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EXHIBIT 4.28
XXXXXXX CONTAINER CORPORATION,
as Issuer
and
STATE STREET BANK AND TRUST COMPANY,
as Trustee
----------------------------------
INDENTURE
Dated as of February 23, 1998
----------------------------------
$200,000,000
9-3/8% Senior Notes due 2007, Series A
and
9-3/8% Senior Notes due 2007, Series B
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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; 11.02
(c)................................................................................. N.A.
311(a)................................................................................. 7.11
(b)................................................................................. 7.11
(c)................................................................................. N.A.
312(a)................................................................................. 2.05
(b)................................................................................. 11.03
(c)................................................................................. 11.03
313(a)................................................................................. 7.06
(b)(1).............................................................................. N.A.
(b)(2).............................................................................. 7.06
(c)................................................................................. 7.06; 11.02
(d)................................................................................. 7.06
314(a)................................................................................. 4.07; 4.09; 11.02
(b)................................................................................. N.A.
(c)(1).............................................................................. 11.04
(c)(2).............................................................................. 11.04
(c)(3).............................................................................. N.A.
(d)................................................................................. N.A.
(e)................................................................................. 11.05
(f)................................................................................. N.A
315(a)................................................................................. 7.01(b)
(b)................................................................................. 7.05; 10.02
(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)................................................................................. 11.01
(c)................................................................................. 11.01
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N.A. means Not Applicable
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture.
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TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions................................................. 1
SECTION 1.02. Incorporation by Reference of TIA........................... 29
SECTION 1.03. Rules of Construction....................................... 29
ARTICLE TWO
THE NOTES
SECTION 2.01. Form and Dating............................................. 30
SECTION 2.02. Execution and Authentication................................ 31
SECTION 2.03. Registrar and Paying Agent.................................. 32
SECTION 2.04. Paying Agent To Hold Assets in Trust........................ 33
SECTION 2.05. Noteholder Lists............................................ 34
SECTION 2.06. Transfer and Exchange....................................... 34
SECTION 2.07. Replacement Notes........................................... 35
SECTION 2.08. Outstanding Notes........................................... 36
SECTION 2.09. Treasury Notes.............................................. 36
SECTION 2.10. Temporary Notes............................................. 37
SECTION 2.11. Cancellation................................................ 37
SECTION 2.12. Defaulted Interest.......................................... 38
SECTION 2.13. CUSIP Number................................................ 38
SECTION 2.14. Deposit of Moneys........................................... 38
SECTION 2.15. Restrictive Legends......................................... 39
SECTION 2.16. Book-Entry Provisions for Global Note....................... 41
SECTION 2.17. Special Transfer Provisions................................. 43
SECTION 2.18. Designation................................................. 45
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.......................................... 46
SECTION 3.02. Selection of Notes To Be Redeemed........................... 46
SECTION 3.03. Notice of Redemption........................................ 47
SECTION 3.04. Effect of Notice of Redemption.............................. 48
SECTION 3.05. Deposit of Redemption Price................................. 48
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SECTION 3.06. Notes Redeemed in Part...................................... 48
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes............................................ 49
SECTION 4.02. Maintenance of Office or Agency............................. 49
SECTION 4.03. Limitation on Restricted Payments........................... 50
SECTION 4.04. Corporate Existence......................................... 52
SECTION 4.05. Payment of Taxes and Other Claims........................... 53
SECTION 4.06. Maintenance of Properties and Insurance..................... 53
SECTION 4.07. Compliance Certificate; Notice of Default................... 54
SECTION 4.08. Compliance with Laws........................................ 56
SECTION 4.09. SEC Reports................................................. 56
SECTION 4.10. Waiver of Stay, Extension or Usury Laws..................... 57
SECTION 4.11. Limitation on Transactions with Affiliates.................. 57
SECTION 4.12. Limitation on Incurrence of Additional Indebtedness......... 58
SECTION 4.13. Limitation on Dividend and Other Payment Restrictions
Affecting Subsidiaries.................................... 59
SECTION 4.14. Limitation on Liens......................................... 59
SECTION 4.15. Change of Control........................................... 60
SECTION 4.16. Limitation on Asset Sales................................... 62
SECTION 4.17. Limitation on Incurrence of Subordinated Debt............... 67
SECTION 4.18. Guarantees by Restricted Subsidiaries....................... 67
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. When Company May Merge, Etc................................. 68
SECTION 5.02. Successor Corporation Substituted........................... 69
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default........................................... 70
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SECTION 6.02. Acceleration................................................ 72
SECTION 6.03. Other Remedies.............................................. 73
SECTION 6.04. Waiver of Past Defaults..................................... 73
SECTION 6.05. Control by Majority......................................... 74
SECTION 6.06. Limitation on Suits......................................... 74
SECTION 6.07. Rights of Holders To Receive Payment........................ 75
SECTION 6.08. Collection Suit by Trustee.................................. 75
SECTION 6.09. Trustee May File Proofs of Claim............................ 75
SECTION 6.10. Priorities.................................................. 76
SECTION 6.11. Undertaking for Costs....................................... 77
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee........................................... 77
SECTION 7.02. Rights of Trustee........................................... 79
SECTION 7.03. Individual Rights of Trustee................................ 80
SECTION 7.04. Trustee's Disclaimer........................................ 81
SECTION 7.05. Notice of Default........................................... 81
SECTION 7.06. Reports by Trustee to Holders............................... 81
SECTION 7.07. Compensation and Indemnity.................................. 82
SECTION 7.08. Replacement of Trustee...................................... 83
SECTION 7.09. Successor Trustee by Merger, Etc............................ 84
SECTION 7.10. Eligibility; Disqualification............................... 84
SECTION 7.11. Preferential Collection of Claims Against Company........... 85
ARTICLE EIGHT
SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Termination of Company's Obligations........................ 85
SECTION 8.02. Acknowledgment of Discharge by Trustee...................... 87
SECTION 8.03. Application of Trust Money.................................. 88
SECTION 8.04. Repayment to the Company.................................... 88
SECTION 8.05. Reinstatement............................................... 88
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ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders................................. 89
SECTION 9.02. With Consent of Holders.................................... 90
SECTION 9.03. Compliance with TIA........................................ 91
SECTION 9.04. Revocation and Effect of Consents.......................... 91
SECTION 9.05. Notation on or Exchange of Notes........................... 92
SECTION 9.06. Trustee To Sign Amendments, Etc............................ 93
ARTICLE TEN
GUARANTEE
SECTION 10.01. Unconditional Guarantee.................................... 93
SECTION 10.02. Severability............................................... 94
SECTION 10.03. Limitation of Liability.................................... 95
SECTION 10.04. Subsidiary Guarantors May Consolidate, etc., on Certain
Terms.................................................... 95
SECTION 10.05. Contribution............................................... 96
SECTION 10.06. Waiver of Subrogation...................................... 97
SECTION 10.07. Execution of Guarantee..................................... 97
SECTION 10.08. Waiver of Stay, Extension or Usury Laws.................... 98
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. TIA Controls............................................... 99
SECTION 11.02. Notices.................................................... 99
SECTION 11.03. Communications by Holders with Other Holders............... 101
SECTION 11.04. Certificate and Opinion as to Conditions Precedent......... 101
SECTION 11.05. Statements Required in Certificate or Opinion.............. 101
SECTION 11.06. Rules by Trustee, Paying Agent, Registrar.................. 102
SECTION 11.07. Legal Holidays............................................. 102
SECTION 11.08. Governing Law.............................................. 102
SECTION 11.09. No Adverse Interpretation of Other Agreements.............. 103
SECTION 11.10. No Recourse Against Others................................. 103
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SECTION 11.11. Successors................................................. 103
SECTION 11.12. Duplicate Originals........................................ 103
SECTION 11.13. Severability............................................... 103
Signatures................................................................. 90
Exhibit A - Form of Note................................................. A-1
Exhibit B - Form of Exchange Note........................................ B-1
Exhibit C - Form of Certificate To Be Delivered in Connection with
Transfers to Non-QIB Accredited Investors.................... C-1
Exhibit D - Form of Certificate To Be Delivered in Connection with
Transfers Pursuant to Regulation S........................... D-1
Exhibit E - Form of Guarantee............................................ E-1
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 February 23, 1998, between Xxxxxxx
Container Corporation, a Delaware corporation (the "Company"), and State Street
Bank and Trust Company, a Massachusetts chartered trust company, as Trustee (the
"Trustee").
The Company has duly authorized the creation of an issue of
9-3/8% Senior Notes due 2007, Series A (the "Initial Notes"), and 9-3/8% Senior
Notes due 2007, Series B (the "Exchange Notes" and, together with the Initial
Notes, the "Notes"), and, to provide therefor, the Company has duly authorized
the execution and delivery of this Indenture. All things necessary to make the
Notes, when duly issued and executed by the Company, and authenticated and
delivered hereunder, the valid obligations of the Company, and to make this
Indenture a valid and binding agreement of the Company, have been done.
Each party hereto agrees as follows for the benefit of the
other party and for the equal and ratable benefit of the Holders of the Notes.
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Acquired Indebtedness" means Indebtedness of a Person or any
of its Subsidiaries existing at the time such Person becomes a Restricted
Subsidiary of the Company or assumed in connection with the acquisition of
assets from such Person and not incurred by such Person in connection with, or
in anticipation or contemplation of, such Person becoming a Restricted
Subsidiary of the Company or such acquisition.
"Affiliate" means a Person who directly or indirectly through
one or more intermediaries controls, or is controlled by, or is under common
control with, the Company. The term "control" means the possession, directly or
indirectly, of the
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power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise; and the terms "affiliated," "controlling" and "controlled" have
meanings correlative to the foregoing. Notwithstanding the foregoing, any Person
established in connection with any Trade Receivable Facility shall not be deemed
an Affiliate. For purposes of Section 4.11, the term "Affiliate" shall include
any Person who, as a result of any transaction described in Section 4.11, would
become an Affiliate.
"Affiliate Transaction" has the meaning provided in Section
4.11.
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Asset Acquisition" means (i) an Investment by the Company or
any Restricted Subsidiary of the Company in any other Person pursuant to which
such Person shall become a Restricted Subsidiary of the Company or any
Restricted Subsidiary of the Company or shall be merged with the Company or any
Restricted Subsidiary of the Company or (ii) the acquisition by the Company or
any Restricted Subsidiary of the Company of assets of any Person or any division
or line of business of such Person.
"Asset Sale" means the sale, lease (other than an operating
lease), assignment or other disposition (including, without limitation,
dispositions pursuant to Sale and Leaseback Transactions) by the Company or one
of its Restricted Subsidiaries to any Person other than the Company or one of
its Subsidiaries of (i) any capital stock of any Restricted Subsidiary, (ii) all
or substantially all of the properties and assets of any division or line of
business of the Company or any Restricted Subsidiary of the Company or (iii) any
other assets of the Company or any of its Restricted Subsidiaries greater than
$5 million individually, other than those assets sold in the ordinary course of
business of the Company or such Restricted Subsidiary, respectively. For the
purposes of this definition, the term "Asset Sale" shall not include (i) Capital
Stock of
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the Company, (ii) any transfer of trade receivables or related assets pursuant
to any Trade Receivable Facility, (iii) any sale, issuance, conveyance,
transfer, lease or other disposition of properties or assets that is governed by
the provisions of Article Five, (iv) an issuance of Capital Stock by a
Restricted Subsidiary to the Company or to a Restricted Subsidiary, (v) a
disposition consisting of a Permitted Investment or Restricted Payment permitted
by Section 4.03, (vi) the surrender or waiver of contract rights or the
settlement, release or surrender of contract, tort or other claims of any kind,
(vii) the grant in the ordinary course of business of any non-exclusive license
of patents, trademarks, registrations thereof and other similar intellectual
property, (viii) the sale or discount, in each case without recourse, of
accounts receivables arising in the ordinary course of business, but only in
connection with the compromise or collection thereof, (ix) the sale for cash or
exchange of specific items of equipment, so long as the purpose of each such
sale or exchange is to acquire (and results within 90 days of such sale or
exchange in the acquisition of) replacement items of equipment which are the
functional equivalent of the item of equipment so sold or exchanged and (x)
disposals or replacements of obsolete equipment in the ordinary course of
business.
"Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal, state or foreign law for the relief of debtors.
"Board of Directors" means, with respect to any Person, the
Board of Directors of such Person or any committee of the Board of Directors of
such Person duly authorized, with respect to any particular 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 or other equivalent governing body
of such Person.
"Borrowing Restricted Subsidiary" means any Restricted
Subsidiary that incurs, or otherwise becomes liable
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for, in excess of $5.0 million of Restricted Subsidiary Indebtedness.
"Business Day" means a day that is not a Legal Holiday.
"Capital Stock" means (i) with respect to any Person, any and
all shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, including each class of common stock and
preferred stock of such Person and (ii) with respect to the Company or any other
Person formed other than as a corporation, any and all partnership or other
equity interests of the Company or such other Person.
"Capitalized Lease Obligation" means, as to any Person, the
obligations of such Person under a lease that are required to be classified and
accounted for as capital lease obligations under GAAP and, for purposes of this
definition, the amount of such obligations at any date shall be the capitalized
amount of such obligations at such date, determined in accordance with GAAP.
"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; (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; (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
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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 $250,000,000;
(v) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clause (i) above entered into
with any bank meeting the qualifications specified in clause (iv) above 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.
