EXHIBIT 4.1
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INDENTURE
DATED AS OF DECEMBER 14, 1998
AMONG
THE XXXXXXXX GROUP, INC., AS ISSUER
THE GUARANTORS NAMED HEREIN
AND
THE BANK OF NEW YORK, AS TRUSTEE
$250,000,000
9% SENIOR SUBORDINATED NOTES DUE JANUARY 15, 2009
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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)............................................... 7.08; 7.10
(b).................................................. 7.08; 7.10; 12.02
(c).................................................. N.A.
311(a)............................................... 7.11
(b).................................................. 7.11
(c).................................................. N.A.
312(a)............................................... 2.05
(b).................................................. 12.03
(c).................................................. 12.03
313(a)............................................... 7.06
(b)(1)............................................... N.A.
(b)(2)............................................... 7.06
(c).................................................. 7.06; 12.02
(d).................................................. 7.06
314(a)............................................... 4.07; 4.09; 12.02
(b).................................................. N.A.
(c)(1)............................................... 12.04
(c)(2)............................................... 12.04
(c)(3)............................................... N.A.
(d).................................................. N.A.
(e).................................................. 12.12
(f).................................................. N.A
315(a)............................................... 7.01(b)
(b).................................................. 7.05; 12.02
(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
317(a)(1)............................................ 6.08
(a)(2)............................................... 6.09
(b).................................................. 2.04
318(a)............................................... 12.01
(c).................................................. 12.01
N.A. means Not Applicable
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture.
TABLE OF CONTENTS
Page
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ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.............................................. 1
SECTION 1.02. INCORPORATION BY REFERENCE OF TIA........................ 26
SECTION 1.03. RULES OF CONSTRUCTION.................................... 26
ARTICLE 2
THE SECURITIES
SECTION 2.01. FORM AND DATING.......................................... 27
SECTION 2.02. EXECUTION AND AUTHENTICATION............................. 29
SECTION 2.03. REGISTRAR AND PAYING AGENT............................... 30
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST...................... 31
SECTION 2.05. HOLDER LISTS............................................. 31
SECTION 2.06. TRANSFER AND EXCHANGE.................................... 31
SECTION 2.07. REPLACEMENT SECURITIES................................... 49
SECTION 2.08. OUTSTANDING SECURITIES................................... 50
SECTION 2.09. TREASURY SECURITIES...................................... 50
SECTION 2.10. TEMPORARY SECURITIES..................................... 50
SECTION 2.11. CANCELLATION............................................. 51
SECTION 2.12. DEFAULTED INTEREST....................................... 51
SECTION 2.13. CUSIP NUMBER............................................. 51
SECTION 2.14. DEPOSIT OF MONEYS........................................ 52
ARTICLE 3
REDEMPTION
SECTION 3.01. NOTICES TO TRUSTEE....................................... 52
SECTION 3.02. SELECTION OF SECURITIES TO BE REDEEMED................... 52
SECTION 3.03. NOTICE OF REDEMPTION..................................... 53
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION........................... 54
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.............................. 54
SECTION 3.06. SECURITIES REDEEMED IN PART.............................. 54
ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF SECURITIES.................................... 55
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.......................... 55
SECTION 4.03. LIMITATION ON RESTRICTED PAYMENTS........................ 55
SECTION 4.04. CORPORATE EXISTENCE...................................... 58
SECTION 4.05. PAYMENT OF TAXES AND OTHER CLAIMS........................ 59
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SECTION 4.06. MAINTENANCE OF PROPERTIES AND INSURANCE.................. 59
SECTION 4.07. COMPLIANCE CERTIFICATE; NOTICE OF DEFAULT................ 59
SECTION 4.08. COMPLIANCE WITH LAWS..................................... 60
SECTION 4.09. SEC REPORTS.............................................. 61
SECTION 4.10. WAIVER OF STAY, EXTENSION OR USURY LAWS.................. 62
SECTION 4.11. LIMITATION ON TRANSACTIONS WITH AFFILIATES............... 62
SECTION 4.12. LIMITATION ON INCURRENCE OF ADDITIONAL INDEBTEDNESS...... 63
SECTION 4.13. LIMITATION ON DIVIDEND AND OTHER PAYMENT
RESTRICTIONS AFFECTING SUBSIDIARIES.................... 63
SECTION 4.14. PROHIBITION ON INCURRENCE OF SENIOR SUBORDINATED
INDEBTEDNESS........................................... 64
SECTION 4.15. CHANGE OF CONTROL........................................ 64
SECTION 4.16. LIMITATION ON ASSET SALES................................ 66
SECTION 4.17. LIMITATION ON PREFERRED STOCK OF SUBSIDIARIES............ 70
SECTION 4.18. LIMITATION ON LIENS...................................... 70
SECTION 4.19. GUARANTEES OF CERTAIN INDEBTEDNESS....................... 70
SECTION 4.20. LIMITATION ON SALE AND LEASEBACK TRANSACTION............. 71
SECTION 4.21. LIMITATION ON LINE OF BUSINESS........................... 71
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01. WHEN COMPANY MAY MERGE, ETC.............................. 71
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED........................ 72
ARTICLE 6
DEFAULT AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT........................................ 73
SECTION 6.02. ACCELERATION............................................. 74
SECTION 6.03. OTHER REMEDIES........................................... 75
SECTION 6.04. WAIVER OF PAST DEFAULTS.................................. 76
SECTION 6.05. CONTROL BY MAJORITY...................................... 76
SECTION 6.06. LIMITATION ON SUITS...................................... 76
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT..................... 77
SECTION 6.08. COLLECTION SUIT BY TRUSTEE............................... 77
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM......................... 77
SECTION 6.10. PRIORITIES............................................... 78
SECTION 6.11. UNDERTAKING FOR COSTS.................................... 78
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ARTICLE 7
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE......................................... 79
SECTION 7.02. RIGHTS OF TRUSTEES........................................ 80
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.............................. 82
SECTION 7.04. TRUSTEE'S DISCLAIMER...................................... 82
SECTION 7.05. NOTICE OF DEFAULT......................................... 82
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS............................. 83
SECTION 7.07. COMPENSATION AND INDEMNITY................................ 83
SECTION 7.08. REPLACEMENT OF TRUSTEE.................................... 84
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.......................... 85
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION............................. 86
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE COMPANY..... 86
ARTICLE 8
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. TERMINATION OF THE COMPANY'S OBLIGATIONS.................. 86
SECTION 8.02. ACKNOWLEDGMENT OF DISCHARGE BY TRUSTEE.................... 89
SECTION 8.03. APPLICATION OF TRUST MONEY................................ 89
SECTION 8.04. REPAYMENT TO THE COMPANY.................................. 89
SECTION 8.05. REINSTATEMENT............................................. 90
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. WITHOUT CONSENT OF HOLDER................................. 90
SECTION 9.02. WITH CONSENT OF HOLDERS................................... 91
SECTION 9.03. COMPLIANCE WITH TIA....................................... 92
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS......................... 92
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES..................... 93
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC........................... 93
ARTICLE 10
SUBORDINATION OF SECURITIES
SECTION 10.01. SECURITIES SUBORDINATED TO SENIOR DEBT.................... 94
SECTION 10.02. NO PAYMENT ON SECURITIES IN CERTAIN CIRCUMSTANCES......... 94
SECTION 10.03. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC............ 96
SECTION 10.04. PAYMENTS MAY BE PAID PRIOR TO DISSOLUTION................. 97
SECTION 10.05. SUBROGATION............................................... 98
SECTION 10.06. OBLIGATIONS OF THE COMPANY UNCONDITIONAL.................. 98
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SECTION 10.07. NOTICE TO TRUSTEE......................................... 98
SECTION 10.08. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF
LIQUIDATING AGENT....................................... 99
SECTION 10.09. TRUSTEE'S RELATION TO SENIOR DEBT......................... 100
SECTION 10.10. SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR
OMISSIONS OF THE COMPANY OR HOLDERS OF SENIOR DEBT...... 100
SECTION 10.11. SECURITYHOLDERS AUTHORIZE TRUSTEE TO EFFECTUATE
SUBORDINATION OF SECURITIES............................. 101
SECTION 10.12. THIS ARTICLE 10 NOT TO PREVENT EVENTS OF DEFAULT.......... 101
SECTION 10.13. TRUSTEE'S COMPENSATION NOT PREJUDICED..................... 102
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. TIA CONTROLS.............................................. 102
SECTION 11.02. NOTICES................................................... 102
SECTION 11.03. COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS.............. 103
SECTION 11.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT........ 103
SECTION 11.05. STATEMENTS REQUIRED IN CERTIFICATE........................ 103
SECTION 11.06. RULES BY TRUSTEE, PAYING AGENT, REGISTRAR................. 104
SECTION 11.07. LEGAL HOLIDAYS............................................ 104
SECTION 11.08. GOVERNING LAW............................................. 104
SECTION 11.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS............. 104
SECTION 11.10. NO RECOURSE AGAINST OTHERS................................ 105
SECTION 11.11. SUCCESSORS................................................ 105
SECTION 11.12. DUPLICATE ORIGINALS....................................... 105
SECTION 11.13. SEVERABILITY.............................................. 105
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EXHIBITS
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Exhibit A-1 Form of Global Security
Exhibit A-2 Form of Regulation S Temporary Global Security
Exhibit B Form of Certificate of Transfer
Exhibit C Form of Certificate of Exchange
Exhibit D Form of Certificate from Acquiring Institutional Accredited
Investor
Exhibit E Form of Guarantee Provisions
Exhibit F Form of Subsidiary Guarantee
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Note: This Table of Contents shall not, for any purpose, be deemed to be part of
the Indenture.
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INDENTURE, dated as of December 14, 1998, by and between The Xxxxxxxx
Group, Inc., a Delaware corporation (the "COMPANY") and The Bank of New York, a
New York banking corporation, as trustee (the "Trustee").
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"144A GLOBAL SECURITY" means a global security in the form of Exhibit
A-1 hereto bearing the Global Security Legend and the Private Placement Legend
and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee that will be issued in a denomination equal to the
outstanding principal amount of the Securities sold in reliance on Rule 144A.
"ACCELERATION NOTICE" has the meaning provided in Section 6.02.
"ACQUIRED INDEBTEDNESS" means Indebtedness of a Person or any of its
Subsidiaries existing at the time such Person becomes a Subsidiary of the
Company or at the time it merges or consolidates with the Company or any of its
Subsidiaries or assumed in connection with the acquisition of assets from such
Person and not incurred by such Person or any of its Subsidiaries in connection
with, or in anticipation or contemplation of, such Person becoming a Subsidiary
of the Company or such acquisition, merger, or consolidation.
"ACQUIRED PREFERRED STOCK" means Preferred Stock of any Person or any
of its Subsidiaries at the time such Person becomes a Subsidiary of the Company
or at the time it merges or consolidates with the Company or any of its
Subsidiaries and not issued by such Person in connection with, or in
anticipation or contemplation of, such acquisition, merger, or consolidation
together with any other Preferred Stock of such Person, the proceeds of which
are used to refinance or replace such Person's Acquired Preferred Stock;
provided that (i) the maximum aggregate liquidation preference of any such
refinancing or replacement Preferred Stock does not exceed the aggregate
liquidation preference of the Acquired Preferred Stock being refinanced or
replaced at the time of such refinancing or replacement and (ii) such
refinancing or replacement Preferred Stock (other than Qualified Capital Stock)
(x) shall not mature or become mandatorily redeemable prior to the maturity of
the Acquired Preferred Stock being refinanced or replaced and (y) shall have a
Weighted Average Life to Maturity greater than
either (1) the Weighted Average Life to Maturity of the Acquired Preferred Stock
being refinanced or replaced or (2) the remaining Weighted Average Life to
Maturity of the Securities.
"ADJUSTED NET ASSETS" of a Guarantor at any date shall mean the lesser
of the amount by which (x) the fair value of the property of such Guarantor
exceeds the total amount of its liabilities, including, without limitation,
contingent liabilities (after giving effect to all other fixed and contingent
liabilities incurred or assumed on such date), but excluding liabilities under
the Guarantee of such Guarantor at such date, and (y) the present fair salable
value of the assets of such Guarantor at such date exceeds the amount that will
be required to pay the probable liability of such Guarantor on its debts (after
giving effect to all other fixed and contingent liabilities incurred or assumed
on such date and after giving effect to any collection from any Subsidiary of
such Guarantor in respect of the obligations of such Subsidiary under the
Guarantee), excluding debt in respect of such Guarantor's Guarantee, as they
become absolute and matured.
"AFFILIATE" of any Person means any other Person who, directly or
indirectly, through one or more intermediaries, controls, or is controlled by,
or is under common control with, such 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.
"AFFILIATE TRANSACTION" has the meaning provided in Section 4.11.
"AGENT" means any Registrar, Paying Agent or Co-Registrar.
"APPLICABLE PROCEDURES" has the meaning provided in Section 2.01(d).
"ASSET ACQUISITION" means (i) an Investment by the Company or any
Subsidiary of the Company in any other Person pursuant to which such Person
shall become a Subsidiary of the Company or shall be consolidated or merged with
the Company or any Subsidiary of the Company or (ii) the acquisition by the
Company or any Subsidiary of the Company of assets of any Person comprising a
division or line of business of such Person.
"ASSET SALE" means any direct or indirect sale, issuance, conveyance,
transfer, lease (other than operating leases entered into in the ordinary course
of business), assignment, or other transfer for value, whether in a single
transaction or
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in a series of related transactions, by the Company or any of its Subsidiaries
to any Person other than the Company or a Wholly-Owned Subsidiary of the Company
(excluding any Sale and Leaseback Transaction or any pledge of assets or stock
by the Company or any of its Subsidiaries) of the Company of (i) any Capital
Stock of any Subsidiary of the Company (other than directors' qualifying shares)
or (ii) any other property or assets of the Company or any Subsidiary of the
Company other than in the ordinary course of business; provided that for
purposes of Section 4.16, Asset Sales shall not include (a) a transaction or
series of related transactions for which the Company or its Subsidiaries receive
aggregate consideration of less than $500,000, (b) Asset Swaps made in
compliance with the last paragraph of Section 4.16, (c) transactions permitted
under Section 5.01, or (d) any Contract Buy Out.
"ASSET SWAP" means the execution of a definitive agreement, subject
only to approval of the Federal Communications Commission and other customary
closing conditions, that the Company in good faith believes will be satisfied,
for a substantially concurrent purchase and sale, or exchange, of Productive
Assets between the Company or any of its Subsidiaries and another Person or
group of affiliated Persons; provided that any amendment to or waiver of any
closing condition which individually or in the aggregate is material to the
Asset Swap shall be deemed to be a new Asset Swap.
"ATTRIBUTABLE VALUE" in respect of a Sale and Leaseback Transaction of
any property means, as at the time of determination, the greater of (i) the fair
market value of the property subject to such arrangement (as determined in good
faith by the Board of Directors of the Company) or (ii) the present value
(discounted at the interest rate borne by the Securities, compounded annually)
of the total obligations of the lessee for rental payments during the remaining
term of the lease included in such arrangement.
"BANKRUPTCY LAW" means Xxxxx 00, Xxxxxx Xxxxxx Code or any similar
federal, state or foreign law for the relief of debtors.
"BLOCKAGE PERIOD" shall have the meaning provided in Section 10.02.
"BOARD OF DIRECTORS" means, with respect to any Person, the board of
directors (or any other equivalent governing body) of such Person or any
committee of the board of directors of such Person duly authorized, with respect
to any particular
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matter, to exercise the power of the board of directors of such Person.
"BOARD RESOLUTION" means, with respect to any Person, a duly adopted
resolution of the Board of Directors of such Person.
"BUSINESS DAY" means a day that is not a Legal Holiday.
"CAPITAL STOCK" means (i) with respect to any Person that is a
corporation, any and all shares, interests, participations, or other equivalents
(however designated) of capital 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 or other equity interests of such Person.
"CAPITALIZED LEASE OBLIGATION" means, as to any Person, the obligation
of such Person to pay rent or other amounts under a lease to which such Person
is a party that is required to be classified and accounted for as a capital
lease obligation under GAAP and, for purposes of this definition, the amount of
such obligation at any date shall be the capitalized amount of such obligation
at such date, determined in accordance with GAAP.
"CASH EQUIVALENTS" means (i) marketable direct obligations issued by,
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 Standard & Poor's Corporation or Xxxxx'x Investors
Service, Inc.; (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 Standard & Poor's Corporation or at least P-1 from Xxxxx'x
Investors Service, Inc.; (iv) certificates of deposit or bankers' acceptances
maturing within one year from the date of acquisition thereof issued by any
commercial 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 $50,000,000; (v) repurchase obligations with a term of not more than
seven days for underlying
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securities of the types described in clause (i) above entered into with any bank
meeting the qualifications specified in clause (iv) above; and (vi) investments
in money market funds which invest substantially all their assets in securities
of the types described in clauses (i) through (v) above.
"CEDEL" means Cedel Bank, S.A.
A "CHANGE OF CONTROL" of the Company will be deemed to have occurred
at such time as (i) any Person or group of related Persons for purposes of
Section 13(d) of the Exchange Act ("Group"), other than Permitted Holders,
becomes the beneficial owner (as defined under Rule 13d-3 or any successor rule
or regulation promulgated under the Exchange Act), directly or indirectly, of
50% or more of the total voting power of the Common Stock of the Company, (ii)
any Person or Group, other than Permitted Holders, becomes the beneficial owner,
directly or indirectly, of more than 30% of the total voting power of the Common
Stock of the Company, and the Permitted Holders beneficially own, directly or
indirectly in the aggregate, a lesser percentage of the total voting power of
the Common Stock of the Company than such Person or Group and do not have the
right or ability by voting power, contract or otherwise to elect or designate
for election a majority of the Board of Directors (or any analogous governing
body) of the Company, (iii) there shall be consummated any consolidation or
merger of the Company in which the Company is not the continuing or surviving
corporation or pursuant to which the Common Stock of the Company would be
converted into cash, securities or other property, other than a merger or
consolidation of the Company in which the holders of the Common Stock of the
Company outstanding immediately prior to the consolidation or merger hold,
directly or indirectly, at least a majority of the Common Stock of the surviving
corporation immediately after such consolidation or merger or (iv) during any
period of two consecutive years, individuals who at the beginning of such period
constituted the Board of Directors of the Company (together with any new
directors whose election by such Board of Directors or whose nomination for
election by the shareholders of the Company has been approved by 66 2/3% of the
directors then still in office who either were directors at the beginning of
such period or whose election or recommendation for election was previously so
approved) cease to constitute a majority of the Board of Directors of the
Company.
"CHANGE OF CONTROL DATE" has the meaning provided in Section 4.15.
"CHANGE OF CONTROL OFFER" has the meaning provided in Section 4.15.
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"CHANGE OF CONTROL PAYMENT DATE" has the meaning provided in Section
4.15.
"COMMON STOCK" means, with respect to any Person, any and all shares,
interests, or other participations in, and other equivalents (however designated
and whether voting, super-voting or non-voting) of, such person's common stock
whether outstanding at the Issue Date or issued thereafter, and includes,
without limitation, all series and classes of such common stock.
"COMPANY" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means such
successor and also includes for the purposes of any provision contained herein
and required by the TIA any other obligor on the Securities.
"CONSOLIDATED EBITDA" means, with respect to any Person, for any
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 Subsidiaries paid or accrued in accordance with
GAAP for such period (other than income taxes attributable to extraordinary or
non-recurring gains or losses), (B) Consolidated Interest Expense, and (C)
Consolidated Non-Cash Charges, all as determined on a consolidated basis for
such Person and its Subsidiaries in conformity with GAAP.
"CONSOLIDATED INTEREST EXPENSE" means, with respect to any Person for
any period, without duplication, the sum of (i) the interest expense of such
Person and its Subsidiaries for such period as determined on a consolidated
basis in accordance with GAAP, including, without limitation, (a) any
amortization of debt discount, (b) the net cost under Interest Swap Obligations
(including any amortization of discounts), (c) the interest portion of any
deferred payment obligation, (d) all commissions, discounts and other fees and
charges owed with respect to letters of credit, bankers , acceptance financing
or similar facilities, and (e) all accrued interest and (ii) the interest
component of Capitalized Lease Obligations paid or accrued by such Person and
its Subsidiaries during such period as determined on a consolidated basis in
accordance with GAAP.
"CONSOLIDATED NET INCOME" of any Person means, for any period, the
aggregate net income (or loss) of such Person and its Subsidiaries for such
period on a consolidated basis, determined in accordance with GAAP; provided
that there shall be excluded therefrom, without duplication, (a) gains and
losses from Asset Sales (without regard to the $500,000 limita-
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tion set forth in the definition thereof) or abandonments or reserves relating
thereto and the related tax effects, (b) items classified as extraordinary or
nonrecurring gains and losses, and the related tax effects according to GAAP,
(c) the net income (or loss) of any Person acquired in a pooling of interests
transaction accrued prior to the date it becomes a Subsidiary of such first
referred to Person or is merged or consolidated with it or any of its
Subsidiaries, (d) the net income of any Subsidiary to the extent that the
declaration of dividends or similar distributions by that Subsidiary of that
income is restricted by contract, operation of law, or otherwise, and (e) the
net income of any Person, other than a Subsidiary, except to the extent of the
lesser of (x) dividends or distributions paid to such first referred to Person
or its Subsidiary by such Person and (y) the net income of such Person (but in
no event less than zero), and the net loss of such Person shall be included only
to the extent of the aggregate Investment of the first referred to Person or a
consolidated Subsidiary 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 Subsidiaries reducing Consolidated Net Income of
such Person and its Subsidiaries for such period, determined on a consolidated
basis in accordance with GAAP (excluding any such charges constituting an
extraordinary or nonrecurring item).
"CONTRACT BUY OUT" means the involuntary disposition or termination
(including, without limitation, pursuant to buy out) of a contract between a
media representation company and a client station.
"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 and delivery of this
Indenture is located at 000 Xxxxxxx Xxxxxx, Xxxxx 00X, Xxx Xxxx, Xxx Xxxx 00000.
"CREDIT AGREEMENT" means the Credit Agreement, dated as of January 28,
1998, among the Company, the lenders thereto and First Union National Bank, a
national banking association, as administrative agent, Fleet Bank, N.A., as
documentation agent, and Union Bank of California, N.A. and KeyBank National
Association, as co-agents, as such agreement 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 all or any portion of the Indebtedness
under such agreement or any successor or replacement agreement
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and whether (i) by the same or any other agent, lender, or group of lenders,
(ii) under the same or different terms, including but without limitation,
amounts available for borrowing, or (iii) effective immediately after or
subsequent to any termination of a previous Credit Agreement.
"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 NOTICE" shall have the meaning provided in Section 10.02.
"DEFINITIVE SECURITY" means a certificated Security registered in the
name of the Holder thereof and issued in accordance with Section 2.06 hereof, in
the form of Exhibit A-1 hereto except that such Security shall not bear the
Global Security Legend and shall not have the "Schedule of Exchanges of
Interests in the Global Security" attached thereto.
"DEPOSITARY" means, with respect to the Securities issuable or issued
in whole or in part in global form, the Person specified in Section 2.03 hereof
as the Depositary with respect to the Securities, and any and all successors
thereto appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
"DESIGNATED GUARANTOR SENIOR DEBT" means Indebtedness guaranteed by a
Guarantor under or in respect of Indebtedness constituting Guarantor Senior Debt
which, at the time of determination, has an aggregate principal amount of at
least $25,000,000 and is specifically designated in the instrument evidencing
such Guarantor Senior Debt as "Designated Guarantor Senior Debt" by such
Guarantor.
"DESIGNATED SENIOR DEBT" means (i) Indebtedness under or in respect of
the Credit Agreement and (ii) any other Indebtedness constituting Senior Debt
which, at the time of determination, has an aggregate principal amount of at
least $50,000,000 and is specifically designated in the instrument evidencing
such Senior Debt as "Designated Senior Debt" by the Company.
"DISCHARGED" has the meaning provided in Section 8.01.
-8-
"DISQUALIFIED CAPITAL STOCK" means 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 (excluding any
maturity as the result of an optional redemption by the issuer thereof) or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the sole option of the holder thereof (except, in each case,
upon the occurrence of a Change of Control), in whole or in part, on or prior to
the final maturity date of the Securities.
"EVENT OF DEFAULT" has the meaning provided in Section 6.01.
"EUROCLEAR" means Xxxxxx Guaranty Trust Company of New York, Brussels
office, as operator of the Euroclear system.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"EXCHANGE OFFER" has the meaning set forth in the Registration Rights
Agreement.
"EXCHANGE OFFER REGISTRATION STATEMENT" has the meaning set forth in
the Registration Rights Agreement.
"EXCHANGE SECURITIES" means the Securities issued in the Exchange
Offer pursuant to Section 2.06(f) hereof.
"FUNDING GUARANTOR" has the meaning provided in Section 12.06 of
Exhibit E attached hereto.
"FUNDS" has the meaning provided in Section 8.01.
"GAAP" means generally accepted accounting principles as in effect in
the United States of America as of the Issue Date.
"GLOBAL SECURITIES" means, individually and collectively, each of the
Restricted Global Securities and the Unrestricted Global Securities, in the form
of Exhibit A-1 and Exhibit A-2 hereto issued in accordance with Section 2.01,
2.06(b)(iv), 2.06(d)(i), 2.06(d)(ii), 2.06(d)(iii) or 2.06(f) hereof.
"GLOBAL SECURITY LEGEND" means the legend set forth in Section
2.06(g)(ii), which is required to be placed on all Global Securities issued
under this Indenture.
-9-
"GUARANTEE" means any guarantee of the Securities, on a senior
subordinated basis, by a Subsidiary of the Company issued in accordance with
Section 4.19.
"GUARANTOR" means any of the Company's Subsidiaries that in the future
executes a supplemental indenture in which such Subsidiary agrees to be bound by
the terms of this Indenture as a Guarantor; provided that any Person
constituting a Guarantor as described above shall cease to constitute a
Guarantor when its respective Guarantee is released in accordance with the terms
thereof.
"GUARANTOR SENIOR DEBT" means any Indebtedness of a Guarantor
(including any interest accruing subsequent to the filing of a petition of
bankruptcy at the rate provided for in the documentation with respect thereto,
whether or not such interest is an allowed claim under applicable law), whether
outstanding on the Issue Date or thereafter created, incurred, or assumed,
unless, in the case of any particular Indebtedness, the instrument creating or
evidencing the same or pursuant to which the same is outstanding expressly
provides that such Indebtedness shall not be senior in right of payment to the
Guarantee of such Guarantor. Without limiting the generality of the foregoing,
Guarantor Senior Debt shall also include the principal of, premium, if any,
interest (including any interest accruing subsequent to the filing of a petition
of bankruptcy at the rate provided for in the documentation with respect
thereto, whether or not such interest is an allowed claim under applicable law)
on, and all other amounts owing in respect of, and all monetary obligations of
every nature under, (x) the Credit Agreement, including, without limitation,
obligations to pay principal and interest, reimbursement obligations under
letters of credit, fees, expenses, and indemnities and (y) all Interest Swap
Obligations. Notwithstanding the foregoing, Guarantor Senior Debt shall not
include any of the following amounts (whether or not constituting Indebtedness
as defined in this Indenture): (i) any Indebtedness of a Guarantor to a
Subsidiary of such Guarantor; (ii) Indebtedness and other amounts owing to trade
creditors incurred in connection with obtaining goods, materials or services;
(iii) Indebtedness represented by Disqualified Capital Stock; (iv) any liability
for federal, state, local or other taxes owed or owing by a Guarantor; and (v)
any Indebtedness which is, by its express terms, subordinated in right of
payment to any other Indebtedness of such Guarantor.
"HOLDER" or "SECURITYHOLDER" means the Person in whose name a Security
is registered on the Registrar's books.
-10-
"INDEBTEDNESS" means (without duplication), with respect to any
Person, any indebtedness at any time outstanding, secured or unsecured,
contingent or otherwise, that is for borrowed money (whether or not the recourse
of the lender is to the whole of the assets of such Person or only to a portion
thereof), or evidenced by notes, debentures or similar instruments or
representing the balance deferred and unpaid of the purchase price of any
property (excluding, without limitation, any balances that constitute accounts
payable or trade payables, and other accrued liabilities arising in the ordinary
course of business and accrued expenses) if and to the extent any of the
foregoing indebtedness would appear as a liability upon a balance sheet of such
Person prepared in accordance with GAAP, and shall also include, to the extent
not otherwise included (i) any Capitalized Lease Obligations, (ii) obligations
secured by a lien to which the property or assets owned or held by such Person
is subject, whether or not the obligation or obligations secured thereby shall
have been assumed, (iii) guarantees of items of other Persons which would be
included within this definition for such other Persons (whether or not such
items would appear upon the balance sheet of the guarantor), (iv) all
obligations for the reimbursement of any obligor on any letter of credit,
banker's acceptance, or similar credit transaction, (v) Disqualified Capital
Stock of such Person, and (vi) obligations of any such Person under any Interest
Swap Obligations applicable to any of the foregoing (if and to the extent such
Interest Swap Obligations would appear as a liability upon a balance sheet of
such Person prepared in accordance with GAAP). The amount of Indebtedness of
any Person at any date shall be the outstanding balance at such date of all
unconditional obligations as described above and, with respect to contingent
obligations, the maximum liability upon the occurrence of the contingency giving
rise to the obligation, provided that (i) the amount outstanding at any time of
any Indebtedness issued with original issue discount is the principal amount of
such Indebtedness less the remaining unamortized portion of the original issue
discount of such Indebtedness at such time as determined in conformity with
GAAP, (ii) Indebtedness shall not include any liability for federal, state,
local, or other taxes and (iii) the principal amount of any Indebtedness shall
be reduced by the aggregate amount of Cash Equivalents of such Person and its
Subsidiaries that are pledged to secure, and are required to be applied, solely
to the repayment of the principal of such Indebtedness. Notwithstanding any
other provision of the foregoing definition, any trade payable or broadcast
program liability arising from the purchase of goods or materials or for
programming or services obtained in the ordinary course of business shall not be
deemed
-11-
to be "Indebtedness" of such Person or any of its Subsidiaries for purposes of
this definition.
