles of conflict of laws. Each of the parties hereto agrees to submit to
the jurisdiction of the courts of the State of New York in any action or
proceeding arising out of or relating to this Note.
24. Abbreviations and Defined Terms. Customary abbreviations may be
--------------------------------
used in the name of a Holder of a Note 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).
25. CUSIP Numbers. Pursuant to a recommendation promulgated by the
--------------
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes as a convenience to the Holders of the
Notes. No representation is made as to the accuracy of such numbers as printed
on the Notes and reliance may be placed only on the other identification numbers
printed hereon.
The Company will furnish to any Holder of a Note upon written request
and without charge a copy of the Indenture, which has the text of this Note.
Requests may be made to: [National Vision, Inc.], 000 Xxxxxxx Xxxxxxx,
Xxxxxxxxxxxxx, XX 00000-0000, Attention: General Counsel.
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ASSIGNMENT FORM
If you the Holder want to assign this Note, fill in the form below and
have your signature guaranteed:
I or we assign and transfer this Note to:
-------------------------------------------------------------
-------------------------------------------------------------
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(Print or type name, address and zip code and social security
or tax ID number of assignee)
and irrevocably appoint ________________________, agent to transfer this Note on
the books of the Company. The agent may substitute another to act for him.
Dated: Signed:
------------- ------------------------------------
(Sign exactly as your name appears
on the other side 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 4.14 of the Indenture, check the box:
[ ]
If you want to elect to have only part of this Note purchased by the
Company pursuant to Section 4.14 of the Indenture, state the amount you elect to
have purchased:
$
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Dated:
________________ ______________________________________________
NOTICE: The signature on this assignment
must correspond with the name as it appears
upon the face of the within Note in every
particular without alteration or enlargement
or any change whatsoever and be guaranteed.
Signature Guarantee: ________________________________________
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