"Change of Control" means if at any time any Person or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act)
acquires, in one or more transactions, (i) beneficial ownership (within the
meaning of Rule 13d-3 under the Exchange Act) of 50% or more of the voting power
represented by all voting securities of the Company or (ii) the power to elect a
majority of the Board of Directors of the Company; provided, however, that
voting securities beneficially owned by or voting power controlled by such
Person or group will not be deemed to include common stock beneficially owned or
voting power controlled so long as it is beneficially owned or controlled
directly or indirectly by Mid-America Group, Ltd. ("MAG")(but only so long as
MAG is controlled by Xx. Xxxxxx X. Xxxxxxxxx and/or his spouse or their
respective heirs or lineal descendants), or Xx. Xxxxxx X. Xxxxxxxxx or Xx.
Xxxxxx X. Xxxxxxx, their respective spouses or their respective heirs or lineal
descendants.
"Change of Control Date" has the meaning provided in Section
4.15.
"Change of Control Offer" has the meaning provided in Section
4.15.
"Change of Control Payment Date" has the meaning provided in
Section 4.15.
"Commodity Agreements" means without limitation any commodity
futures contract, commodity option agreement, or other similar agreement or
arrangement entered into by the Company designed to protect the Company against
fluctuations in
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the prices commodities used in the ordinary course of business and not entered
into for any other purpose.
"Common Stock" of any Person means any and all shares,
interests or other participations in, and other equivalents (however designated
and whether voting or nonvoting) of such Person's common stock, whether
outstanding on the Issue Date or issued after the Issue Date, 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.
"Consolidated EBITDA" means, with respect to any Person, for
any period, the sum (without duplication) of (i) Consolidated Net Income, (ii)
to the extent Consolidated Net Income has been reduced thereby, all income taxes
of such Person and its Restricted Subsidiaries paid or accrued in accordance
with GAAP for such period (other than income taxes attributable to
extraordinary, unusual or nonrecurring gains or losses), Consolidated Interest
Expense, amortization expense (including write-off of deferred financing costs)
and depreciation expense and (iii) other non-cash items other than non-cash
interest reducing Consolidated Net Income (other than such items incurred in the
ordinary course of business consistent with past practice) less other non-cash
items increasing Consolidated Net Income (other than such items incurred in the
ordinary course of business consistent with past practice), all as determined on
a consolidated basis for such Person and its Restricted Subsidiaries in
conformity with GAAP.
"Consolidated Fixed Charge Coverage Ratio" means, with respect
to any Person, the ratio of Consolidated EBITDA of such Person during the four
most recent full fiscal quarters for which financial information is available
(the "Four Quarter Period") ending not more than 135 days prior to the date of
the transaction giving rise to the need to calculate the Consolidated Fixed
Charge Coverage Ratio (the "Transaction Date") to Consolidated Fixed Charges of
such Person for the Four Quarter Period. In addition to and without limitation
of the foregoing,
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for purposes of this definition, "Consolidated EBITDA" and "Consolidated Fixed
Charges" shall be calculated after giving effect on a pro forma basis for the
Four Quarter Period to (i) the incurrence or repayment of any Indebtedness of
such Person or any of its Restricted Subsidiaries at any time subsequent to the
last day of the Four Quarter Period and on or prior to the Transaction Date, as
if such incurrence or repayment, as the case may be (and the application of the
proceeds thereof), occurred on the first day of the Four Quarter Period and (ii)
any Asset Sales or Asset Acquisitions (including, without limitation, any Asset
Acquisition giving rise to the need to make such calculation as a result of such
Person or one of its Restricted Subsidiaries (including any Person who becomes a
Restricted Subsidiary as a result of the Asset Acquisition) incurring, assuming
or otherwise being liable for Acquired Indebtedness and also including any
Consolidated EBITDA associated with such Asset Acquisition) occurring during the
Four Quarter Period or at any time subsequent to the last day of the Four
Quarter Period and on or prior to the Transaction Date, as if such Asset Sale or
Asset Acquisition (including the incurrence, assumption or liability for any
such Indebtedness or Acquired Indebtedness) occurred on the first day of the
Four Quarter Period. If such Person or any of its Restricted Subsidiaries
directly or indirectly guarantees Indebtedness of a third Person, the preceding
sentence shall give effect to the incurrence of such guaranteed Indebtedness as
if such Person or any Restricted Subsidiary of such Person had directly incurred
or otherwise assumed such guaranteed Indebtedness. Furthermore, in calculating
"Consolidated Fixed Charges," (1) interest on Indebtedness determined on a
fluctuating basis as of the Transaction Date and that will continue to be so
determined thereafter shall be deemed to have accrued at a fixed rate per annum
equal to the rate of interest on such Indebtedness in effect on the Transaction
Date, (2) if interest on any Indebtedness actually incurred on the Transaction
Date may optionally be determined at an interest rate based upon a factor of a
prime or similar rate, a eurocurrency interbank offered rate or other rates,
then the interest rate in effect on the Transaction Date will be deemed to have
been in effect during the Four Quarter Period, (3) notwithstanding clause (1)
above, interest
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on Indebtedness determined on a fluctuating basis, to the extent such interest
is covered by Interest Rate Agreements, shall be deemed to accrue at the rate
per annum resulting after giving effect to the operation of such Interest Rate
Agreements and (4) the permanent retirement of any Indebtedness during the Four
Quarter Period or at any time subsequent to the last day of the Four Quarter
Period and on or prior to the Transaction Date shall be given effect as if it
occurred at the beginning of such Four Quarter Period.
"Consolidated Fixed Charges" means, with respect to any Person
for any period, the sum, without duplication, of (i) Consolidated Interest
Expense and (ii) the product of (x) the amount of all dividend payments on any
series of preferred stock of such Person (except dividends for such period which
are accrued but unpaid) times (y) a fraction, the numerator of which is one and
the denominator of which is one minus the then current effective consolidated
federal, state and local tax rate of such Person, expressed as a decimal.
"Consolidated Interest Expense" means, with respect to any
Person for any period, the aggregate of all cash and non-cash interest expense
(minus amortization or write-off of deferred financing costs included in cash or
non-cash interest expense and minus interest income and capitalized interest)
with respect to all outstanding Indebtedness of such Person and its Restricted
Subsidiaries, including the net costs associated with Interest Rate Agreements,
for such period determined on a consolidated basis in conformity with GAAP.
Consolidated Interest Expense of the Company shall not include any prepayment
premiums or amortization of original issue discount or deferred financing costs.
"Consolidated Net Income" of the Company means, for any
period, the aggregate net income (or loss) of the Company and its Restricted
Subsidiaries for such period on a consolidated basis, determined in accordance
with GAAP; provided that there shall be excluded therefrom (a) gains and losses
from Asset Sales (without regard to the $5 million limitation set forth in the
definition thereof) or abandonments or reserves relating thereto, (b) items
classified as extraordinary, nonrecurring
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or unusual gains and losses, and the related tax effects, (c) the net income (or
loss) of any Person acquired in a pooling of interests transaction accrued prior
to the date it becomes a Restricted Subsidiary of the Company or is merged or
consolidated with the Company or any Restricted Subsidiary, (d) the net income
of any Restricted Subsidiary to the extent that the declaration of dividends or
similar distributions by that Restricted Subsidiary of that income is restricted
by contract, operation of law or otherwise and (e) for the purpose of
calculating Consolidated Net Income for clause (iii)(w) of the first paragraph
of the covenant "Limitation on Restricted Payments," the net income (or loss) of
any Person, other than a Restricted Subsidiary, except to the extent of cash
dividends or distributions (net of tax, if applicable) paid to the Company or a
Restricted Subsidiary of the Company by such Person.
"Credit Agreement" means the Credit Agreement dated as of
November 17, 1986, and amended and restated as of June 30, 1995, among the
Company, the financial institutions party thereto in their capacities as lenders
thereunder, and Bankers Trust Company as agent for the banks, as the same may be
amended from time to time, and any agreement evidencing the refinancing,
modification, replacement, renewal, restatement, refunding, deferral, extension,
substitution, supplement, reissuance or resale thereof, whether including any
additional obligors or with the same or any different agent or group of lenders.
"Currency Agreements" means without limitation any foreign
exchange contract, currency swap agreement, cross currency agreement, currency
option agreement, forward currency agreement, or other similar agreement or
arrangement entered into by the Company designed to protect the Company against
fluctuations in foreign exchange rates and not entered into for any other
purpose.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
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"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.
"Depository" means The Depository Trust Company, its nominees
and successors.
"Discharged" has the meaning provided in Section 8.01.
"Disqualified Capital Stock" means any Capital Stock that, by
its terms (or by the terms of any security into which it is convertible or for
which it is exchangeable), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the sole option of the holder thereof, in whole or in part, on
or prior to the Maturity Date of the Notes.
"Equity Offering" means an offering of Common Stock of the
Company resulting in net proceeds to the Company in excess of $20 million.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended
from time to time.
"Event of Default" has the meaning provided in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the SEC thereunder.
"Exchange Notes" has the meaning provided in the preamble to
this Indenture.
"Exchange Offer" means the registration by the Company under
the Securities Act pursuant to a registration statement of the offer by the
Company to each Holder of the Initial Notes to exchange all the Initial Notes
held by such Holder for the Exchange Notes in an aggregate principal amount
equal to the aggregate principal amount of the Initial Notes held by
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such Holder, all in accordance with the terms and conditions of the Registration
Rights Agreement.
"GAAP" means generally accepted accounting principles as in
effect in the United States of America as of the date of this Indenture, except
in respect of any consolidated financial statements delivered pursuant to
Section 4.09 from time to time, GAAP shall mean generally accepted accounting
principles as in effect in the United States of America at the time of delivery
of such consolidated financial statements. If the Company has changed one or
more of the accounting principles used in the preparation of its financial
statements, then a Default or an Event of Default relating to financial ratios
or amounts, calculated under the new accounting principles, shall not be
considered a Default or an Event of Default if the required ratio or amount
would have been complied with had the Company continued to use those generally
accepted accounting principles employed as of the date of this Indenture.
"Global Note" has the meaning provided in Section 2.01.
"Holder" or "Noteholder" means the Person in whose name a Note
is registered on the Registrar's books.
"Indebtedness" means with respect to any Person, without
duplication, (i) all indebtedness of such Person for borrowed money, (ii) all
indebtedness of such Person evidenced by bonds, debentures, notes or other
similar instruments, (iii) all Capitalized Lease Obligations of such Person,
(iv) all indebtedness of such Person issued or assumed as the deferred purchase
price of property, all conditional sale obligations and all indebtedness under
any title retention agreement, (v) all indebtedness of such Person for the
reimbursement of any obligor on any letter of credit, banker's acceptance or
similar credit transaction, (vi) guarantees and other contingent obligations and
(vii) all indebtedness of any other Person of the type referred to in clauses
(i) through (vi) that is secured by any first Lien on any property or asset of
such Person, the amount of such indebtedness being deemed to be the lesser of
the value of such property or asset or the amount of
20
-12-
the indebtedness so secured, but excluding trade accounts payable arising in the
ordinary course of business that are not overdue in excess of 90 days or the
subject of a good faith dispute.
"Indenture" means this Indenture, as amended or supplemented
from time to time in accordance with the terms hereof.
"Initial Notes" has the meaning provided in the preamble to
this Indenture.
"Initial Purchasers" mean BT Alex. Xxxxx Incorporated,
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation, Bear, Xxxxxxx & Co. Inc.,
Salomon Brothers Inc and NationsBanc Xxxxxxxxxx Securities LLC.
"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 Notes.
"Interest Rate Agreement" means any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement or other
similar agreement or arrangement entered into by the Company designed to protect
the Company against fluctuations in interest rates and not entered into for any
other purpose.
"Interest Swap Obligations" means the obligations of any
Person, pursuant to any arrangement with any other Person, whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such other
Person calculated by applying a fixed or a floating rate of interest on the same
notional amount and shall include, without limitation, interest rate swaps,
caps, floors, collars and similar agreements.
21
-13-
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended to the date hereof and from time to time hereafter.
"Investment" means any transfer or delivery of cash, stock or
other property of value in exchange for indebtedness, stock or other security or
ownership interest by way of loan, advance (excluding any advances to officers
and employees in the ordinary course of business) or capital contribution. The
amount of any non-cash Investment (other than a Permitted Investment) or any
Investment in an Unrestricted Subsidiary shall be the fair market value of such
Investment, as determined in good faith by management of the Company unless the
fair market value of such Investment exceeds $10 million, in which case such
fair market value shall also be determined in good faith by the Board of
Directors or other equivalent governing body of the Company at the time such
Investment is made. For purposes of the covenant "Limitations on Restricted
Payments," (i) "Investment" in a Subsidiary shall include the portion
(proportionate to the Company's Capital Stock in such Subsidiary) of the fair
market value (as determined in good faith by the Board of Directors) of such
Subsidiary at the time that such Subsidiary is designated an Unrestricted
Subsidiary; provided that upon a redesignation of such Subsidiary as a
Restricted Subsidiary, the Company shall be deemed to continue to have a
permanent "Investment" in an Unrestricted Subsidiary in an amount (if positive)
equal to (x) the Company's "Investment" in such Subsidiary at the time of such
redesignation less (y) the portion (proportionate to the Company's Capital Stock
in such Subsidiary) of the fair market value (as determined in good faith by the
Board of Directors) of the net assets of such Subsidiary at the time of such
redesignation; and (ii) any property transferred to or from an Unrestricted
Subsidiary shall be valued at its fair market value at the time of such
transfer, in each case determined in good faith by the Board of Directors.