"INDENTURE" means this Indenture, as amended or supplemented from time
to time in accordance with the terms hereof.
"INDIRECT PARTICIPANT" means a Person who holds a beneficial interest
in a Global Security through a Participant.
"INITIAL PURCHASERS" means Xxxxxxx Xxxxx Xxxxxx Inc., First Union
Capital Markets, a division of Wheat First Securities, Inc. and Fleet
Securities, Inc.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act.
"INTEREST PAYMENT DATE" means the stated maturity of an installment of
interest on the Securities.
"INTEREST SWAP OBLIGATIONS" means the obligations of any Person under
any interest rate protection agreement, interest rate future, interest rate
option, interest rate swap, interest rate cap, or other interest rate hedge or
arrangement.
"INVESTMENT" means (i) any transfer or delivery of cash, stock, or
other property of value in exchange for Indebtedness, stock, or other security
or ownership interest in any Person by way of loan, advance, capital
contribution, guarantee, or otherwise and (ii) an investment deemed to have been
made by the Company at the time any entity which was a Subsidiary of the Company
ceases to be such a Subsidiary in an amount equal to the value of the loans and
advances made, and any remaining ownership interest in, such entity immediately
following such entity ceasing to be a Subsidiary of the Company. The issuance
of Qualified Capital Stock of the Company shall not constitute an Investment.
The amount of any non-cash Investment shall be the fair market value of such
Investment, as determined conclusively in good faith by management of the
Company unless the fair market value of such Investment exceeds $5,000,000, in
which case the fair market value shall be determined conclusively in good faith
by the Board of Directors of the Company at the time such Investment is made.
"ISSUE DATE" means the date of original issuance of the Series A
Securities.
"LEGAL HOLIDAY" has the meaning provided in Section 11.07.
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"LEVERAGE RATIO" shall mean, as to any Person, the ratio of (i) the
sum of the aggregate outstanding amount of Indebtedness of such Person and its
Subsidiaries as of the date of calculation on a consolidated basis in accordance
with GAAP to (ii) the Consolidated EBITDA of such Person for the four full
fiscal quarters (the "FOUR QUARTER PERIOD") ending on or prior to the date of
determination.
For purposes of this definition, the aggregate outstanding principal
amount of Indebtedness of the Person and its Subsidiaries for which such
calculation is made shall be determined on a pro forma basis as if the
Indebtedness giving rise to the need to perform such calculation had been
incurred and the proceeds therefrom had been applied, and all other transactions
in respect of which such Indebtedness is being incurred had occurred, on the
last day of the Four Quarter Period. In addition to the foregoing, for purposes
of this definition, "CONSOLIDATED EBITDA" shall be calculated on a pro forma
basis after giving effect to (i) the incurrence of the Indebtedness of such
Person and its Subsidiaries (and the application of the proceeds therefrom)
giving rise to the need to make such calculation and any incurrence (and the
application of the proceeds therefrom) or repayment of other Indebtedness, other
than the incurrence or repayment of Indebtedness pursuant to working capital
facilities, at any time subsequent to the beginning of the Four Quarter Period
and on or prior to the date of determination, as if such incurrence (and the
application of the proceeds thereof), or the repayment, as the case may be,
occurred on the first day of the Four Quarter Period and (ii) any Asset Sales 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 Subsidiaries (including any Person who becomes a Subsidiary as a result of
such Asset Acquisition) incurring, assuming or otherwise becoming liable for
Indebtedness) at any time on or subsequent to the first day of the Four Quarter
Period and on or prior to the date of determination, as if such Asset Sale or
Asset Acquisition (including the incurrence, assumption, or liability for any
such Indebtedness and also including any Consolidated EBITDA associated with
such Asset Acquisition) occurred on the first day of the Four Quarter Period.
Furthermore, in calculating Consolidated Interest Expense, for purposes of the
calculation of Consolidated EBITDA, (i) interest on Indebtedness determined on a
fluctuating basis as of the date of determination (including Indebtedness
actually incurred on the date of the transaction giving rise to the need to
calculate the Leverage Ratio) 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 as in effect on the date of
determination and (ii) notwithstanding (i)
-13-
above, interest determined on a fluctuating basis, to the extent such interest
is covered by Interest Swap Obligations, shall be deemed to accrue at the rate
per annum resulting after giving effect to the operation of such agreements.
"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).
"MATURITY DATE" means January 15, 2009.
"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) received by the Company or any of its Subsidiaries from such Asset
Sale net of (i) reasonable out-of-pocket expenses and fees relating to such
Asset Sale (including, without limitation, legal, accounting, and investment
banking fees and sales commissions, recording fees, title insurance premiums,
appraisers fees, and costs reasonably incurred in preparation of any asset or
property for sale), (ii) taxes paid or reasonably estimated to be payable
(calculated based on the combined state, federal, and foreign statutory tax
rates applicable to the Company or the Subsidiary engaged in such Asset Sale),
and (iii) repayment of Indebtedness secured by assets subject to such Asset
Sale; provided that if the instrument or agreement governing such Asset Sale
requires the transferor to maintain a portion of the purchase price in escrow
(whether as a reserve for adjustment of the purchase price or otherwise) or to
indemnify the transferee for specified liabilities in a maximum specified
amount, the portion of the cash or Cash Equivalents that is actually placed in
escrow or segregated and set aside by the transferor for such indemnification
obligation shall not be deemed to be Net Cash Proceeds until the escrow
terminates or the transferor ceases to segregate and set aside such funds, in
whole or in part, and then only to the extent of the proceeds released from
escrow to the transferor or that are no longer segregated and set aside by the
transferor.
"NET PROCEEDS OFFER" has the meaning provided in Section 4.16.
"NON-U.S. PERSON" means a person who is not a U.S. person, as defined
in Regulation S.
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"OBLIGATIONS" means all obligations for principal, premium, interest,
penalties, fees, indemnifications, reimbursements, damages, and other
liabilities payable under the documentation governing, or otherwise relating to,
any Indebtedness.
"OFFICER" means, with respect to any Person, the Chairman of the
Board, any Co-Chairman, the Chief Executive Officer, the President, any Co-
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.
"OFFICERS' CERTIFICATE" means, with respect to any Person, a
certificate signed by two officers or by an Officer and either an Assistant
Treasurer or an Assistant Secretary of such Person and otherwise complying with
the requirements of Sections 11.04 and 11.05, as they relate to the making of an
Officers' Certificate.
"OPINION OF COUNSEL" means a written opinion 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.
"PARTICIPANT" means, with respect to the Depositary, Euroclear or
Cedel, a Person who has an account with the Depositary, Euroclear or Cedel,
respectively (and, with respect to The Depository Trust Company, shall include
Euroclear and Cedel).
"PAYING AGENT" has the meaning provided in Section 2.03, except that,
during the continuance of a Default or Event of Default and for the purposes of
Articles 3 and 8 and Sections 4.15 and 4.16, the Paying Agent shall not be the
Company or any Affiliate of the Company.
"PERMITTED BUSINESS" means the businesses engaged in by the Company
and its Subsidiaries on the date hereof and activities reasonably related
thereto.
"PERMITTED HOLDERS" means (i) Xxxxx X. Xxxxxxxx, his immediate family,
his grandchildren, and his heirs (in each case including adopted persons), (ii)
any trusts controlled by or for the exclusive benefit of the individuals
referred to in clause (i) above or the executor or administrator of the estate
or other legal representative of the individuals referred to in clause (i), and
(iii) any other Person of which at least a majority of the outstanding voting
stock is owned, of record and
-15-
beneficially, by any of the Persons referred to in clause (i) or (ii) above.
"PERMITTED INDEBTEDNESS" means, without duplication, (i) the Series A
Securities originally issued on the Issue Date and any Series B Securities
issued in exchange therefore; (ii) additional Indebtedness of the Company
incurred pursuant to the Credit Agreement in an aggregate principal amount not
to exceed $100,000,000; (iii) Interest Swap Obligations; provided that such
Interest Swap Obligations are entered into to protect the Company from
fluctuations in interest rates of its Indebtedness; (iv) Refinancing
Indebtedness; (v) Indebtedness owed by the Company to any Subsidiary or by any
Subsidiary to the Company or any Subsidiary of the Company; (vi) Purchase Money
Indebtedness not to exceed $5,000,000 in aggregate principal amount at any time
outstanding; (vii) Capitalized Lease Obligations not to exceed $15,000,000 in
aggregate capitalized amount at any time outstanding; (viii) Indebtedness of the
Company or any Subsidiary incurred in respect of performance and payment bonds
(other than in respect of Indebtedness); (ix) guarantees by Subsidiaries of any
Indebtedness permitted to be incurred pursuant to this Indenture; (x) guarantees
of Indebtedness, not to exceed $25,000,000 in the aggregate amount at any time
outstanding, owing by Persons who are parties to time brokerage agreements with
the Company, in respect of Indebtedness of such Persons arising in connection
with such time brokerage agreements; and (xi) Indebtedness of the Company or any
of its Subsidiaries in addition to the foregoing not to exceed $10,000,000 in
principal amount outstanding at any time (which amount may, but need not, be
incurred under the Credit Agreement).
"PERMITTED INVESTMENTS" means (i) Investments received by the Company
or its Subsidiaries as consideration for a sale of assets, including an Asset
Sale effected in compliance with Section 4.16, (ii) Investments by the Company
or any Wholly-Owned Subsidiary of the Company in any Wholly-Owned Subsidiary of
the Company (whether existing on the Issue Date or created thereafter) or any
Person that after such Investments, and as a result thereof, becomes a Wholly-
Owned Subsidiary of the Company and Investments in the Company by any Wholly-
Owned Subsidiary of the Company, (iii) cash and Cash Equivalents, (iv)
Investments in securities of trade creditors, wholesalers, or customers received
pursuant to any plan of reorganization or similar arrangement, (v) Investments
consisting of loans and advances to employees in the ordinary course of business
not to exceed an aggregate amount of $5,000,000 at any time outstanding, (vi)
extensions of trade credit in the ordinary course of business, (vii) prepaid
expenses incurred in the ordinary course of business, (viii) Interest Swap
Obligations, and (ix)
-16-
additional Investments in an aggregate amount not to exceed $5,000,000 at any
time outstanding.
"PERMITTED LIENS" means (i) Liens for taxes, assessments, or other
governmental charges or statutory obligations that are not delinquent or remain
payable without penalty or that are being contested in good faith by appropriate
proceedings and for which adequate reserves have been established in accordance
with GAAP (if so required), (ii) Liens of carriers, warehousemen, mechanics,
materialmen, landlords, and other similar Liens imposed by law incurred in the
ordinary course of business for sums not constituting borrowed money that are
not overdue for a period of more than 60 days or that are being contested in
good faith by appropriate proceedings, (iii) pledges or deposits to secure
obligations under workers' compensation, unemployment insurance, or similar
legislation, (iv) Liens to secure performance bonds or other obligations of a
like nature (other than for borrowed money), incurred in the ordinary course of
business, (v) easements, rights-of-way, restrictions, minor defects or
irregularities in title, and other similar charges or encumbrances incurred in
the ordinary course of business not interfering in any material respect with the
business of the Company or its Subsidiaries, (vi) Liens upon specific items of
inventory or other goods and proceeds of any Person securing such Person's
obligations in respect of letters of credit or bankers' acceptances issued or
created for the account of such Person to facilitate the purchase, shipment, or
storage of such inventory or other goods in the ordinary course of business,
(vii) judgment and attachment Liens not giving rise to an Event of Default,
(viii) leases or subleases granted to others in the ordinary course of business
not interfering in any material respect with the business of the Company or its
Subsidiaries, (ix) any interest or title of a lessor in the property subject to
any lease, whether characterized as capitalized or operating other than any such
interest or title resulting from or arising out of a default by the Company or
its Subsidiaries of its obligations under such lease, (x) Liens arising from
filing UCC financing statements for precautionary purposes in connection with
true leases of personal property that are otherwise permitted under this
Indenture and under which the Company or any of its Subsidiaries is a lessee,
(xi) Liens securing Purchase Money Indebtedness permitted under clause (vi) of
the definition of Permitted Indebtedness; provided that any such Lien (a) shall
attach to the property financed by the underlying Purchase Money Indebtedness
(the "Subject Property") concurrently with or within ten days after the
acquisition thereof by the Company or a Subsidiary, and (b) shall not encumber
any property of the Company or any of its Subsidiaries other than the Subject
Property, (xii) Liens
-17-
attributable to Capitalized Lease Obligations permitted under clause (vii) of
the definition of Permitted Indebtedness; provided that any such Lien does not
extend to any property other than the property subject to the underlying lease,
(xiii) any other Liens imposed by operation of law which do not materially
affect the Company's or its Subsidiaries' ability to perform their obligations
under the Securities and this Indenture and renewals and extensions thereof
which do not extend to any additional property and do not increase the amount
secured and (xiv) Liens in existence on the Issue Date and any extension,
renewal, or replacement, in whole or in part, thereof; provided that any such
extension, renewal, or replacement is not materially more restrictive than the
Lien being so extended, renewed, or replaced and does not extend to any property
other than the property encumbered by the original Lien.
"PERMITTED SECURITIES" means (i) Qualified Capital Stock issued by the
Company, (ii) securities substantially identical to the Securities issued by the
Company in payment of interest accrued thereon and (iii) securities issued by
the Company which are subordinated to the Senior Debt at least to the same
extent as the Securities and having a Weighted Average Life to Maturity at least
equal to the remaining Weighted Average Life to Maturity of the Securities (the
issuance of such subordinated securities to be consented to by the holders of at
least a majority of the outstanding amount of Senior Debt consisting of each
class of Designated Senior Debt then outstanding, which subordinated securities
will be issued in exchange for outstanding Securities or to pay interest accrued
on outstanding Securities).
"PERSON" means an individual, partnership, corporation, limited
liability company, unincorporated organization, trust or joint venture, or a
governmental agency or political subdivision thereof.
"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 Securities) means the
principal amount of such Indebtedness plus the premium, if any, on such
Indebtedness.
"PRIVATE PLACEMENT LEGEND" means the legend set forth in Section
2.06(g)(i) to be placed on all Securities issued under this Indenture except
where otherwise permitted by the provisions of this Indenture.
-18-
"PROCEEDS PURCHASE DATE" shall have the meaning provided in Section
4.16.
"PRODUCTIVE ASSETS" means assets of a kind used or usable by the
Company and its Subsidiaries in a Permitted Business.
"PUBLIC EQUITY OFFERING" means an underwritten, fully registered
public offering of Capital Stock (other than Disqualified Capital Stock) of the
Company pursuant to an effective registration statement filed with the
Commission in accordance with the Securities Act, the gross proceeds of which
are at least $25,000,000.
"QUALIFIED CAPITAL STOCK" means any Capital Stock that is not
Disqualified Capital Stock.
"QUALIFIED INSTITUTIONAL BUYER" or "QIB" shall have the meaning
specified in Rule 144A under the Securities Act.
"REDEMPTION DATE" means, with respect to any Securities, the Maturity
Date of such Security or the earlier date on which such Security is to be
redeemed by the Company pursuant to the terms of the Securities.
"REDEMPTION PRICE" shall have the meaning provided in Section 3.03.
"REFINANCING INDEBTEDNESS" means Indebtedness of the Company and/or
any Subsidiary of the Company to the extent the proceeds thereof are used solely
to refinance (whether by amendment, renewal, extension, refunding, or
defeasance) Indebtedness of the Company and/or any Subsidiary of the Company, in
each such event, incurred in accordance with Section 4.12 (other than pursuant
to clause (ii), (iii), (v), (vi), (vii), (viii), (ix) or (x) of the definition
of Permitted Indebtedness); provided that (a) Indebtedness of the Company may
not be refinanced with Indebtedness of any Subsidiary of the Company, (b) the
principal amount of Refinancing Indebtedness incurred pursuant to this
definition (or, if such Refinancing Indebtedness provides for an amount less
than the principal amount thereof to be due and payable upon a declaration of
acceleration of the maturity thereof, the accreted value of such Indebtedness)
shall not exceed the principal amount or accreted value, as the case may be, of
the Indebtedness refinanced, plus the amount of any premium required to be paid
in connection with such refinancing pursuant to the terms of such Indebtedness
or the amount of any premium reasonably determined by the Board of Directors as
necessary to accomplish such refinancing
-19-
by means of a tender offer or privately negotiated purchase, plus the amount of
reasonable expenses in connection therewith, (c) such Refinancing Indebtedness
(x) shall have no scheduled principal payment prior to the final maturity of the
Indebtedness being refinanced and (y) shall have a Weighted Average Life to
Maturity greater than either (1) the Weighted Average Life to Maturity of the
Indebtedness refinanced or (2) the remaining Weighted Average Life to Maturity
of the Securities and (d) if the Indebtedness to be refinanced is expressly
subordinated in right of payment in any manner to any other Indebtedness of the
Company or a Subsidiary of the Company, as the case may be, the Indebtedness to
be incurred pursuant to this definition shall also be subordinated on terms no
more favorable to the holders of such Refinancing Indebtedness than the
subordination terms of the Indebtedness being refinanced.
"REGISTERED EXCHANGE OFFER" means the consummation of the offer to
exchange the Series B Securities for all of the outstanding Series A Securities
in accordance with the Registration Rights Agreement.
"REGISTRAR" has the meaning provided in Section 2.03.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of the Issue Date, by and among the Company and the Initial
Purchasers, as the same may be amended, supplemented or otherwise modified from
time to time in accordance with the terms thereof.
"REGULATION S" means Regulation S under the Securities Act.
"REGULATION S GLOBAL SECURITY" means a Regulation S Temporary Global
Security or Regulation S Permanent Global Security, as appropriate.
"REGULATION S PERMANENT GLOBAL SECURITY" means a permanent global
Security in the form of Exhibit A-1 hereto bearing the Global Security Legend
and the Private Placement Legend and deposited with or on behalf of and
registered in the name of the Depositary or its nominee, issued in a
denomination equal to the outstanding principal amount of the Regulation S
Temporary Global Security upon expiration of the Restricted Period.
"REGULATION S TEMPORARY GLOBAL SECURITY" means a temporary global
Security in the form of Exhibit A-2 hereto bearing the Global Security Legend
and the Private Placement Legend and deposited with or on behalf of and
registered in the name of the Depositary or its nominee, issued in a
denomination
-20-
equal to the outstanding principal amount of the Securities initially sold in
reliance on Rule 903 of Regulation S.
"REPRESENTATIVE" means the indenture trustee or other trustee, agent,
or representative in respect of any Designated Senior Debt; provided that if,
and for so long as, any Designated Senior Debt lacks such a representative, then
the Representative for such Designated Senior Debt shall at all times constitute
the holders of a majority in outstanding principal amount of such Designated
Senior Debt.
"RESTRICTED DEFINITIVE SECURITY" means a Definitive Security bearing
the Private Placement Legend.
"RESTRICTED GLOBAL SECURITY" means a Global Security bearing the
Private Placement Legend.
"RESTRICTED PAYMENT" has the meaning provided in Section 4.03.
"RESTRICTED PERIOD" means the "Distribution Compliance Period" as
defined in Regulation S.
"RESTRICTED SECURITY" as defined in Rule 144(a)(3) under the
Securities Act; provided that the Trustee shall be entitled to request and
conclusively rely on an Opinion of Counsel with respect to whether any Security
constitutes a Restricted Security.
"RULE 144" means Rule 144 promulgated under the Securities Act.
"RULE 144A" means Rule 144A promulgated under the Securities Act.
"RULE 903" means Rule 903 promulgated under the Securities Act.
"RULE 904" means Rule 904 promulgated the Securities Act.
"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 Subsidiary of any property, whether owned by
the Company or any Subsidiary at the Issue Date or later acquired, which has
been or is to be sold or transferred by the Company or such 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
-21-
such property; provided that any transaction which the Company elects to treat
as an Asset Sale and to apply the proceeds therefrom in accordance with Section
4.16 shall not be deemed to be a Sale and Leaseback Transaction.
"SEC" means the Securities and Exchange Commission.
"SECURITIES" means the Series A Securities and Series B Securities, as
amended or supplemented from time to time in accordance with the terms hereof,
that are issued pursuant to this Indenture.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
"SENIOR DEBT" means any Indebtedness of the Company (including any
interest accruing subsequent to the filing of a petition of bankruptcy at the
rate provided for in the documentation with respect thereto, whether or not such
interest is an allowed claim under applicable law), whether outstanding on the
Issue Date or thereafter created, incurred or assumed, unless, in the case of
any particular Indebtedness, the instrument creating or evidencing the same or
pursuant to which the same is outstanding expressly provides that such
Indebtedness shall not be senior in right of payment to the Securities. Without
limiting the generality of the foregoing, Senior Debt shall also include the
principal of premium, if any, interest (including any interest accruing
subsequent to the filing of a petition of bankruptcy at the rate provided for in
the documentation with respect thereto, whether or not such interest is an
allowed claim under applicable law) on, and all other amounts owing in respect
of, and all monetary obligations of every nature under, (x) the Credit
Agreement, including, without limitation, obligations to pay principal and
interest, reimbursement obligations under letters of credit, fees, expenses, and
indemnities, and (y) all Interest Swap Obligations. Notwithstanding the
foregoing, Senior Debt shall not include any of the following amounts ( whether
or not constituting Indebtedness as defined in this Indenture): (i) any
Indebtedness of the Company to a Subsidiary of the Company; (ii) Indebtedness
and other amounts owing to trade creditors incurred in connection with obtaining
goods, materials or services; (iii) Indebtedness represented by Disqualified
Capital Stock; (iv) any liability for federal, state, local, or other taxes owed
or owing by the Company; and (v) any Indebtedness which is, by its express
terms, subordinated in right of payment to any other Indebtedness of the
Company, including Indebtedness under the Subordinated Note Agreements.
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"SERIES A SECURITIES" means the 9% Series A Senior Subordinated Notes
due January 15, 2009, issued, authenticated and delivered under this Indenture,
as amended or supplemented from time to time pursuant to the terms of this
Indenture.
"SERIES B SECURITIES" means the 9% Series B Senior Subordinated Notes
due January 15, 2009 (the terms of which are identical to the Series A
Securities except that, unless any Series B Securities shall be issued as
Private Exchange Securities (as defined in the Registration Rights Agreement),
the Series B Securities shall be registered under the Securities Act, and shall
not contain the Private Placement Legend on the face of the form of the Series A
Securities), to be issued in exchange for the Series A Securities pursuant to
the Registered Exchange Offer and this Indenture or the Private Exchange (as
defined in the Registration Rights Agreement).
"SHELF REGISTRATION" means the Shelf Registration as defined in the
Registration Rights Agreement.
"SIGNIFICANT SUBSIDIARY" means for any Person each Subsidiary of such
Person which (i) for the most recent fiscal year of such Person accounted for
more than 10% of the consolidated net income of such Person or (ii) as at the
end of such fiscal year, was the owner of more than 10% of the consolidated
assets of such Person.
"SUBORDINATED NOTE AGREEMENTS" means the Note Agreement, dated as of
December 1, 1988, regarding the 11.20% Senior Subordinated Notes, Series B, due
December 15, 1998 by and among the Company and the purchasers named in Schedule
I thereto, as amended, and the Note Agreement, dated as of December 1, 1989,
regarding the 10.48% Senior Subordinated Notes due December 15, 2000, by and
among the Company and the purchasers named in Schedule I thereto, as amended.
"SUBSIDIARY," with respect to any Person, (i) means 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 interests entitled to vote in
the election or replacement of directors, managers or trustees thereof (or other
Person performing similar functions) are at the time, directly or indirectly,
owned by such Person. Notwithstanding anything in this Indenture to the
contrary, all references to the Company and its consolidated Subsidiaries or to
financial information prepared on a consolidated basis in accordance with GAAP
shall be deemed to include the Company and its Subsidiaries as to which
financial
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statements are prepared on a consolidated basis in accordance with GAAP and to
financial information prepared on such a consolidated basis. Notwithstanding
anything in this Indenture to the contrary, an Unrestricted Subsidiary shall not
be deemed to be a Subsidiary for purposes of this Indenture.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-
77bbbb), as amended, as in effect on the date on which this Indenture is
qualified under the TIA, except as otherwise provided in Section 9.03.
"TRUST OFFICER" means (a) any officer within the corporate trust
department of the Trustee, including any vice president, assistant vice
president, assistant secretary, assistant treasurer, trust officer or any other
officer of the Trustee who customarily performs functions similar to those
performed by the Persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of such person's
knowledge of and familiarity with the particular subject and (b) who shall have
direct responsibility for the administration of this Indenture.
"TRUSTEE" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"UNRESTRICTED DEFINITIVE SECURITY" means one or more Definitive
Securities that do not bear and are not required to bear the Private Placement
Legend.
"UNRESTRICTED GLOBAL SECURITY" means a permanent global Security in
the form of Exhibit A-1 attached hereto that bears the Global Security Legend
and that has the "Schedule of Exchanges of Interests in the Global Security"
attached thereto, and that is deposited with or on behalf of and registered in
the name of the Depositary, representing a series of Securities that do not bear
the Private Placement Legend.
"UNRESTRICTED SUBSIDIARY" means a Person who would otherwise be a
Subsidiary of the Company created after the Issue Date, that has been designated
an Unrestricted Subsidiary by a resolution adopted by the Board of Directors of
the Company; provided that (a) neither the Company nor any of its Subsidiaries
(1) provides any credit support for any Indebtedness of such Unrestricted
Subsidiary (including any undertaking, agreement or instrument evidencing such
Indebtedness) or (2) is directly or indirectly liable for any Indebtedness of
such Unrestricted Subsidiary, (b) the creditors with respect to In-
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debtedness for borrowed money of such Unrestricted Subsidiary, having a
principal amount in excess of $50,000,000, have agreed in writing that they have
no recourse, direct or indirect, to the Company or any Subsidiary of the
Company, including, without limitation, recourse with respect to the payment of
principal of or interest on any Indebtedness of such Unrestricted Subsidiary,
and (c) at the time of designation of such Unrestricted Subsidiary, such
Unrestricted Subsidiary has no property or assets (other than de minimis assets
resulting from the initial capitalization of such Unrestricted Subsidiary). Any
such designation by the Board of Directors of the Company shall be evidenced to
the Trustee by the filing with the Trustee of a certified copy of the resolution
of the Company's Board of Directors giving effect to such designation and an
Officers' Certificate certifying that such designation complied with the
foregoing conditions.
"U.S. LEGAL TENDER" means United States dollars, or any replacement
currency which shall then be the lawful currency for payment of public and
private debts in the United States of America.
"U.S. GOVERNMENT OBLIGATIONS" means direct, non-callable obligations
of, or non-callable obligations guaranteed by, the United States of America for
the payment of which guarantee or obligation the full faith and credit of the
United States of America is pledged.
"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 total
of the product 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 SUBSIDIARY" of any Person means any Subsidiary of such
Person of which all the outstanding voting securities (other than directors,
qualifying shares) which normally have the right to vote in the election of
directors are owned by such Person or any Wholly-owned Subsidiary of such
Person.
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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:
"COMMISSION" means the SEC.
"INDENTURE SECURITIES" means the Securities.
"INDENTURE SECURITY HOLDER" means a Holder or a Securityholder.
"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 Company or any other obligor on the Securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule and not
otherwise defined herein have the meanings 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 in effect on the Issue Date;
(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) all references herein and in the Securities to "INTEREST" on the
Securities shall be deemed to include
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"ADDITIONAL INTEREST" due and payable pursuant to the Registration Rights
Agreement.
ARTICLE 2.
THE SECURITIES
SECTION 2.01. FORM AND DATING.
(a) General. The Securities and the Trustee's certificate of
authentication shall be substantially in the form of Exhibits A-1 and A-2
hereto. The Securities may have notations, legends or endorsements required by
law, stock exchange rule or usage. Each Security shall be dated the date of its
authentication. The Securities shall be in denominations of $1,000 and integral
multiples thereof.
The terms and provisions contained in the Securities shall constitute,
and are hereby expressly made, a part of this Indenture and 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. However, to the extent any
provision of any Security conflicts with the express provisions of this
Indenture, the provisions of this Indenture shall govern and be controlling.
(b) Global Securities. Securities issued in global form shall be
substantially in the form of Exhibits A-1 or A-2 attached hereto (including the
Global Security Legend thereon and the "Schedule of Exchanges of Interests in
the Global Security" attached thereto). Securities issued in definitive form
shall be substantially in the form of Exhibit A-1 attached hereto (but without
the Global Security Legend thereon and without the "Schedule of Exchanges of
Interests in the Global Security" attached thereto). Each Global Security shall
represent such of the outstanding Securities as shall be specified therein and
each shall provide that it shall represent the aggregate principal amount of
outstanding Securities from time to time endorsed thereon and that the aggregate
principal amount of outstanding Securities represented thereby may from time to
time be reduced or increased, as appropriate, to reflect exchanges and
redemptions. Any endorsement of a Global Security to reflect the amount of any
increase or decrease in the aggregate principal amount of outstanding Securities
represented thereby shall be made by the Trustee or the Custodian, at the
direction of the Trustee, in accordance with instructions given by the Holder
thereof as required by Section 2.06 hereof.
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(c) Temporary Global Securities. Securities offered and sold in
reliance on Regulation S shall be issued initially in the form of the Regulation
S Temporary Global Security, which shall be deposited on behalf of the
purchasers of the Securities represented thereby with the Trustee, at its
Corporate Trust office, as custodian for the Depositary, and registered in the
name of the Depositary or the nominee of the Depositary for the accounts of
designated agents holding on behalf of Euroclear or Cedel, duly executed by the
Company and authenticated by the Trustee as hereinafter provided. Anything
herein to the contrary notwithstanding, during the Restricted Period beneficial
interests in the Regulation S Temporary Global Security may only be held by or
for the benefit of, or transferred to or for the benefit of, non-U.S. Persons in
Offshore Transactions in accordance with Regulation S, except that such
beneficial interests may be transferred to or held by the Initial Purchasers.
Following the termination of the Restricted Period, beneficial interests in the
Regulation S Temporary Global Security shall be exchanged for beneficial
interests in Regulation S Permanent Global Securities pursuant to the Applicable
Procedures; provided that the Trustee shall have received written certification
from the Depositary, together with copies of certificates from Euroclear and
Cedel certifying that they have received certification of non-U.S. beneficial
ownership of 100% of the aggregate principal amount of the Regulation S
Temporary Global Security and an Officers' Certificate from the Company.
Simultaneously with the authentication of Regulation S Permanent Global
Securities, the Trustee shall cancel the Regulation S Temporary Global Security
upon written order of the Company signed by an Officer. The aggregate principal
amount of the Regulation S Temporary Global Security and the Regulation S
Permanent Global Securities may from time to time be increased or decreased by
adjustments made on the records of the Trustee and the Depositary or its
nominee, as the case may be, in connection with transfers of interests as
hereinafter provided.
(d) Euroclear and Cedel Procedures Applicable. The provisions of the
"Operating Procedures of the Euroclear System" and "Terms and Conditions
Governing Use of Euroclear", and the "General Terms and Conditions of Cedel
Bank" and "Customer Handbook" of Cedel shall be applicable to transfers of
beneficial interests in the Regulation S Temporary Global Security and the
Regulation S Permanent Global Securities that are held by Participants through
Euroclear or Cedel and are referred to herein as the "Applicable Procedures".
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SECTION 2.02. EXECUTION AND AUTHENTICATION.
An Officer shall sign the Securities for the Company by manual or
facsimile signature. If an Officer whose signature is on a Security no longer
holds that office at the time a Security is authenticated, the Security shall
nevertheless be valid.
A Security shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Security has been authenticated under this Indenture.
The Trustee shall, upon a written order of the Company signed by an
Officer (an "Authentication Order"), authenticate (i) Series A Securities for
original issue on the Issue Date in the aggregate principal amount not to exceed
$175,000,000, (ii) on or prior to the date of the Exchange Offer, Series B
Securities from time to time for issue only in exchange for a like principal
amount of Series A Securities and (iii) one or more series of 9% Senior
Subordinated Notes due 2009 for original issue after the Issue Date (such Notes
to be substantially in the form of Exhibits A-1 or A-2, as the case may be) in
an aggregate principal amount not to exceed $175,000,000 (and if in the form of
Series A Securities, the same principal amount of Series B Securities in
exchange therefor upon consummation of a registered exchange offer) in each case
upon written orders of the Company set forth in an Authentication Order. In
each case, the Authentication Order shall specify the amount of Securities to be
authenticated, the date on which the Securities are to be authenticated and the
aggregate principal amount of Securities outstanding on the date of
authentication, whether the Securities are to be Series A Securities, Series B
Securities or Securities issued under clause (iii) of the preceding sentence,
and shall further specify the amount of such Securities to be issued as a Global
Security or Definitive Securities. The aggregate principal amount of Securities
outstanding at any time may not exceed $250,000,000, except as provided in
Section 2.07.
In the event that the Company shall issue and the Trustee shall
authenticate any Securities issued under this Indenture subsequent to the Issue
Date pursuant to clause (ii) or (iii) of the first sentence of the immediately
preceding paragraph, the Company shall use its reasonable efforts to obtain the
same "CUSIP" number for such Securities as is printed on the Securities
outstanding at such time; provided that if any series of Securities issued under
this Indenture subsequent to the Issue Date is either determined, pursuant to an
Opinion of
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Counsel of the Company in a form reasonably satisfactory to the Trustee or
deemed under standard practices to be a different class of security than the
Securities outstanding at such time for federal income tax purposes, the Company
shall obtain a "CUSIP" number for such Securities that is different than the
"CUSIP" number printed on the Securities then outstanding.
Notwithstanding the foregoing, all Securities issued under this
Indenture shall vote and consent together on all matters (as to which any of
such Securities may vote or consent) as one class and no series of Securities
will have the right to vote or consent as a separate class on any matter.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. An authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with Holders or an
Affiliate of the Company.
SECTION 2.03. REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange ("REGISTRAR") and an
office or agency where Securities may be presented for payment ("PAYING AGENT").
The Registrar shall keep a register of the Securities and of their transfer and
exchange. The Company may appoint one or more co-registrars and one or more
additional paying agents. The term "Registrar" includes any co-registrar and
the term "Paying Agent" includes any additional paying agent. The Company may
change any Paying Agent or Registrar without notice to any Holder. The Company
shall notify the Trustee in writing of the name and address of any Agent not a
party to this Indenture. If the Company fails to appoint or maintain another
entity as Registrar or Paying Agent, the Trustee shall act as such. The Company
or any of its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company ("DTC") to
act as Depositary with respect to the Global Securities.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Custodian with respect to the Global Securities.
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The Company shall, prior to the Record Date, notify the Paying Agent
of any wire transfer instructions for payments that it receives from Holders.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal premium, if any, or interest on the Securities, and will notify the
Trustee of any default by the Company in making any such payment. While any
such default continues, the Trustee may require a Paying Agent to pay all money
held by it to the Trustee. The Company at any time may require a Paying Agent
to pay all money held by it to the Trustee. Upon payment over to the Trustee,
the Paying Agent (if other than the Company or a Subsidiary) shall have no
further liability for the money. If the Company or a Subsidiary acts as Paying
Agent, it shall segregate and hold in a separate trust fund for the benefit of
the Holders all money held by it as Paying Agent. Upon any bankruptcy or
reorganization proceedings relating to the Company, the Trustee shall serve as
Paying Agent for the Securities.
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
all Holders and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Company shall 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 in such form and as of such date as the Trustee
may reasonably require of the names and addresses of the Holders of Securities
and the Company shall otherwise comply with TIA Section 312(a).
SECTION 2.06. TRANSFER AND EXCHANGE.
(a) Transfer and Exchange of Global Securities. A Global Security may
not be transferred as a whole except by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global
Securities will be exchanged by the Company for Definitive Securities if (i) the
Company delivers to the Trustee notice from the Depositary that it is unwilling
or unable to continue to act as Depositary or that it is no longer a clearing
agency registered under the Exchange Act and, in either case, a
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successor Depositary is not appointed by the Company within 90 days after the
date of such notice from the Depositary or (ii) the Company in its sole
discretion determines that the Global Securities (in whole but not in part)
should be exchanged for Definitive Securities and delivers a written notice to
such effect to the Trustee; provided that in no event shall the Regulation S
Temporary Global Security be exchanged by the Company for Definitive Securities
prior to (x) the expiration of the Restricted Period and (y) the receipt by the
Registrar of any certificates required pursuant to Rule 903(c)(3)(ii)(B) under
the Securities Act and provided, further, there shall be no continuing Default
or Event of Default. Upon the occurrence of either of the preceding events in
(i) or (ii) above, Definitive Securities shall be registered in such names as
the Depositary shall instruct the Trustee, in writing. Global Securities also
may be exchanged or replaced, in whole or in part, as provided in Sections 2.07
and 2.10 hereof. Every Security executed, authenticated and delivered in
exchange for, or in lieu of, a Global Security or any portion thereof, pursuant
to this Section 2.06 or Section 2.07 or 2.10 hereof, shall be executed,
authenticated and delivered in the form of, and shall be, a Global Security. A
Global Security may not be exchanged for another Security other than as provided
in this Section 2.06(a); however, beneficial interests in a Global Security may
be transferred and exchanged as provided in Section 2.06(b),(c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global
Securities. The transfer and exchange of beneficial interests in the Global
Securities shall be effected through the Depositary, in accordance with the
provisions of this Indenture and the Applicable Procedures. Beneficial
interests in the Restricted Global Securities shall be subject to restrictions
on transfer comparable to those set forth herein to the extent required by the
Securities Act. Transfers of beneficial interests in the Global Securities also
shall require compliance with either subparagraph (i) or (ii) below, as
applicable, as well as one or more of the other following subparagraphs, as
applicable:
(i) Transfer of Beneficial Interests in the Same Global Security.
Beneficial interests in any Restricted Global Security may be transferred
to Persons who take delivery thereof in the form of a beneficial interest
in the same Restricted Global Security in accordance with the transfer
restrictions set forth in the Private Placement Legend; provided that prior
to the expiration of the Restricted Period and subject to receipt of the
certification required by Rule 903(c)(3)(ii)(B) of Regulation S,
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transfers of beneficial interests in the Temporary Regulation S Global
Security may not be made to a U.S. Person or for the account or benefit of
a U.S. Person (other than an Initial Purchaser). Beneficial interests in
any Unrestricted Global Security may be transferred to Persons who take
delivery thereof in the form of a beneficial interest in an Unrestricted
Global Security. No written orders or instructions shall be required to be
delivered to the Registrar to effect the transfers described in this
Section 2.06(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests in
Global Securities. In connection with all transfers and exchanges of
beneficial interests that are not subject to Section 2.06(b)(i) above, the
transferor of such beneficial interest must deliver to the Registrar either
(A) (1) a written order from a Participant or an Indirect Participant given
to the Depositary in accordance with the Applicable Procedures directing
the Depositary to credit or cause to be credited a beneficial interest in
another Global Security in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given in accordance with the
Applicable Procedures containing information regarding the Participant
account to be credited with such increase or (B) (1) a written order from a
Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to cause
to be issued a Definitive Security in an amount equal to the beneficial
interest to be transferred or exchanged and (2) instructions given by the
Depositary to the Registrar containing information regarding the Person in
whose name such Definitive Security shall be registered to effect the
transfer or exchange referred to in (1) above; provided that in no event
shall Definitive Securities be issued upon the transfer or exchange of
beneficial interests in the Regulation S Temporary Global Security prior to
(x) the expiration of the Restricted Period and (y) the receipt by the
Registrar of the certificates required pursuant to Rule 903(c)(3)(ii)(B)
under the Securities Act. Upon consummation of an Exchange Offer by the
Company in accordance with Section 2.06(f) hereof, the requirements of this
Section 2.06(b)(ii) shall be deemed to have been satisfied upon receipt by
the Registrar of the instructions contained in the Letter of Transmittal
delivered by the Holder of such beneficial interests in the Restricted
Global Securities. Upon satisfaction of all of the requirements for
transfer or exchange of beneficial interests in Global Securities contained
in this Indenture and
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the Securities or otherwise applicable under the Securities Act, the
Trustee shall adjust the principal amount of the relevant Global Securities
pursuant to Section 2.06(h) hereof.
(iii) Transfer of Beneficial Interests to Another Restricted Global
Security. A beneficial interest in any Restricted Global Security may be
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Security if the transfer
complies with the requirements of Section 2.06(b)(ii) above and the
Registrar receives the following:
(A) if the transferee will take delivery in the form of a
beneficial interest in the 144A Global Security, then the transferor
must deliver a certificate in the form of Exhibit B hereto, including
the certifications in item (1) thereof; and
(B) if the transferee will take delivery in the form of a
beneficial interest in the Regulation S Temporary Global Security or
the Regulation S Global Security, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof; provided that beneficial interests
in the Regulation S Temporary Global Security may not be transferred
to any U.S. Person or for the account or benefit of a U.S. Person
(other than the Initial Purchasers);
(iv) Transfer and Exchange of Beneficial Interests in a Restricted
Global Security for Beneficial Interests in the Unrestricted Global
Security. A beneficial interest in any Restricted Global Security may be
exchanged by any holder thereof for a beneficial interest in an
Unrestricted Global Security or transferred to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Security if the exchange or transfer complies with the requirements of
Section 2.06(b)(ii) above and:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the holder of the beneficial interest to be transferred, in the
case of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution of the
Ex-
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change Securities or (3) a Person who is an affiliate (as defined in
Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf Registration
in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a broker-dealer pursuant to the
Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Security proposes to exchange such beneficial
interest for a beneficial interest in an Unrestricted Global
Security, a certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(a) thereof; or
(2) if the holder of such beneficial interest in a
Restricted Global Security proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the form
of a beneficial interest in an Unrestricted Global Security, a
certificate from such holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), an Opinion
of Counsel in form reasonably acceptable to the Registrar to the
effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act; provided that no such
exchange or transfer of a beneficial interest in a Regulation S
Temporary Global Security shall be made prior to (x) the expiration of
the Restricted Period and (y) the receipt by the Registrar of the
certificates required pursuant to Rule 903(c)(3)(ii)(B) under the
Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D)
above at a time when an Unrestricted Global Security has not yet been issued,
the Company shall issue and,
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upon receipt of an Authentication order in accordance with Section 2.02 hereof,
the Trustee shall authenticate one or more Unrestricted Global Securities in an
aggregate principal amount equal to the aggregate principal amount of beneficial
interests transferred pursuant to subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Security cannot be
exchanged for, or transferred to Persons who take delivery thereof in the form
of, a beneficial interest in a Restricted Global Security.
(c) Transfer or Exchange of Beneficial Interests for Definitive
Securities.
(i) Beneficial Interests in Restricted Global Securities to
Restricted Definitive Securities. If any holder of a beneficial interest
in a Restricted Global Security proposes to exchange such beneficial
interest for a Restricted Definitive Security or to transfer such
beneficial interest to a Person who takes delivery thereof in the form of a
Restricted Definitive Security, then, upon receipt by the Registrar of the
following documentation:
(A) if the holder of such beneficial interest in a Restricted
Global Security proposes to exchange such beneficial interest for a
Restricted Definitive Security, a certificate from such holder in the
form of Exhibit C hereto, including the certifications in item (2)(a)
thereof;
(B) if such beneficial interest is being transferred to a QIB in
accordance with Rule 144A under the Securities Act, a certificate to
the effect set forth in Exhibit B hereto, including the certifications
in item (1) thereof;
(C) if such beneficial interest is being transferred to a Non-
U.S. Person in an offshore transaction in accordance with Rule 903 or
Rule 904 under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (2)
thereof;
(D) if such beneficial interest is being transferred pursuant to
an exemption from the registration requirements of the Securities Act
in accordance with Rule 144 under the Securities Act, a certificate to
the effect set forth in Exhibit B hereto, including the certifications
in item (3)(a) thereof;
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(E) if such beneficial interest is being transferred to an
Institutional Accredited Investor in reliance on an exemption from the
registration requirements of the Securities Act other than those
listed in subparagraphs (B) through (D) above, a certificate to the
effect set forth in Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3)(d) thereof:
(F) if such beneficial interest is being transferred to the
Company or any of its Subsidiaries, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (3)(b)
thereof; or
(G) if such beneficial interest is being transferred pursuant to
an effective registration statement under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable
Global Security to be reduced accordingly pursuant to Section 2.06(h)
hereof, and the Company shall execute and the Trustee shall authenticate
and deliver to the Person designated in the instructions a Definitive
Security in the Appropriate principal amount. Any Definitive Security
issued in exchange for a beneficial interest in a Restricted Global
Security pursuant to this Section 2.06(c) shall be registered in such name
or names and in such authorized denomination or denominations as the holder
of such beneficial interest shall instruct the Registrar through
instructions from the Depositary and the Participant or Indirect
Participant. The Trustee shall deliver such Definitive Securities to the
Persons in whose names such Securities are so registered. Any Definitive
Security issued in exchange for a beneficial interest in a Restricted
Global Security pursuant to this Section 2.06(c)(i) shall bear the Private
Placement Legend and shall be subject to all restrictions on transfer
contained therein.
(ii) Notwithstanding the foregoing provisions of this Sections
2.06(c), a beneficial interest in the Regulation S Temporary Global
Security may not be exchanged for a Definitive Security or transferred to a
Person who takes delivery thereof in the form of a Definitive Security
prior to (x) the expiration of the Restricted Period and (y) the receipt by
the Registrar of the certificates
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required pursuant to Rule 903(c)(3)(ii)(B) under the Securities Act.
(iii) Beneficial Interests in Restricted Global Securities to
Unrestricted Definitive Securities. A holder of a beneficial interest in a
Restricted Global Security may exchange such beneficial interest for an
Unrestricted Definitive Security or may transfer such beneficial interest
to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Security only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the holder of such beneficial interest, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in
the applicable Letter of Transmittal that it is not (1) a broker-
dealer, (2) a Person participating in the distribution of the Exchange
Securities or (3) a Person who is an affiliate (as defined in Rule
144) of the Company;
(B) such transfer is effected pursuant to the Shelf Registration
in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a broker-dealer pursuant to the
Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a Restricted Global
Security proposes to exchange such beneficial interest for a Definitive
Security that does not bear the Private Placement Legend, a certificate
from such holder in the form of Exhibit C hereto, including the
certifications in item (1)(b) thereof ; or
(2) if the holder of such beneficial interest in a Restricted Global
Security proposes to transfer such beneficial interest to a Person who
shall take delivery thereof in the form of a Definitive Security that does
not bear the Private Placement Legend, a certificate from such holder in
the form of Exhibit B hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph (D) an Opinion of
Counsel in form reasonably acceptable to the
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Registrar to the effect that such exchange or transfer is in compliance
with the Securities Act and that the restrictions on transfer contained
herein and in the Private Placement Legend are no longer required in order
to maintain compliance with the Securities Act; provided that a beneficial
interest in a Regulation S Temporary Global Security may not be exchanged
or transferred as aforesaid prior to (x) the expiration of the Restricted
Period and (y) the receipt by the Registrar of the certificates required
pursuant to Rule 903(c)(3)(ii)(B).
(iv) Beneficial Interests in Unrestricted Global Securities to
Unrestricted Definitive Securities. If any holder of a beneficial interest
in an Unrestricted Global Security proposes to exchange such beneficial
interest for a Definitive Security or to transfer such beneficial interest
to a Person who takes delivery thereof in the form of a Definitive Security
then, upon satisfaction of the conditions set forth in Section 2.06(b)(ii)
hereof, the Trustee shall cause the aggregate principal amount of the
applicable Global Security to be reduced accordingly pursuant to Section
2.06(h) hereof, and the Company shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions a
Definitive Security in the appropriate principal amount. Any Definitive
Security issued in exchange for a beneficial interest pursuant to this
Section 2.06(c)(iv) shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such beneficial
interest shall instruct the Registrar through instructions from the
Depositary and the Participant or Indirect Participant. The Trustee shall
deliver such Definitive Securities to the Persons in whose names such
Securities are so registered. Any Definitive Security issued in exchange
for a beneficial interest pursuant to this Section 2.06(c)(iv) shall not
bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Securities for Beneficial
Interests in Global Securities.
(i) Restricted Definitive Securities to Beneficial Interests in
Restricted Global Securities. If any Holder of a Restricted Definitive
Security proposes to exchange such Security for a beneficial interest in a
Restricted Global Security or to transfer such Restricted Definitive
Securities to a Person who takes delivery thereof in the form of a
beneficial interest in a Restricted Global Security, then, upon receipt by
the Registrar of the following documentation:
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(A) if the Holder of such Restricted Definitive Security proposes
to exchange such Security for a beneficial interest in a Restricted
Global Security, a certificate from such Holder in the form of Exhibit
C hereto, including the certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Security is being transferred
to a QIB in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;
(C) if such Restricted Definitive Security is being transferred
to a Non-U.S. Person in an offshore transaction in accordance with
Rule 903 or Rule 904 under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in
item (2) thereof;
(D) if such Restricted Definitive Security is being transferred
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Security is being transferred
to an Institutional Accredited Investor in reliance on an exemption
from the registration requirements of the Securities Act other than
those listed in subparagraphs (B) through (D) above, a certificate to
the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item
(3)(d) thereof;
(F) if such Restricted Definitive Security is being transferred
to the Company or any of its Subsidiaries, a certificate to the effect
set forth in Exhibit B hereto, including the certifications in item
(3)(b) thereof; or
(G) if such Restricted Definitive Security is being transferred
pursuant to an effective registration statement under the Securities
Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3) (c) thereof,
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the Trustee shall cancel the Restricted Definitive Security, and
increase or cause to be increased the aggregate principal amount of,
in the case of clause (A) above, the appropriate Restricted Global
Security, in the case of clause (B) above, the 144A Global Security,
and in the case of clause (C) above, the Regulation S Global Security.
(ii) Restricted Definitive Securities to Beneficial Interests in
Unrestricted Global Securities. A Holder of a Restricted Definitive
Security may exchange such Security for a beneficial interest in an
Unrestricted Global Security or transfer such Restricted Definitive
Security to a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Security only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the Holder, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of Transmittal
that it is not (1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Securities or (3) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf Registration
in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a broker-dealer pursuant to the
Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Definitive Securities proposes to exchange
such Securities for a beneficial interest in the Unrestricted Global
Security, a certificate from such Holder in the form of Exhibit C hereto,
including the certifications in item (1)(c) thereof; or
(2) if the Holder of such Definitive Securities proposes to transfer
such Securities to a Person who shall take delivery thereof in the form of
a beneficial interest in the Unrestricted Global Security, a certificate
from such Holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
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and, in each such case set forth in this subparagraph (D) an Opinion of
Counsel in form reasonably acceptable to the Registrar to the effect that
such exchange or transfer is in compliance with the Securities Act and that
the restrictions on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain compliance with the
Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in this
Section 2.06(d)(ii), the Trustee shall cancel the Definitive Securities and
increase or cause to be increased the aggregate principal amount of the
Unrestricted Global Security.
(iii) Unrestricted Definitive Securities to Beneficial Interests in
Unrestricted Global Securities. A Holder of an Unrestricted Definitive
Security may exchange such Security for a beneficial interest in an
Unrestricted Global Security or transfer such Definitive Securities to a
Person who takes delivery thereof in the form of a beneficial interest in
an Unrestricted Global Security at any time. Upon receipt of a request for
such an exchange or transfer, the Trustee shall cancel the applicable
Unrestricted Definitive Security and increase or cause to be increased the
aggregate principal amount of one of the Unrestricted Global Securities.
If any such exchange or transfer from a Definitive Security to a
beneficial interest is effected pursuant to subparagraphs (ii)(B), (ii)(D) or
(iii) above at a time when an Unrestricted Global Security has not yet been
issued, the Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Securities in an aggregate principal amount equal to the
principal amount of Definitive Securities so transferred.
(e) Transfer and Exchange of Definitive Securities for Definitive
Securities. Upon request by a Holder of Definitive Securities and such Holder's
compliance with the provisions of this Section 2.06(e), the Registrar shall
register the transfer or exchange of Definitive Securities. Prior to such
registration of transfer or exchange, the requesting Holder shall present or
surrender to the Registrar the Definitive Securities duly endorsed or
accompanied by a written instruction of transfer in form satisfactory to the
Registrar duly executed by such Holder or by its attorney, duly authorized in
writing. In addition, the requesting Holder shall provide any additional
certifications, documents and information, as applicable, re-
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quired pursuant to the following provisions of this Section 2.06(e).
(i) Restricted Definitive Securities to Restricted Definitive
Securities. Any Restricted Definitive Security ma be transferred to and
registered in the name of Persons who take delivery thereof in the form of
a Restricted Definitive Security if the Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A under the
Securities Act, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications in item (1)
thereof;
(B) if the transfer will be made pursuant to Rule 903 or Rule
904, then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (2) thereof;
and
(C) if the transfer will be made pursuant to any other exemption
from the registration requirements of the Securities Act, then the
transferor must deliver a certificate in the form of Exhibit B hereto,
including the certifications, certificates and Opinion of Counsel
required by item (3)(d) thereof.
(ii) Restricted Definitive Securities to Unrestricted Definitive
Securities. Any Restricted Definitive Security may be exchanged by the
Holder thereof for an Unrestricted Definitive Security or transferred to a
Person or Persons who take delivery thereof in the form of an Unrestricted
Definitive Security if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the Holder, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of Transmittal
that it is not (1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Securities or (3) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the Shelf
Registration in accordance with the Registration Rights Agreement;
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(C) any such transfer is effected by a Broker-Dealer pursuant to
the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted Definitive Securities proposes
to exchange such Securities for an Unrestricted Definitive Security, a
certificate from such Holder in the form of Exhibit C hereto, including the
certifications in item (1)(d) thereof; or
(2) if the Holder of such Restricted Definitive Securities proposes
to transfer such Securities to a Person who shall take delivery thereof in
the form of an Unrestricted Definitive Security, a certificate from such
Holder in the form of Exhibit B hereto, including the certifications in
item (4) thereof;
and, in each such case set forth in this subparagraph (D), Opinion of
Counsel in form reasonably acceptable to the Company to the effect that
such exchange or transfer is in compliance with the Securities Act and that
the restrictions on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain compliance with the
Securities Act; provided that a beneficial interest in a Regulation S
Temporary Global Security may not be exchanged or transferred as aforesaid
prior to (x) the expiration of the Restricted Period and (y) the receipt by
the Registrar of the certificates required pursuant to Rule
903(c)(3)(ii)(B).
(iii) Unrestricted Definitive Securities to Unrestricted Definitive
Securities. A Holder of Unrestricted Definitive Securities may transfer
such Securities to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Security. Upon receipt of a request to register
such a transfer, the Registrar shall register the Unrestricted Definitive
Securities pursuant to the instructions from the Holder thereof.
(f) Exchange Offer. Upon the occurrence of the Exchange Offer in
accordance with the Registration Rights Agreement, the Company shall issue and,
upon receipt of an Authentication Order in accordance with section 2.02, the
Trustee shall authenticate (i) one or more Unrestricted Global Securities in an
aggregate principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Securities
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tendered for acceptance by Persons that certify in the applicable Letters of
Transmittal that (x) they are not broker-dealers, (y) they are not participating
in a distribution of the Exchange Securities and (z) they are not affiliates (as
defined in Rule 144) of the Company, and accepted for exchange in the Exchange
Offer and (ii) Definitive Securities in an aggregate principal amount equal to
the principal amount of the Restricted Definitive Securities accepted for
exchange in the Exchange offer. Concurrently with the issuance of such
Securities, the Trustee shall cause the aggregate principal amount of the
applicable Restricted Global Securities to be reduced accordingly, and the
Company shall execute and the Trustee shall authenticate and deliver to the
Persons designated by the Holders of Definitive Securities so accepted
Definitive Securities in the appropriate principal amount.
(g) Legends. The following legends shall appear on the face of all
Global Securities and Definitive Securities issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each Global
Security and each Definitive Security (and all Securities issued in
exchange therefor or substitution thereof) shall bear the legend in
substantially the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT") AND NEITHER THIS SECURITY NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, REGISTRATION UNDER THE SECURITIES ACT. THE HOLDER HEREOF, BY ITS
ACCEPTANCE OF THIS SECURITY, AGREES FOR THE BENEFIT OF THE COMPANY THAT
THIS SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE THERETO UNDER RULE
144(k) UNDER THE SECURITIES ACT WHICH IS APPLICABLE TO THIS SECURITY (THE
"RESALE RESTRICTION TERMINATION DATE") OTHER THAN (1) TO THE COMPANY, (2)
SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER
THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" WITHIN THE MEANING OF RULE
144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER, IN EACH CASE TO WHOM NOTICE
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IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON
THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY IF THIS
SECURITY IS NOT IN BOOK-ENTRY FORM), (3) TO A NON-"U.S. PERSON" IN AN
"OFFSHORE TRANSACTION" (AS SUCH TERMS ARE DEFINED IN REGULATION S UNDER THE
SECURITIES ACT) IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT
(AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF
TRANSFER ON THE REVERSE OF THIS SECURITY), (4) TO AN INSTITUTION THAT IS AN
"ACCREDITED INVESTOR" (AN "INSTITUTIONAL ACCREDITED INVESTOR") AS DEFINED
IN RULE 501(a)(1), (2) (3) OR (7) UNDER THE SECURITIES ACT (AS INDICATED BY
THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE
REVERSE OF THIS SECURITY) WHO CERTIFIES TO THE COMPANY AND THE TRUSTEE THAT
SUCH TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR AND IS ACQUIRING
THIS SECURITY FOR ITS OWN ACCOUNT, FOR INVESTMENT PURPOSES AND NOT WITH A
VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT, (5) PURSUANT TO THE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT PROVIDED BY RULE 144 UNDER
THE SECURITIES ACT, IF AVAILABLE, OR (6) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, SUBJECT IN EACH OF THE
FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS
PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL
TIMES WITHIN ITS OR THEIR CONTROL AND THE HOLDER WILL, AND ANY SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY SUBSEQUENT PURCHASER OF THIS SECURITY
FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN THIS PARAGRAPH, IF THEN
APPLICABLE. DURING THE 40 DAY "DISTRIBUTION COMPLIANCE PERIOD" (AS DEFINED
IN REGULATIONS S), BENEFICIAL INTERESTS IN REGULATION S GLOBAL SECURITIES
(AS DEFINED IN THE INDENTURE REFERRED TO BELOW) MAY ONLY BE HELD BY OR FOR
THE BENEFIT OF NON-"U.S. PERSONS" OR TRANSFERRED TO OR FOR THE BENEFIT OF
NON-"U.S. PERSONS" IN "OFFSHORE TRANSACTIONS" (AS SUCH TERMS ARE DEFINED IN
REGULATION S). THE COMPANY OR THE TRUSTEE FOR THE SECURITIES RESERVE THE
RIGHT PRIOR TO ANY SUCH SALE, PLEDGE OR OTHER TRANSFER TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON REQUEST OF
THE HOLDER ON OR AFTER THE RESALE RESTRICTION TERMINATION DATE."
(B) Notwithstanding the foregoing, any Global Security or
Definitive Security issued pursuant to subparagraphs (b)(iv),
(c)(iii), (c)(iv) , (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to
this Section
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2.06 (and all Securities issued in exchange therefor or substitution
thereof) shall not bear the Private Placement Legend.
(ii) Global Security Legend. Each Global Security shall bear a
legend in substantially the following form:
"THIS GLOBAL SECURITY IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS SECURITY) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY
PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH
NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO THE INDENTURE, (II) THIS
GLOBAL SECURITY MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO
SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL SECURITY MAY BE
DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE
INDENTURE AND (IV) THIS GLOBAL SECURITY MAY BE TRANSFERRED TO A SUCCESSOR
DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY."
(iii) Regulation S Temporary Global Security Legend. The Regulation
S Temporary Global Security shall bear a Legend in substantially the
following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL SECURITY,
AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED
SECURITIES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN)."