"Issue Date" means the date of original issuance of the Notes
under this Indenture.
22
-14-
"Legal Holiday" has the meaning provided in Section 11.07.
"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 or any
agreement to give any security interest).
"Make-Whole Premium" with respect to a Note means an amount
equal to the greater of (i) 1.0% of the outstanding principal amount of such
Note and (ii) the excess of (a) the present value of the remaining interest,
premium and principal payments due on such Note as if such Note were redeemed on
June 15, 2002, computed using a discount rate equal to the Treasury Rate plus
62.5 basis points, over (b) the outstanding principal amount of such Note.
"Maturity Date" means June 15, 2007.
"Net Cash Proceeds" means, (i) 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 Restricted Subsidiaries
from such Asset Sale net of (a) reasonable out-of-pocket expenses and fees
relating to such Asset Sale (including, without limitation, legal, accounting
and investment banking fees and sales commissions), (b) taxes paid or payable
((1) including, without limitation, income taxes reasonably estimated to be
actually payable as a result of any disposition of property within two years of
the date of disposition and (2) after taking into account any reduction in tax
liability due to available tax credits or deductions and any tax sharing
arrangements), (c) a reasonable reserve for the after-tax cost of any
indemnification obligations (fixed and/or contingent) attributable to seller's
indemnities to the purchaser undertaken by the Company or any of its Restricted
Subsidiaries in connection with such Asset Sale and (d) repayment of
Indebtedness that is required to be repaid in connection with such Asset Sale or
(ii) with respect to the sale of Capital Stock by any Person,
23
-15-
the aggregate net proceeds received by such Person after payment of expenses,
commissions, underwriting discounts and other similar charges incurred in
connection therewith, whether such proceeds are in cash or in property (valued
at the fair market value thereof, as determined in good faith by the Board of
Directors or other equivalent governing body of such Person, at the time of
receipt, whose determination shall be evidenced by a board resolution).
"Net Proceeds Offer" has the meaning provided in Section 4.16.
"9 3/4% Notes" means $225,000,000 aggregate principal amount
of 9 3/4% Notes due 2007 of the Company, as amended or supplemented from time to
time in accordance with the terms thereof.
"9 3/4% Note Indenture" means the indenture dated as of June
12, 1997 between the Company and Fleet National Bank, as trustee, relating to
the 9 3/4% Notes, as amended or supplemented from time to time in accordance
with the terms thereof.
"Non-U.S. Person" means a person who is not a U.S. person, as
defined in Regulation S.
"Notes" means the Company's 9 3/8% Senior Notes due 2007, as
amended or supplemented from time to time in accordance with the terms hereof,
that are issued pursuant to the Indenture.
"Obligations" means all obligations for principal, premium,
interest, penalties, fees, indemnifications, reimbursements, damages and other
liabilities payable under the documentation governing any Indebtedness.
"Offering Memorandum" means the Offering Memorandum dated
February 13, 1998, pursuant to which the Initial Notes were offered, and any
supplement thereto.
"Officer" means, with respect to any Person, the Chairman of
the Board, the Chief Executive Officer, the President,
24
-16-
any Vice President, the Chief Financial Officer, the Treasurer, any Assistant
Treasurer, the Controller or the Secretary of such Person.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Officers or by an Officer and 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.
"Offshore Physical Notes" has the meaning provided in Section
2.01.
"Old Notes" means the 12 3/4% Senior Subordinated Discount
Debentures of the Company.
"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. Unless otherwise required by the TIA, the legal counsel may
be an employee of or counsel to the Company or the Trustee.
"Participants" has the meaning provided in Section 2.16.
"Paying Agent" has the meaning provided in Section 2.03,
except that, for the purposes of Articles Three and Eight and Sections 4.15 and
4.16, the Paying Agent shall not be the Company or a Subsidiary of the Company.
"Permitted Indebtedness" means, without duplication, (i) the
Notes, the Senior Subordinated Notes, 9 3/4% Notes and any Guarantees thereof,
(ii) Indebtedness of the Company and its Restricted Subsidiaries outstanding on
the Issue Date reduced by the amount of any scheduled amortization payments or
mandatory prepayments when actually paid or permanent reductions thereon (other
than permanent reductions as a result of any refinancing thereof permitted
hereunder), (iii) Indebtedness of the Company and its Restricted Subsidiaries
incurred pursuant to the Credit Agreement in an aggregate principal amount not
to
25
-17-
exceed $225 million, (iv) Indebtedness of the Company and its Restricted
Subsidiaries incurred pursuant to Interest Rate Agreements, (v) intercompany
Indebtedness by and among the Company and/or its wholly owned Restricted
Subsidiaries, (vi) Indebtedness of the Company and its Restricted Subsidiaries
(including Acquired Indebtedness) pursuant to pollution control bonds and
industrial revenue bonds not to exceed the sum of the aggregate amount thereof
outstanding on the Issue Date plus $25 million, (vii) Indebtedness of the
Company and its Restricted Subsidiaries (including Acquired Indebtedness)
evidenced by purchase money obligations and Capitalized Lease Obligations not to
exceed $50 million in fiscal year 1998 and $25 million in any subsequent fiscal
year; provided that any portion of the $25 million ($50 million in the case of
fiscal year 1998) that is not incurred in any fiscal year may be carried over to
successive fiscal years thereafter; provided, further, that the maximum amount
that may be incurred in any one fiscal year shall not exceed $50 million, (viii)
additional Indebtedness of the Company and its Restricted Subsidiaries
(including Acquired Indebtedness) incurred for any purpose not to exceed, at any
time outstanding, $200 million (that may be, but need not be, incurred in whole
or in part under the Credit Agreement), (ix) Indebtedness incurred pursuant to
the Trade Receivable Facility, (x) Indebtedness of the Company or its Restricted
Subsidiaries incurred under one or more instruments in connection with any
refinancing, modification, replacement, renewal, restatement, refunding,
deferral, extension, substitution, supplement, reissuance or resale (a
"refinancing") of existing or future Indebtedness of such entity; provided that
any such incurrence and related refinancing, together, shall not (1) result in
an increase in the aggregate principal amount of such Indebtedness (except to
the extent such increase is a result of an incurrence or refinancing of
additional Indebtedness otherwise permitted by the Indenture or such increase
does not exceed the amount of premiums, fees and expenses (including
underwriting discounts) relating to such refinancing, modification, replacement,
renewal, restatement, refunding, deferral, extension, substitution, supplement,
reissuance or resale of such existing or future Indebtedness) of the Company and
its Restricted Subsidiaries and (2) create Indebtedness where the
26
-18-
Weighted Average Life to Maturity at the time of such refunded, refinanced,
modified, replaced, renewed, restated, deferred, extended, substituted,
supplemented, reissued or resold Indebtedness is incurred is less than the
Weighted Average Life to Maturity of the Indebtedness being refunded,
refinanced, modified, replaced, renewed, restated, deferred, extended,
substituted, supplemented, reissued or resold; and provided, further, that with
respect to the refinancing of Indebtedness incurred pursuant to clauses (v),
(vi), (vii), (xvi) and (xvii), such Indebtedness may only be refinanced with
Indebtedness permitted to be incurred under such respective clause, (xi)
Indebtedness of the Company and its Restricted Subsidiaries arising in
connection with the acquisition or refinancing of property so long as recourse
with respect to such Indebtedness is limited only to the property being acquired
or refinanced or any amendment, restatement, deferral, extension, modification,
refinancing, refunding, renewal, replacement, substitution, supplement,
reissuance or resale thereof so long as recourse is limited to the property
being refinanced, (xii) Indebtedness of the Company and its Restricted
Subsidiaries incurred after the Issue Date relating to letters of credit
available or outstanding under the Credit Agreement (or any successor thereto),
(xiii) surety obligations of the Company and its Restricted Subsidiaries entered
into in the ordinary course of business, (xiv) Indebtedness of the Company and
its Restricted Subsidiaries incurred to finance the purchase of insurance in the
ordinary course of business, (xv) Indebtedness of the Company and its Restricted
Subsidiaries incurred arising from the honoring by a bank or other financial
institution of a check or draft inadvertently drawn against insufficient funds
in the ordinary course of business, provided that such Indebtedness is
extinguished within two business days of notice of any such incurrence, (xvi)
Indebtedness of the Company and its Restricted Subsidiaries arising from
guarantees of loans and advances by third parties to employees and officers of
the Company or its subsidiaries, not to exceed $1 million in the aggregate,
(xvii) Indebtedness of the Company and its Restricted Subsidiaries arising from
the repurchase of Common Stock not to exceed $4 million, (xviii) Indebtedness of
the Company and its Restricted
27
-19-
Subsidiaries arising from Currency Agreements and Commodity Agreements and (xix)
the Old Notes.
"Permitted Investments" means in the case of the Company or
its Restricted Subsidiaries, (i) an Investment related to the business of the
Company and its Restricted Subsidiaries as it is conducted on the Issue Date,
including, but not limited to, subsidiaries, joint ventures or other business
alliances formed in the ordinary course of business, (ii) Investments in the
Company by any Restricted Subsidiary or Investments by the Company or any
Restricted Subsidiary (including acquisitions) in any other Person, if after
giving effect of any such Investment, such Person would be a wholly owned
Restricted Subsidiary of the Company, (iii) Investments in cash and Cash
Equivalents, (iv) Investments in Productive Assets, (v) Investments in any
Person in connection with the Trade Receivable Facility, (vi) Investments
existing on the date of this Indenture, (vii) loans and advances to employees
and officers of the Company and its Restricted Subsidiaries not in excess of $1
million at any one time outstanding, (viii) accounts receivable created or
acquired in the ordinary course of business, (ix) Interest Rate Agreements,
Currency Agreements and Commodity Agreements entered into in the ordinary course
of the Company's business and otherwise in compliance with this Indenture, (x)
Investments in Unrestricted Subsidiaries in an amount at any one time
outstanding not to exceed $25 million, (xi) guarantees by the Company of
Indebtedness otherwise permitted to be incurred by Restricted Subsidiaries of
the Company under this Indenture and (xii) Investments received by the Company
or its Restricted Subsidiaries as consideration for asset sales, including Asset
Sales; provided in the case of an Asset Sale, such Asset Sale is effected in
compliance with Section 4.16.
"Permitted Liens" means (i) Liens for taxes, assessments and
governmental charges to the extent not required to be paid, (ii) statutory Liens
of landlords and carriers, warehousemen, mechanics, suppliers, materialmen,
repairmen or other like Liens arising in the ordinary course of business and
with respect to amounts not yet delinquent or being contested in
28
-20-
good faith by an appropriate process of law, and for which a reserve or other
appropriate provision, if any, as shall be required by GAAP shall have been
made, (iii) pledges or deposits in the ordinary course of business to secure
lease obligations or nondelinquent obligations under workers' compensation,
unemployment insurance or similar legislation, (iv) Liens to secure the
performance of public statutory obligations that are not delinquent, appeal
bonds, performance bonds or other obligations of a like nature (other than for
borrowed money), (v) easements, rights-of-way, restrictions, minor defects or
irregularities in title and other similar charges or encumbrances not
interfering in any material respect with the business of the Company or any of
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 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) Liens securing reimbursement obligations with respect
to letters of credit that encumber documents and other property relating to such
letters of credit and the products and proceeds thereof, (viii) Liens in favor
of custom and revenue authorities arising as a matter of law to secure payment
of nondelinquent customs duties in connection with the importation of goods,
(ix) judgment and attachment Liens not giving rise to a Default or Event of
Default, (x) leases or subleases granted to others not interfering in any
material respect with the business of the Company or any Subsidiary, (xi) Liens
encumbering customary initial deposits and margin deposits, and other Liens
incurred in the ordinary course of business that are within the general
parameters customary in the industry, in each case securing Indebtedness under
Interest Rate Agreements, Currency Agreements, Commodity Agreements and forward
contracts, option futures contracts, futures options or similar agreements or
arrangements designed to protect the Company or any Subsidiary from fluctuations
in the price of commodities, (xii) Liens encumbering deposits made in the
ordinary course of business to secure nondelinquent obligations arising from
statutory, regulatory, contractual or warranty requirements of the Company or
its Subsidiaries for which a reserve or other
29
-21-
appropriate provision, if any, as shall be required by GAAP shall have been
made, (xiii) Liens arising out of consignment or similar arrangements for the
sale of goods entered into by the Company or any Subsidiary in the ordinary
course of business in accordance with industry practice, (xiv) 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 default by the Company or any Subsidiary of its obligations
under such lease, (xv) Liens arising from filing UCC financing statements for
precautionary purposes in the connection with true leases of personal property
that are otherwise permitted under this Indenture and under which the Company or
any Subsidiary is lessee, (xvi) Liens on property of a Person existing at the
time such Person is acquired by, merged into or consolidated with the Company or
any Restricted Subsidiary of the Company, provided that such Liens were in
existence prior to the contemplation of such merger or consolidation and do not
extend to any assets other than those of the Person merged into or consolidated
with the Company or such Restricted Subsidiary, (xvii) Liens to secure the
payment of all or a part of the purchase price of property or assets acquired or
constructed in the ordinary course of business on or after the date of this
Indenture, provided that (a) such property or assets are used in the same or
similar line of business as the Company was engaged in on the Issue Date, (b) at
the time of incurrence of any such Lien, the aggregate principal amount of the
obligations secured by such Lien shall not exceed the lesser of the cost or fair
market value of the assets or property (or portions thereof) so acquired or
constricted, (c) each such Lien shall encumber only the assets or property (or
portions thereof) so acquired or constructed and shall be attached to such
property within 180 days of the purchase or construction thereof and (d)
Indebtedness secured by such Lien shall have been permitted to be incurred under
the covenant "Limitation on Incurrence of Additional Indebtedness," and (xviii)
Liens of landlords or of mortgagees of landlords arising by operation of law,
provided that the rental payments secured thereby are not yet due and payable;
(xix) Liens incurred in the ordinary course of business of the Company or any
Restricted Subsidiary
30
-22-
of the Company with respect to obligations that (a) are not incurred in
connection with the borrowing of money or the obtaining of advances or credit
(other than trade credit in the ordinary course of business) and (b) do not in
the aggregate materially detract from the value of the property or materially
impair the use thereof in the operation of business by the Company or such
Restricted Subsidiary.