(h) Cancellation and/or Adjustment of Global Securities. At such
time as all beneficial interests in a particular Global Security have been
exchanged for Definitive Securities or a particular Global Security has been
redeemed, repurchased or canceled in whole and not in part, each such Global
Security shall be returned to or retained and canceled by the Trustee in
accordance with Section 2.11 hereof. At any time prior to such cancellation, if
any beneficial interest in a Global Security is exchanged for or transferred to
a Person who will take delivery thereof in the form of a beneficial interest in
another Global Security or for Definitive Securities, the principal amount of
Securities represented by such Global Security shall be reduced accordingly and
an endorsement shall be made on such Global Security by the Trustee or by the
Depositary at the direction of the Trustee to reflect such reduction; and if the
beneficial interest is being exchanged for or transferred to a Person who will
take delivery thereof in the form of a beneficial interest in another Global
Security, such other Global Security shall be increased accordingly and an
endorsement shall be made on such Global Security by the Trustee or by the
De-
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positary at the direction of the Trustee to reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Global Securities and
Definitive Securities upon the Company's order or at the Registrar's
request.
(ii) No service charge shall be made to a holder of a beneficial
interest in a Global Security or to a Holder of a Definitive Security for
any registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such
transfer taxes or similar governmental charge payable upon exchange or
transfer pursuant to Sections 2.10, 3.06, 4.10, 4.15, 4.16 and 9.05
hereof).
(iii) The Registrar shall not be required to register the transfer of
or exchange any Security selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in part.
(iv) All Global Securities and Definitive Securities issued upon any
registration of transfer or exchange of Global Securities or Definitive
Securities shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Global Securities or Definitive Securities surrendered upon such
registration of transfer or exchange.
(v) The Registrar shall not be required (A) to issue, to register
the transfer of or to exchange any Securities during a period beginning at
the opening of business 15 days before the day of any selection of
Securities for redemption under Section 3.02 hereof and ending at the close
of business on the day of selection, (B) to register the transfer of or to
exchange any Security so selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in part or (C)
to register the transfer of or to exchange a Security between a record date
and the next succeeding Interest Payment Date.
(vi) Prior to due presentment for the registration of a transfer of
any Security, the Trustee, any Agent and
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the Company may deem and treat the Person in whose name any Security is
registered as the absolute owner of such Security for the purpose of
receiving payment of principal of and interest on such Securities and for
all other purposes, and none of the Trustee, any Agent or the Company shall
be affected by notice to the contrary.
(vii) The Trustee shall authenticate Global Securities and Definitive
Securities in accordance with the provisions of Section 2.02 hereof.
(viii) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.06 to
effect a registration of transfer or exchange may be submitted by
facsimile.
(j) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any transfer of any
interest in any Security (including any transfers between or among Depositary
Participants or beneficial owners of interests in any Global Security) other
than to require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when expressly
required by the terms of, this Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.
SECTION 2.07. REPLACEMENT SECURITIES
If a mutilated Security is surrendered to the Trustee or if the Holder
of a Security claims that the Security has been lost, destroyed or wrongfully
taken, the Company shall issue and the Trustee, shall authenticate a replacement
Security if the Trustee's requirements are met. If required by the Trustee or
the Company, such Holder must provide an indemnity bond or other indemnity
sufficient in the 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 Security is replaced. The Company may charge such Holder for its reasonable,
out of pocket expenses in replacing a Security, including reasonable fees and
expenses of counsel.
Every replacement Security shall constitute an additional obligation
of the Company.
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SECTION 2.08. OUTSTANDING SECURITIES.
Securities outstanding at any time are all the Securities 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.
A Security does not cease to be outstanding because the Company or any of its
Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.07 (other than a
mutilated Security surrendered for replacement), it ceases to be outstanding
unless the Trustee receives proof satisfactory to it that the replaced Security
is held by a bona fide purchaser.
A mutilated Security ceases to be outstanding upon surrender of such
Security 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 Securities payable on that date and is not
prohibited from paying such money to the Holders thereof pursuant to the terms
of this Indenture, then on and after that date such Securities cease to be
outstanding and interest on them ceases to accrue.
SECTION 2.09. TREASURY SECURITIES.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver, consent or notice,
Securities owned by the Company or an Affiliate 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 Securities which a Trust Officer knows are so owned shall be so
considered. The Company shall notify the Trustee, in writing, when it or any of
its Affiliates repurchases or otherwise acquires Securities, of the aggregate
principal amount of such Securities so repurchased or otherwise acquired.
SECTION 2.10. TEMPORARY SECURITIES
Until certificates representing Securities are ready for delivery, the
Company may prepare and the Trustee shall authenticate Temporary Securities upon
receipt of a written order of the Company in the form of an Authentication
Order. The Officers Certificate shall specify the amount of, Temporary
Se-
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curities to be authenticated and the date on which the Temporary Securities are
to be authenticated. Temporary Securities shall be substantially in the form of
certificated Securities but may have variations that the Company considers
appropriate for temporary Securities and as shall be reasonably acceptable to
the Trustee. Without unreasonable delay, the Company shall prepare and execute,
and the Trustee shall authenticate upon receipt of a written Authentication
Order definitive Securities in exchange for Temporary Securities, subject, in
the case of Regulation S Temporary Global Securities, to satisfaction of the
conditions set forth elsewhere herein.
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Securities 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 of all Securities surrendered for transfer exchange, payment or
cancellation. Subject to Section 2.07, the Company may not issue new Securities
to replace Securities that the Company has paid or delivered to the Trustee for
cancellation. If the Company shall acquire any of the Securities, such
acquisition shall not operate as a redemption or satisfaction of the
Indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation pursuant to this Section 2.11.
SECTION 2.12. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Securities, it
shall pay the defaulted interest, plus (to the extent lawful) any, interest
payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, which date shall be the fifteenth day next
preceding the date fixed by the Company for the payment of defaulted interest or
the next succeeding Business Day if such date is not a Business Day. At least
15 days before the subsequent special record date, the Company shall mail to
each Holder, with a copy to the Trustee, a notice that states the subsequent
special record date, the payment date and the amount of defaulted interest, and
interest payable on such defaulted interest, if any, to be paid.
SECTION 2.13. CUSIP NUMBER.
The Company in issuing the Securities may use a "CUSIP" number, and if
so, the Trustee shall use the CUSIP num-
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ber in notices of redemption or exchange as a convenience to Holders; provided
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
Securities, and that reliance may be placed only on the other identification
numbers printed on the Securities. The Company will promptly notify the Trustee
of any change in the CUSIP numbers.
SECTION 2.14. DEPOSIT OF MONEYS.
Prior to 10:00 a.m. New York City time on each Interest Payment Date
and Maturity 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 or Maturity 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 or Maturity Date, as the case may be.
ARTICLE 3.
REDEMPTION
SECTION 3.01. NOTICES TO TRUSTEE.
If the Company elects to redeem Securities pursuant to paragraph 6 of
the Securities, it shall notify the Trustee and the Paying Agent in writing of
the Redemption Date and the principal amount of the Securities to be redeemed
and whether it wants the Trustee to give notice of redemption to the Holders (at
the Company's expense) at least 45 days (unless a shorter notice shall be
satisfactory to the Trustee) but not more than 90 days before the Redemption
Date. Any such notice may be canceled at any time prior to notice of such
redemption being mailed to any Holder and shall thereby be void and of no
effect. In addition, in the case of the Company's election to redeem Securities
using the proceeds of a Public Equity Offering, the Company shall comply with
the provisions of paragraph 7 of the Securities.
SECTION 3.02. SELECTION OF SECURITIES TO BE REDEEMED.
If fewer than all of the Securities are to be redeemed, the Trustee
shall select the Securities to be redeemed in compliance with the requirements
of the principal national securities exchange, if any, on which the Securities
being redeemed are listed, or, if the Securities are not listed on a national
securities exchange, on a pro rata basis, by lot or in
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such other fair and reasonable manner chosen at the discretion of the Trustee;
provided that a redemption pursuant to the provisions of paragraph 6(b) of the
Securities shall be made on a pro rata basis.
The Trustee shall make the selection from the Securities outstanding
and not previously called for redemption and shall promptly notify the Company
in writing of the Securities selected for redemption and, in the case of any
Security selected for partial redemption, the principal amount thereof to be
redeemed. Securities in denominations of $1,000 or less may be redeemed only in
whole. The Trustee may select for redemption portions (equal to $1,000 or any
integral multiple thereof) of the principal of Securities that have
denominations larger than $1,000. Provisions of this Indenture that apply to
Securities called for redemption also apply to portions of Securities called for
redemption.
SECTION 3.03. NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a Redemption Date,
the Company shall mail or cause to be mailed a notice of redemption by first-
class mail to each Holder whose Securities are to be redeemed, with a copy to
the Trustee. In addition, in the case of the Company's election to redeem
Securities using the proceeds of a Public Equity Offering the Company shall
comply with the provisions of paragraph 7 of the Securities. At the Company's
request, the Trustee shall give the notice of redemption in the Company's name
and at the Company's expense. Each notice for redemption shall identify the
Securities to be redeemed (including CUSIP numbers) and shall state:
(1) the Redemption Date;
(2) the redemption price and the amount of accrued interest, if any,
to be paid (the "REDEMPTION PRICE");
(3) the paragraph of the Securities pursuant to which the Securities
are being redeemed;
(4) the name and address of the Paying Agent;
(5) that Securities called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price;
(6) that, unless the Company defaults in making the redemption
payment, interest on Securities called for redemption ceases to accrue on and
after the Redemption Date, and the
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only remaining right of the Holders of such Securities is to receive payment of
the Redemption Price upon surrender to the Paying Agent of the Securities
redeemed;
(7) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the Redemption
Date, and upon surrender of such Security, a new Security or Securities in the
aggregate principal amount equal to the unredeemed portion thereof will be
issued; and
(8) if fewer than all the Securities are to be redeemed, the
identification of the particular Securities (or portion thereof) to be redeemed,
as well as the aggregate principal amount of Securities to be redeemed and the
aggregate principal amount of Securities to be outstanding after such partial
redemption.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section 3.03,
Securities called for redemption become due and payable on the Redemption Date
and at the Redemption Price. Upon surrender to the Trustee or Paying Agent,
such Securities called for redemption shall be paid at the Redemption Price.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
On or before the Redemption Date, the Company shall deposit with the
Paying Agent U.S. Legal Tender sufficient to pay the Redemption Price of all
Securities 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 moneys owed as obligations to the Trustee
pursuant to Article 7.
If the Company complies with the preceding paragraphs then, unless the
Company defaults in the payment of such Redemption Price, interest on the
Securities to be redeemed will cease to accrue on and after the applicable
Redemption Date, whether or not such Securities are presented for payment.
SECTION 3.06. SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is to be redeemed in part, the
Trustee shall authenticate for the Holder a new Security or Securities equal in
principal amount to the unredeemed portion of the Security surrendered.
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ARTICLE 4.
COVENANTS
SECTION 4.01. PAYMENT OF SECURITIES.
The Company shall pay the principal of and interest on the Securities
on the dates and in the manner provided in the Securities. An installment of
principal of or interest on the Securities shall be considered paid on the date
it is due if the Trustee or Paying Agent holds on that date U.S. Legal Tender
designated for and sufficient to pay the installment.
Interest will be computed on the basis of a 360-day year comprised of
twelve 30-day months.
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 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. LIMITATION ON RESTRICTED PAYMENTS.
Neither the Company nor any of its Subsidiaries will, 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
shares of the Company's 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 acquire
shares of any class of such Capital Stock, other than the exchange of such
Capital Stock or any warrants, rights, or options to acquire shares of any class
of
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such Capital Stock for Qualified Capital Stock or warrants, rights, or options
to acquire Qualified 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 or its Subsidiaries that is subordinate or junior in
right of payment to the Securities, or
(d) make any Investment (other than Permitted Investments)
(each of the foregoing prohibited 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 has occurred and is continuing,
(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 made by the Company
on or after the Issue Date (the amount expended for such purposes, if other than
in cash, being the fair market value of such property as determined by the Board
of Directors of the Company in good faith) exceeds the sum of:
(A) (x) 100% of the aggregate Consolidated EBITDA of the Company
from the Issue Date through the most recent date for which financial
information is available to the Company, taken as one accounting
period (or, in the event that either such Consolidated EBITDA shall be
a deficit, minus 100% of such deficit), less (y) 1.4 times
Consolidated Interest Expense for the Company for the same entities
and for the same period, plus
(B) 100% of the aggregate net proceeds received by the Company
from any Person (other than a Subsidiary of the Company) from the
issuance and sale on or subsequent to the Issue Date of Qualified
Capital Stock of the Company (excluding any net proceeds from
issuances and sales financed directly or indirectly using funds
borrowed from the Company or any Subsidiary of the Company until and
to the extent such borrowing is repaid, but including the proceeds
from the
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issuance and sale of any securities convertible into or exchangeable
for Qualified Capital Stock to the extent such securities are so
converted or exchanged and including any additional proceeds received
by the Company upon such conversion or exchange), plus
(C) without duplication of any amount included in clause
(iii)(B) above, 100% of the aggregate net cash proceeds received by
the Company as a capital contribution on or subsequent to the Issue
Date (excluding the net cash proceeds from one or more Public Equity
Offerings by the Company to the extent used to redeem the Securities
on or after the date of this Indenture), plus
(D) $5,000,000.
Notwithstanding the foregoing, the provisions of this Section 4.03
shall not prohibit:
(1) the payment of any dividend or the making of any distribution
within 60 days after the date of its declaration if the dividend or
distribution would have been permitted on the date of declaration;
(2) the acquisition of Capital Stock or warrants, options, or other
rights to acquire Capital Stock either (i) solely in exchange for shares of
Qualified Capital Stock or warrants, options, or other rights to acquire
Qualified Capital Stock, or (ii) through the application of the net
proceeds of a substantially concurrent sale for cash (other than to a
Subsidiary of the Company) of shares of Qualified Capital Stock or
warrants, options or other rights to acquire Qualified Capital Stock;
(3) the acquisition of Indebtedness of the Company that is
subordinate or junior in right of payment to the Securities, either (i)
solely in exchange for shares of Qualified Capital Stock (or warrants,
options or other rights to acquire Qualified Capital Stock) or for
Indebtedness of the Company which is subordinate or junior in right of
payment to the Securities, at least to the extent that the Indebtedness
being acquired is subordinated to the Securities and has a Weighted Average
Life to Maturity no less than that of the Indebtedness being acquired or
(ii) through the application of the net proceeds of a substantially
concurrent sale for cash (other than to a Subsidiary of the Company) of
shares of Qualified Capital Stock (or warrants, options or other rights to
acquire Qualified Capital Stock) or Indebtedness of the Company
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which is subordinate or junior in right of payment to the Securities, at
least to the extent that the Indebtedness being acquired is subordinated to
the Securities and has a Weighted Average Life to Maturity no less than
that of the Indebtedness being refinanced; or
(4) the making of Restricted Payments in an aggregate amount not to
exceed $5,000,000;
provided that no Default or Event of Default shall have occurred or be
continuing at the time of such payment or as a result thereof.
In determining the aggregate amount of Restricted Payments made by the
Company on or subsequent to the Issue Date, amounts expended pursuant to clauses
(1), (2), (3) (but only to the extent that Indebtedness is acquired in exchange
for, or with the net proceeds from, the issuance of Qualified Capital Stock or
warrants, options, or other rights to acquire Qualified Capital Stock), and (4)
shall be included in such calculation.
Prior to any Restricted Payment under the first paragraph of this
Section 4.03, the Company shall deliver to the Trustee an Officers' Certificate
setting forth the computation by which the amount available for Restricted
Payments pursuant to such paragraph was determined. The Trustee shall have no
duty or responsibility to determine the accuracy or correctness of this
computation and shall be fully protected in relying on such Officers'
Certificate.
SECTION 4.04. CORPORATE EXISTENCE.
Except as otherwise permitted by Article 5, the Company shall do or
cause to be done all things reasonably necessary to preserve and keep in full
force and effect its corporate or other existence and the corporate or other
existence of each of its Significant Subsidiaries in accordance with the
respective organizational documents of each such Significant Subsidiary and the
material rights (charter and statutory) and franchises of the Company and each
such Significant Subsidiary; provided that the Company shall not be required to
preserve, with respect to itself, any material right or franchise and, with
respect to any of its Significant Subsidiaries, any such existence, material
right or franchise, if the Board of Directors of the Company or such Significant
Subsidiary, as the case may be, shall determine that the preservation thereof is
no longer reasonably necessary or desirable in the conduct of the business of
the Company or any such Significant Subsidiary.
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SECTION 4.05. 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 it or any of its Subsidiaries or
properties of it or an of its Subsidiaries and (ii) all material lawful claims
for labor, materials, supplies and services that, if unpaid, might by law become
a Lien upon the property of it or any of its Subsidiaries; provided that there
shall not be required to be paid or discharged any such tax, assessment or
charge, the amount, applicability or validity of which is being contested in
good faith by appropriate proceedings and for which adequate provision has been
made or where the failure to effect such payment or discharge is not adverse in
any material respect to the Holders.
SECTION 4.06. MAINTENANCE OF PROPERTIES AND INSURANCE.
(a) The Company shall, and shall cause each of its Subsidiaries to,
maintain its material properties in normal condition (subject to ordinary wear
and tear) and make all reasonably necessary repairs, renewals or replacements
thereto as in the judgment of the Company may be reasonably necessary to the
conduct of the business of the Company and its Subsidiaries; provided that
nothing in this Section 4.06 shall prevent the Company or any of its
Subsidiaries from discontinuing the operation and maintenance of any of its
properties, if such properties are, in the reasonable and good faith judgment of
the Board of Directors of the Company or the Subsidiary, as the case may be, no
longer reasonably necessary in the conduct of their respective business.
(b) The Company shall provide or cause to be provided, for itself and
each of its Subsidiaries, insurance (including appropriate self-insurance)
against loss or damage of the kinds that, in the reasonable, good faith opinion
of the Company, are reasonably adequate and appropriate for the conduct of the
business of the Company and such Subsidiaries.
SECTION 4.07. COMPLIANCE CERTIFICATE; NOTICE OF DEFAULT.
(a) The Company shall deliver to the Trustee, within 120 days after
the end of the Company's fiscal year, an Officers' Certificate (signed by the
principal executive officer principal financial officer or principal accounting
officer) stating that a review of its activities and the activities of its
Subsidiaries during the preceding fiscal year has been made
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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 his 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 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 copy of the annual report on Form 10-K of the Company as
filed with the SEC or the annual financial statements delivered to the Trustee
pursuant to Section 4.09 shall be accompanied by a written report of the
Company's independent accountants that in conducting their audit of the
financial statements which are a part of such annual report or such annual
financial statements nothing has come to their attention that would lead them to
believe that the Company has violated any provisions of Article 4, 5 or 6
insofar as they relate to accounting matters or, if any such violation has
occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.
(c) 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 Securities, the Company shall
deliver to the Trustee by registered or certified mail or facsimile transmission
followed by hard copy by registered or certified mail an Officers' Certificate
specifying such event, notice or other action as soon as possible and in any
event within five Business Days of its becoming aware of such occurrence.
SECTION 4.08. 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
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of their respective properties, except for such noncompliances as are not in the
aggregate reasonably likely to have a material adverse effect on the financial
condition or results of operations of the Company and its Subsidiaries taken as
a whole.
SECTION 4.09. SEC REPORTS.
The Company shall file with the Trustee and provided to the
Securityholders, within 15 days after it files them with the SEC, copies of the
annual reports and of the information, documents, and other reports ( or copies
of such portions of any of the foregoing as the SEC may by rules and regulations
prescribe) which the Company files with the SEC pursuant to Section 13 or 15(d)
of the Exchange Act. In the event that the Company is no longer required to
furnish such reports to its securityholders pursuant to the Exchange Act, the
Company will cause its consolidated financial statements, comparable to those
which would have been required to appear in annual or quarterly reports, to be
delivered to the Holders of the Securities. During the period beginning on the
latest date of the original issuance of any of the Securities or the date any
Security was acquired from the Company or any Affiliate of the Company after the
Issue Date and ending on the date that is two years from such latest date, the
Company will, during any period in which it is not subject to Section 13 or
15(d) under the Exchange Act or not filing the reports and other information
required thereby when so subject, make a available to any holder or beneficial
owner of Securities which are not registered under the Securities Act in
connection with any sale thereof and any prospective purchaser of Securities
from such holder or beneficial owner the information required pursuant to Rule
144A(d)(4) under the Securities Act upon the request of any holder or beneficial
owner of the Securities and it will take such further action as any holder or
beneficial owner may reasonably require to sell its Securities without
registration under the Securities Act within the limitation of the exemption
provided by Rule 144A.
The Company shall also comply with the other provisions of TIA Section
314(a). Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
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SECTION 4.10. WAIVER OF STAY, EXTENSION OR USURY LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law or any usury law or
other law that would prohibit or forgive the Company from paying all or any
portion of the principal of or interest on the Securities as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the obligations or the performance of this Indenture; and (to the extent
that it may lawfully do so) the Company hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
SECTION 4.11. LIMITATION ON TRANSACTIONS WITH AFFILIATES.
Neither the Company nor any of its Subsidiaries will, directly or
indirectly enter into or permit to exist any transaction (including, without
limitation, the purchase, sale, lease or exchange of any property or the
rendering of any service) with or for the benefit of any of its Affiliates
(other than transactions between the Company and a Wholly-Owned Subsidiary of
the Company or among Wholly-Owned Subsidiaries of the Company) (an "AFFILIATE
TRANSACTION"), other than Affiliate Transactions on terms that are no less
favorable than those that might reasonably have been obtained in a comparable
transaction on an arm's-length basis from a Person that is not an Affiliate;
provided that for a transaction or series of related transactions involving
value of $1,000,000 or more, such determination shall be made in good faith by a
majority of the members of the Board of Directors of the Company and by a
majority of the disinterested members of the Board of Directors of the Company,
if any; provided, further, that for a transaction or series of related
transactions involving value of $5,000,000 or more, the Board of Directors of
the Company has received an opinion from a nationally recognized investment
banking firm that such Affiliate Transaction is fair, from a financial point of
view, to the Company or such Subsidiary. The foregoing restrictions will not
apply to (i) reasonable and customary directors' fees, indemnification, and
similar arrangements and payments thereunder, (ii) any Restricted Payment
permitted to be paid pursuant to Section 4.03, (iii) any issuance of Qualified
Capital Stock pursuant to stock option or stock ownership plans approved by the
Board of Directors of the Company, and (iv) transactions pursuant to agreements
in existence on the
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Issue Date and any renewal of such agreements on substantially similar terms.
SECTION 4.12. LIMITATION ON INCURRENCE OF ADDITIONAL INDEBTEDNESS.
Neither the Company nor any of its Subsidiaries shall, directly, or
indirectly create, incur, assume, guarantee, acquire, or become liable for,
contingently or otherwise, (collectively "incur"), any Indebtedness other than
Permitted Indebtedness. Notwithstanding the foregoing limitations, the Company
may incur Indebtedness (including Acquired Indebtedness) and any of the
Company's Subsidiaries may incur Acquired Indebtedness, if, in either case, on
the date of the incurrence of such Indebtedness, after giving effect to the
incurrence of such Indebtedness and the receipt and application of the proceeds
thereof, the Company's Leverage Ratio is less than 7.0 to 1.
For the purposes of this Section 4.12, Indebtedness outstanding on the
Issue Date shall not be deemed to be an incurrence of Indebtedness.
SECTION 4.13. LIMITATION ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING
SUBSIDIARIES.
Neither the Company nor any of its Subsidiaries shall, directly or
indirectly, create or otherwise cause or permit to exist or become effective any
encumbrance or restriction on the ability of any Subsidiary to (a) pay dividends
or make any other distributions on its Capital Stock; (b) make loans or advances
or pay any Indebtedness or other obligation owed to the Company or any of its
Subsidiaries; or (c) transfer any of its property or assets to the Company,
except for such encumbrances or restrictions existing under or by reason of: (1)
applicable law, (2) customary non-assignment provisions of any lease governing a
leasehold interest of the Company or any Subsidiary, (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 property or assets of the Person, so acquired, (4) an
agreement effecting a replacement, refunding, extension or renewal of
Indebtedness issued, assumed, or incurred pursuant to an agreement referred to
in clause (3) above; provided, that the provisions relating to such encumbrance
or restriction contained in any such replacement, refunding, extension, or
renewal agreement or any such other agreement are not less favorable to the
Company in all material respects as determined in good faith by the Board of
Directors of the Company than the
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provisions relating to such encumbrance or restriction contained in agreements
referred to in such clause (3) or (5) restrictions on the transfer of assets
subject to any Lien permitted under this Indenture imposed by the holder of such
Lien.
SECTION 4.14. PROHIBITION ON INCURRENCE OF SENIOR SUBORDINATED INDEBTEDNESS.
None of the Company or any Guarantor shall incur or suffer to exist
any Indebtedness that is senior in right of payment to the Securities or the
Guarantee of any such Guarantor, as the case may be, and is expressly
subordinate in right of payment to any other Indebtedness of the Company or any
such Guarantor, as the case may be.
SECTION 4.15. CHANGE OF CONTROL.
(a) In the event of a Change of Control, the Company shall be
obligated to make an offer to repurchase all outstanding Securities pursuant to
the offer described in paragraph (b) below (the "CHANGE OF CONTROL OFFER"), at a
purchase price equal to 101% of the principal amount thereof plus accrued
interest, if any, to the date of repurchase. Prior to the mailing of the notice
referred to below, but in any event within 30 days following the date on which a
Change of Control occurs, the Company covenants to (i) repay in full all
Indebtedness under the Credit Agreement (and terminate all commitments
thereunder) or offer to repay in full all such Indebtedness (and terminate all
such commitments) and to repay the Indebtedness owed to (and terminate the
commitments of) each lender which has accepted such offer or (ii) obtain the
requisite consents under the Credit Agreement to permit the repurchase of the
Securities as provided below. The Company shall first comply with the covenant
in the preceding sentence before it shall be required to repurchase Securities
pursuant to the provisions described in this Section 4.15; provided that the
Company's failure to comply with such covenant shall constitute an Event of
Default under Section 6.01(3).
(b) Within 30 days following the date upon which a Change of Control
occurs (the "CHANGE OF CONTROL DATE"), the Company shall send, by first class
mail, a notice to each Holder of Securities, 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 Securities pursuant to the Change of Control Offer. Such
notice shall state:
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(1) that the Change of Control Offer is being made pursuant to this
Section 4.15 and that all Securities validly tendered and not withdrawn
will be accepted for payment;
(2) the purchase price (including the amount of accrued interest, if
any) and the purchase date (which shall be no earlier than 30 days nor
later than 45 days from the date such notice is mailed, other than as may
be required by law) (the "CHANGE OF CONTROL PAYMENT DATE");
(3) that any Security not tendered will continue to accrue interest;
(4) that, unless the Company defaults in making payment therefor, any
Security accepted for payment pursuant to the Change of Control Offer shall
cease to accrue interest after the Change of Control Payment Date;
(5) that Holders electing to have a Security purchased pursuant to a
Change of Control Offer will be required to surrender the Security,
properly endorsed for transfer together with such customary documents as
the Company reasonably may request, to the Paying Agent at the address
specified in the notice prior to the close of business on the Business Day
prior to the Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than five Business Days prior to the
Change of Control Payment Date, a telegram, facsimile transmission or
letter setting forth the name of the Holder, the principal amount of the
Securities the Holder delivered for purchase and a statement that such
Holder is withdrawing his election to have such Security purchased;
(7) that Holders whose Securities are purchased only in part will be
issued new Securities in a principal amount equal to the unpurchased
portion of the Securities surrendered; and
(8) the circumstances and relevant facts regarding such Change of
Control.
(c) on or before the Change of Control Payment Date, the Company shall
(i) accept for payment Securities or portions hereof (in integral multiples of
$1,000) validly tendered pursuant to the Change of Control Offer, (ii) deposit
with the Paying Agent U.S. Legal Tender sufficient to pay the purchase
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price of all Securities so tendered and (iii) deliver to the Trustee Securities
so accepted together with an Officers' Certificate stating the Securities or
portions thereof being purchased by the Company. The Paying Agent shall promptly
mail to the Holders of Securities so accepted payment in an amount equal to the
purchase price out of the funds deposited with the Paying Agent in accordance
with the preceding sentence. The Trustee shall promptly authenticate and mail to
such Holders new Securities equal in principal amount to any unpurchased portion
of the Securities surrendered. Upon the payment of the purchase price for the
Securities accepted for purchase, the Trustee shall return the Securities
purchased to the Company for cancellation. Any amounts remaining after the
purchase of Securities pursuant to a Change of Control Offer shall be returned
by the Trustee to the Company.
(d) 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 the Securities pursuant to a Change of Control Offer. To the extent the
provisions of any such rule conflict with the provisions of this Indenture
relating to a Change of Control Offer, the Company shall comply with the
provisions of such rule and be deemed not to have breached its obligations
relating to such Change of Control Offer by virtue thereof.
SECTION 4.16. LIMITATION ON ASSET SALES.
(a) Neither the Company nor any of its Subsidiaries will consummate an
Asset Sale unless (i) the Company or the applicable 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 management of the Company or, if such Asset Sale involves
consideration in excess of $10,000,000, by the Board of Directors of the
Company, as evidenced by a board resolution), (ii) at least 75% of the
consideration received by the Company or the Subsidiary, as the case may be,
from such Asset Sale is cash or Cash Equivalents and is received at the time of
such disposition, and (iii) upon the consummation of an Asset Sale, the Company
applies or causes such Subsidiary to apply, such Net Cash Proceeds within 180
days of receipt thereof either (A) to repay the principal of any Senior Debt,
(B) to reinvest, or to be contractually committed to reinvest pursuant to a
binding agreement, in Productive Assets and, in the latter case, to have so
reinvested within 360 days of the date of receipt of such Net Cash Proceeds, or
(C) to purchase Securities (pro rata among the holders of Securities tendered to
the Company for purchase, based upon the aggregate principal
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amount of the Securities so tendered) tendered to the Company for purchase at a
price equal to 100% of the principal amount thereof, plus accrued interest
thereon to the date of purchase, pursuant to an offer to purchase made by the
Company as set forth below (a "NET PROCEEDS OFFER"); provided that if at any
time any non-cash consideration received by the Company or any Subsidiary of the
Company, as the case may be, in connection with any Asset Sale is converted into
or sold or otherwise disposed of for cash, then such conversion or disposition
shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds
thereof shall be applied in accordance with clause (iii) above; provided,
further that the Company may defer making a Net Proceeds Offer until the
aggregate Net Cash Proceeds from Asset Sales to be applied equals or exceeds
$5,000,000.
(b) Subject to the deferral right set forth in the final proviso of
paragraph (a), each notice of a Net Proceeds Offer pursuant to this Section 4.16
shall be mailed, by first class mail, by the Company to Holders of the
Securities as shown on the applicable register of Holders of the Securities not
more than 180 days after the relevant Asset Sale or, in the event the Company or
a Subsidiary has entered into a binding agreement as provided in (B) above,
within 180 days following the termination of such agreement but in no event
later than 360 days after the relevant Asset Sale, with a copy to the Trustee.
The notice shall contain all instructions and materials necessary to enable such
Holders to tender Securities pursuant to the Net Proceeds Offer and shall state
the following terms:
(1) that the Net Proceeds Offer is being made pursuant to Section 4.16
and that Holders of Securities may elect to tender their Securities in
denominations of less than $1,000 and that all Securities validly tendered
will be accepted for payment; provided that if the aggregate principal
amount of Securities tendered in a Net Proceeds Offer plus accrued interest
at the expiration of such offer exceeds the aggregate amount of the Net
Proceeds Offer, the Company shall expect the Securities to be purchased on
a pro rata basis (based upon the principal amount tendered);
(2) 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 date such notice is mailed, other than as may be required by
law) (the "PROCEEDS PURCHASE DATE");
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(3) that any Security not tendered will continue to accrue interest;
(4) that, unless the Company defaults in making payment therefor, any
Security accepted for payment pursuant to the Net Proceeds offer shall
cease to accrue interest after the Proceeds Purchase Date;
(5) that Holders electing to have a Security purchased pursuant to a
Net Proceeds Offer will be required to surrender the Security, properly
endorsed for transfer together with such other customary documents as the
Company reasonably may request, to the Paying Agent at the address
specified in the notice prior to the close of business on the Business Day
prior to the Proceeds Purchase Date;
(6) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than five Business Days prior to the
Proceeds Purchase Date, a telegram, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the
Securities the Holder delivered for purchase and a statement that such
Holder is withdrawing his election to have such Security purchased;
(7) that Holders whose Securities are purchased only in part will be
issued new Securities in a principal amount equal to the unpurchased
portion of the Securities surrendered; and
(8) the circumstances and relevant facts regarding such Net Proceeds
Offer.
(c) on or before the Proceeds Purchase Date, the Company shall
(i)accept for payment Securities or portions thereof validly tendered pursuant
to the Net Proceeds Offer, (ii) deposit with the Paying Agent U.S. Legal Tender
sufficient to pay the purchase price of all Securities so tendered and (iii)
deliver to the Trustee Securities so accepted together with an Officers'
Certificate stating the Securities or portions thereof being purchased by the
Company. The Paying Agent shall promptly mail to the Holders of Securities so
accepted payment in an amount equal to the purchase price out of funds deposited
with the Paying Agent in accordance with the preceding sentence. The Trustee
shall promptly authenticate and mail to such Holders new Securities equal in
principal amount to any unpurchased portion of the Securities surrendered. Upon
payment of the purchase price for the Securities accepted for purchase, the
Trustee shall return the Securities purchased to the
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Company for cancellation. Any Securities not so accepted shall be promptly
mailed by the Company to the Holder thereof.
(d) If the aggregate principal amount of Securities validly tendered
pursuant to any Net Proceeds Offer is less than the amount of Net Cash Proceeds
subject to such Net Proceeds Offer, the Company may use any remaining portion of
such Net Cash Proceeds not required to fund the repurchase of tendered
Securities for purposes otherwise permitted by this Indenture. Upon the
consummation of any Net Proceeds Offer, the amount of Net Cash Proceeds subject
to any future Net Proceeds Offer from the Asset Sales giving rise to such Net
Cash Proceeds shall be deemed to be zero.
(e) 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 their
purchase of Securities pursuant to a Net Proceeds Offer. To the extent the
provisions of any such rule conflict with the provisions of this Indenture
relating to a Net Proceeds Offer, the Company shall comply with the provisions
of such rule and be deemed not to have breached its obligations relating to such
Net Proceeds Offer by virtue thereof.
(f) In addition to the foregoing paragraphs (a) through (e), the
Company nor any of its Subsidiaries shall engage in any Asset Swaps, unless:
(i) at the time of entering into the agreement to swap assets and immediately
after giving effect to the proposed Asset Swap, no Default or Event of Default
shall have occurred and be continuing or would occur as a consequence thereof;
(ii) the Company would, after giving pro forma effect to the proposed Asset
Swap, have been permitted to incur at least $1.00 of additional Indebtedness
(other than Permitted Indebtedness) in compliance with Section 4.12; (iii) the
respective fair market values of the assets being acquired and disposed of by
the Company or any of its Subsidiaries (as determined in good faith by the
management of the Company or, if such Asset Swap includes consideration in
excess of $10,000,000 by the Board of Directors, as evidenced by a Board
Resolution delivered to the Trustee) are substantially the same as at the time
of entering into the agreement to swap assets; and (iv) at the time of the
consummation of the proposed Asset Swap the percentage of any decline in the
fair market value (determined as aforesaid) of the asset or assets being
acquired by the Company or any of its Subsidiaries shall not be significantly
greater than the percentage of any decline in the fair market value (determined
as aforesaid) of the assets being disposed of by the Company or any of its
Subsidiaries, calculated from the time the agreement to swap assets was entered
into.
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SECTION 4.17. LIMITATION ON PREFERRED STOCK OF SUBSIDIARIES.
The Company shall not permit any of its Subsidiaries to issue any
Preferred Stock (other than to the Company or to a Wholly-Owned Subsidiary of
the Company) or permit any Person (other than the Company or a Wholly-Owned
Subsidiary of the Company) to own any Preferred Stock of a Subsidiary (other
than Acquired Preferred Stock; provided that at the time the issuer of such
Acquired Preferred Stock becomes a Subsidiary of the Company or merges with the
Company or any of its Subsidiaries, and after giving effect to such transaction,
the Company shall be able to incur $1.00 of additional Indebtedness (other than
Permitted Indebtedness) in compliance with Section 4.12).
SECTION 4.18. LIMITATION ON LIENS.
Neither the Company nor any of its Subsidiaries shall create, incur,
assume, or suffer to exist any Liens upon any of their respective assets, except
for (a) Permitted Liens, (b) Liens to secure Senior Debt or guarantees thereof
permitted under this Indenture, (c) any Liens in favor of the Trustee, (d) Liens
to secure Guarantor Senior Debt permitted under this Indenture and (e) any Lien
to secure the replacement, refunding, extension, or renewal, in whole or in
part, of any Indebtedness described in the foregoing clauses; provided that, to
the extent any such clause limits the amount secured or the asset subject to
such Liens, no extension or renewal will increase the assets subject to such
Liens or the amount secured thereby beyond the assets or amounts set forth in
such clauses.
SECTION 4.19. GUARANTEES OF CERTAIN INDEBTEDNESS.
The Company shall not permit any of its Subsidiaries, directly or
indirectly, to guarantee or otherwise become liable for, or incur any Lien
securing, the payment of any Indebtedness of the Company or any other Guarantor
(other than Indebtedness not to exceed $2,000,000 in aggregate at any one time
outstanding as to all of the Company's Subsidiaries, and other than Liens
securing Indebtedness under the Credit Agreement consisting of pledges of stock
of the Company's Subsidiaries) unless such Subsidiary, the Company and the
Trustee execute and deliver a supplemental indenture substantially in the form
of Exhibit E hereto pursuant to which such Subsidiary becomes a Guarantor of the
Securities and which evidences such Subsidiary's Guarantee of the Securities,
such Guarantee to be a senior subordinated unsecured obligation of such
Subsidiary. Neither the Company nor any such Guarantor shall be required to
make a notation on the Securities or its Guarantee to reflect any such
subsequent Guarantee. Nothing in this Section 4.19
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shall be construed to permit any Subsidiary of the Company to incur Indebtedness
otherwise prohibited by Section 4.12.
Notwithstanding any other provision of this Section 4.19, no
Subsidiary of the Company shall be required to execute and deliver a
supplemental indenture pursuant to the first paragraph of this Section 4.19, or
otherwise issue a Guarantee, for so long as any Subordinated Note Agreements
shall remain outstanding.
SECTION 4.20. LIMITATION ON SALE AND LEASEBACK TRANSACTION.
Neither the Company nor any of its Subsidiaries shall enter into any
Sale and Leaseback Transaction, except that the Company or any Subsidiary may
enter into a Sale and Leaseback Transaction if, immediately prior thereto, and
after giving effect to such Sale and Leaseback Transaction (the Indebtedness
thereunder being equivalent to the Attributable Value thereof) the Company could
incur at least $1.00 of additional Indebtedness (other than Permitted
Indebtedness) in compliance with Section 4.12.
SECTION 4.21. LIMITATION ON LINE OF BUSINESS.
For so long as any Securities are outstanding, the Company and its
Subsidiaries shall engage solely in the ownership and operation of Permitted
Businesses.
ARTICLE 5.
SUCCESSOR CORPORATION
SECTION 5.01. WHEN COMPANY MAY MERGE, ETC.
(a) The Company shall not and will not permit its Subsidiaries to, in
a single transaction or through a series of related transactions, consolidate
with or merge with or into, or sell, assign, transfer, lease, convey, or
otherwise dispose of all or substantially all of the assets of the Company
(determined on a consolidated basis) to, another Person or adopt a plan of
liquidation, unless:
(1) either (A) the Company shall be the survivor of such merger or
consolidation or (B) the surviving or transferee Person is a corporation,
partnership, or trust organized and existing under the laws of the United
States, any State thereof or the District of Columbia and such surviving or
transferee Person shall expressly assume by supplemental indenture all the
obligations of the Com-
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pany under the Securities and this Indenture and assumes by amendment all
of the obligations of the Company under the Registration Rights Agreement;
(2) immediately after giving effect to such transaction and the use of
the proceeds therefrom (on a pro forma basis, including any Indebtedness
incurred or anticipated to be incurred in connection with such
transaction), the Company or the surviving or transferee Person is able to
incur $1.00 of additional Indebtedness (other than Permitted Indebtedness)
in compliance with Section 4.12;
(3) immediately after giving effect to such transaction (including any
Indebtedness incurred or anticipated to be incurred in connection with the
transaction) no Default or Event of Default shall have occurred and be
continuing; and
(4) the Company has delivered to the Trustee an Officers' Certificate
and Opinion of Counsel, each stating that such consolidation, merger, or
transfer complies with this Indenture, that the surviving or transferee
Person agrees by supplemental indenture to be bound hereby, and that all
conditions precedent in this Indenture relating to such transaction have
been satisfied.
(b) For purposes of the foregoing, the transfer (by lease, assignment,
sale, or otherwise, in a single transaction or series of related transactions)
of all or substantially all of the properties and assets of one or more
Subsidiaries, the Capital Stock of which constitutes all or substantially all of
the properties and assets of the Company, shall be deemed to be the transfer of
any or substantially all of the properties and assets of the Company.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any transfer of assets in
accordance with Section 5.01, the successor Person formed by such consolidation
or into which the Company is merged or to which such transfer is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein. When a successor corporation
assumes all of the obligations of the Company hereunder and under the Securities
and agrees to be bound hereby and thereby, the predecessor shall be released
from such obligations.
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ARTICLE 6.
DEFAULT AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
An "EVENT OF DEFAULT" occurs if:
(1) the Company defaults in the payment of interest on the Securities
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 10); or
(2) the Company defaults in the payment of the principal of any
Securities when the same becomes due and payable, at maturity, upon
redemption, or otherwise (whether or not such payment shall be prohibited
by Article 10); or
(3) the Company fails to observe or perform any other covenant or
agreement contained in the Securities or this Indenture and the Default
continues for a period of 30 days after written notice thereof specifying
such Default has been given to the Company by the Trustee or the Holders of
at least 25% in aggregate principal amount of the outstanding Securities;
or
(4) there shall be a failure to pay at the final stated maturity
(giving effect to any extensions thereof) the principal amount of any
Indebtedness of the Company or any Subsidiary of the Company, or the
acceleration of the final stated maturity (giving effect to any extensions
thereof) of any such Indebtedness, if the aggregate principal amount of
such Indebtedness, together with the aggregate principal amount of any
other such Indebtedness in default for failure to pay principal at the
final stated maturity (giving effect to any extensions thereof) or which
has been accelerated, aggregates $5,000,000 or more at any time; or
(5) one or more judgments in an aggregate amount in excess of
$5,000,000 (which are not covered by insurance as to which the insurer has
not disclaimed coverage) shall have been rendered against the Company or
any of its Subsidiaries and such judgments remain undischarged or unstayed
for a period of 60 days after such judgment or judgments become final and
non-appealable; or
(6) any Guarantee ceases to be in full force and effect (other than as
provided in Article 12) or is declared null and void, or any Guarantor
denies that it has any
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further liability under any Guarantee, or gives notice to such effect
(other than by reason of the termination of this Indenture or the release
of any such Guarantee in accordance with this Indenture) and such condition
shall have continued for a period of 30 days after the Company receives
written notice thereof from the Trustee or Holders of at least 25% in
aggregate principal amount of outstanding Securities; or
(7) The Company or any Significant Subsidiary (A) commences a
voluntary case or proceeding under any Bankruptcy Law with respect to
itself, (B) consents to the entry of a judgment, decree or order for relief
against it in an involuntary case or proceeding under any Bankruptcy Law,
(C) consents to the appointment of a Custodian of it or for substantially
all of its property, (D) consents to or acquiesces in the institution of a
bankruptcy or an insolvency proceeding against it or (E) makes a general
assignment for the benefit of its creditors; or
(8) a court of competent jurisdiction enters a Judgment, decree or
order for relief in respect of the Company or any Significant Subsidiary in
an involuntary case or proceeding under any Bankruptcy Law, which shall (A)
approve as properly filed a petition seeking reorganization, arrangement,
adjustment or composition in respect of the Company or any Significant
Subsidiary, (B) appoint a Custodian of the Company or any Significant
Subsidiary or for substantially all of its property or (C) order the
winding-up or liquidation of its affairs; and such judgment, decree or
order shall remain unstayed and in effect for a period of 60 consecutive
days.
SECTION 6.02. ACCELERATION.
If an Event of Default (other than an Event of Default specified in
Section 6.01(7) or (8) with respect to the Company or any Significant
Subsidiary) occurs and is continuing and has not been waived pursuant to Section
6.04, the Trustee may, by notice to the Company, or the Holders of at least 25%
in aggregate principal amount of the Securities then outstanding may, by written
notice to the Company and the Trustee, and the Trustee shall, upon the request
of such Holders, declare the aggregate principal amount of the Securities
outstanding, together with accrued but unpaid interest, if any, on all
Securities to be due and payable by notice in writing to the Company and the
Trustee specifying the respective Event of Default and that it is a "notice of
acceleration" (the "ACCELERATION NOTICE"), and the same (i) shall become
immediately due and payable or (ii) if there are any amounts outstanding under
the
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Credit Agreement, shall become due and payable upon the first to occur of an
acceleration under the Credit Agreement or five Business Days after receipt by
the Company and the Representative under the Credit Agreement of such
Acceleration Notice (unless all Events of Default specified in such Acceleration
Notice have been cured or waived). If an Event of Default specified in Section
6.01(7) or (8) occurs and is continuing with respect to the Company or any
Significant Subsidiary, all unpaid principal and accrued interest on the
Securities then outstanding shall ipso facto become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Securityholder. The Holders of a majority in principal amount of the Securities
then outstanding (by notice to the Trustee) may rescind and cancel a declaration
of acceleration and its consequences if (i) the rescission would not conflict
with any judgment or decree of a court of competent jurisdiction, (ii) all
existing Events of Default have been cured or waived, except non-payment of the
principal or interest on the Securities which have become due solely by such
declaration of acceleration, (iii) to the extent the payment of such interest is
lawful, interest (at the same rate as specified in the Securities) on overdue
installments of interest and overdue payments of principal, which has become due
otherwise than by such declaration of acceleration, has been paid, (iv) the
Company has paid the Trustee its reasonable compensation and reimbursed the
Trustee for its expenses, disbursements, and advances and (v) in the event of
the cure or waiver of a Default or Event of Default of the type described in
Sections 6.01(7) and (8), the Trustee shall have received an Officers'
Certificate and an Opinion of Counsel that such Default or Event of Default has
been cured or waived and the Trustee shall be entitled to conclusively rely upon
such Officers, Certificate and Opinion of Counsel. No such rescission shall
affect any subsequent Default or impair any right consequent thereto.
SECTION 6.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder 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 De-
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fault. 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.
Subject to Sections 6.07 and 9.02, the Holders of a majority in
principal amount of the outstanding Securities by notice to the Trustee may
waive an existing Default or Event of Default and its consequences, except a
Default in the payment of principal of or interest on any Security as specified
in clauses (1) and (2) of Section 6.01 or a Default or Event of Default arising
under any provision of this Indenture which cannot be modified without the
consent of each Holder of Securities affected thereby.
SECTION 6.05. CONTROL BY MAJORITY.
The Holders of a majority in principal amount of the outstanding
Securities may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on it, including, without limitation, any remedies provided for in
Section 6.03. Subject to Section 7.01, however, the Trustee may, in its
discretion, refuse to follow any direction that conflicts with any law or this
Indenture, that the Trustee determines may be unduly prejudicial to the rights
of another Securityholder, or that may involve the Trustee in personal
liability; provided that the Trustee may take any other action deemed proper by
the Trustee, in its discretion, which is not inconsistent with such direction.
SECTION 6.06. LIMITATION ON SUITS.
A Securityholder may not pursue any remedy with respect to this
Indenture or the Securities unless:
(1) the Holder gives to the Trustee notice of a continuing Event of
Default;
(2) Holders of at least 25% in principal amount of the outstanding
Securities make a written request to the Trustee to pursue the remedy;
(3) such Holders offer to the Trustee reasonably satisfactory to the
Trustee indemnity or security against any loss, liability or expense to be
incurred in compliance with such request;
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(4) the Trustee does not comply with the request within 45 days after
receipt of the request and the offer of satisfactory indemnity or security;
and
(5) during such 45-day period the Holders of a majority in principal
amount of the outstanding Securities do not give the Trustee a direction
which, in the opinion of the Trustee, is inconsistent with the request.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over such other
Securityholder.
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of
any Holder to receive payment of principal of and interest on a Security, on or
after the respective due dates expressed in such Security, or to bring suit for
the enforcement of any such payment on or after such respective dates, shall not
be impaired or affected without the consent of such Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default in payment of principal or interest specified
in clause (1) or (2) 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 Securities for the whole amount of principal
and accrued interest remaining unpaid, together with interest on overdue
principal and, to the extent that payment of such interest is lawful, interest
on overdue installments of interest at the rate set forth in the Securities and
such further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee 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, taxes,
disbursements and advances of the Trustee, its agents and counsel) and the
Securityholders allowed in any judicial proceedings relating to the Company or
any other obligor upon the Securities, any of their respective creditors or any
of their respective property, and shall be entitled and empowered to collect and
receive any Com-
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panies or other property payable or deliverable on an such claims and to
distribute the same, and any Custodian in any such judicial proceedings is
hereby authorized by each Securityholder to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments
directly to the Securityholders, to pay to the Trustee any amount due to it for
the reasonable compensation, expenses, taxes, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07. The Company's payment obligations under this Section 6.09 shall be
secured in accordance with the provisions of 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 Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or the rights of
any Holder thereof, or to authorize the Trustee to vote in respect of the claim
of any Securityholder in any such proceeding.
SECTION 6.10. PRIORITIES.
If the Trustee collects any money pursuant to this Article 6, it shall
pay out the money in the following order:
First: to the Trustee for amounts due under Sections 6.09 and 7.07;
Second: if the Holders are forced to proceed against the Company any
directly without the Trustee, to Holders for their collection costs;
Third: to Holders for amounts due and unpaid on the Securities for
principal and interest, ratably, with out preference or priority of any
kind, according to the amounts due and payable on the Securities for
principal and interest, respectively; and
Fourth: to the Company or any other obligor on the Securities, as
their interests may appear, or as a court of competent jurisdiction may
direct.
The Trustee, upon prior notice to the Company, may fix a record date
and payment date for any payment to Securityholders pursuant to this Section
6.10.
SECTION 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its
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discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorney's fees and expenses,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.11
does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section
6.07, or a suit by a Holder or Holders of more than 10% in principal amount of
the outstanding Securities.
ARTICLE 7.
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If a Default or 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 its own affairs.
(b) Except during the continuance of a Default or an Event of Default:
(1) The Trustee need perform only those duties as are specifically set
forth in this Indenture or the TIA and no duties, covenants,
responsibilities or obligations shall be implied in this Indenture that are
adverse to the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates (including Officers'
Certificates' or opinions (including Opinions of Counsel) furnished to the
Trustee and conforming to the requirements of this Indenture. However, as
to an certificates or opinions which are required by any provision of this
Indenture to be delivered or provided 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 confirm or
investigate the accuracy of mathematical calculations or other facts stated
therein).
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(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 or 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 indemnity against such risk or of such funds or adequate ability is
not reasonably assured to it.
(e) Every provision of this Indenture that in an way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section 7.01.
(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 segregate from other
assets except to the extent required by law.
(g) In the absence of bad faith, negligence or willful misconduct on
the part of the Trustee, the Trustee shall not be responsible for the
application of any money by any Paying Agent other than the Trustee.
SECTION 7.02. RIGHTS OF TRUSTEES.
Subject to Section 7.01:
(a) The Trustee may conclusively rely and shall be full 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.
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(b) Before the Trustee acts or refrains from acting, it may consult
with counsel and may require an Officers' Certificate or an Opinion of Counsel,
which shall conform to Sections 11.04 and 11.05. The Trustee shall not be liable
for and shall be fully protected in respect of any action it takes or omits to
take in good faith in reliance on such Officers' Certificate or Opinion of
Counsel.
(c) The Trustee may act through its attorneys and agents and shall not
be responsible for the misconduct or negligence of any agent or attorney
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 conferred upon it by this Indenture.
(e) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate (including any Officers'
Certificate), statement, instrument, opinion (including any Opinion of Counsel),
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 at the sole cost
of the Company and shall incur no liability or additional liability of any kind
by reason of such inquiry or investigation.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders of the Securities pursuant to the provisions of
this Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which may be
incurred by it in compliance with such request, order or direction.
(g) The Trustee may consult with counsel of its selection and the
advice or opinion of counsel with respect to legal matters relating to this
Indenture and the Securities shall be full and complete authorization and
protection from liability with respect to any action taken, omitted or suffered
by it hereunder in good faith and in accordance with the advice or opinion of
such counsel.
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(h) the Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Trust Officer has knowledge thereof or unless written
notice of any event which is in fact such a default is received by the Trustee
at the Corporate Trust Office of the Trustee, and such notice references the
Securities and this Indenture; and
(i) the rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and to each agent, custodian and other Person employed to act
hereunder.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company, any
Subsidiary or Unrestricted Subsidiary, or their 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 Securities, and it shall not be accountable for the
Company's use of the proceeds from the Securities, and the recitals contained
herein and in the Securities shall be taken as the statements of the Company and
the Trustee shall not be responsible for any statement of the Company in this
Indenture or the Securities 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 the Trustee, the Trustee shall mail to each Securityholder, as their
name and address appears in the security register, notice of the uncured Default
or Event of Default within 60 days after such Default or Event of Default
occurs. Except in the case of a Default or an Event of Default in payment of
principal of, or interest on, any Security, including an accelerated payment and
the failure to make payment on the Change of Control Payment Date pursuant to a
Change of Control Offer or on the Proceeds Purchase Date pursuant to a Net
Proceeds Offer and, except in the case of a failure to comply with Article 5,
the Trustee may withhold the notice if and so long as its Board of Directors,
the executive
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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 Securityholders. The Trustee shall not be deemed to have knowledge of a
Default or Event of Default other than (i) any Event of Default occurring
pursuant to Section 6.01(l) or 6.01(2) or (ii) any Default or Event of Default
of which a Trust Officer shall have received written notification and such
notice references the Securities and this Indenture or obtained actual
knowledge.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each May 15 of each year beginning with May 15,
1999, 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 Securityholder a brief report dated as of such date that complies
with TIA Section 313(a). The Trustee also shall comply with TIA Section 313 (b)
and 313(c)
A copy of each report at the time of its mailing to Securityholders
shall be mailed to the Company and filed with the SEC and each stock exchange,
if any, on which the Securities are listed.
The Company shall promptly notify the Trustee if the Securities become
listed on any stock exchange or any delisting thereof and the Trustee shall
comply with TIA Section 313(d).
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time such
compensation as may be agreed upon in writing 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, disbursements and advances
incurred or made by it in connection with the performance of its duties and the
discharge of its obligations under this Indenture. Such expenses shall include
the reasonable fees and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee and its agents, employees,
officers, stockholders and directors for, and hold them harmless against, any
and all loss, liability, damage, claim or expense including taxes (other than
taxes based upon, measured by or determined by the income of the Trustee),
incurred by them except for such actions to the extent caused by any negligence,
bad faith or willful misconduct on their part, arising out of or in connection
with the accep-
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tance or administration of this trust including the reasonable costs and
expenses of defending themselves against any claim (whether asserted by the
Company, a Holder or any other persons), 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. The Company shall defend the claim and
the Trustee shall cooperate in the defense. The Trustee may have separate
counsel and the Company shall pay the reasonable fees and expenses of such
counsel; provided that the Company will not be required to pay such fees and
expenses if it assumes the Trustee's defense and there is no conflict of
interest between the Company and the Trustee in connection with such defense as
reasonably determined by the Trustee. The Company need not pay for any
settlement made without its written consent. The Company need not reimburse an
expense or indemnify against any loss or liability to the extent incurred by the
Trustee through its negligence, bad faith or willful misconduct.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a lien prior to the Securities on all assets or money held or
collected by the Trustee, in its capacity as Trustee, except assets or money
held in trust to pay principal of or interest on particular Securities.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(7) or (8) occurs, such expenses and the
compensation for such services shall be paid to the extent allowed under any
Bankruptcy Law.
The provisions of this Section 7.07 shall survive termination of this
Indenture.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
The Trustee may resign by so notifying the Company. The Holders of a
majority in principal amount of the outstanding Securities may remove the
Trustee by so notifying the Company and the Trustee and may appoint a successor
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
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(4) the Trustee becomes incapable of acting.
If the trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall 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 principal amount of
the Securities may appoint a successor Trustee to replace the successor Trustee
appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Promptly 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. A successor Trustee shall mail notice of its succession to each
Securityholder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee (at the expense of
the Company), the Company or the Holders of at least 10% in principal amount of
the outstanding Securities may petition any court of competent jurisdiction for
the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
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 that such
corporation shall be otherwise qualified and eligible under this Article 7.
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SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
This Indenture shall always have a Trustee who satisfies the
requirement of TIA Sections 310(a)(1) and 310(a)(2). The Trustee (or in the
case of a corporation included in a bank holding company system, the related
bank holding company) shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of
condition. In addition, if the Trustee a corporation included in a bank holding
company system, the Trustee, independently of such bank holding company shall
meet the capital requirements of TIA Sections 310(a)(2). The Trustee shall
comply with TIA Section 310(b); provided that there shall be excluded from the
operation of TIA Section 310(b)(1) any indenture or indentures under which other
securities, or certificates of interest or participation in other securities, of
the Company are outstanding if the requirements for such exclusion set forth in
TIA Section 310(b)(1) are met. The provisions of TIA Section 310 shall apply to
the Company and any other obligor of the Securities.
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE 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. The provisions of TIA Section 311 shall apply to the Company and any
other obligor of the Securities.
ARTICLE 8.
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. TERMINATION OF THE COMPANY'S OBLIGATIONS.
This Indenture shall cease to be of further effect and the obligations
of the Company under the Securities and this Indenture shall terminate and the
obligations of the Guarantors, if any, with respect thereto shall terminate
(except that the obligations under Sections 7.07, 8.04 and 8.05 shall survive
the effect of this Article 8) when all outstanding Securities theretofore
authenticated and issued have been delivered to the Trustee for cancellation and
the Company has paid all sums payable by it hereunder.
In addition, at the Company's option, either (a) the Company shall be
deemed to have been Discharged from any and
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all obligations with respect to the Securities and each Guarantor, if any, will
be discharged from any and all obligations with respect to its Guarantee (except
for certain obligations of the Company to register the transfer or exchange of
such Securities, replace stolen, lost or mutilated Securities, maintain paying
agencies and hold moneys for payment in trust) after the applicable conditions
set forth below have been satisfied or (b) the Company shall cease to be under
any obligation to comply with any term, provision or condition set forth in
Article 4 (except that the Company's obligations under Sections 4.01 and 4.02
shall survive) and Section 5.01, and will not by such noncompliance cause a
Default or Event of Default under Section 6.01(3), after the applicable
conditions set forth below have been satisfied:
(1) The Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust, specifically pledged
as security for, and dedicated solely to, the benefit of the Holders of the
Securities U.S. Legal Tender or U.S. Government Obligations or a
combination thereof which, through the payment of interest thereon and
principal in respect thereof in accordance with their terms, will be
sufficient, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered
to the Trustee, to pay all the principal of and interest on the Securities
on the dates such installments of interest or principal are due in
accordance with the terms of such Securities, as well as the Trustee's fees
and expenses; provided that no deposits made pursuant to this Section
8.01(l) shall cause the Trustee to have a conflicting interest as defined
in and for purposes of the TIA; provided, further, that from and after the
time of deposit, the Funds deposited shall not be subject to the rights of
holders of Senior Debt pursuant to the provisions of Article 10; and
provided, further, that, as confirmed by an Opinion of Counsel, no such
deposit shall result in the Company, the Trustee or the trust becoming or
being deemed to be an "investment company" under the Investment Company Act
of 1940;
(2) The Company shall have delivered to the Trustee an Opinion of
Counsel or a private letter ruling issued to the Company by the IRS to the
effect that the Holders of the Securities will not recognize income, gain
or loss for federal income tax purposes as a result of the deposit and
related defeasance and will be subject to federal income tax on the same
amounts and in the same manner and at the same times as would have been the
case if such option had
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not been exercised and, in the case of an Opinion of Counsel furnished in
connection with a Discharge pursuant to the foregoing, accompanied by a
private letter ruling issued to the Company by the IRS to such effect;
(3) No Event of Default or Default with respect to the Securities
shall have occurred and be continuing on the date of such deposit after
giving effect to such deposit;
(4) The Company shall have delivered to the Trustee an Opinion of
Counsel, subject to certain qualifications, to the effect that (i) the
Funds will not be subject to any rights of any other holders of
Indebtedness of the Company, and (ii) the Funds so deposited will not be
subject to avoidance under applicable Bankruptcy Law;
(5) The Company shall have paid or duly provided for payment of all
amounts then due to the Trustee pursuant to Section 7.07;
(6) No such deposit will result in a Default under this Indenture or a
breach or violation of, or constitute a default under, any other instrument
or agreement (including, without limitation, the Credit Agreement) to which
the Company or any of its Subsidiaries is a party or by which it or its
property is bound; and
(7) An Officers, Certificate and an Opinion of Counsel to the effect
that all conditions precedent to the defeasance have been complied with.