"Person" means an individual, partnership, corporation,
unincorporated organization, trust or joint venture, limited liability company
or a governmental agency or political subdivision thereof.
"Physical Notes" has the meaning provided in Section 2.01.
"Plan of Liquidation" means, with respect to any Person, a
plan that provides for, contemplates or the effectuation of which is preceded or
accompanied by (whether or not substantially contemporaneously, in phases or
otherwise) (i) the sale, lease, conveyance or other disposition of all or
substantially all of the assets of such Person otherwise than as an entirety or
substantially as an entirety and (ii) the distribution of all or substantially
all of the proceeds of such sale, lease, conveyance or other disposition and all
or substantially all of the remaining assets of such Person to holders of
Capital Stock of such Person.
"principal" of any Indebtedness (including the Notes) means
the principal amount of such Indebtedness plus the premium, if any, on such
Indebtedness.
"Private Placement Legend" means the legend initially set
forth on the Notes in the form set forth in Section 2.15.
"pro forma" means, with respect to any calculation made or
required to be made pursuant to the terms of this Indenture, a calculation in
accordance with Article 11 of Regulation S-X under the Securities Act as
interpreted by the Company in consultation with its independent certified public
accountants.
31
-23-
"Proceeds Purchase Date" shall have the meaning provided in
Section 4.16.
"Productive Assets" means assets (including Capital Stock) of
a kind used or useable in the business of the Company and its Restricted
Subsidiaries as it is conducted on the Issue Date.
"Qualified Capital Stock" means 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," when used with respect to any Note to be
redeemed, means the date fixed for such redemption pursuant to this Indenture
and the Notes.
"Redemption Price," when used with respect to any Note to be
redeemed, means the price fixed for such redemption pursuant to this Indenture
and the Notes.
"Registrar" has the meaning provided in Section 2.03.
"Registration Rights Agreement" means the Registration Rights
Agreement dated February 23, 1998 among the Company and the Initial Purchasers
for the benefit of themselves and the Holders, as the same may be amended or
modified from time to time in accordance with the terms thereof.
"Regulation S" means Regulation S under the Securities Act.
"Restricted Payment" has the meaning provided in Section 4.03.
"Restricted Security" has the meaning assigned to such term 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 Note constitutes a Restricted Security.
32
-24-
"Restricted Subsidiary" means any direct or indirect
Subsidiary of any Person that is not an Unrestricted Subsidiary of such Person.
"Restricted Subsidiary Indebtedness" means (a) Indebtedness
(other than Indebtedness under any Trade Receivable Facility, intercompany
Indebtedness or Indebtedness outstanding on the Issue Date, including any
refinancing of Indebtedness outstanding on the Issue Date to the extent it does
not increase the principal amount of such Indebtedness) incurred by a Restricted
Subsidiary (other than a Subsidiary Guarantor), or (b) the direct or indirect
assumption, guarantee (other than a Guarantee) or other obligation of any
Restricted Subsidiary (other than a Subsidiary Guarantor) for any Indebtedness
of the Company or any other Restricted Subsidiary by way of the pledge of any
intercompany note or otherwise, or (c) the total amount of committed borrowings
under revolving credit facilities under which the Restricted Subsidiary (other
than a Subsidiary Guarantor) is a borrower or guarantor, but "Restricted
Subsidiary Indebtedness" shall not include any Indebtedness of the Restricted
Subsidiary evidenced by purchase money obligations or Capitalized Lease
Obligations provided for under clause (vii) and Indebtedness provided for under
clause (xi) of the definition of Permitted Indebtedness in an aggregate amount
not to exceed $75 million for all Restricted Subsidiaries.
"Rule 144A" means Rule 144A under 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 Restricted Subsidiary of any property, whether
owned by the Company or any Restricted 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 said Person on the security of such Property.
"SEC" means the Securities and Exchange Commission.
33
-25-
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"Senior Subordinated Indenture" means the indenture dated as
of February 23, 1998 between the Company and Chase Bank of Texas, National
Association, as trustee relating to the Senior Subordinated Notes, as amended or
supplemented from time to time in accordance with the terms thereof.
"Senior Subordinated Notes" means $250,000,000 aggregate
principal amount of 9 7/8% Senior Subordinated Notes due 2008 of the Company, as
amended or supplemented from time to time in accordance with the terms thereof.
"Significant Restricted Subsidiary" means any Restricted
Subsidiary of the Company that satisfies the criteria for a "significant
subsidiary" set forth in Rule 1.02(w) of Regulation S-X under the Securities
Act.
"Subsidiary," with respect to any Person, means (i) any
corporation of which the outstanding Capital Stock having at least a majority of
the votes entitled to be cast in the election of directors under ordinary
circumstances shall at the time be owned, directly or indirectly, by such Person
or (ii) any other Person of which at least a majority of the voting interest to
elect the governing body or Persons thereof under ordinary circumstances is at
the time, directly or indirectly, owned by such Person.
"Subsidiary Guarantee" has the meaning provided in Section
4.18.
"Subsidiary Guarantor" means each of the Company's Restricted
Subsidiaries that becomes a guarantor of the Notes by executing a supplemental
indenture in form and substance reasonably satisfactory to the Trustee in which
such Restricted Subsidiary agrees to be bound by the terms of the Indenture;
provided that any person constituting a Subsidiary Guarantor as described above
shall cease to constitute a Subsidiary Guarantor
34
-26-
when its respective Subsidiary Guarantee is released in accordance with the
terms thereof.
"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.
"Total Tangible Assets" means the Company's total consolidated
assets minus all intangible assets, determined in accordance with GAAP.
"Trade Receivable Facility" means the arrangements that have
been or may be entered into by the Company or one or more of its Restricted
Subsidiaries pursuant to which the Company or one or more of its Restricted
Subsidiaries may either transfer to any other Person or grant a security
interest in any trade receivables (whether now existing or arising in the
future) and any assets related to such trade receivables including, without
limitation, all collateral securing such trade receivables and all material
contracts and all guarantees or other Obligations in respect of such trade
receivables of the Company or one or more of its Restricted Subsidiaries.
"Treasury Rate" means the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as
compiled and published in the most recent Federal Reserve Statistical Release
H.15(519) that has become publicly available at least two business days prior to
the Change of Control Redemption Date (or, if such Statistical Release is no
longer published, any publicly available source or similar market date)) most
nearly equal to the period from the Change of Control Redemption Date to June
15, 2002; provided, however, that if the period from the Change of Control
Redemption Date to June 15, 2002 is not equal to the constant maturity of a
United States Treasury security for which a weekly average yield is given, the
Treasury Rate shall be obtained by linear interpolation (calculated to the
nearest one-twelfth of a year) from the weekly average yields of United States
Treasury securities for which such yields are given except that if the period
from the Change of Control Redemption Date to June 15, 2002 is less than one
year, the weekly average yield on actually traded United States Treasury
securities adjusted to a constant maturity of one year shall be used.
35
-27-
"Trust Officer" means any officer of the Trustee assigned by
the Trustee to administer its corporate trust matters.
"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 Subsidiary" means any Subsidiary of the Company,
whether existing, newly formed or newly acquired, designated as an Unrestricted
Subsidiary by the Board of Directors of the Company and any Subsidiary of an
Unrestricted Subsidiary, provided, however, that at the time of such designation
(i) no Default or Event of Default shall have occurred and be continuing, (ii)
no portion of any Indebtedness or any other obligation (contingent or otherwise)
of such Subsidiary (a) is guaranteed by, or is otherwise the subject of credit
support provided by the Company or any of its Restricted Subsidiaries, (b) is
recourse to or obligates the Company or any of its Restricted Subsidiaries in
any way or (c) subjects any property or asset of the Company or any of its
Restricted Subsidiaries directly or indirectly, contingently or otherwise, to
the satisfaction of such Indebtedness or other obligation, (iii) neither the
Company nor any of its Restricted Subsidiaries has any contract, or agreement,
arrangement or understanding with such Subsidiary other than on terms as
favorable to the Company or such Restricted Subsidiary as those that might be
obtained at the time from Persons that are not Affiliates of the Company and
(iv) neither the Company nor any of its Restricted Subsidiaries has any
obligations (a) to subscribe for additional shares of Capital Stock of such
Subsidiary or (b) to maintain or preserve such Subsidiary's financial condition
or to cause such Subsidiary to achieve certain levels of operating results. Any
such designation by the Company's Board of Directors shall be evidenced to the
Trustee by filing with the Trustee a certified certificate stating that such
designation complies with the foregoing conditions. The Company's Board of
Directors may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary; provided, however, that immediately after
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giving effect to such designation, no Default or Event of Default shall have
occurred and be continuing, including, without limitation, under the covenants
described in Section 4.12 assuming the incurrence by the Company and its
Restricted Subsidiaries at the time of such designation of all existing
Indebtedness of the Unrestricted Subsidiary to be so designated as a Restricted
Subsidiary. In the event of any disposition involving the Company in which the
Company is not the Surviving Person, the Board of Directors of the Surviving
Person may (x) prior to such disposition, designate any of its Subsidiaries, and
any of the Company's Subsidiaries, and (y) after such disposition, designate any
of its direct or indirect Subsidiaries as an Unrestricted Subsidiary under the
same conditions and in the same manner as the Company under the terms of the
Indenture.
"U.S. Government Obligations" has the meaning provided in
Section 8.01.
"U.S. Legal Tender" means such coin or currency of the United
States of America as at the time of payment shall be legal tender for the
payment of public and private debts.
"U.S. Physical Notes" has the meaning provided in Section
2.01.
"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 Restricted Subsidiary" means any Restricted
Subsidiary of which all of the outstanding voting securities or other equity
ownership interest (other than directors qualifying or similar shares required
to be held by third
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parties in accordance with applicable law, not in any event to exceed 5 percent
of the total outstanding voting securities) are owned by the Company or any
wholly owned Restricted Subsidiary of the Company.
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 Notes.
"indenture security holder" means a Holder or a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company or any
other obligor on the Notes.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by 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 date
hereof;
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(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in
the plural include the singular; and
(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.
ARTICLE TWO
THE NOTES
SECTION 2.01. Form and Dating.
The Initial Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto. The
Exchange Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit B hereto. The Notes may have notations or
depository legends or endorsements required by law, stock exchange rule or
usage. The Company and the Trustee shall approve the form of the Notes and any
notation, legend or endorsement on them. Each Note shall be dated the date of
its issuance and shall show the date of its authentication.
The terms and provisions contained in the Notes annexed hereto
as Exhibits A & B shall constitute, and are hereby expressly made, a part of
this Indenture and, to the extent applicable, the Company and the Trustee, by
their execution and delivery of this Indenture, expressly agree to such terms
and provisions and to be bound thereby; provided, however, that if there are any
inconsistencies between the terms of this Indenture and the terms of the Notes,
the terms of this Indenture shall control.
Notes offered and sold in reliance on Rule 144A shall be
issued initially in the form of one or more permanent global Notes in registered
form, substantially in the form set forth in Exhibit A (the "Global Note"),
deposited with the Trustee,
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as custodian for the Depository, duly executed by the Company and authenticated
by the Trustee as hereinafter provided and shall bear the legend set forth in
Section 2.15. The aggregate principal amount of the Global Note may from time to
time be increased or decreased by adjustments made on the records of the
Trustee, as custodian for the Depository, as hereinafter provided.
Notes offered and sold in offshore transactions in reliance on
Regulation S shall be issued in the form of permanent certificated Notes in
registered form in substantially the form set forth in Exhibit A (the "Offshore
Physical Notes). Notes offered and sold to institutional "accredited investors"
(as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act) shall
be issued, and Notes offered and sold in reliance on Rule 144A may be issued, in
the form of permanent certificated Notes in registered form, in substantially
the form set forth in Exhibit A (the "U.S. Physical Notes"). The Offshore
Physical Notes and the U.S. Physical Notes are sometimes collectively herein
referred to as the "Physical Notes."
SECTION 2.02. Execution and Authentication.
Two Officers, or an Officer and an Assistant Secretary, shall
sign, or one Officer shall sign and one Officer or an Assistant Secretary (each
of whom shall, in each case, have been duly authorized by all requisite
corporate actions) shall attest to, the Notes for the Company by manual or
facsimile signature.
If an Officer or Assistant Secretary whose signature is on a
Note was an Officer or Assistant Secretary at the time of such execution but no
longer holds that office or position at the time the Trustee authenticates the
Note, the Note shall nevertheless be valid.
A Note shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Note. The
signature shall be conclusive evidence that the Note has been authenticated
under this Indenture.
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The Trustee shall authenticate (i) Initial Notes for original
issue in the aggregate principal amount of up to $200,000,000 and (ii) Exchange
Notes from time to time for issue only in exchange for a like principal of
Initial Notes, in each case, upon receipt of written orders of the Company in
the form of an Officers' Certificate. The Officers' Certificate shall specify
the amount of Notes to be authenticated, the date on which the Notes are to be
authenticated and the aggregate principal amount of Notes outstanding on the
date of authentication and whether the Notes are to be Initial Notes or Exchange
Notes. The aggregate principal amount of Notes outstanding at any time may not
exceed $200,000,000, except as provided in Section 2.07. Upon the written order
of the Company in the form of an Officers' Certificate, the Trustee shall
authenticate Notes in substitution of Notes originally issued to reflect any
name change of the Company.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate Notes. Unless otherwise provided in
the appointment, an authenticating agent may authenticate Notes whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company and Affiliates of the Company.
The Notes shall be issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof.
SECTION 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency where (a) Notes
may be presented or surrendered for registration of transfer or for exchange
("Registrar"), (b) Notes may be presented or surrendered for payment ("Paying
Agent") and (c) notices and demands to or upon the Company in respect of the
Notes and this Indenture may be served. The Company may also from time to time
designate one or more other offices or agencies where the Notes may be presented
or surrendered for any or all such purposes and may from time to time rescind
such
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designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
for such purposes. The Company may act as its own Registrar or Paying Agent
except that for the purposes of Articles Three and Eight and Sections 4.15 and
4.16 neither the Company, any Subsidiary of the Company nor any of their
Affiliates shall act as Paying Agent. The Registrar shall keep a register of the
Notes and of their transfer and exchange. The Company, upon notice to the
Trustee, may have one or more co-Registrars and one or more additional paying
agents reasonably acceptable to the Trustee. The term "Paying Agent" includes
any additional paying agent. The Company initially appoints the Trustee as
Registrar and Paying Agent until such time as the Trustee has resigned or a
successor has been appointed.
The Company shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture, which agreement shall implement
the provisions of this Indenture that relate to such Agent. The Company shall
notify the Trustee, in advance, of the name and address of any such Agent. If
the Company fails to maintain a Registrar or Paying Agent, the Trustee shall act
as such.
SECTION 2.04. Paying Agent To Hold Assets in Trust.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that each Paying Agent shall hold in trust for the
benefit of the Holders or the Trustee all assets held by the Paying Agent for
the payment of principal of, or interest on, the Notes (whether such assets have
been distributed to it by the Company or any other obligor on the Notes), and
shall notify the Trustee of any Default by the Company (or any other obligor on
the Notes) in making any such payment. If the Company or a Subsidiary of the
Company acts as Paying Agent, it shall segregate such assets and hold them as a
separate trust fund. The Company at any time may require a Paying Agent to
distribute all assets held by it to the Trustee and account for any assets
disbursed and the Trustee may at any time during the continuance of any payment
Default, upon written request to a Paying Agent, require such Paying
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Agent to distribute all assets held by it to the Trustee and to account for any
assets distributed. Upon distribution to the Trustee of all assets that shall
have been delivered by the Company to the Paying Agent, the Paying Agent shall
have no further liability for such assets.
SECTION 2.05. Noteholder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of the Holders. If the Trustee is not the Registrar, the Company shall
furnish to the Trustee before each Record Date and at such other times as the
Trustee may request in writing a list as of such date and in such form as the
Trustee may reasonably require of the names and addresses of the Holders, which
list may be conclusively relied upon by the Trustee.
SECTION 2.06. Transfer and Exchange.
Subject to the provisions of Sections 2.16 and 2.17, when
Notes are presented to the Registrar or a co-Registrar with a request to
register the transfer of such Notes or to exchange such Notes for an equal
principal amount of Notes of other authorized denominations, the Registrar or
co-Registrar shall register the transfer or make the exchange as requested if
its requirements for such transaction are met; provided, however, that the Notes
surrendered for transfer or exchange shall be duly endorsed or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Registrar or co-Registrar, duly executed by the Holder thereof or his attorney
duly authorized in writing. To permit registrations of transfers and exchanges,
the Company shall execute and the Trustee shall authenticate Notes at the
Registrar's or co-Registrar's request. No service charge shall be made for any
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith (other than any such transfer taxes or similar
governmental charge payable upon exchanges or transfers pursuant to Section
2.02, 2.07, 2.10, 3.06, 4.15, 4.16 or 9.05). The Registrar or
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co-Registrar shall not be required to register the transfer of or exchange of
any Note (i) during a period beginning at the opening of business 15 days before
the mailing of a notice of redemption of Notes and ending at the close of
business on the day of such mailing and (ii) selected for redemption in whole or
in part pursuant to Article Three, except the unredeemed portion of any Note
being redeemed in part.
Any Holder of the Global Note shall, by acceptance of such
Global Note, agree that transfers of beneficial interests in such Global Note
may be effected only through a book entry system maintained by the Holder of
such Global Note (or its agent), and that ownership of a beneficial interest in
the Note shall be required to be reflected in a book entry.
SECTION 2.07. Replacement Notes.
If a mutilated Note is surrendered to the Trustee or if the
Holder of a Note claims that the Note has been lost, destroyed or wrongfully
taken, the Company shall issue and the Trustee shall authenticate a replacement
Note if the Trustee's requirements are met. If required by the Trustee or the
Company, such Holder must provide an indemnity bond or other indemnity,
sufficient in the judgment of both the Company and the Trustee, to protect the
Company, the Trustee or any Agent from any loss that any of them may suffer if a
Note is replaced. The Company may charge such Holder for its reasonable,
out-of-pocket expenses in replacing a Note, including reasonable fees and
expenses of counsel. Every replacement Note shall constitute an additional
obligation of the Company.
If, after the delivery of such replacement Note, a bona fide
purchaser of the original Note in lieu of which such replacement Note was issued
presents for payment or registration such original Note, the Trustee shall be
entitled to recover such replacement Note from the Person to whom it was
delivered or any Person taking therefrom, except a bona fide purchaser, and
shall be entitled to recover upon the security or indemnity provided therefor to
the extent of any loss, damage, cost or expense incurred by the Company or the
Trustee in connection therewith.
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SECTION 2.08. Outstanding Notes.
Notes outstanding at any time are all the Notes that have been
authenticated by the Trustee except those cancelled by it, those delivered to it
for cancellation and those described in this Section as not outstanding. A Note
does not cease to be outstanding because the Company or any of its Affiliates
holds the Note.
If a Note is replaced pursuant to Section 2.07 (other than a
mutilated Note surrendered for replacement), it ceases to be outstanding unless
the Trustee receives proof satisfactory to it that the replaced Note is held by
a bona fide purchaser. A mutilated Note ceases to be outstanding upon surrender
of such Note and replacement thereof pursuant to Section 2.07.
If on a Redemption Date or the Maturity Date the Paying Agent
(other than the Company or a Subsidiary of the Company) holds U.S. Legal Tender
or U.S. Government Obligations sufficient to pay all of the principal and
interest due on the Notes payable on that date, then on and after that date such
Notes cease to be outstanding and interest on them ceases to accrue; provided,
however, that to the extent the Trustee is enjoined from making payments to the
Holders, interest will continue to accrue until such time as the Trustee is not
so enjoined.
SECTION 2.09. Treasury Notes.
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver, consent or notice,
Notes owned by the Company or an Affiliate (other than (i) Messrs. Xxxxxx X.
Xxxxxxxxx and Xxxxxx X. Xxxxxxx, (ii) any other Affiliate who is an Affiliate
solely on account of his or its ownership of securities of the Company,
membership on the Board of Directors of the Company or employment by the Company
or any Affiliate of the Company, and (iii) any other Affiliate who is an
Affiliate solely on account of his or its relationship with any Person described
in clauses (i) or (ii) above, except in any case to the extent such Person
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is an affiliate as defined in Section 316(a) of the TIA) shall be considered as
though they are not outstanding, except that for the purposes of determining
whether the Trustee shall be protected in relying on any such direction, waiver
or consent, only Notes that the Trustee knows are so owned shall be so
considered.
SECTION 2.10. Temporary Notes.
Until definitive Notes are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Notes upon receipt of a
written order of the Company in the form of an Officers' Certificate. The
Officers' Certificate shall specify the amount of temporary Notes to be
authenticated and the date on which the temporary Notes are to be authenticated.
Temporary Notes shall be substantially in the form of definitive Notes but may
have variations that the Company considers appropriate for temporary Notes.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate upon receipt of a written order of the Company pursuant to Section
2.02 definitive Notes in exchange for temporary Notes.
SECTION 2.11. Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for transfer, exchange or payment. The Trustee, or
at the direction of the Trustee, the Registrar or the Paying Agent (other than
the Company or a Subsidiary of the Company), and no one else, shall cancel and,
at the written direction of the Company, shall dispose of all Notes surrendered
for transfer, exchange, payment or cancellation. Subject to Section 2.07, the
Company may not issue new Notes to replace Notes that it has paid or delivered
to the Trustee for cancellation. If the Company shall acquire any of the Notes,
such acquisition shall not operate as a redemption or satisfaction of the
Indebtedness represented by such Notes unless and until the same are surrendered
to the Trustee for cancellation pursuant to this Section 2.11.
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SECTION 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the Notes,
it shall, unless the Trustee fixes another record date pursuant to Section 6.10,
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 Notes may use one or more "CUSIP"
numbers, and if so, the Trustee shall use the CUSIP numbers in notices of
redemption or exchange as a convenience to Holders; provided, however, that any
such notice may state that no representation is made as to the correctness or
accuracy of the CUSIP numbers printed in the notice or on the Notes, and that
reliance may be placed only on the other identification numbers printed on the
Notes. The Company shall promptly notify the Trustee of any change in any of the
CUSIP numbers.
SECTION 2.14. Deposit of Moneys.
Prior to each Interest Payment Date and on the 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 that
permits the Paying Agent to remit payment to the Holders on such Interest
Payment Date or Maturity Date, as the case may be.
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SECTION 2.15. Restrictive Legends.
Each Global Note and Physical Note that constitutes a
Restricted Security shall bear the following legend (the "Private Placement
Legend") on the face thereof:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF,
U.S. PERSONS EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER"
(AS DEFINED IN RULE 144A UNDER THE ACT) OR (B) IT IS AN "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE ACT)
(AN "ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS
ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION, (2) AGREES THAT IT
WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY
RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE ISSUER OR
ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 000X XXXXX XXX XXX, (X)
XXXXXX XXX XXXXXX XXXXXX TO AN ACCREDITED INVESTOR THAT, PRIOR TO SUCH
TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S.
BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER
OF THIS SECURITY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE
TRUSTEE FOR THIS SECURITY), (D) OUTSIDE THE UNITED STATES IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER
THE ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 UNDER THE ACT (IF AVAILABLE) OR (F) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT AND (3) AGREES THAT IT WILL GIVE
TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE
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EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS
SECURITY WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THE SECURITY,
IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR,
THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND
THE ISSUER SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS
EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS
BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE ACT. AS USED HEREIN,
THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON"
HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE ACT.
Each Global Note shall also bear the following legend on the
face thereof:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE
BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY ANY SUCH
NOMINEE OF THE DEPOSITARY, OR BY THE DEPOSITARY OR NOMINEE OF SUCH
SUCCESSOR DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
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TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH
THE RESTRICTIONS SET FORTH IN SECTION 2.17 OF THE INDENTURE.
SECTION 2.16. Book-Entry Provisions for Global Note.
(a) The Global Note initially shall (i) be registered in the
name of the Depository or the nominee of such Depository, (ii) be delivered to
the Trustee as custodian for such Depository and (iii) bear legends as set forth
in Section 2.15.
Members of, or participants in, the Depository
("Participants") shall have no rights under this Indenture with respect to any
Global Note held on their behalf by the Depository, or the Trustee as its
custodian, or under the Global Note, and the Depository may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the absolute
owner of the Global Note for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any agent of
the Company or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by the Depository or impair, as between
the Depository and Participants, the operation of customary practices governing
the exercise of the rights of a Holder of any Note.
(b) Transfers of the Global Note shall be limited to transfers
in whole, but not in part, to the Depository, its successors or their respective
nominees. Interests of beneficial owners in the Global Note may be transferred
or exchanged for Physical Notes in accordance with the rules and procedures of
the Depository and the provisions of Section 2.17. In addition, Physical Notes
shall be transferred to all beneficial owners in exchange for their beneficial
interests in the Global Note if (i) the Depository notifies the Company that it
is unwilling
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or unable to continue as Depository for the Global Note and a successor
depositary is not appointed by the Company within 90 days of such notice or (ii)
an Event of Default has occurred and is continuing and the Registrar has
received a written request from the Depository to issue Physical Notes.
(c) In connection with any transfer or exchange of a portion
of the beneficial interest in the Global Note to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more Physical Notes are to be
issued) reflect on its books and records the date and a decrease in the
principal amount of the Global Note in an amount equal to the principal amount
of the beneficial interest in the Global Note to be transferred, and the Company
shall execute, and the Trustee shall authenticate and deliver, one or more
Physical Notes of like tenor and amount.