Notwithstanding the foregoing, the Opinion of Counsel required by
subparagraph 2 above need not be delivered if all Securities not theretofore
delivered to the Trustee for cancellation (i) have become due and payable, (ii)
will become due and payable on the Maturity Date within one year, or (iii) are
to be called for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption by the Trustee in the name,
and at the expense, of the Company.
"DISCHARGED" means that the Company shall be deemed to have paid and
discharged the entire indebtedness re resented by, and obligations under, the
Securities and to have satisfied all the obligations under this Indenture
relating to the Securities (and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same upon compliance by the
Company with the provisions of this Section), except (i) the rights of the
Holders of Securities to receive,
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from the trust fund described in clause (1) above, payment of the principal of
and the interest on such Securities when principal of such payments are due, (i)
the Company's obligations with respect to the Securities under Sections 2.03
through 2.07, 7.07 and 7.08 and (iii) the rights, powers, trusts, duties and
immunities of the Trustee hereunder.
"FUNDS" means the aggregate amount of U.S. Legal Tender and/or U.S.
Government obligations deposited with the Trustee pursuant to this Article 8.
SECTION 8.02. ACKNOWLEDGMENT OF DISCHARGE BY TRUSTEE.
Subject to Section 8.05, after (i) the conditions of Section 8.01,
have been satisfied and (ii) the Company has delivered to the Trustee an Opinion
of Counsel, stating that all conditions precedent referred to in clause (1)
above relating to the satisfaction and discharge of this Indenture have been
complied with, the Trustee upon written request of the Company shall acknowledge
in writing the discharge of the Company's obligations under this Indenture
except for those surviving obligations specified in this Article 8.
SECTION 8.03. APPLICATION OF TRUST MONEY.
The Trustee shall hold in trust Funds deposited with it pursuant to
Section 8.01. It shall apply the Funds through the Paying Agent and in
accordance with this Indenture to the payment of principal and accrued and
unpaid interest on the Securities. The Company shall pay and indemnify the
Trustee against any tax, fee or other charge imposed on or assessed against the
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 Securities.
SECTION 8.04. REPAYMENT TO THE COMPANY.
The Trustee and the Paying Agent shall promptly pay to the Company,
upon the Company's written request, any Funds held by them for the payment of
principal or interest that remains unclaimed for one year; provided that the
Trustee or such Paying Agent 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
mailed to each Holder, notice that such Funds remain unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such publication or mailing, any unclaimed balance of such
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Funds then remaining will be repaid to the Company. After payment to the
Company, Holders entitled to the Funds must look to the Company for payment as
general creditors unless an applicable abandoned property law designates another
Person and all liability of the Trustee and Paying Agent with respect to such
Funds shall cease.
SECTION 8.05. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any Funds by reason
of any legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Securities
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.01 until such time as the Trustee or Paying Agent is permitted to
apply all such Funds in accordance with Section 8.01; provided that if the
Company has made any payment of interest on or principal of any Securities
because of the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Securities to receive such payment from
Funds held by the Trustee or Paying Agent.
ARTICLE 9.
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. WITHOUT CONSENT OF HOLDER.
The Company, when authorized by a Board Resolution, and the Trustee,
together, may amend or supplement this Indenture or the Securities without
notice to or consent of any Securityholder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article 5;
(3) to provide for uncertificated Securities in addition to or in
place of certificated Securities; or
(4) to make any other change that does not adversely affect in any
material respect the rights of any Securityholders hereunder;
provided that the Company has delivered to the Trustee an Opinion of Counsel and
an Officers' Certificate, each stating that
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such amendment or supplement complies with the provisions of this Section 9.01.
SECTION 9.02. WITH CONSENT OF HOLDERS.
Subject to Section 6.07, the Company, when authorized by a Board
Resolution, and the Trustee, together, with the written consent of the Holder or
Holders of at least a majority in principal amount of the outstanding Securities
may amend or supplement this Indenture or the Securities, without notice to any
other Securityholders. Subject to Sections 6.04 and 6.07, the Holder or Holders
of a majority in aggregate principal amount of the outstanding Securities may
waive compliance by the Company with any provision of this Indenture or the
Securities without notice to any other Securityholder. No amendment, supplement
or waiver, including a waiver pursuant to Section 6.04, shall, directly or
indirectly, without the consent of each Holder of each Security affected
thereby:
(1) reduce the amount of Securities whose Holders must consent to an
amendment;
(2) reduce the rate of or change the time for payment of interest,
including defaulted interest, on any Securities;
(3) reduce the principal of or change the fixed maturity of any
Securities, or change the date on which any Securities may be subject to
redemption or repurchase, or reduce the redemption or repurchase price
therefor;
(4) make any Securities payable in money other than that stated in
the Securities ;
(5) make any change in provisions of this Indenture protecting the
right of each Holder of a Security to receive payment of principal of and
interest on such Security 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 Securities to waive Defaults or Events of Default;
(6) after the Company's obligation to purchase the Securities arises
under Section 4.15 or 4.16, amend, modify or change the obligation of the
Company to consummate a Change of Control Offer or a Net Proceeds Offer or
waive any default in the performance thereof or modify any of the
provisions or definitions with respect to any such offers;
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(7) modify or change any provision of this Indenture affecting the
subordination of the Securities or any Guarantee in a manner adverse to the
Holders of the Securities; or
(8) release any Guarantor from any of its obligations under its
Guarantee or this Indenture other than in compliance with other provisions
of Article 12.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective (as provided in Section 9.04), the Company shall mail to the
Holders affected thereby a notice briefly describing the amendment, supplement
or waiver. Any failure of the Company to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
such supplemental indenture.
SECTION 9.03. COMPLIANCE WITH TIA.
Every amendment, waiver or supplement of this Indenture or the
Securities shall comply with the TIA as then in effect.
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 Security or portion of a Security that evidences the same debt as
the consenting Holder's Security, even if notation of the consent is not made on
any Security. Subject to the following paragraph, any such Holder or subsequent
Holder may revoke the consent as to his Security or portion of his Security 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 Securities have consented (and not theretofore
revoked such consent) to the amendment, supplement or waiver (at which time such
amendment, supplement or waiver shall become effective).
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 last
sentence of the immediately preceding paragraph, those Persons who were Holders
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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 120 days after such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Securityholder, unless it makes a change described in any of clauses
(1) through (6) of Section 9.02, in which case, the amendment, supplement or
waiver shall bind only each Holder of a Security who has consented to it and
every subsequent Holder of a Security or portion of a Security that evidences
the same debt as the consenting Holder's Security; provided that any such waiver
shall not impair or affect the right of any Holder to receive payment of
principal of and interest on a Security, on or after the respective due dates
expressed in such Security, or to bring suit for the enforcement of any such
payment on or after such respective dates without the consent of such Holder.
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES.
If an amendment, supplement or waiver changes the terms of a Security,
the Trustee may require the Holder of the Security to deliver it to the Trustee.
The Trustee may place an appropriate notation on the Security about the changed
terms and return it to the Holder. Alternatively, if the Company or the Trustee
so determines, the Company in exchange for the Security shall issue and the
Trustee shall authenticate a new Security that reflects the changed terms.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to and adopted in accordance with this Article 9; provided
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. The Trustee shall be entitled to receive, and
shall be fully protected in relying upon, an Opinion of Counsel and an Officers'
Certificate each stating that the execution of any amendment, supplement or
waiver authorized pursuant to this Article 9 is authorized or permitted by this
Indenture. Such Opinion of Counsel shall not be an expense of the Trustee.
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ARTICLE 10.
SUBORDINATION OF SECURITIES
SECTION 10.01. SECURITIES SUBORDINATED TO SENIOR DEBT.
The Company covenants and agrees and the Trustee and each Holder of
the Securities, by its acceptance thereof, likewise covenants and agrees, that
all Securities shall be issued subject to the provisions of this Article 10; and
the Trustee and each Person holding any Security, whether upon original issue or
upon transfer, assignment or exchange thereof, accepts and agrees that the
payment of all Obligations on the Securities (except for the payment of fees and
expenses of the Trustee and any indemnity under Section 7.07) by the Company
shall, to the extent and in the manner herein set forth, be subordinated and
junior in right of payment to the prior payment in full in cash or Cash
Equivalents (or such payment shall be duly provided for to the satisfaction of
the holders of the Senior Debt) of all Obligations on the Senior Debt; that the
subordination is for the benefit of, and shall be enforceable directly by, the
holders of Senior Debt, and that each holder of Senior Debt whether now
outstanding or hereafter created, incurred, assumed or guaranteed shall be
deemed to have acquired Senior Debt in reliance upon the covenants and
provisions contained in this Indenture and the Securities.
SECTION 10.02. NO PAYMENT ON SECURITIES IN CERTAIN CIRCUMSTANCES.
(a) 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 or any other amounts owing with respect to any Senior
Debt, no payment of any kind or character (except payment in Permitted
Securities) shall be made by the Company or any other Person on behalf of the
Company with respect to any Obligations on the Securities or to acquire any of
the Securities for cash or property or otherwise. In addition, if any other
event of default occurs and is continuing (or if such an event of default would
occur upon any payment with respect to the Securities or would arise upon the
passage of time as a result of such parent) with respect to any Designated
Senior Debt (as such event of default is defined in the instrument creating or
evidencing such Designated Senior Debt) and such event of default permits the
holders of such Designated Senior Debt then outstanding to accelerate the
maturity thereof and if the Representative for the respective issue of
Designated Senior Debt gives written notice of the event of default to the
Company and the Trustee (a "DEFAULT NOTICE"), then, unless and until all events
of de-
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fault have been cured or waived or have ceased to exist or the Company and
the Trustee receive notice from the Representative for the respective issue of
Designated Senior Debt terminating the Blockage Period (as defined below),
during the 180 days after the delivery of such Default Notice (the "BLOCKAGE
PERIOD"), neither the Company nor any other Person on behalf of the Company
shall make any payment of any kind or character (except in Permitted Securities)
with respect to any Obligations on the Securities or to acquire any of the
Securities for cash or property or otherwise. Notwithstanding anything herein
to the contrary, in no event will a Blockage Period extend beyond 180 days from
the date the payment on the Securities was due and only one such Blockage Period
may be commenced within any 360 consecutive days. For all purposes of this
Section 10.02(a), no event of default which existed or was continuing on the
date of the commencement of any Blockage Period with respect to the Designated
Senior Debt initiating such Blockage Period shall be, or be made, the basis for
the commencement of a second Blockage Period by the Representative of such
Designated Senior Debt, 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 Blockage Period that, in either case, would give rise to
an event of default pursuant to any provision under which an event of default
previously existed or was continuing shall constitute a new event of default for
this purpose).
(b) In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee or any Holder when such payment is prohibited
by Section 10.02(a), such payment shall be held in trust for the benefit of, and
shall be paid over or delivered to, the holders of Senior Debt (pro rata to such
holders on the basis of the respective amount of Senior Debt held by such
holders) or their respective Representatives, as their respective interests may
appear. The Trustee shall be entitled to rely on information regarding amounts
then due and owing on the Senior Debt, if any received from the holders of
Senior Debt (or their Representatives) or, if such information is not received
from such holders or their Representatives, from the Company and only amounts
included in the information provided to the Trustee shall be paid to the holders
of Senior Debt.
Nothing contained in this Article 10 shall limit the right of the
Trustee or the Holders of Securities to take any action to accelerate the
maturity of the Securities pursuant to Section 6.02 or to pursue any rights or
remedies hereunder;
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provided, that all Senior Debt thereafter due or declared to be due shall first
be paid in full in cash or Cash Equivalents before the Holders are entitled to
receive any payment with respect to Obligations on the Securities.
SECTION 10.03. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
(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 marshalling 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, all Obligations
due or to become due upon all Senior Debt shall first be paid in full in cash or
Cash Equivalents, or such payments duly provided for to the satisfaction of the
holders of the Senior Debt before any payment or distribution of any kind or
character is made on account of any Obligations on the Securities, or for the
acquisition of any of the Securities 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 Securities or the Trustee under this Indenture would be entitled (other
than any payments of fees and expenses of the Trustee and any indemnity made
under Section 7.07), 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 of the
Securities or by the Trustee under this Indenture if received by them, directly
to the holders of Senior Debt (pro rata to such holders on the basis of the
respective amounts of Senior Debt held by such holders) or their respective
Representatives, or to the trustee or trustees under any indenture pursuant to
which any of such Senior Debt may have been issued, as their respective
interests may appear, for application to the payment of Senior Debt remaining
unpaid until all such Senior Debt 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 holders of Senior Debt.
(b) To the extent any payment of Senior Debt (whether by or on behalf
of the Company, as proceeds of security or enforcement of any right of setoff or
otherwise) is declared to be fraudulent or preferential, set aside or required
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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 Senior Debt 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 Section 10.03(a), such payment or distribution
shall be held in trust for the benefit of, and shall be paid over or delivered
to, the holders of Senior Debt (pro rata to such holders on the basis of the
respective amount of Senior Debt by such holders) or their respective
Representatives, or to the trustee or trustees under any indenture pursuant to
which any of such Senior Debt may have been issued, as their respective
interests may appear, for application to the payment of Senior Debt remaining
unpaid until all such Senior Debt 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 holders of such Senior Debt.
(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 5 and as long as permitted under the terms of the Senior Debt 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 5.
SECTION 10.04. PAYMENTS MAY BE PAID PRIOR TO DISSOLUTION.
Nothing contained in this Article 10 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 Securities, 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
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Securities to the Holders entitled thereto unless at least one Business Day
prior to the date upon which such payment would otherwise become due and
payable, the Trustee shall have received the written notice provided for in
Section 10.02(a) or in Section 10.07. The Company shall give prompt written
notice to the Trustee of any dissolution, winding-up, liquidation or
reorganization of the Company.
SECTION 10.05. SUBROGATION.
Subject to the payment in full in cash or Cash Equivalents of all
Senior Debt, the Holders of the Securities shall be subrogated to the rights of
the holders of Senior Debt to receive payments or distributions of cash,
property or securities of the Company applicable to the Senior Debt until the
Securities shall be paid in full; and, for the purposes of such subrogation, no
such payments or distributions to the holders of the Senior Debt by or on behalf
of the Company or by or on behalf of the Holders by virtue of this Article 10
which otherwise would have been made to the Holders shall, as between the
Company and the Holders of the Securities, be deemed to be a payment by the
Company to or on account of the Senior Debt, it being understood that the
provisions of this Article 10 are and are intended solely for the purpose of
defining the relative rights of the Holders of the Securities, on the one hand,
and the holders of the Senior Debt, on the other hand.
SECTION 10.06. OBLIGATIONS OF THE COMPANY UNCONDITIONAL.
Nothing contained in this Article 10 or elsewhere in this Indenture or
in the Securities is intended to or shall impair, as among the Company, its
creditors other than the holders of Senior Debt, and the Holders of the
Securities, the obligation of the Company, which is absolute and unconditional,
to pay to the Holders of the Securities the principal of and any interest on the
Securities as and when the same shall become due and payable in accordance with
their terms, or is intended to or shall affect the relative rights of the
Holders of the Securities and creditors of the Company other than the holders of
the Senior Debt, nor shall anything herein or therein prevent the Holder of any
Security 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, in respect of cash, property or securities of the Company
received upon the exercise of any such remedy.
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
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the making of any payment to or by the Trustee in respect of the Securities
pursuant to the provisions of this Article 10. Regardless of anything to the
contrary contained in this Article 10 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 any Senior Debt or of any other facts which
would prohibit the making of any payment to or by the Trustee unless and until
the Trust Officer of the Trustee shall have received notice in writing from the
Company, or from a holder of Senior Debt 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; provided that if a Trust Officer of the Trustee shall not have
received, at least three Business Days prior to the date upon which, by the
terms hereof, any such money may become payable for any purpose (including,
without limitation, the payment of the Principal Amount, Issue Price, accrued
Original Issue Discount, Redemption Price, Purchase Price, Change in Control
Purchase Price or interest, if any, as the case may be, in respect of any
Security), the notice with respect to such money provided for in this Section
10.07, then, anything herein contained to the contrary notwithstanding, the
Trustee shall have full power and authority to receive such money and to apply
the same to the purpose for which such money was received and shall not be
affected by any notice to the contrary which may be received by it within three
Business Days prior to such date.
In the event that the Trustee determines in good faith that any
evidence is required with respect to the right of any Person as a holder of
Senior Debt to participate in any payment or distribution pursuant to this
Article 10, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amounts of Senior Debt held by
such Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article 10, and if such evidence is not furnished the Trustee
may defer any payment to such Person pending judicial determination as to the
right of such Person to receive such payment.
SECTION 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 10, the Trustee, subject to the provisions of Article 7 hereof,
and the Holders of the Securities shall be entitled to rely upon any order or
decree made by any court of competent jurisdiction in which bank-
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ruptcy, dissolution, winding-up, liquidation or reorganization proceedings are
pending, or upon a certificate of the receiver, trustee in bankruptcy,
liquidating trustee, agent or other person making such payment or distribution,
delivered to the Trustee or the Holders of the Securities, for the purpose of
ascertaining the Persons entitled to participate in such distribution, the
holders of the Senior Debt and other Indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other acts pertinent thereto or to this Article 10.
SECTION 10.09. TRUSTEE'S RELATION TO SENIOR DEBT.
The Trustee and any agent of the Company or the Trustee shall be
entitled to all the rights set forth in this Article 10 with respect to any
Senior Debt which may at any time be held by it in its individual or any other
capacity to the same extent as any other holder of Senior Debt 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 holders of Senior Debt, the Trustee undertakes to
perform or to observe only such of its duties, covenants, responsibilities and
Obligations as are specifically set forth in this Article 10, and no implied
duties, covenants, responsibilities or obligations with respect to the holders
of Senior Debt shall be read into this Indenture against the Trustee. The
Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior
Debt and shall not be liable to any such holders if the Trustee shall in good
faith mistakenly pay over or distribute to Holders of Securities or to the
Company or to any other person cash, property or securities to which any holders
of Senior Debt shall be entitled by virtue of this Article 10 or otherwise.
Whenever a distribution is to be made or a notice given to holders or
owners of Senior Debt, the distribution may be made and the notice may be given
to their Representative, if any.
SECTION 10.10. SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR OMISSIONS OF THE
COMPANY OR HOLDERS OF SENIOR DEBT.
No right of any present or future holders of any Senior Debt 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,
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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 holders of Senior Debt 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 Securities and without impairing or releasing the
subordination provided in this Article 10 or the obligations hereunder of the
Holders of the Securities to the holders of the Senior Debt, do any one or more
of the following: (i) change the manner, place or terms of payment or extend
the time of payment of, or renew or alter, Senior Debt, or otherwise amend or
supplement in any manner Senior Debt, or any instrument evidencing the same or
any agreement under which Senior Debt is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Debt; (iii) release any Person liable in any manner for the
payment or collection of Senior Debt; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
SECTION 10.11. SECURITYHOLDERS AUTHORIZE TRUSTEE TO
EFFECTUATE SUBORDINATION OF SECURITIES.
Each Holder of Securities by its acceptance of such Security
authorizes and expressly directs the Trustee on such Holder's behalf to take
such action as may be necessary or appropriate to effectuate, as between the
holders of Senior Debt and the Holders of Securities, the subordination provided
in this Article 10, and appoints the Trustee such Holder's attorney-in-fact to
act for and on behalf of each such Holder of Securities for such purposes,
including, 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 to-wards liquidation of the business and assets
of the Company, the filing of a claim for the unpaid balance of its Securities
and accrued interest in the form required in those proceedings.
SECTION 10.12. THIS ARTICLE 10 NOT TO PREVENT EVENTS OF
DEFAULT.
The failure to make a payment on account of principal of or interest
on the Securities by reason of any provision of this Article 10 will not be
construed as preventing the occurrence of an Event of Default.
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SECTION 10.13. TRUSTEE'S COMPENSATION NOT PREJUDICED.
Nothing in this Article 10 will apply to amounts due to the Trustee
pursuant to other sections in this Indenture.
ARTICLE 11.
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.
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 facsimile (with receipt confirmed by the addressee) or registered or
certified mail, postage prepaid, return receipt requested, addressed as follows:
if to the Company or any Guarantor:
0000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Chief Financial Officer
if to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Corporate Trust Trustee Administration
The Company, the Guarantors and the Trustee by written notice to each
other may designate additional or different addresses for notices. Any notice or
communication to the Company, any Guarantor or the Trustee shall be deemed to
have been given or made as of the date so delivered if personally delivered;
when receipt is acknowledged, if faxed; and five (5) calendar days after mailing
if sent by registered or certified mail, postage prepaid (except that a notice
of change of ad-
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dress shall not be deemed to have been given until actually received by the
addressee).
Any notice or communication mailed to a Securityholder 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 and shall be sufficiently
given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. 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.
Securityholders may communicate pursuant to TIA Section 312(b) with
other Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and any other Person shall
have the protection of TIA Section 312(c).
SECTION 11.04. CERTIFICATE AND OPINION AS TO CONDITIONS
PRECEDENT.
Except with respect to the issuance of the series of Securities on the
date of this Indenture, 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:
(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, of
any, provided for in this Indenture relating to the proposed action have
been complied with.
SECTION 11.05. STATEMENTS REQUIRED IN CERTIFICATE.
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 4.07, shall include:
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(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;
(3) 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
(4) 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 Securityholders. 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.
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, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICT OF LAWS.
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.
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SECTION 11.10. NO RECOURSE AGAINST OTHERS.
A past, present or future director, officer, employee, stockholder or
incorporator, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or this Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creations. Each Securityholder by accepting a Security waives and releases all
such liability. Such waiver and release are part of the consideration for the
issuance of the Securities.
SECTION 11.11. SUCCESSORS.
All agreements of the Company in this Indenture and the Securities
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
Securities 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 ful1 extent permitted by law.
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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.
The Company
THE XXXXXXXX GROUP, INC.
By:_______________________________
Name:
Title:
S-1
The Trustee
THE BANK OF NEW YORK
By:____________________________
Name:
Title:
S-2
EXHIBIT A-1
(FACE OF SECURITY)
CUSIP: 000000XX0
9% [Series A] [Series B] Senior Subordinated Notes due January 15, 2009
No.: _______________ $_____________
The Xxxxxxxx Group, Inc.
promises to pay to____________________________________________________________
or registered assigns,
the principal sum of__________________________________________________________
Dollars on January 15, 2009.
Interest Payment Dates: January 15, and July 15
Record Dates: January 1, and July 1
DATED: _______________, 199__
THE XXXXXXXX GROUP, INC.
By:_________________________________
Name:
Title:
This is one of the [Global]
Securities referred to in the
within-mentioned Indenture:
The Bank of New York,
as Trustee
By:.____________________________
Authorized Signatory
(REVERSE OF SECURITY)
9% SENIOR SUBORDINATED NOTES DUE JANUARY 15, 2009
[INSERT THE GLOBAL NOTE LEGEND, IF APPLICABLE PURSUANT TO THE PROVISIONS OF THE
INDENTURE]
(INSERT THE PRIVATE PLACEMENT LEGEND, IF APPLICABLE PURSUANT TO THE PROVISIONS
OF THE INDENTURE]
1. Interest. THE XXXXXXXX GROUP, INC., a Delaware corporation (the
"COMPANY"), promises to pay interest on the principal amount of this Security at
the rate per annum shown above. Interest on the Securities will accrue from the
most recent date on which interest has been paid or, if no interest has been
paid, from December 14, 1998. The Company will pay interest semi-annually in
arrears on each Interest Payment Date, commencing July 15, 1999. Interest will
be computed on the basis of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal and on overdue
installments of interest from time to time on demand at the rate borne by the
Securities to the extent lawful.
2. Method of Payment. The Company shall pay interest on the
Securities (except defaulted 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 Securities are canceled on registration of
transfer or registration of exchange after such Record Date. Holders must
surrender Securities to a Paying Agent to collect principal payments. The
Company shall pay principal and interest in 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, The Bank of New York (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. The
Company or any of its Subsidiaries may, subject to certain exceptions, act as
Registrar or Co-Registrar.
4. Indenture. The Company issued the Securities under an indenture,
dated as of December 14, 1998 (the "INDENTURE"), by and between the Company and
the Trustee. This Security is one of a duly authorized issue of Securities of
the Company designated as its 9% Senior Subordinated Notes due
A1-2
January 15, 2009 (the "SECURITIES"), limited (except as otherwise provided in
the Indenture) in aggregate principal amount to $250,000,000, which may be
issued under the Indenture. The terms of the Securities 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.C. 77aaa-77bbbb) (the "TIA"), as in effect on the
date of the Indenture. Notwithstanding anything to the contrary herein, the
Securities are subject to all such terms, and Holders of Securities are referred
to the Indenture and the TIA for a statement of them. The Securities are general
unsecured obligations of the Company.
5. Subordination. The Securities 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 all Senior Debt, whether
outstanding on the date of the Indenture or thereafter created, incurred,
assumed or guaranteed. To the extent and in the manner provided in the
Indenture, Senior Debt must be paid before any payment may be made to any Holder
of this Security. 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.
6. Optional Redemption. (a) The Securities will be redeemable, at
the Company's option, in whole at any time or in part from time to time, on and
after January 15, 2004, at the following redemption prices (expressed as
percentages of the principal amount) if redeemed during the twelve-month period
commencing on January 15 of the years set forth below, plus, in each case,
accrued and unpaid interest thereon to the date of redemption:
Year Percentage
---- ----------
2004......................................... 104.500%
2005......................................... 103.000%
2006......................................... 101.500%
2007 and thereafter.......................... 100.000%
(b) In addition, on or prior to January 15, 2002, the Company may, at
its option, use the net cash proceeds of one or more Public Equity Offerings to
redeem the Securities, in part, at a redemption price of 109.000% of the
principal amount thereof, plus accrued and unpaid interest thereon to the date
of redemption; provided that after any such redemption the aggregate principal
amount of the Securities outstanding must
A1-3
equal at least 66 2/3% of the aggregate principal amount of the Securities
originally issued.
7. 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 Securities to be redeemed at such Holder's registered address. In
order to effect a redemption with the proceeds of a Public Equity Offering, the
Company shall send the redemption notice in the manner specified in the
Indenture not later than 30 days after the consummation of such Public Equity
offering and effect such redemption not later than 90 days after the
consummation of such Public Equity Offering. Securities in denominations larger
than $1,000 may be redeemed in part.
8. Change of Control Offer. In the event of a Change of Control,
upon the satisfaction of the conditions set forth in the Indenture, the Company
shall be required to offer to repurchase all of the then outstanding Securities
pursuant to a Change of Control Offer at a purchase price equal to 101% of the
principal amount thereof plus accrued and unpaid interest, if any, to the date
of repurchase. Holders of Securities which are the subject of such an offer to
repurchase shall receive an offer to repurchase and may elect to have such
Securities repurchased in accordance with the provisions of the Indenture
pursuant to and in accordance with the terms of the Indenture.
9. Limitation on Disposition of Assets. Under certain circumstances,
the Company is required to apply the net proceeds from Asset Sales to offer to
repurchase Securities at a price equal to 100% of the aggregate principal amount
thereof, plus accrued and unpaid interest to the date of repurchase.
10. Denominations; Transfer; Exchange. The Securities are in
registered form, without coupons, in denominations of $1,000 and integral
multiples of $1,000. A Holder shall register the transfer of or exchange
Securities 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 any Securities during a period beginning 15
days before the mailing of a redemption notice for any Securities or portions
thereof selected for redemption.
11. Persons Deemed Owners. The registered Holder of a Security shall
be treated as the owner of it for all purposes.
A1-4
12. 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 upon written request. After that, all
liability of the Trustee and such Paying Agent with respect to such money shall
cease.
13. 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 on and interest on the Securities 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 Securities (including certain covenants, but excluding its obligation to
pay the principal of and interest on the Securities).
14. Amendment; Supplement; Waiver. Subject to certain exceptions,
the Indenture or the Securities may be amended or supplemented with the written
consent of the Holders of at least a majority in aggregate principal amount of
the Securities then outstanding, and any existing 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 Securities then
outstanding. Without notice to or consent of any Holder, the parties thereto
may amend or supplement the Indenture or the Securities to, among other things,
cure any ambiguity, defect or inconsistency, provide for uncertificated
Securities in addition to or in place of certificated Securities, or comply with
Article 5 of the Indenture, or make any other change that does not adversely
affect in any material respect the rights of any Holder of a Security.
15. Restrictive Covenants. The Indenture imposes certain limitations
on the ability of the Company and its Subsidiaries to, among other things, incur
additional Indebtedness, make payments in respect of its Capital Stock or
certain Indebtedness, engage in certain Asset Swaps, enter into transactions
with Affiliates, create dividend or other payment restrictions affecting
Subsidiaries and merge or consolidate with any other Person, sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
assets or adopt a plan of liquidation. Such limitations are subject to a number
of important qualifications and exceptions. The Company must annually report to
the Trustee on compliance with such limitations.