(d) In connection with the transfer of the entire Global Note
to beneficial owners pursuant to paragraph (b), the Global Note shall be deemed
to be surrendered to the Trustee for cancellation, and the Company shall
execute, and the Trustee shall authenticate and deliver, to each beneficial
owner identified by the Depository in exchange for its beneficial interest in
the Global Note, an equal aggregate principal amount of Physical Notes of
authorized denominations.
(e) Any Physical Note constituting a Restricted Security
delivered in exchange for an interest in the Global Note pursuant to paragraph
(b) or (c) shall, except as otherwise provided by paragraphs (a)(i)(x) and (c)
of Section 2.17, bear the legend regarding transfer restrictions applicable to
the Physical Notes set forth in Section 2.15.
(f) The Holder of the Global Note may grant proxies and
otherwise authorize any Person, including Agent Members and Persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Notes.
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SECTION 2.17. Special Transfer Provisions.
(a) Transfers to Non-QIB Institutional Accredited Investors
and Non-U.S. Persons. The following provisions shall apply with respect to the
registration of any proposed transfer of a Note constituting a Restricted
Security to any Institutional Accredited Investor that is not a QIB or to any
Non-U.S. Person:
(i) the Registrar shall register the transfer of any Note
constituting a Restricted Security, whether or not such Note bears the
Private Placement Legend, if (x) the requested transfer is after
February 15, 2000 or (y) (1) in the case of a transfer to an
Institutional Accredited Investor which is not a QIB (excluding
Non-U.S. Persons), the proposed transferee has delivered to the
Registrar a certificate substantially in the form of Exhibit C hereto
or (2) in the case of a transfer to a Non-U.S. Person, the proposed
transferor has delivered to the Registrar a certificate substantially
in the form of Exhibit D hereto and such other information that the
Trustee may reasonably request in order to confirm that such
transaction is being made pursuant to an exemption from or in a
transaction not subject to the registration requirements of the
Securities Act; and
(ii) if the proposed transferor is an Agent Member holding a
beneficial interest in the Global Note, upon receipt by the Registrar
of (x) the certificate, if any, required by paragraph (i) above and (y)
instructions given in accordance with the Depository's and the
Registrar's procedures,
whereupon (a) the Registrar shall reflect on its books and records the date and
(if the transfer does not involve a transfer of outstanding Physical Notes) a
decrease in the principal amount of the Global Note in an amount equal to the
principal amount of the beneficial interest in the Global Note to be
transferred, and (b) the Company shall execute and the Trustee shall
authenticate and deliver one or more Physical Notes of like tenor and amount.
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(b) Transfers to QIBs. The following provisions shall apply
with respect to the registration of any proposed transfer of a Note constituting
a Restricted Security to a QIB (excluding transfers to Non-U.S. Persons):
(i) the Registrar shall register the transfer if such transfer
is being made by a proposed transferor who has checked the box provided
for on the form of Note stating, or has otherwise advised the Company
and the Registrar in writing, that the sale has been made in compliance
with the provisions of Rule 144A to a transferee who has signed the
certification provided for on the form of Note stating, or has
otherwise advised the Company and the Registrar in writing, that it is
purchasing the Note for its own account or an account with respect to
which it exercises sole investment discretion and that it and any such
account is a QIB within the meaning of Rule 144A, and is aware that the
sale to it is being made in reliance on Rule 144A and acknowledges that
it has received such information regarding the Company as it has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon
its foregoing representations in order to claim the exemption from
registration provided by Rule 144A; and
(ii) if the proposed transferee is an Agent Member, and the
Notes to be transferred consist of Physical Notes which after transfer
are to be evidenced by an interest in the Global Note, upon receipt by
the Registrar of instructions given in accordance with the Depository's
and the Registrar's procedures, the Registrar shall reflect on its
books and records the date and an increase in the principal amount of
the Global Note in an amount equal to the principal amount of the
Physical Notes to be transferred, and the Trustee shall cancel the
Physical Notes so transferred.
(c) Private Placement Legend. Upon the transfer, exchange or
replacement of Notes not bearing the Private Placement Legend, the Registrar
shall deliver Notes that do not bear the Private Placement Legend. Upon the
transfer, exchange or
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replacement of Notes bearing the Private Placement Legend, the Registrar shall
deliver only Notes that bear the Private Placement Legend unless (i) the
circumstance contemplated by paragraph (a)(i)(x) of this Section 2.17 exists or
(ii) there is delivered to the Registrar an Opinion of Counsel reasonably
satisfactory to the Company and the Trustee to the effect that neither such
legend nor the related restrictions on transfer are required in order to
maintain compliance with the provisions of the Securities Act.
(d) General. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such a Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in this
Indenture.
The Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 2.16 or this Section
2.17. The Company shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time upon the
giving of reasonable written notice to the Registrar.
SECTION 2.18. Designation.
The indebtedness evidenced by the Notes is hereby irrevocably
designated as "senior indebtedness" or such other term denoting seniority for
the purposes of any future Indebtedness of the Company which the Company
expressly makes subordinate to any senior indebtedness or such other term
denoting seniority. In connection with the issuance of any such future
subordinated Indebtedness, the Company shall take all necessary steps to
effectuate the foregoing. For purposes of the Senior Subordinated Indenture, the
Indebtedness evidenced by the Notes is hereby designated "Designated Senior
Debt" as defined therein. The Notes are intended to be senior indebtedness with
respect to the Senior Subordinated Notes.
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ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.
If the Company elects to redeem Notes pursuant to Paragraph 5
of the Notes, it shall notify the Trustee and the Paying Agent in writing of the
Redemption Date and the principal amount of the Notes to be redeemed and whether
it wants the Trustee to give notice of redemption to the Holders (at the
Company's expense) at least 40 days (unless a shorter notice shall be
satisfactory to the Trustee) but not more than 60 days before the Redemption
Date. Any such notice may be cancelled at any time prior to notice of such
redemption being mailed to any Holder and shall thereby be void and of no
effect.
SECTION 3.02. Selection of Notes To Be Redeemed.
If fewer than all of the Notes are to be redeemed, the Trustee
shall select the Notes to be redeemed in compliance with the requirements of the
principal national securities exchange, if any, on which the Notes being
redeemed are listed, or, if the Notes are not listed on a national securities
exchange, on a pro rata basis.
The Trustee shall make the selection from the Notes
outstanding and not previously called for redemption and shall promptly notify
the Company in writing of the Notes selected for redemption and, in the case of
any Note selected for partial redemption, the principal amount thereof, to be
redeemed. Notes in denominations of $1,000 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 Notes that have denominations larger than
$1,000. Provisions of this Indenture that apply to Notes called for redemption
also apply to portions of Notes called for redemption.
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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 Notes are to be redeemed, with a copy to
the Trustee. 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 Notes to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price and the amount of accrued interest,
if any, to be paid;
(3) the name and address of the Paying Agent;
(4) that Notes called for redemption must be surrendered to
the Paying Agent to collect the Redemption Price plus accrued interest,
if any;
(5) that, unless the Company defaults in making the redemption
payment, interest on Notes called for redemption ceases to accrue on
and after the Redemption Date, and the only remaining right of the
Holders of such Notes is to receive payment of the Redemption Price
upon surrender to the Paying Agent of the Notes redeemed;
(6) if any Note is being redeemed in part, the portion of the
principal amount, of such Note to be redeemed and that, after the
Redemption Date, and upon surrender of such Note, a new Note or Notes
in the aggregate principal amount equal to the unredeemed portion
thereof will be issued; and
(7) if fewer than all the Notes are to be redeemed, the
identification of the particular Notes (or portion thereof) to be
redeemed, as well as the aggregate principal amount of Notes to be
redeemed and the aggregate
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principal amount of Notes 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, Notes called for redemption become due and payable on the Redemption Date
and at the Redemption Price plus accrued interest, if any. Upon surrender to the
Trustee or Paying Agent, such Notes called for redemption shall be paid at the
Redemption Price, which shall include accrued and unpaid interest, if any,
thereon to the Redemption Date.
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,
plus, without duplication, accrued and unpaid interest, if any, of all Notes to
be redeemed on that date (other than Notes or portions thereof called for
redemption on that date that have been delivered by the Company to the Trustee
for cancellation). The Paying Agent shall promptly return to the Company any
U.S. Legal Tender so deposited that is not required for that purpose, except
with respect to monies owed as obligations to the Trustee pursuant to Article
Seven.
If the Company complies with the preceding paragraph, then,
unless the Company defaults in the payment of such Redemption Price, plus,
without duplication, accrued and unpaid interest, if any, interest on the Notes
to be redeemed will cease to accrue on and after the applicable Redemption Date,
whether or not such Notes are presented for payment.
SECTION 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is to be redeemed in part, the
Trustee shall authenticate for the Holder a new Note or Notes equal in principal
amount to the unredeemed portion of the Note surrendered.
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ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes.
The Company shall pay the principal of and interest on the
Notes on the dates and in the manner provided in the Notes. An installment of
principal of or interest on the Notes shall be considered paid on the date it is
due if the Trustee or Paying Agent (other than the Company or a Subsidiary of
the Company) holds on that date U.S. Legal Tender designated for and sufficient
to pay the installment.
The Company shall pay interest on overdue principal from time
to time on demand at the rate of 10 3/8% per annum; it shall pay interest on
overdue installments of interest (without regard to any applicable grace
periods) from time to time on demand at the rate of 10 3/8% per annum.
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.
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SECTION 4.03. Limitation on Restricted Payments.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, (a) declare or pay any
dividend or make any distribution (other than dividends or distributions payable
in Qualified Capital Stock of the Company) on shares of the Company's Capital
Stock to holders of such Capital Stock, (b) purchase, redeem or otherwise
acquire or retire for value any Capital Stock of the Company or any warrants,
rights or options to purchase or acquire shares of any class of such Capital
Stock, other than the exchange of such Capital Stock for 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 Restricted Subsidiaries that is subordinate
or junior in right of payment to the Notes or (d) make any Investment (other
than Permitted Investments) (each of the foregoing actions set forth in clauses
(a), (b), (c) and (d) being referred to as a "Restricted Payment"), if at the
time of such Restricted Payment or immediately after giving effect thereto, (i)
a Default or an Event of Default shall have occurred and be continuing, (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 subsequent to the Issue Date (the
amount expended for such purposes, if other than in cash, shall be the fair
market value of such property as determined by the Board of Directors of the
Company in good faith) shall exceed the sum, without duplication, of: (w) 50% of
the cumulative Consolidated Net Income (or if cumulative Consolidated Net Income
shall be a loss, minus 100% of such loss) of the Company earned during the
period beginning on the first day of the fiscal quarter of the Company
commencing after the Issue Date and ending on the last day of the most recent
fiscal quarter ending at least 45 days prior to the date the Restricted Payment
occurs (treating such period as a single accounting period); (x) 100% of the
aggregate net proceeds, including the fair market value of property other than
cash as determined by the Board of Directors of the Company in good faith,
received by the Company from any Person (other than a Restricted Subsidiary of
the Company) from the issuance and sale subsequent to the Issue Date of
Qualified Capital Stock of the Company or of debt securities of the Company that
have been converted into Qualified Capital Stock (excluding (A) Qualified
Capital Stock made as a distribution on any Capital Stock or as interest on any
Indebtedness and (B) any net proceeds from issuances and sales of Qualified
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Capital Stock financed directly or indirectly using funds borrowed from the
Company or any Restricted Subsidiary of the Company, until and to the extent
such borrowing is repaid), (y) $50 million and (z) the amount of the net
reduction in Investments made as Restricted Payments in accordance with this
sentence in Unrestricted Subsidiaries resulting from (1) the payment of cash
dividends or the repayment in cash of the principal of loans or the cash return
on any Investment, in each case to the extent received by the Company or any
wholly owned Restricted Subsidiary of the Company from Unrestricted
Subsidiaries, (2) to the extent that any Investment in an Unrestricted
Subsidiary that was made after the date of this Indenture is sold for cash or
otherwise liquidated or repaid for cash, the after-tax cash return of capital
with respect to such Investment (less the cost of disposition, if any) or (3)
the redesignation of Unrestricted Subsidiaries as Restricted Subsidiaries, such
aggregate amount of the net reduction in such Investments not to exceed, in the
case of any Unrestricted Subsidiary, the amount of such Investments made as
Restricted Payments previously made by the Company or any Restricted Subsidiary
in such Unrestricted Subsidiary, which amount was included in the calculation of
the amount of Restricted Payments.
Notwithstanding the foregoing, these provisions do not
prohibit: (1) the payment of any dividend, making of any distribution or
consummation of irrevocable redemption within 60 days after the date of
declaration of such dividend, making of such distribution or giving of such
notice if the dividend, distribution or redemption would have been permitted on
the date of declaration; (2) the acquisition of Capital Stock or Indebtedness of
the Company that is subordinate or junior in right of payment to the Notes,
either (i) in exchange for shares of Qualified Capital Stock or (ii) through the
application of net proceeds of a substantially concurrent sale for cash (other
than to a Restricted Subsidiary of the Company) of shares of Qualified Capital
Stock; (3) the acquisition of Indebtedness of the Company that is subordinate or
junior in right of payment to the Notes, either (i) in exchange for Indebtedness
of the Company that is subordinate or junior in right of payment to the Notes,
at least to the extent that the Indebtedness being acquired is subordinated to
the Notes, and has no scheduled principal prepayment dates prior to the earlier
of (a) at least one year after the scheduled final maturity date of the Notes or
(b) the scheduled final maturity date of the Indebtedness being exchanged, (ii)
through the application of net proceeds of a substantially concurrent sale for
cash (other than to a Restricted Subsidiary of the Company) of Indebtedness of
the Company that is subordinate or junior in
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right of payment to the Notes, at least to the extent that the Indebtedness
being acquired is subordinated to the Notes, and has no scheduled principal
prepayment dates prior to the earlier of (a) the scheduled final maturity date
of the Notes or (b) the scheduled final maturity date of the Indebtedness being
refinanced or (iii) any combination of clauses (i) and (ii) above; (4) the
elimination of fractional shares or warrants; (5) the purchase for value of
shares of Capital Stock of the Company (x) held by directors, officers or
employees upon death, disability, retirement, termination of employment or (y)
to fund capital stock-based, long-term incentive programs, not to exceed $4
million in the aggregate; (6) the repurchase of any Senior Subordinated Notes in
accordance with (i) the "Limitation on Asset Sales" and "Change of Control"
covenants hereunder and (ii) Sections 4.15 and 4.16 of the Senior Subordinated
Indenture; (7) the redemption or repurchase by the Company of up to $200 million
aggregate principal amount of Old Notes through the application of (a) up to
$200 million of net cash proceeds of a substantially concurrent sale or
incurrence (other than to or from a Restricted Subsidiary of the Company) of
secured or unsecured Indebtedness of the Company that ranks pari passu with the
9 3/4% Notes as to payment, (b) up to $100 million of cash from operations of
the Company or (c) any combination of (a) and (b), (8) Restricted Payments for
the redemption, repurchase or other acquisition of shares of Capital Stock of
the Company in satisfaction of indemnification or other claims arising under any
merger, consolidation, asset purchase or investment or similar acquisition
agreement permitted under the Indenture, pursuant to which such shares of
Capital Stock were issued and (9) repurchases of Capital Stock deemed to occur
upon exercise of employee or director stock options; provided that in the case
of clauses (2), (3), (4), (5), (6), (7) and (8), 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
subsequent to the Issue Date, amounts expended pursuant to clauses (1), (2),
(4), (5), (6), 7(b) and (8) shall be included in such calculation; provided that
amounts expended pursuant to clause (2) shall constitute Restricted Payments
only to the extent any amounts are credited pursuant to clause (iii)(x) of the
next preceding paragraph.
SECTION 4.04. Corporate Existence.
Except as otherwise permitted by Article Five, the Company
shall do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate or
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other existence and the corporate or other existence of each of its Restricted
Subsidiaries in accordance with the respective organizational documents of each
such Subsidiary and the material rights (charter and statutory) and franchises
of the Company and each such Subsidiary; provided, however, 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 Restricted Subsidiaries, any such
existence, material right or franchise, if the Board of Directors or other
equivalent governing body of the Company or such Subsidiary, as the case may be,
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company or any such Subsidiary.
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 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 any of its Subsidiaries and (ii) all lawful
claims for labor, materials and supplies that, if unpaid, might by law become a
Lien upon the property of it or any of its Subsidiaries; provided, however, that
the Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim if either (a) the amount,
applicability or validity thereof is being contested in good faith by
appropriate proceedings and an adequate reserve has been established therefor to
the extent required by generally accepted accounting principles then in effect
or (b) the failure to make such payment or effect such discharge (together with
all other such failures) would not have a material adverse effect on the
financial condition or results of operations of the Company and its
Subsidiaries, taken as a whole.
SECTION 4.06. Maintenance of Properties and Insurance.
(a) The Company shall, and shall cause each of its
Subsidiaries to, maintain its properties in good working order and condition
(subject to ordinary wear and tear) and make all
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necessary repairs, renewals, replacements, additions, betterments and
improvements thereto and actively conduct and carry on its business; provided,
however, that nothing in this Section shall prevent the Company or any of its
Subsidiaries from discontinuing the operation and maintenance of any of its
properties, if such discontinuance is, in the judgment of the Company or the
Subsidiary, as the case may be, desirable in the conduct of their respective
businesses and is not disadvantageous in any material respect to the Holders.
(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 adequate and appropriate for the conduct
of the business of the Company and such Subsidiaries in a prudent manner, with
reputable insurers or with the government of the United States of America or an
agency or instrumentality thereof, in such amounts, with such deductibles, and
by such methods as shall be customary, in the reasonable, good faith opinion of
the Company, for companies similarly situated in the industry, unless the
failure to provide such insurance (together with all other such failures) would
not have a material adverse effect on the financial condition or results of
operations of the Company and its Subsidiaries, taken as a whole.
SECTION 4.07. 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 stating
that a review of its activities and the activities of its Subsidiaries during
the preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether it has kept, observed, performed and
fulfilled its obligations under this Indenture and further stating, as to each
such Officer signing such certificate, that to the best of his knowledge the
Company during such preceding fiscal year has kept, observed, performed and
fulfilled each and every such covenant 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
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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) So long as not contrary to the then current
recommendations of the American Institute of Certified Public Accountants, the
annual financial statements delivered pursuant to Section 4.09 shall be
accompanied by a written report of the Company's independent public accountants
(who shall be a firm of established national reputation) that in conducting
their audit of such financial statements (which is directed primarily to the
expression of their opinion on such financial statements taken as a whole and
not toward obtaining knowledge of non-compliance with credit agreements) nothing
has come to their attention that would lead them to believe that the Company has
violated any provisions of Article Four, Five or Six of this Indenture 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) (i) If any Default or Event of Default has occurred and is
continuing, (ii) if any Holder seeks to exercise any remedy hereunder with
respect to a claimed default under this Indenture or the Notes or (iii) if the
trustee for or the holder of any other evidence of Indebtedness of the Company
or any Restricted Subsidiary seeks to exercise any remedy with respect to a
claimed default (other than with respect to Indebtedness in the principal amount
of less than $20,000,000), the Company shall deliver to the Trustee by
registered or certified mail or by telegram, telex or facsimile transmission
followed by hard copy by registered or certified mail an Officers' Certificate
specifying such event, notice or other action within five Business Days of its
occurrence.
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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 of their respective
properties, except such as are being contested in good faith and by appropriate
proceedings and 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.
To the extent permitted by applicable law or regulation,
whether or not the Company is subject to the requirements of Section 13 or 15(d)
of the Exchange Act, the Company shall file with the SEC all quarterly and
annual reports and such other information, documents or other reports (or copies
of such portions of any of the foregoing as the SEC may by rules and regulations
prescribe) required to be filed pursuant to such provisions of the Exchange Act.
The Company shall file with the Trustee, and prior to the
consummation of the Exchange Offer, the Company shall mail to the Holders and
Trustee in accordance with this Section 4.09, within 15 days after it files the
same with the SEC, copies of the quarterly and annual reports and 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) that it is
required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange
Act. The Company shall also comply with the other provisions of TIA Section
314(a).
Regardless of whether the Company is required to furnish such
reports to its stockholders pursuant to the Exchange Act, the Company shall
cause its consolidated financial statements,
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comparable to that which would have been required to appear in annual or
quarterly reports, to be delivered to the holders of the Notes.
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 Notes as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture; and (to the extent
that it may lawfully do so) the Company hereby expressly waives all benefit or
advantage of any such law, and covenants that it 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.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, enter into or permit to
exist any transaction (including, without limitation, the purchase, sale, lease
or exchange of any property or the rendering of any service) with or for the
benefit of, an Affiliate of the Company or any Restricted Subsidiary (other than
transactions between the Company and a wholly owned Restricted Subsidiary of the
Company) (an "Affiliate Transaction"), other than Affiliate Transactions on
terms that are no less favorable in the aggregate than those that might
reasonably have been obtained or are obtainable in a comparable transaction on
an arm's-length basis from a Person that is not an Affiliate; provided that
neither the Company nor any of its Restricted Subsidiaries shall enter into an
Affiliate Transaction or series of related Affiliate Transactions involving or
having a value of $10 million or more, unless a majority of disinterested
members of the Board of Directors of the Company determines in good faith as
evidenced by a Board Resolution that the terms are no less favorable in the
aggregate to the Company than those that might reasonably have been obtained in
a comparable transaction on an arm's-length basis from a Person that
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is not an Affiliate; provided, however, that (i) any employment agreement or
stock option agreement entered into by the Company or any of its Restricted
Subsidiaries in the ordinary course of business, (ii) transactions permitted
under Section 4.03, (iii) the payment of reasonable fees and expenses to
directors of the Company or its Restricted Subsidiaries, (iv) any issuance of
securities or other payments, awards or grants in cash, securities or otherwise
pursuant to, or the funding of employment arrangements, stock options and stock
ownership plans of the Company entered into in the ordinary course of business
and (v) transactions pursuant to agreements existing on the Issue Date or any
amendment thereto or any transactions contemplated thereby (including pursuant
to any amendment thereto) in any replacement agreement thereto, so long as any
such amendment or replacement is not more disadvantageous to the holders in any
material respect than the original agreement as in effect on the Issue Date, in
each case, shall not be deemed Affiliate Transactions.
SECTION 4.12. Limitation on Incurrence of Additional Indebtedness.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, after the Issue Date, directly or indirectly,
create, incur, assume, guarantee, acquire or become liable, contingently or
otherwise, or otherwise become responsible for the payment of any Indebtedness
other than Permitted Indebtedness. Notwithstanding the foregoing limitations,
the Company and, subject to compliance with Section 4.18, Restricted
Subsidiaries may incur Indebtedness if (i) no Default or Event of Default shall
have occurred and be continuing at the time of or as a consequence of the
incurrence of such Indebtedness and (ii) the Consolidated Fixed Charge Coverage
Ratio of the Company, measured on the date of the incurrence of such
Indebtedness, is greater than 2.0:1.0. No Indebtedness incurred pursuant to the
next preceding sentence shall be included in calculating any limitation set
forth in the definition of Permitted Indebtedness. Upon the repayment of
Indebtedness which may have been incurred pursuant to more than one provision of
this Indenture, the Company may, in its sole discretion, designate which
provision such Indebtedness shall have been incurred under.
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SECTION 4.13. Limitation on Dividend and Other Payment Restrictions Affecting
Subsidiaries.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or
permit to exist or become effective any encumbrance or restriction on the
ability of any Restricted Subsidiary to (a) pay dividends or make any other
distributions on its Capital Stock, (b) make loans or advances or to pay any
Indebtedness or other obligation owed to the Company or a Restricted Subsidiary
of the Company or (c) transfer any of its properties or assets to the Company,
except for such encumbrances or restrictions existing under or by reason of: (1)
applicable law; (2) the Indenture, the Senior Subordinated Indenture or the 9
3/4% Note Indenture; (3) customary nonassignment provisions of any lease
governing a leasehold interest of the Company or any Restricted Subsidiary of
the Company; (4) any instrument governing Acquired Indebtedness, which
encumbrance or restriction is not applicable to the Company or any Restricted
Subsidiary of the Company, or the properties or assets of the Company or any
Restricted Subsidiary of the Company, other than the Person, the properties or
assets so acquired; (5) agreements existing on the Issue Date; (6) any Trade
Receivable Facility; (7) customary nonassignment provisions in contracts entered
into in the ordinary course of business, (8) Indebtedness of a Restricted
Subsidiary permitted to be incurred under the Indenture; or (9) an agreement
effecting a refinancing, modification, replacement, renewal, restatement,
refunding, deferral, extension, substitution, supplement, reissuance or resale
of Indebtedness issued, assumed or incurred pursuant to an agreement referred to
in clause (2), (4), (5), (6) or (8) above; provided, however, that the
provisions relating to such encumbrance or restriction contained in any such
refinancing, replacement or substitution agreement are not less favorable to the
Company or Restricted Subsidiary, as the case may be, in any material respect in
the reasonable judgment of the Board of Directors of the Company than the
provisions relating to such encumbrance or restriction contained in agreements
referred to in such clause (2), (4), (5), (6) or (8).
SECTION 4.14. Limitation on Liens.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, create, incur, assume or suffer to exist any Liens
upon their respective assets, except for (a) Liens securing Indebtedness under
the Credit Agreement, (b) Permitted Liens, (c) Liens securing Acquired
Indebtedness, (d) Liens existing on the Issue Date, (e) Liens securing
Indebtedness
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to the extent incurred to refinance, replace, renew or refund secured
Indebtedness existing on the Issue Date or Acquired Indebtedness, (f) Liens
securing pollution control bonds and industrial revenue bonds, (g) Liens
securing Indebtedness permitted to be incurred pursuant to clauses (viii) or
(ix) of the definition of Permitted Indebtedness, (h) Liens securing
Indebtedness pursuant to clauses (vii) or (xi) of the definition of Permitted
Indebtedness; provided, however, that if such Indebtedness is incurred to
finance the cost of the property subject to a Lien securing such Indebtedness,
the principal amount of the Indebtedness secured by such Lien shall not exceed
100% of the cost of the property subject thereto plus related financing costs,
(i) Liens in favor of the Trustee and the trustee in respect of any other
outstanding indebtedness of the Company, (j) Liens granted in connection with
the redemption of the Old Notes, or (k) any replacement, extension, renewal,
amendment or modification, in whole or in part, of any Lien described above;
provided that to the extent any such clause limits the amount secured or the
assets subject to such Liens, no extension or renewal will increase the amount
or assets secured by or subject to such Liens.
SECTION 4.15. Change of Control.