16. Successors. When a successor assumes, in accordance with the
Indenture, all the obligations of its predecessor under the Securities and the
Indenture, the predecessor will be released from those obligations.
A1-5
17. Defaults and Remedies. If an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of Securities then outstanding may declare all the Securities to be due
and payable in the manner, at the time and with the effect provided in the
Indenture. Holders of Securities may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee is not obligated to
enforce the Indenture or the Securities unless it has been offered indemnity or
security reasonably satisfactory to it. The Indenture permits, subject to
certain limitations therein provided, Holders of a majority in aggregate
principal amount of the Securities then outstanding to direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders of
Securities notice of any continuing Default or Event of Default (except a
Default in payment of principal or interest) if it determines in good faith that
withholding notice is in their interest.
18. Trustee Dealings. The Trustee under the Indenture, in its
individual or any other capacity, may become the owner or pledgee of Securities
and may otherwise deal with the Company, its Subsidiaries, Unrestricted
Subsidiaries or their respective Affiliates as if it were not the Trustee.
19. No Recourse Against Others. No past, present or future
stockholder, director, officer, employee or incorporator, as such, of the
Company shall have any liability for any obligation of the Company under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of, such obligations or their creation. Each Holder of a Security
accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Securities.
20. Authentication. This Security shall not be valid until the
Trustee or authenticating agent manually signs the certificate of authentication
on this Security.
21. Governing Law. The laws of the State of New York shall govern
this Security and the Indenture, without regard to principles of conflict of
laws.
22. Abbreviations and Defined Terms. Customary abbreviations may be
used in the name of a Holder of a Security 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/M7A (= Uniform Gifts to Minors Act).
23. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification
A1-6
Procedures, the Company has caused CUSIP numbers to be printed on the Securities
as a convenience to the Holders of the Securities. No representation is made as
to the accuracy of such numbers as printed on the Securities and reliance may be
placed only on the other identification numbers printed hereon.
24. Indenture. Each Holder, by accepting a Security, agrees to be
bound by all of the terms and provisions of the Indenture, as the same may be
amended from time to time. Capitalized terms used herein and not defined herein
have the meanings ascribed thereto in the Indenture.
[25. Registration Rights. Pursuant to the Registration Rights
Agreement, the Company will be obligated to consummate an exchange offer
pursuant to which, subject to the terms and conditions of the Registration
Rights Agreement, the Holder of this Security shall have the right to exchange
this Security for Securities of a separate series issued under the Indenture (or
a trust indenture substantially identical to the Indenture in accordance with
the terms of the Registration Rights Agreement) which have been registered under
the Securities Act, in like principal amount and having identical terms as this
Security. The Holders of the Securities shall be entitled to receive certain
additional interest payments in the event such exchange offer is not consummated
and upon certain other conditions, all pursuant to and in accordance with the
terms of the Registration Rights Agreement.]/1/
The Company will furnish to any Holder of a Security upon written
request and without charge a copy of the Indenture, which has the text of this
Security in larger type. Requests may be made to: THE XXXXXXXX GROUP, INC.,
0000 Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxxxx 00000.
___________
/1/ Include only for Series A Security.
A1-7
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign and transfer
this Security to
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
to transfer this Security on the books of the Company. The agent may substitute
another to act for him.
________________________________________________________________________________
Date: ________________ Your Signature:_________________________
(Sign exactly as your name appears on
the face of this Security)
SIGNATURE GUARANTEE.
___________________________
Participant in a Recognized Signature
Guarantee Medallion Program
A1-8
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.15 or 4.16 of the Indenture, check the box below:
[ ] Section 4.15 [ ] Section 4.16
If you want to elect to have only part of the Security purchased by
the Company pursuant to Section 4.15 or Section 4.16 of the Indenture, state the
amount you elect to have purchased: $_____________
Date: ________________ Your Signature:_________________________
(Sign exactly as your
name appears on the Note)
Tax Identification No.:_________________
SIGNATURE GUARANTEE.
___________________________
Participant in a Recognized Signature
Guarantee Medallion Program
A1-9
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY(L)
The following exchanges of a part of this Global Security for an
interest in another Global Security or for a Definitive Security, or
exchanges of a part of another Global Security or Definitive Security for
an interest in this Global Security, have been made:
Amount of Amount of Principal Amount Signature of
decrease in increase in of this authorized
Principal Principal Global Security officer of
Amount of Amount of following such Trustee or
Date of Exchange this Global Security this Global Security decrease (or increase) Custodian
-------------------- ---------------------- ---------------------- ------------------------ -------------
__________________
(1) This should be included only if the Security is issued in global form.
A1-10
EXHIBIT A-2
(FACE OF REGULATION S TEMPORARY GLOBAL SECURITY)
CUSIP: X00000XX0
9% [Series A] [Series B] Senior Subordinated Notes due January 15, 2009
No.:_______________ $_____________
The Xxxxxxxx Group, Inc.
promises to pay to______________________________________________________________
or registered assigns,
the principal sum of____________________________________________________________
Dollars on January 15, 2009.
Interest Payment Dates: January 15, and July 15
Record Dates: January 1, and July 1
DATED: _______________, 199__
THE XXXXXXXX GROUP, INC.
By: _______________________________
Name:
Title:
This is one of the [Global]
Securities referre to in the
within-mentioned Indenture:
The Bank of New York,
as Trustee
By:._________________________
Authorized Signatory
A2-1
(REVERSE OF REGULATION S TEMPORARY GLOBAL SECURITY)
9% SENIOR SUBORDINATED NOTES DUE JANUARY 15, 2009
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL SECURITY,
AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED
SECURITIES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).
[INSERT THE GLOBAL NOTE LEGEND]
[INSERT THE PRIVATE PLACEMENT LEGEND]
1. Interest. THE XXXXXXXX GROUP, INC., a Delaware corporation (the
"COMPANY"), promises to pay interest on the principal amount of this Security at
the rate per annum shown above. Interest on the Securities will accrue from the
most recent date on which interest has been paid or, if no interest has been
paid, from December 14, 1998. The Company will pay interest semi-annually in
arrears on each Interest Payment Date, commencing July 15, 1999. Interest will
be computed on the basis of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal and on overdue
installments of interest from time to time on demand at the rate borne by the
Securities to the extent lawful.
2. Method of Payment. The Company shall pay interest on the
Securities (except defaulted 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 Securities are canceled on registration of
transfer or registration of exchange after such Record Date. Holders must
surrender Securities to a Paying Agent to collect principal payments. The
Company shall pay principal and interest in 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, The Bank of New York (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. The
Company or any of its Subsidiaries may, subject to certain exceptions, act as
Registrar or Co-Registrar.
4. Indenture. The Company issued the Securities under an Indenture,
dated as of December 14, 1998 (the
A2-2
"INDENTURE"), by and between the Company and the Trustee. This Security is one
of a duly authorized issue of Securities of the Company designated as its 9%
Senior Subordinated Notes due January 15, 2009 (the "SECURITIES"), limited
(except as otherwise provided in the Indenture) in aggregate principal amount to
$250,000,000, which may be issued under the Indenture. The terms of the
Securities 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.C. 77aaa-
77bbbb) (the "TIA"), as in effect on the date of the Indenture. Notwithstanding
anything to the contrary herein, the Securities are subject to all such terms,
and Holders of Securities are referred to the Indenture and the TIA for a
statement of them. The Securities are general unsecured obligations of the
Company.
5. Subordination. The Securities 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 all Senior Debt, whether
outstanding on the date of the Indenture or thereafter created, incurred,
assumed or guaranteed. To the extent and in the manner provided in the
Indenture, Senior Debt must be paid before any payment may be made to any Holder
of this Security. 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.
6. Optional Redemption. (a) The Securities will be redeemable, at
the Company's option, in whole at any time or in part from time to time, on and
after January 15, 2004, at the following redemption prices (expressed as
percentages of the principal amount) if redeemed during the twelve-month period
commencing on January 15 of the years set forth below, plus, in each case,
accrued and unpaid interest thereon to the date of redemption:
Year Percentage
---- ----------
2004......................................... 104.500%
2005......................................... 103.000%
2006......................................... 101.500%
2007 and thereafter.......................... 100.000%
(b) In addition, on or prior to January 15, 2002, the Company may, at
its option, use the net cash proceeds of one or more Public Equity Offerings to
redeem the Securities, in part, at a redemption price of 109.0% of the principal
amount thereof, plus accrued and unpaid interest thereon to the
A2-3
date of redemption; provided that after any such redemption the aggregate
principal amount of the Securities outstanding must equal at least 66 2/3% of
the aggregate principal amount of the Securities originally issued.
7. 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 Securities to be redeemed at such Holder's registered address. In
order to effect a redemption with the proceeds of a Public Equity Offering, the
Company shall send the redemption notice in the manner specified in the
Indenture not later than 30 days after the consummation of such Public Equity
offering and effect such redemption within 90 days after the consummation of
such Public Equity Offering. Securities in denominations larger than $1,000 may
be redeemed in part.
8. Change of Control Offer. In the event of a Change of Control,
upon the satisfaction of the conditions set forth in the Indenture, the Company
shall be required to offer to repurchase all of the then outstanding Securities
pursuant to a Change of Control Offer at a purchase price equal to 101% of the
principal amount thereof plus accrued and unpaid interest, if any, to the date
of repurchase. Holders of Securities which are the subject of such an offer to
repurchase shall receive an offer to repurchase and may elect to have such
Securities repurchased in accordance with the provisions of the Indenture
pursuant to and in accordance with the terms of the Indenture.
9. Limitation on Disposition of Assets. Under certain
circumstances, the Company is required to apply the net proceeds from Asset
Sales to offer to repurchase Securities at a price equal to 100%. of the
aggregate principal amount thereof, plus accrued and unpaid interest to the date
of repurchase.
10. Denominations; Transfer; Exchange. The Securities are in
registered form, without coupons, in denominations of $1,000 and integral
multiples of $1,000. A Holder shall register the transfer of or exchange
Securities 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 any Securities during a period
beginning 15 days before the mailing of a redemption notice for any Securities
or portions thereof selected for redemption.
A2-4
11. Persons Deemed Owners. The registered Holder of a Security shall
be treated as the owner of it for all purposes.
12. 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 upon written request. After that, all
liability of the Trustee and such Paying Agent with respect to such money shall
cease.
13. 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 Securities 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 Securities (including certain covenants, but excluding its obligation to
pay the principal of and interest on the Securities).
14. Amendment; Supplement; Waiver. Subject to certain exceptions,
the Indenture or the Securities may be amended or supplemented with the written
consent of the Holders of at least a majority in aggregate principal amount of
the Securities then outstanding, and any existing 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 Securities then
outstanding. Without notice to or consent of any Holder, the parties thereto
may amend or supplement the Indenture or the Securities to, among other things,
cure any ambiguity, defect or inconsistency, provide for uncertificated
Securities in addition to or in place of certificated Securities, or comply with
Article 5 of the Indenture, or make any other change that does not adversely
affect in any material respect the rights of any Holder of a Security.
15. Restrictive Covenants. The Indenture imposes certain limitations
on the ability of the Company and its Subsidiaries to, among other things, incur
additional Indebtedness, make payments in respect of its Capital Stock or
certain Indebtedness, engage in certain Asset Swaps, enter into transactions
with Affiliates, create dividend or other payment restrictions affecting
Subsidiaries and merge or consolidate with any other Person, sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
assets or adopt a plan of liquidation. Such limitations are subject to a number
of important qualifications and exceptions. The Company must annually report to
the Trustee on compliance with such limitations.
A2-5
16. Successors. When a successor assumes, in accordance with the
Indenture, all the obligations of its predecessor under the Securities and the
Indenture, the predecessor will be released from those obligations.
17. Defaults and Remedies. If an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25%. in aggregate principal
amount of Securities then outstanding may declare the Securities to be due and
payable in the manner, at the time and with the effect provided in the
Indenture. Holders of Securities may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee is not obligated to
enforce the Indenture or the Securities unless it has been offered indemnity or
security reasonably satisfactory to it. The Indenture permits, subject to
certain limitations therein provided, Holders of a majority in aggregate
principal amount of the Securities then outstanding to direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders of
Securities notice of any continuing Default or Event of Default (except a
Default in payment of principal or interest) if it determines in good faith that
withholding notice is in their interest.
18. Trustee Dealings with Company. The Trustee under the Indenture,
in its individual or any other capacity, may become the owner or pledgee of
Securities and may otherwise deal with the company, its Subsidiaries,
Unrestricted Subsidiaries or their respective Affiliates as if it were not the
Trustee.
19. No Recourse Against Others. No past, present or future
stockholder, director, officer, employee or incorporator, as such, of the
Company shall have any liability for any obligation of the Company under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of, such obligations or their creation. Each Holder of a Security by
accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Securities.
20. Authentication. This Security shall not be valid until the
Trustee or authenticating agent manually signs the certificate of authentication
on this Security.
21. Governing Law. The laws of the State of New York shall govern
this Security and the Indenture, without regard to principles of conflict of
laws.
22. Abbreviations and Defined Terms. Customary abbreviations may be
used in the name of a Holder of a Security or an assignee such as: TEN COM (=
tenants in common), TEN ENT
A2-6
(= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (Custodian), and U/G/M7A (=
Uniform Gifts to Minors Act).
23. CUSIP Number. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Securities as a convenience to the Holders of
the Securities. No representation is made as to the accuracy of such numbers as
printed on the Securities and reliance may be placed only on the other
identification numbers printed hereon.
24. Indenture. Each Holder, by accepting a Security, agrees to be
bound by all of the terms and provisions of the Indenture, as the same may be
amended from time to time.
25. Registration Rights. Pursuant to the Registration Rights
Agreement, the Company will be obligated to consummate an exchange offer
pursuant to which, subject to the terms and conditions of the Registration
Rights Agreement, the Holder of this Security shall have the right to exchange
this Security for Securities of a separate series issued under the Indenture (or
a trust indenture substantially identical to the Indenture in accordance with
the terms of the Registration Rights Agreement) which have been registered under
the Securities Act, in like principal amount and having identical terms as this
Security. The Holders of the Securities shall be entitled to receive certain
additional interest payments in the event such exchange offer is not consummated
and upon certain other conditions, all pursuant to and in accordance with the
terms of the Registration Rights Agreement.
Capitalized terms used herein and not defined herein have the meanings
ascribed thereto in the Indenture.
The Company will furnish to any Holder of a Security upon written
request and without charge a copy of the Indenture, which has the text of this
Security in larger type. Requests may be made to: THE XXXXXXXX GROUP INC., 0000
Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxxxx 00000.
A2-7
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign and transfer
this Security to
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ____________________________________ to transfer this
Security on the books of the Company. The agent may substitute another to act
for him.
Date: ________________
Your Signature:____________________
(Sign exactly as your name appears
on the face of this Security)
SIGNATURE GUARANTEE.
___________________________
Participant in a Recognized Signature
Guarantee Medallion Program
A2-8
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.15 or 4.16 of the Indenture, check the box below:
[ ] Section 4.15 [ ] Section 4.16
If you want to elect to have only part of the Security purchased by
the Company pursuant to Section 4.15 or Section 4.16 of the Indenture, state the
amount you elect to have purchased: $_____________
Date: ________________ Your Signature: _________________________
(Sign exactly as your
name appears on the Note)
Tax Identification No.: ________________
SIGNATURE GUARANTEE.
___________________________
Participant in a Recognized Signature
Guarantee Medallion Program
A2-9
SCHEDULE OF EXCHANGES OF REGULATION S TEMPORARY GLOBAL SECURITY(2)
The following exchanges of a part of this Global Security for an
interest in another Global Security or for a Definitive Security, or exchanges
of a part of another Global Security or Definitive Security for an interest in
this Global Security, have been made:
Amount of Amount of Principal Amount Signature of
decrease in increase in of this authorized
Principal Principal Global Security officer of
Amount of Amount of following such Trustee or
Date of Exchange this Global Security this Global Security decrease (or increase) Custodian
---------------- -------------------- -------------------- ---------------------- ---------
__________________
(2) This should be included only if the Security is issued in global form.
A2-10
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
The Xxxxxxxx Group, Inc.
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Attn: Corporate Trust Trustee Administration
Re: 9% Series ___ Senior Subordinated Notes due January 15, 2009
Reference is hereby made to the Indenture, dated as of December 14,
1998 (the "INDENTURE"), by and between The Xxxxxxxx Group, Inc., as issuer (the
"COMPANY") and The Bank of New York, as trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
________________, (the "TRANSFEROR") owns and proposes to transfer the
Security[ies] or interest in such Security[ies] specified in Annex A hereto, in
the principal amount of $_____________ in such Security[ies] or interests (the
"TRANSFER"), to ______________ (the "TRANSFEREE"), as further specified in Annex
A hereto. In connection with the Transfer, the Transferor hereby certifies
that:
[CHECK ALL THAT APPLY]
1. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE 144A GLOBAL SECURITY OR A DEFINITIVE SECURITY PURSUANT TO RULE
144A. The Transfer is being effected pursuant to and in accordance with Rule
144A under the United States Securities Act of 1933, as amended (the "SECURITIES
ACT"), and, accordingly, the Transferor hereby further certifies that the
beneficial interest or Definitive Security is being transferred to a Person that
the Transferor reasonably believed and believes is purchasing the beneficial
interest or Definitive Security for its own account, or for one or more accounts
with respect to which such Person exercises sole investment discretion, and such
Person and each such account is a "qualified institutional buyer" within the
meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and
such Transfer is in compliance with any applicable blue sky securities laws of
any state of the United States. Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred beneficial interest
or Definitive Security will be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the 144A Global
Security and/or the Definitive Security and in the Indenture and the Securities
Act.
2. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE TEMPORARY REGULATION S GLOBAL SECURITY, THE REGULATION S GLOBAL
SECURITY OR A DEFINITIVE SECURITY PURSUANT TO REGULATION S. The Transfer is
being effected pursuant to and in accordance with Rule 903 or Rule 904 under the
Securities Act and, accordingly, the Transferor hereby further certifies that
(i) the Transfer is not being made to a person in the United States and (x) at
the time the buy order was originated, the Transferee was outside the United
States or such Transferor and any Person acting on its behalf reasonably
believed and believes that the Transferee was outside the United States or (y)
the transaction was executed in, on or through the facilities of a designated
offshore securities market and neither such Transferor nor any Person acting on
its behalf knows that the transaction was prearranged with a buyer in the United
States, (ii) no directed selling efforts have been made in contravention of the
requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities
Act, (iii) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act and (iv) if the proposed
transfer is being made prior to the expiration of the Restricted Period, the
transfer is not being made to a U.S. Person or for the account or benefit of a
U.S. Person (other than an Initial Purchaser). Upon consummation of the
proposed transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Security will be subject to the restrictions
on Transfer enumerated in the Private Placement Legend printed on the Regulation
S Global Security, the Temporary Regulation S Global Security and/or the
Definitive Security and in the Indenture and the Securities Act.
3. [ ] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN THE GLOBAL SECURITY OR A DEFINITIVE SECURITY PURSUANT TO
ANY PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Securities and
Restricted Definitive Securities and pursuant to and in accordance with the
Securities Act and any applicable blue sky securities laws of any state of the
United States, and accordingly the Transferor hereby further certifies that
(check one):
(a) [ ] such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
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(b) [ ] such Transfer is being effected to the Company or a
subsidiary thereof;
or
(c) [ ] such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act;
or
(d) [ ] such Transfer is being effected to an Institutional
Accredited Investor and pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 144A, Rule 144 or Rule 904,
and the Transferor hereby further certifies that it has not engaged in any
general solicitation within the meaning of Regulation D under the Securities Act
and the Transfer complies with the transfer restrictions applicable to
beneficial interests in a Restricted Global Security or Restricted Definitive
Securities and the requirements of the exemption claimed, which certification is
supported by (1) a certificate executed by the Transferee in the form of Exhibit
D to the Indenture and (2) if such Transfer is in respect of a principal amount
of Securities at the time of transfer of less than $250,000, an Opinion of
Counsel provided by the Transferor or the Transferee (a copy of which the
Transferor has attached to this certification), to the effect that such Transfer
is in compliance with the Securities Act. Upon consummation of the proposed
transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Security will be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the Global
Security and/or the Definitive Securities and in the Indenture and the
Securities Act.
4. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN AN UNRESTRICTED GLOBAL SECURITY OR OF AN UNRESTRICTED DEFINITIVE
SECURITY.
(a) [ ] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer
is being effected pursuant to and in accordance with Rule 144 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Security will no longer be subject to the re-
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strictions on transfer enumerated in the Private Placement Legend printed on the
Restricted Global Securities, on Restricted Definitive Securities and in the
Indenture.
(b) [ ] CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Security will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Securities, on Restricted Definitive Securities and in the
Indenture.
(c) [ ] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The
Transfer is being effected pursuant to and in compliance with an exemption from
the registration requirements of the Securities Act other than Rule 144, Rule
903 or Rule 904 and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
Compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Security will not be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Global Securities or Restricted Definitive Securities and in the Indenture.
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This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
______________________________
(Insert Name of Transferor)
By: __________________________
Name:
Title:
Dated: ____________, ___
B-5
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Security (CUSIP ________), or
(ii) [ ] Regulation S Global Security (CUSIP ____), or
(b) [ ] a Restricted Definitive Security.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [____] a beneficial interest in the:
(i) [____] 144A Global Security (CUSIP ________), or
(ii) [____] Regulation S Global Security (CUSIP ________),
or
(iii) [____] Unrestricted Global Security (CUSIP ________),
or
(b) [ ] a Restricted Definitive Security; or
(c) [ ] an Unrestricted Definitive Security, in accordance
with the terms of the Indenture.
B-6
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
The Xxxxxxxx Group, Inc.
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Attn: Corporate Trust Trustee Administration
Re: 9% Series ____ Senior Subordinated Notes due January 15, 2009
(CUSIP _______________)
Reference is hereby made to the Indenture, dated as of December 14,
1998 (the "INDENTURE"), by and between The Xxxxxxxx Group, Inc., as issuer (the
"COMPANY"), and The Bank of New York, as trustee. Capitalized terms used but
not defined herein shall have the meanings given to them in the Indenture.
_______________, (the "OWNER") owns and proposes to exchange the
Security[ies] or interest in such Security[ies] specified herein, in the
principal amount of $____ in such Security[ies] or interests (the "EXCHANGE").
In connection with the Exchange, the owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE SECURITIES OR BENEFICIAL
INTERESTS IN A RESTRICTED GLOBAL SECURITY FOR UNRESTRICTED DEFINITIVE SECURITIES
OR BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL SECURITY
(a) [____] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL SECURITY TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL
SECURITY. In connection with the Exchange of the Owner's beneficial interest in
a Restricted Global Security for a beneficial interest in an Unrestricted Global
Security in an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner's own account without
transfer, (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Global Securities and pursuant to and in
accordance with the United States Securities Act of 1933, as amended (the
"SECURITIES ACT"), (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest in an
Unrestricted Global Security is being acquired in compliance with any appli-
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cable blue sky securities laws of any state of the United States.
(b) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL SECURITY TO UNRESTRICTED DEFINITIVE SECURITY. In connection
with the Exchange of the Owner's beneficial interest in a Restricted Global
Security for an Unrestricted Definitive Security, the Owner hereby certifies
(i)the Definitive Security is being acquired for the Owner's own account without
transfer, (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Restricted Global Securities and pursuant to and
in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not expired in
order to maintain compliance with the Securities Act and (iv) the Security is
being acquired in compliance with any appli-cable blue sky securities laws of
any state of the United States.
(c) [____] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE SECURITY TO
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL SECURITY. In connection with the
Owner's Exchange of a Restricted Definitive Security for a beneficial interest
in an Unrestricted Global Security, the owner hereby certifies (i) the
beneficial interest is being acquired for the Owner's own account without
transfer, (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to Restricted Definitive Securities and pursuant to and
in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act and (iv) the beneficial
interest is being acquired in compliance with any applicable blue sky securities
laws of any state of the United States.
(d) [____] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE SECURITY TO
UNRESTRICTED DEFINITIVE SECURITY. In connection with the Owner's Exchange of a
Restricted Definitive Security for an Unrestricted Definitive Security, the
Owner hereby certifies (i) the Unrestricted Definitive Security is being
acquired for the Owner's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to
Restricted Definitive Securities and pursuant to and in accordance with the
Securities Act, (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Unrestricted Definitive Security
is being acquired in compliance with any applicable blue sky securities laws of
any state of the United States.
C-2
2. EXCHANGE OF RESTRICTED DEFINITIVE SECURITIES OR BENEFICIAL
INTERESTS IN RESTRICTED GLOBAL SECURITIES FOR RESTRICTED DEFINITIVE SECURITIES
OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL SECURITIES
(a) [____] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL SECURITY TO RESTRICTED DEFINITIVE SECURITY. In connection
with the Exchange of the Owner's beneficial interest in a Restricted Global
Security for a Restricted Definitive Security with an equal principal amount,
the Owner hereby certifies that the Restricted Definitive Security is being
acquired for the Owner's own account without transfer. Upon consummation of the
proposed Exchange in accordance with the terms of the Indenture, the Restricted
Definitive Security issued will continue to be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Definitive Security and in the Indenture and the Securities Act.
(b) [____] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE SECURITY TO
BENEFICIAL INTEREST IN A RESTRICTED GLOBAL SECURITY. In connection with the
Exchange of the Owner's Restricted Definitive Security for a beneficial interest
in the [CHECK ONE] ___ 144A Global Security, ___ Regulation S Global Security
with an equal principal amount, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner's own account without transfer and (ii)
such Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Securities and pursuant to and in accordance
with the Securities Act, and in compliance with any applicable blue sky
securities laws of any state of the United States. Upon consummation of the
proposed Exchange in accordance with the terms of the Indenture, the beneficial
interest issued will be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the relevant Restricted Global Security
and in the Indenture and the Securities Act.
C-3
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
_____________________________________________
(Insert Name of owner)
By:__________________________________________
Name:
Title:
Dated: ______________, ______
C-4
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
The Xxxxxxxx Group, Inc.
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Attn: Corporate Trust Trustee Administration
Re: 9% Series ____ Senior Subordinated Notes due January 15,
2009
Reference is hereby made to the Indenture, dated as of December 14,
1998 (the "INDENTURE"), by and between The Xxxxxxxx Group, Inc., as issuer (the
"COMPANY") and The Bank of New York, as trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
In connection with our proposed purchase of $______ aggregate
principal amount of:
(a) [____] a beneficial interest in a Global Security, or
(b) [____] a Definitive Security,
we confirm that:
1. We understand that any subsequent transfer of the Securities or
any interest therein is subject to certain restrictions and conditions set forth
in the Indenture and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Securities or any interest therein except in
compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the "SECURITIES ACT").
2. We understand that the Securities have not been registered under
the Securities Act of 1933, as amended (the "Securities Act") and neither the
Securities nor any interest or participation therein may be offered, sold,
assigned, transferred, pledged, encumbered or otherwise disposed of in the
absence of such registration or unless such transaction is exempt from, or not
subject to, registration under the Securities Act. We agree for the benefit of
the Company that the Securities may
D-1
not be offered, sold, pledged or otherwise transferred prior to the expiration
of the holding period applicable thereto under Rule 144(k) under the Securities
Act which is applicable to the Securities (the "Resale Restriction Termination
Date") other than (1) to the Company, (2) so long as the Securities are eligible
for resale pursuant to Rule 144A under the Securities Act ("Rule 144A"), to a
person who is a "Qualified Institutional Buyer" within the meaning of Rule 144A
purchasing for its own account or for the account of a Qualified Institutional
Buyer, in each case to whom notice is given that the resale, pledge or other
transfer is being made in reliance on Rule 144A (as indicated by the box checked
by the transferor on the certificate of transfer on the reverse of the
Securities if the Securities are not in book-entry form), (3) to a non-"U.S.
Person" in an "Offshore Transaction" (as such terms are defined in regulations
under the Securities Act) in accordance with regulations under the Securities
Act (as indicated by the box checked by the transferor on the certificate of
transfer on the reverse of the Securities), (4) to an Institution that is an
"Accredited Investor" (an "Institutional Accredited Investor") as defined in
Rule 501(a)(1), (2) (3) or (7) under the Securities Act (as indicated by the box
checked by the transferor on the certificate of transfer on the reverse of the
Securities) who certifies to the Company and the Trustee that such transferee is
an Institutional Accredited Investor and is acquiring the Securities for its own
account, for investment purposes and not with a view to, or for offer or sale in
connection with, any distribution in violation of the Securities Act, (5)
pursuant to any other available exemption from the registration requirements of
the Securities Act, including the exemption provided by Rule 144 under the
Securities Act, if available, or (6) pursuant to an effective Registration
Statement under the Securities Act, subject in each of the foregoing cases to
any requirement of law that the disposition of its property or the property of
such investor account or accounts be at all times within its or their control,
and subject to the right of the Company or the Trustee for the Securities prior
to any such sale, pledge or other transfer pursuant to clause (4) or (5) above
to require the delivery of an opinion of counsel, certifications and/or other
information satisfactory to each of them. We further agree to provide to any
person purchasing the Definitive Security or beneficial interest in a Global
Security from us in a transaction meeting the requirements of clauses (1)
through (5) of this paragraph a notice advising such purchaser that resales
thereof are restricted as stated herein.
3. We understand that, on any, proposed resale of the Securities or
beneficial interest therein, we will be required to furnish to you and the
Company such certifications, legal opinions and other information as you and the
Company may reasonably require to confirm that the proposed sale complies
D-2
with the foregoing restrictions. We further understand that the Securities
purchased by us will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Securities, and we
and any accounts for which we are acting are each able to bear the economic risk
of our or its investment.
5. We are acquiring the Securities or beneficial interest therein
purchased by us for our own account, for investment purposes and not with a view
to, or for offer or sale in connection with, any distribution in violation of
the Securities Act.
D-3
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
_____________________________________________
(Insert Name of owner)
By:__________________________________________
Name:
Title:
Dated: ______________, ______
D-4
EXHIBIT E
FORM OF GUARANTEE PROVISIONS
ARTICLE 12.
GUARANTEES OF THE SECURITIES
SECTION 12.01. GUARANTEES.
Subject to the provisions of this Article 12, each Guarantor hereby
jointly and severally unconditionally guarantees to each Holder of a Security
authenticated and made available for delivery by the Trustee and to the Trustee
and its successors and assigns, irrespective of the validity and enforceability
of this Indenture, the Securities or the obligations of the Company or any other
Guarantors to the Holders or the Trustee hereunder, that: (a) the principal of
and interest on the Securities will be duly and punctually paid in full when
due, whether at maturity, by acceleration or otherwise, and interest on the
overdue principal and (to the extent permitted by law) interest, if any, on the
Securities and all other Obligations on the Securities will be promptly paid in
full or performed, all in accordance with the terms hereof and thereof; and (b)
in case of any extension of time of payment or renewal of any Securities or any
of such other Obligations on the Securities, the same will be promptly paid in
full when due or performed in accordance with the terms of the extension or
renewal, whether at final stated maturity, by acceleration or otherwise.
Failing payment when due of any amount so guaranteed, for whatever reason, each
Guarantor will be obligated to pay the same immediately. An Event of Default
under this Indenture or the Securities shall constitute an event of default
under the Guarantees, and shall entitle the Holders of Securities to accelerate
the obligations of the Guarantors hereunder in the same manner and to the same
extent as the obligations of the Company on the Securities.
Each of the Guarantors hereby agrees that its obligations hereunder
shall be unconditional, irrespective of the validity, regularly or
enforceability of the Securities or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Securities with
respect to any provisions hereof or thereof, any release of any other Guarantor,
the recovery of any judgment against the Company, an action to enforce the same,
whether or not a Guarantee is affixed to any particular Security, or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a guarantor. Each of the Guarantors hereby waives the benefit of
diligence, presentment, demand of payment, filing of claims with a court in the
event of insolvency
E-1
or bankruptcy of the Company, any right to require a proceeding first against
the Company, protest, notice and all demands whatsoever and covenants that its
Guarantee will not be discharged except by complete performance of the
obligations contained in the Securities, this Indenture and the Guarantee. If
any Holder or the Trustee is required by any court or otherwise to return to the
Company or to any Guarantor, or any custodian, trustee, liquidator or other
similar official acting in relation to the Company or such Guarantor, any amount
paid by the Company or such Guarantor to the Trustee or such Holder, the
Guarantees, to the extent theretofore discharged, shall be reinstated in full
force and effect. Each Guarantor further agrees that, as between it, on the one
hand, and the Holders of Securities and the Trustee, on the other hand, (a)
subject to this Article 12, the maturity of the obligations guaranteed hereby
may be accelerated as provided in Section 6.02 for the purposes of the
Guarantees, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed hereby, and (b) in
the event of any acceleration of such obligations as provided in Section 6.02,
such obligations (whether or not due and payable) shall forthwith become due and
payable by the Guarantors for the purpose of the Guarantees.
The Guarantees shall remain in full force and effect and continue to
be effective should any petition be filed by or against the Company for
liquidation or reorganization, should the Company become insolvent or make an
assignment for the benefit of creditors or should a receiver or trustee be
appointed for all or any significant part of the Company's assets, and shall, to
the fullest extent permitted by law, continue to be effective or be reinstated,
as the case may be, if at any time payment and performance of the Securities
are, pursuant to applicable law, rescinded or reduced in amount, or must
otherwise be restored or returned by any obligee on the Securities, whether as a
"voidable preference," "fraudulent transfer" or otherwise, all as though such
payment or performance had not been made. In the event that any payment, or any
part thereof, is rescinded, reduced, restored or returned, the Securities shall,
to the fullest extent permitted by law, be reinstated and deemed reduced only by
such amount paid and not so rescinded, reduced, restored or returned.
No stockholder, officer, director, employer or incorporator, past,
present or future, of any Guarantor, as such, shall have any personal liability
under the Guarantees by reason of his, her or its status as such stockholder,
officer, director, employer or incorporator.
The Guarantors shall have the right to seek contribution from any non-
paying Guarantor so long as the exercise of
E-2
such right does not impair the rights of the Holders under the Guarantees.
Each Guarantor, and by its acceptance hereof each Holder, hereby
confirms that it is the intention of all such parties that in no event shall any
Guarantor's obligations under its Guarantee be subject to avoidance under any
applicable fraudulent conveyance or similar law of any relevant jurisdiction.
Therefore, in the event that the Guarantees would, but for this sentence, be
subject to avoidance, then the liability of the Guarantors under the Guarantees
shall be reduced to the extent necessary such that such Guarantees shall not be
subject to avoidance under the applicable fraudulent conveyance or similar law.
Subject to the preceding limitation on liability, the Guarantee of each
Guarantor constitutes a guarantee of payment in full when due and not merely
guarantee of collectibility.
SECTION 12.02. EXECUTION AND DELIVERY OF THE GUARANTEES.
To further evidence the Guarantees set forth in Section 12.01, each
Guarantor hereby agrees that a notation of such Guarantees, substantially in the
form included in Exhibit F hereto, shall be endorsed on each Security
authenticated and made available for delivery by the Trustee. The validity and
enforceability of any Guarantee shall not be affected by the fact that it is not
affixed to any particular Security.
Each of the Guarantors hereby agrees that its Guarantee set forth in
Section 12.01 shall remain in full force and effect notwithstanding any failure
to endorse on each Security a notation of such Guarantee.
If an Officer of a Guarantor whose signature is on this Indenture or a
Security no longer holds that office at the time the Trustee authenticates such
Security or at any time thereafter, such Guarantor's Guarantee of such Security
shall be valid nevertheless.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of any Guarantee set forth in
this Indenture on behalf of the Guarantor.
SECTION 12.03. ADDITIONAL GUARANTORS.
Any Person may become a Guarantor by executing and delivering to the
Trustee (a) a supplemental indenture, in form and substance satisfactory to the
Trustee, which subjects such Person to the provisions of this Indenture as a
Guarantor, and
E-3
(b) an Opinion of Counsel to the effect that such supplemental indenture has
been duly authorized and executed by such Person and constitutes the legal,
valid, binding and enforceable obligation of such Person (subject to such
customary exceptions concerning fraudulent conveyance laws, creditors' rights
and equitable principles as may be acceptable to the Trustee in its discretion).
SECTION 12.04. LIMITATION OF GUARANTORS' LIABILITY.
The obligations of each Guarantor are limited to the maximum amount as
will after giving effect to all other contingent and fixed liabilities of such
Guarantor (including, without limitation, any guarantees under the Credit
Agreement) and after giving effect to any collections from or payments made by
or on behalf of any other Guarantor in respect of the obligations of such other
Guarantor under its Guarantee or pursuant to Section 12.06, result in the
obligations of such Guarantor under the Guarantees not constituting a fraudulent
conveyance or fraudulent transfer under federal or state law. Each Guarantor
that makes a payment or distribution under the Guarantees shall be entitled to a
contribution from each other Guarantor in a pro rata amount based on the
Adjusted Net Assets of each Guarantor.
SECTION 12.05. GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
(a) Nothing contained in this Indenture or in any of the Securities
shall prevent any consolidation or merger of a Guarantor with or into the
Company or another Guarantor or shall prevent any sale or conveyance of the
property of a Guarantor, as an entirety or substantially as an entirety, to the
Company or another Guarantor. Upon any such consolidation, merger, sale or
conveyance, the Guarantee given by such Guarantor shall no longer have any force
or effect.
(b) Nothing contained in this Indenture or in any of the Securities
shall prevent any consolidation or merger of a Guarantor with or into a Person
(provided such Person is a corporation, partnership or trust) other than the
Company or another Guarantor or shall prevent any sale or conveyance of the
property of a Guarantor as an entirety or substantially as an entirety to any
such Person (whether or not an Affiliate of the Guarantor). Upon the sale or
disposition of a Guarantor (or all or substantially all of its assets) to a
Person which is not a Subsidiary of the Company, which is otherwise in
compliance with this Indenture (including Section 4.16), such Guarantor shall be
deemed released from all its obligations under this Indenture and its Guarantee
and such Guarantee shall ter-
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minate; provided that any such termination shall occur only to the extent that
all obligations of such Guarantor under the Credit Agreement, and all its
guarantees of, and under all of its pledges of assets or other security
interests which secure, Indebtedness of the Company shall also terminate upon
such release, sale or transfer.
(c) The Trustee shall, at the Company's expense, deliver an
appropriate instrument evidencing such release upon receipt of a request by the
Company accompanied by an Officers' Certificate certifying as to the compliance
with this Section 12.05. Any Guarantor not so released remains liable for the
full amount of principal and interest on the Securities as provided in this
Article 12.
SECTION 12.06. CONTRIBUTION.
In order to provide for just and equitable contribution among the
Guarantors, the Guarantors agree, inter alia, that in the event any payment or
distribution is made by any Guarantor (a "FUNDING GUARANTOR") under the
Guarantees, such Funding Guarantor shall be entitled to a contribution from all
other Guarantors in a pro rata amount based on the Adjusted Net Assets of each
Guarantor (including the Funding Guarantor) for all payments, damages and
expenses incurred by that Funding Guarantor in discharging the Company
obligations with respect to the Securities or any other Guarantor's obligations
with respect to the Guarantees; provided that such Funding Guarantor's
contribution right with respect to any such Guarantor shall be subordinated in
right of payment to such Guarantor's Guarantor Senior Debt on the same basis as
its Guarantee is subordinated to Guarantor Senior Debt pursuant to this Article
12.
SECTION 12.07. WAIVER OF SUBROGATION.
Each Guarantor hereby irrevocably waives any claim or other rights
which it may now or hereafter acquire against the Company that arise from the
existence, payment, performance or enforcement of such Guarantor's obligations
under the Guarantees and this Indenture, including, without limitation, any
right of subrogation, reimbursement, exoneration or indemnification, and any
right to participate in any claim or remedy of any Holder of Securities against
the Company, whether or not such claim, remedy or right arises in equity, or
under contract, statute or common law, including, without limitation , the right
to take or receive from the Company, directly or indirectly, in cash or other
property or by set-off or in any other manner, payment or security on account of
such claim or other rights. If any amount shall be paid to any Guarantor in
violation of the preceding sentence and the Securities shall
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not have been paid in full, such amount shall have been deemed to have been paid
to such Guarantor for the benefit of, and held in trust for the benefit of, the
Holders of the Securities, and shall, subject to the provisions of this Article
12, forthwith be paid to the Trustee for the benefit of such Holders to be
credited and applied upon the Securities, whether matured or unmatured, in
accordance with the terms of this Indenture. Each Guarantor acknowledges that it
will receive direct or indirect benefits from the financing arrangements
contemplated by this Indenture and that the waiver set forth in this Section
12.07 is knowingly made in contemplation of such benefits.
SECTION 12.08. GUARANTEE OBLIGATIONS SUBORDINATED TO GUARANTOR SENIOR DEBT.
Each Guarantor covenants and agrees, and the Trustee and each Holder
of the Securities, by its acceptance thereof, likewise covenants and agrees,
that all Guarantees shall be issued subject to the provisions of this Article
12; and the Trustee and each Person holding any Guarantee, whether upon original
issue or upon transfer, assignment or exchange thereof, accepts and agrees that
the payment of all Obligations on the Securities pursuant to the Guarantees
(except for the payment of fees and expenses of the Trustee under Section 7.07)
made by or on behalf of such Guarantor shall, to the extent and in the manner
herein set forth, be subordinated and junior in right of payment to the prior
payment in full in cash or Cash Equivalents (or such payment shall be duly
provided for to the satisfaction of the holders of the Guarantor Senior Debt of
any Guarantor) of all existing and future Obligations on the Guarantor Senior
Debt of such Guarantor; that the subordination is for the benefit of, and shall
be enforceable directly by the holders of Guarantor Senior Debt of any Guarantor
and that each holder of Guarantor Senior Debt of any Guarantor whether now
outstanding or hereafter created, incurred, assumed or guaranteed shall be
deemed to have acquired Guarantor Senior Debt of any Guarantor in reliance upon
the covenants and provisions contained in this Indenture and the Guarantees.
This Section 12.08 and the following Sections 12.09 through 12.22 of
this Article 12 shall constitute a continuing offer to all Persons who, in
reliance upon such provisions, become holders of, or continue to hold, Guarantor
Senior Debt of any Guarantor and, to the extent set forth in this Section 12.09,
holders of Designated Guarantor Senior Debt; and such provisions are made for
the benefit of the holders of Guarantor Senior Debt of each Guarantor and, to
the extent set forth in Section 12.09, holders of Designated Guarantor Senior
Debt; and such holders (to such extent) are made obligees hereunder and they or
each of them may enforce such provisions.
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SECTION 12.09. NO PAYMENT ON GUARANTEES IN CERTAIN CIRCUMSTANCES.
(a) 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 or any other amounts owing with respect to any
Guarantor Senior Debt, no payment of any kind or character (except for
guarantees of Permitted Securities on the same basis as the Guarantees) shall be
made by any Guarantor or any other Person on behalf of such Guarantor with
respect to any Obligations on the Securities or under the Guarantees or to
acquire any of the Securities for cash or property or otherwise. In addition,
if any other event of default occurs and is continuing (or if such an event of
default would occur upon any payment with respect to the Securities or would
arise upon the passage of time as a result of such payment) with respect to an
Designated Guarantor Senior Debt (as such event of default is defined in the
instrument creating or evidencing such Designated Guarantor Senior Debt) and
such event of default permits the holders of such Designated Guarantor Senior
Debt then outstanding to accelerate the maturity thereof and if the
Representative for the respective issue of Designated Guarantor Senior Debt
gives a Default Notice to the Company, the Guarantors and the Trustee, then,
unless and until all events of default have been cured or waived or have ceased
to exist or the Company, the Guarantors and the Trustee receive notice from the
Representative for the respective issue of Designated Guarantor Senior Debt
terminating the Blockage Period, neither the Guarantors nor any other Person on
behalf of the Guarantors shall make any payment of any kind or character (except
for guarantees of Permitted Securities on the same basis as the Guarantees) with
respect to any Obligations of a Guarantor on the Securities or under the
Guarantees or to acquire any of the Securities for cash or property or
otherwise. Notwithstanding anything herein to the contrary, in no event will a
Blockage Period extend beyond 180 days from the date the payment on the
Securities was due and only one such Blockage Period may be commenced within any
360 consecutive days. For all purposes of this Section 12.09(a), no event of
default which existed or was continuing on the date of the commencement of any
Blockage Period with respect to the Designated Guarantor Senior Debt initiating
such Blockage Period shall be, or be made, the basis for the commencement of a
second Blockage Period by the Representative of such Designated Guarantor Senior
Debt, 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 Blockage Period that in either case, would give rise to an
event of default pursuant to any
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provision under which an event of default previously existed or was continuing
shall constitute a new event of default for this purpose).
(b) In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee or any Holder of a Guarantee when such payment
is prohibited by Section 12.09(a), such payment shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders of Guarantor
Senior Debt (pro rata to such holders on the basis of the respective amounts of
Guarantor Senior Debt held by such holders) or their respective Representatives,
as their respective interests may appear. The Trustee shall be entitled to rely
on information regarding amounts then due and owing on the Guarantor Senior
Debt, if any, received from the holders of Guarantor Senior Debt (or their
Representatives) or, if such information is not received from such holders or
their Representatives, from the Company or the Guarantors and only amounts
included in the information provided to the Trustee shall be paid to the holders
of Guarantor Senior Debt.
Nothing contained in this Article 12 shall limit the right of the
Trustee or the Holders of Securities to any action to accelerate the maturity of
the Securities pursuant to Section 6.02 or to pursue any rights or remedies
hereunder; provided that all Guarantor Senior Debt thereafter due or declared to
be due shall first be paid in full in cash or Cash Equivalents before the
Holders are entitled to receive any payment with respect to Obligations on the
Guarantees.
SECTION 12.10. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
(a) Upon any payment or distribution of assets of any Guarantor 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 marshalling of assets of any Guarantor or in a
bankruptcy, reorganization, insolvency, receivership or other similar proceeding
relating to any Guarantor or its property, whether voluntary or involuntary, all
Obligations due or to become due upon ail Guarantor Senior Debt shall first be
paid in full in cash or Cash Equivalents, or such payment duly provided for to
the satisfaction of the holders of the Guarantor Senior Debt, before any payment
or distribution of any kind or character is made on account of any Obligations
of a Guarantor on the Guarantees, or for the acquisition of any of the
Securities 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 any
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Guarantor of any kind or character, whether in cash, property or securities, to
which the Holders of the Guarantees or the Trustee under this Indenture would be
entitled, except for the provisions hereof, shall be paid by the Guarantors or
by any receiver, trustee in bankruptcy, liquidating trustee, agent or other
Person making such payment or distribution, or by the Holders of the Guarantees
or by the Trustee under this Indenture if received by them, directly to the
holders of Guarantor Senior Debt (pro rata to such holders on the basis of the
respective amounts of Guarantor Senior Debt held by such holders) or their
respective Representatives, or to the trustee or trustees under any indenture
pursuant to which any of such Guarantor Senior Debt may have been issued, as
their respective interests may appear, for application to the payment of
Guarantor Senior Debt remaining unpaid until all such Guarantor Senior Debt 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 holders of
Guarantor Senior Debt.
(b) To the extent any payment of Guarantor Senior Debt (whether by or
on behalf of a Guarantor, as proceeds of security or enforcement of any right of
setoff or otherwise) is declared to be fraudulent or preferential, set aside or
required to be paid to a 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 Guarantor Senior Debt 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 a Guarantor 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 Section 12.10(a), such payment or distribution
shall be held in trust for the benefit of, and shall be paid over or delivered
to, the holders of Guarantor Senior Debt (pro rata to such holders on the basis
of the respective amount of Guarantor Senior Debt held by such holders) or their
respective Representatives, or to the trustee or trustees under any indenture
pursuant to which any of such Guarantor Senior Debt may have been issued, as
their respective interests may appear, for application to the payment of
Guarantor Senior Debt remaining unpaid until all such Guarantor Senior Debt 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 holders of
such Guarantor Senior Debt.
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(d) The consolidation of any Guarantor with, or the merger of any
Guarantor with or into, another corporation or the liquidation or dissolution of
any Guarantor following the conveyance or transfer of all or substantially all
of its assets to another corporation upon the terms and conditions provided in
Section 12.05 as if the Guarantor were the Company and as long as permitted
under the terms of the Guarantor Senior Debt shall not be deemed a dissolution,
winding up, liquidation or reorganization for the purposes of this Section 12.10
if such other corporation shall, as a part of such consolidation, merger,
conveyance or transfer, assume such Guarantor's obligations hereunder in
accordance with Section 12.05 as if the Guarantor were the Company.
SECTION 12.11. PAYMENTS MAY BE PAID PRIOR TO DISSOLUTION.
Nothing contained in this Article 12 or elsewhere in this Indenture
shall prevent (i) a Guarantor, except under the conditions described in Sections
12.08 and 12.09, from making payments at any time for the purpose of making
payments of principal of and interest on the Securities, 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 Sections
12.08 and 12.09, the application by the Trustee of any moneys deposited with it
for the purpose of making such payments of principal on, and interest on, the
Securities to the Holders entitled thereto unless, at least one Business Day
prior to the date upon which such payment would otherwise become due and
Payable, the Trustee shall have actually received the written notice provided
for in Section 12.09(a) or in Section 12.16. The Guarantor shall give prompt
written notice to the Trustee of any dissolution, winding-up, liquidation or
reorganization of any Guarantor.
SECTION 12.12. SUBROGATION.
Subject to the payment in full in cash or Cash Equivalents of all
Guarantor Senior Debt, the Holders of the Guarantees shall be subrogated to the
rights of the holders of Guarantor Senior Debt to receive payments or
distributions of cash, property or securities of a Guarantor applicable to the
Guarantor Senior Debt until the Securities shall be paid in full; and, for the
purposes of such subrogation, no such payments or distributions to the holders
of the Guarantor Senior Debt by or on behalf of any Guarantor or by or on behalf
of the holders of the Guarantees by virtue of this Article 12 which otherwise
would have been made to such holders shall, as between such Guarantor and the
holders of the Guarantees, be deemed to be a payment by such Guarantor to or on
account of the Guarantor Senior Debt.
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SECTION 12.13. GUARANTEE PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The subordination provisions of this Article 12 are and are intended
solely for the purpose of defining the relative rights of the Holders of the
Securities on the one hand and the holders of Guarantor Senior Debt of each
Guarantor and, to the extent set forth in Section 12.09, holders of Designated
Guarantor Senior Debt on the other hand. Nothing contained in this Article 12
or elsewhere in this Indenture or in the Securities is intended to or shall (a)
impair, as among each Guarantor, its creditors other than holders of its
Guarantor Senior Debt and the Holders of the Securities, the obligation of such
Guarantor, which is absolute and unconditional, to make payments to the Holders
in respect of its obligations under its Guarantee as and when the same shall
become due and payable in accordance with their terms; or (b) affect the
relative rights against such Guarantor of the Holders of the Securities and
creditors of such Guarantor other than the holders of the Guarantor Senior Debt
of such Guarantor; or (c) prevent the Trustee or the Holder of any Security from
exercising all remedies otherwise permitted by applicable law upon a Default or
an Event of Default under this Indenture, subject to the rights, if any, under
the subordination provisions of this Article 12 of the holders of Guarantor
Senior Debt of the Guarantors hereunder and, to the extent set forth in Section
12.09, holders of Designated Guarantor Senior Debt on the other hand (1) in any
case, proceeding, dissolution, liquidation or other winding-up, assignment for
the benefit of creditors or other marshalling of assets and liabilities of the
Guarantor referred to in Section 12.10, to receive, pursuant to and in
accordance with such Section, cash, property and securities otherwise payable or
deliverable to the Trustee or such Holder, or (2) under the conditions specified
in Section 12.09, to prevent any parent prohibited by such Section or enforce
their rights pursuant to Section 12.09(c).
The failure by any Guarantor to make a payment in respect of its
obligations under this Guarantee by reason of any provision of this Article 12
shall not be construed as preventing the occurrence of a Default or an Event of
Default hereunder.
SECTION 12.14. TRUSTEE TO EFFECTUATE SUBORDINATION OF OBLIGATIONS UNDER THE
GUARANTEE.
Each Holder of a Security by its acceptance of such Security
authorizes and expressly directs the Trustee to take on behalf of such Holder of
Securities such action as may be necessary or appropriate to effectuate as
between the holders of Guarantor Senior Debt and Holders of Guarantees, the
subor-
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dination provided in this Article 12, and appoints the Trustee its
attorney-in-fact to act for it and on its behalf for such purposes, including,
in the event of any dissolution, winding-up, liquidation or reorganization of
any guarantor (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 assets of such
Guarantor, the filing of a claim for the unpaid balance of its Guarantees and
accrued interest in the form required in those proceedings.
SECTION 12.15. NO WAIVER OF GUARANTEE SUBORDINATION PROVISIONS.
No right of any present or future holder of any Guarantor Senior Debt
of any Guarantor 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 any Guarantor or by any act or failure to act, in good faith, by
any such holder, or by any non-compliance by the Company or any Guarantor with
the terms of this Indenture, regardless of any knowledge thereof any such holder
may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Guarantor Senior Debt of any Guarantor 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 Securities and without
impairing or releasing the subordination provided in this Article 12 or the
obligations hereunder of the Holders of the Guarantees to the holders of such
Guarantor Senior Debt, do any one or more of the following:(1) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, such Guarantor Senior Debt or any Senior Debt as to which such Guarantor
Senior Debt relates, or otherwise amend or supplement in any manner such
Guarantor Senior Debt or any Senior Debt to which such Guarantor Senior Debt
relates; (2) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing such Guarantor Senior Debt or any
Senior Debt as to which such Guarantor Senior Debt relates; (3) release any
person liable in any manner for the collection or payment of such Guarantor
Senior Debt or any Senior Debt as to which such Guarantor Senior Debt relates;
and (4) exercise or refrain from exercising any rights against such Guarantor
and any other Person.
SECTION 12.16. GUARANTORS TO GIVE NOTICE TO TRUSTEE.
The Company and each Guarantor shall give prompt written notice to the
Trustee of any fact known to such Guaran-
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tor the making of any payment to or by the Trustee in respect of the Securities
pursuant to the provisions of this Article 12. Notwithstanding the subordination
provisions of this Article 12 or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any default or
event of default with respect to any Guarantor Senior Debt 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, such
Guarantor or from a holder of Guarantor Senior Debt 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. In the event that the Trustee determines in good faith
that any evidence is required with respect to the right of any Person as a
holder of Guarantor Senior Debt of any Guarantor to participate in any payment
or distribution pursuant to this Article 12, the Trustee may request such Person
to furnish evidence to the reasonable satisfaction of the Trustee as to the
amount of Guarantor Senior Debt of each Guarantor held by such Person, the
extent to which such Person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of such Person under
this Article 12, and if such evidence is not furnished the Trustee may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such payment.
SECTION 12.17. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT
REGARDING DISSOLUTION, ETC., OF GUARANTORS.
Upon an payment or distribution of assets of a Guarantor referred to
in this Article 12, the Trustee, subject to the provisions of Article 7 hereof,
and the Holders shall be entitled to rely upon any order or decree entered by
any court of competent jurisdiction in which such bankruptcy, liquidation,
reorganization, dissolution or winding-up proceeding are pending or, upon a
certificate of the receiver, trustee in bankruptcy, liquidating trustee, agent
or other person making such payment or distribution, delivered to the Trustee or
to the Holders of the Guarantees, for the purpose of ascertaining the Persons
entitled to participate in such payment or distribution, the holders of
Guarantor Senior Debt of such Guarantor and other Indebtedness of such
Guarantor, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other acts pertinent thereto or to this Article 12.
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SECTION 12.18. RIGHTS OF TRUSTEE AS A HOLDER OF GUARANTOR SENIOR DEBT;
PRESERVATION OF TRUSTEE'S RIGHT.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article 12 with respect to any Guarantor Senior Debt of
any Guarantor which may at any time be held by the Trustee, to the same extent
as any other holder of such Guarantor Senior Debt, and nothing in this Indenture
shall deprive the Trustee of any of its rights as such holder. Nothing in this
Article 12 shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 7.07.
SECTION 12.19. NO SUSPENSION OF REMEDIES.
Nothing contained in this Article 12 shall limit the right of the
Trustee or the Holders of Securities to take any action to accelerate the
maturity of the Securities pursuant to Article 6 or to pursue any rights or
remedies hereunder or under applicable law, subject to the rights, if any, under
this Article 12 of the holders, from time to time, of Guarantor Senior Debt of
the Guarantors.
SECTION 12.20. TRUSTEE'S RELATION TO GUARANTOR SENIOR DEBT.
The Trustee and any agent of the Guarantor or the Trustee shall be
entitled to all the rights set forth in this Article 12 with respect to any
Guarantor Senior Debt which may at any time be held by it in its individual or
any other capacity to the same extent as any other holder of the Guarantor
Senior Debt and nothing in this Indenture shall deprive the Trustee or any such
agent of any of its rights as such holder and shall not be liable to any such
holders if the Trustee shall in good faith mistakenly pay over or distribute to
Holders of Securities or to the Company or to any other person cash, property or
securities to which any holders of Guarantor Senior Debt shall be entitled by
virtue of this Article 12 or otherwise.
With respect to the holders of Guarantor Senior Debt, the Trustee
undertakes to perform or to observe only such of its duties, covenants,
responsibilities and obligations as are specifically set forth in this Article
12, and no implied covenants or obligations with respect to the holders of
Guarantor Senior Debt shall be read into this Indenture against the Trustee.
The Trustee shall not be deemed to owe any fiduciary or other duty to the
holders of Guarantor Senior Debt.
Whenever a distribution is to be made or a notice given to holders or
owners of Guarantor Senior Debt, the dis-
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tribution may be made and the notice may be given to their Representative, if
any.
SECTION 12.21. SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR OMISSIONS OF THE
GUARANTORS OR HOLDERS OF GUARANTOR SENIOR DEBT.
No right of any present or future holders of any Guarantor Senior Debt
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
Guarantors or by any act or failure to act, in good faith, by any such holder,
or by any noncompliance by the Guarantors 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 holders of Guarantor Senior Debt 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 Securities and without
impairing or releasing the subordination provided in this Article 12 or the
obligations hereunder of the Holders of the Securities to the holders of the
Guarantor Senior Debt, 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, Guarantor Senior Debt, or otherwise amend or supplement in any manner
Guarantor Senior Debt, or any instrument evidencing the same or any agreement
under which Guarantor Senior Debt is outstanding; (ii) sell, exchange, release
or otherwise deal with any property pledged, mortgaged or otherwise securing
Guarantor Senior Debt; (iii) release any Person liable in any manner for the
payment or collection of Guarantor Senior Debt; and (iv) exercise or refrain
from exercising any rights against the Guarantors and any other Person.
SECTION 12.22. THIS ARTICLE 12 NOT TO PREVENT EVENTS OF DEFAULT.
The failure to make a payment on account of principal of or interest
on the Securities by reason of any provision of this Article 12 will not be
construed as preventing the occurrence of an Event of Default.
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EXHIBIT F
FORM OF GUARANTEE
The undersigned Guarantor has unconditionally guaranteed on a senior
subordinated basis (such guarantee being referred to herein as the "GUARANTEE")
(i) the due and punctual payment of the principal of and interest on the
Securities, whether at maturity, by acceleration or otherwise, the due and
punctual payment of interest on the overdue principal and interest, if any, on
the Securities, to the extent lawful, and the due and punctual performance of
all other obligations of the Company to the Holders or the Trustee all in
accordance with the terms set forth in Article 12 of the Indenture and (ii) in
case of any extension of time of payment or renewal of any Securities or any of
such other obligations, that the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise.
No stockholder, officer, director or incorporator, as such, past,
present or future, of the Guarantor shall have any liability under the Guarantee
by reason of his or its status as such stockholder, officer, director or
incorporator.
GUARANTOR:
[ ]
By: ____________________________
Name:
Title:
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