(a) In the event of a Change of Control, each Holder will have
the right to require that the Company repurchase all or a portion of such
Holder's Notes 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 and unpaid interest, if any, to the date of
repurchase.
(b) Within 30 days following the date upon which the Change of
Control occurred (the "Change of Control Date") requiring the Company to make a
Change of Control Offer pursuant to this Section 4.15, the Company shall send,
by first class mail, a notice to each Holder, with a copy to the Trustee, which
notice shall govern the terms of the Change of Control Offer. The notice to the
Holders shall contain all instructions and materials necessary to enable such
Holders to tender Notes pursuant to the Change of Control Offer. Such notice
shall state:
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(1) that the Change of Control Offer is being made pursuant to
this Section 4.15 and that all Notes tendered will be accepted for
payment;
(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 "Change of Control Payment Date");
(3) that any Note not tendered will continue to accrue
interest;
(4) that, unless the Company defaults in making payment
therefor, any Note accepted for payment pursuant to the Change of
Control Offer shall cease to accrue interest after the Change of
Control Payment Date;
(5) that Holders electing to have a Note purchased pursuant to
a Change of Control Offer will be required to surrender the Note, with
the form entitled "Option of Holder to Elect Purchase" on the reverse
of the Note completed, to the Paying Agent at the address specified in
the notice prior to the close of business on the 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, telex, facsimile
transmission or letter setting forth the name of the Holder, the
principal amount of the Notes the Holder delivered for purchase and a
statement that such Holder is withdrawing his election to have such
Note purchased;
(7) that Holders whose Notes are purchased only in part will
be issued new Notes in a principal amount equal to the unpurchased
portion of the Notes surrendered; and
(8) the circumstances and relevant facts regarding such Change
of Control.
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On or before the Change of Control Payment Date, the Company
shall (i) accept for payment Notes or portions thereof tendered pursuant to the
Change of Control Offer, (ii) deposit with the Paying Agent U.S. Legal Tender
sufficient to pay the purchase price of all Notes so tendered and (iii) deliver
to the Trustee Notes so accepted together with an Officers' Certificate stating
the Notes or portions thereof being purchased by the Company. The Paying Agent
shall promptly mail to the Holders of Notes so accepted payment in an amount
equal to the purchase price, and the Trustee shall promptly authenticate and
mail to such Holders new Notes equal in principal amount to any unpurchased
portion of the Notes surrendered. Any Notes not so accepted shall be promptly
mailed by the Company to the Holder thereof. For purposes of this Section 4.15,
the Trustee shall act as the Paying Agent.
Any amounts remaining after the purchase of Notes pursuant to
a Change of Control Offer shall be returned by the Trustee to the Company.
The Company shall comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to a Change of Control Offer. To the extent the
provisions of any securities laws or regulations conflict with this Section
4.15, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 4.15 by virtue thereof.
SECTION 4.16. Limitation on Asset Sales.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, consummate an Asset Sale unless (a) the Company or
the applicable Restricted Subsidiary, as the case may be, receives consideration
at the time of such Asset Sale at least equal to the fair market value of the
assets sold or otherwise disposed of (as determined in good faith by the Board
of Directors of the Company), (b) at least 75% of the consideration received by
the Company or the Restricted Subsidiary, as the case may be, from such Asset
Sale shall be cash
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or Cash Equivalents and is received at the time of such disposition; provided,
however, that this condition shall not apply to a transaction whereby the
Company or any Restricted Subsidiary effects an Asset Sale by the exchange of
assets or property for Productive Assets or to the sale or other disposition of
all or any portion of the Company's East Mill assets located in Antioch,
California, provided, further, that the amount of (A) any liabilities of the
Company or any Restricted Subsidiary (other than liabilities that are by their
terms subordinated in right of payment to the Notes) that are assumed by the
transferee of any such assets shall be deemed to be cash for purposes of this
provision and (B) any notes or other obligations received by the Company or such
Restricted Subsidiary from such transferee that are immediately converted by the
Company or such Restricted Subsidiary into cash (to the extent of the cash
received) shall be deemed to be cash for purposes of this provision, and (c) the
Company shall (i) apply, or cause such Restricted Subsidiary to apply, such Net
Cash Proceeds of such Asset Sale within 270 days of the consummation of such
Asset Sale (A) to prepay indebtedness ranking pari passu with the Notes, senior
indebtedness of a Subsidiary Guarantor or debt of a Restricted Subsidiary that
is not a Subsidiary Guarantor or, in the case of any debt under a revolving
credit facility, effect a reduction in the committed availability under any such
revolving credit facility or (B) to make an offer to purchase the Notes and, to
the extent required by the documentation governing such indebtedness and on a
pro rata basis, indebtedness ranking pari passu with the Notes, at a price equal
to 100% of the principal amount of the Notes 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"), or (ii)(A) commit, or cause such
Restricted Subsidiary to commit (such commitments to include amounts anticipated
to be expended pursuant to the Company's capital investment plan (x) as adopted
by the Board of Directors of the Company and (y) evidenced by the filing of an
Officers' Certificate with the Trustee stating that the total amount of the Net
Cash Proceeds of such Asset Sale is less than the aggregate amount contemplated
to be expended pursuant to such capital investment plan within 24 months of the
consummation of such Asset Sale) within 270 days of the consummation of such
Asset Sale, to apply the Net Cash Proceeds of such Asset Sale to reinvest in
Productive Assets and (B) apply, or cause such Restricted Subsidiary to apply,
pursuant to such commitment (which includes amounts actually expended under the
capital investment plan authorized by the Board of Directors of the Company),
such Net Cash Proceeds of such Asset Sale within 24 months of the consummation
of such Asset Sale; provided that if any commitment
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under this clause (ii) is terminated or rescinded after the 225th day after the
consummation of such Asset Sale, the Company or such Restricted Subsidiary, as
the case may be, shall have 45 days after such termination or rescission to (1)
apply such Net Cash Proceeds pursuant to clause (c)(i) above (a "Reapplication
Determination") or (2) to commit, or cause such Restricted Subsidiary to commit,
to apply the Net Cash Proceeds of such Asset Sale to reinvest in Productive
Assets; provided that in any such case, such proceeds must be applied pursuant
to clause (c)(i) above or such commitment, as the case may be, no later than 24
months after the consummation of such Asset Sale or (iii) any combination of the
foregoing; provided, further, that if at any time any non-cash consideration
received by the Company or any Restricted 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 (c) above; and 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 $10 million. Pending
the final application of any such Net Cash Proceeds the Company or such
Restricted Subsidiary may temporarily reduce Indebtedness under a revolving
credit facility, if any.
Each Net Proceeds Offer will be mailed to the record Holders
as shown on the register of Holders within 270 days following the consummation
of the Asset Sale that requires the Company to make a Net Proceeds Offer (or
within 30 days after a Reapplication Determination, if applicable), with a copy
to the Trustee, will specify the purchase date (which will be no earlier than 30
days nor later than 45 days from the date such notice is mailed) and shall
comply with the procedures set forth in this Indenture. Upon receiving notice of
the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in
part in integral multiples of $1,000 in exchange for cash. To the extent Holders
properly tender Notes in an amount exceeding the aggregate amount of the Net
Proceeds Offer, Notes of tendering Holders will be repurchased on a pro rata
basis (based upon the principal amount tendered). To the extent that the
aggregate amount of Notes tendered pursuant to a Net Proceeds Offer is less than
the aggregate amount of the Net Proceeds Offer, the Company may use such excess
Net Proceeds Offer amount
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for general corporate purposes or for any other purpose not prohibited by this
Indenture. Upon completion of any such Net Proceeds Offer, the amount of the Net
Proceeds Offer shall be reset at zero. A Net Proceeds Offer shall remain open
for a period of 20 business days or such longer period as may be required by
law.
The notice shall contain all instructions and materials
necessary to enable such Holders to tender Notes 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 all Notes tendered will be accepted for payment;
provided, however, that if the aggregate principal amount of Notes
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 select the Notes to be purchased on a
pro rata basis (with such adjustments as may be deemed appropriate by
the Company so that only Notes in denominations of $1,000 or multiples
thereof shall be purchased);
(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");
(3) that any Note not tendered will continue to accrue
interest;
(4) that, unless the Company defaults in making payment
therefor, any Note accepted for payment pursuant to the Net Proceeds
Offer shall cease to accrue or accrete interest after the Proceeds
Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to
a Net Proceeds Offer will be required to surrender the Note, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of
the Note completed,
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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 two Business Days prior to
the Proceeds Purchase Date, a telegram, telex, facsimile transmission
or letter setting forth the name of the Holder, the principal amount of
the Notes the Holder delivered for purchase and a statement that such
Holder is withdrawing his election to have such Note purchased; and
(7) that Holders whose Notes are purchased only in part will
be issued new Notes in a principal amount equal to the unpurchased
portion of the Notes surrendered.
On or before the Proceeds Purchase Date, the Company shall (i)
accept for payment Notes or portions thereof tendered pursuant to the Net
Proceeds Offer that are to be purchased in accordance with item (1) above, (ii)
deposit with the Paying Agent U.S. Legal Tender sufficient to pay the purchase
price of all Notes to be purchased and (iii) deliver to the Trustee Notes so
accepted together with an Officers' Certificate stating the Notes or portions
thereof being purchased by the Company. The Paying Agent shall promptly mail to
the Holders of Notes so accepted payment in an amount equal to the purchase
price. For purposes of this Section 4.16, the Trustee shall act as the Paying
Agent.
Any amounts remaining after the purchase of Notes pursuant to
a Net Proceeds Offer shall be returned by the Trustee to the Company.
The Company shall comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to a Net Proceeds Offer. To the extent that the
provisions of any securities laws or regulations conflict with this Section
4.16, the Company shall comply with the applicable
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securities laws and regulations and shall not be deemed to have breached its
obligations under this Section 4.16 by virtue thereof.
SECTION 4.17. Limitation on Incurrence of Subordinated Debt.
The Company shall not incur Indebtedness that is subordinated
by written agreement in right of payment to any other Indebtedness of the
Company, unless the Indebtedness to be incurred is subordinated to the Notes
substantially to the same extent as it is subordinated to such other
Indebtedness pursuant to such written agreement.
SECTION 4.18. Guarantees by Restricted Subsidiaries.
The Company will cause any Borrowing Restricted Subsidiary to
become a Subsidiary Guarantor by executing the guarantee (the "Guarantee") of
payment of the Notes by such Borrowing Restricted Subsidiary (1) if, at the time
the Restricted Subsidiary first becomes a Borrowing Restricted Subsidiary, the
total Investment of the Company and the Restricted Subsidiaries in such
Borrowing Restricted Subsidiary and in all other Borrowing Restricted
Subsidiaries that are not Subsidiary Guarantors, is more than 15% of Total
Tangible Assets (the "15% Investment Threshold"), or (2) if, at the time a
Borrowing Restricted Subsidiary increases the amount of Restricted Subsidiary
Indebtedness (excluding for this purpose, incurrences of indebtedness under a
revolving credit facility that do not exceed the maximum committed borrowings
thereunder), the 15% Investment Threshold is met, or (3) if, at the time the
Company or any Restricted Subsidiary makes a capital contribution or other
equity investment in excess of $1 million during any six-month period in any
Borrowing Restricted Subsidiary, the 15% Investment Threshold is met. If any
such incurrence of liability of such Restricted Subsidiary is provided in
respect of Indebtedness that is expressly subordinated to the Notes, the
guarantee or other instrument provided by such Restricted Subsidiary in respect
of such subordinated Indebtedness shall be subordinated to the Guarantee
pursuant to subordination provisions no less favorable to holders of the Notes
than those contained in the Senior Subordinated Indenture. The Guarantee will
rank pari passu with any guarantee issued under the 9 3/4% Note Indenture. A
Borrowing Restricted Subsidiary shall be released as a Subsidiary Guarantor (i)
at such time as it ceases to be a Borrowing Restricted Subsidiary or (ii) upon
the election
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of the Company, if, after giving effect to such election, the 15% Investment
Threshold is not met.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. When Company May Merge, Etc.
(a) The Company shall not, 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 its assets to, another Person or adopt a Plan of
Liquidation, unless:
(1) either the Company shall be the survivor of such merger or
consolidation or the surviving 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 Person
shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee on or prior to the consummation of such
transaction, in a form satisfactory to the Trustee, all the obligations
of the Company under the Notes and this Indenture;
(2) immediately after giving effect to such transaction (on a
pro forma basis, including any Indebtedness to be incurred in
connection with such transaction), the Company or the surviving Person
shall be 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 and
the assumption of the obligations as set forth in clause (1) above and
the incurrence of any Indebtedness to be incurred in connection
therewith, no Default or Event of Default shall have occurred and be
continuing; and
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(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, transfer or adoption and such supplemental
indenture comply with this Article Five, that the surviving Person (if
other than the Company) agrees to be bound hereby, and that all
conditions precedent herein provided relating to such transaction have
been satisfied.
Notwithstanding clauses (2), (3) and (4) of this Section 5.01,
any Restricted Subsidiary of the Company may consolidate with, merge into or
transfer all or part of its properties and assets to the Company.
(b) For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all of the properties and assets of one or
more Restricted Subsidiaries of the Company, the Capital Stock of which
constitutes all or substantially all of the properties and assets of the
Company, shall be deemed to be the transfer of all or substantially all of the
properties and assets of the Company.
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 Notes and
agrees to be bound hereby and thereby, the predecessor shall be released from
such obligations.
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ARTICLE SIX
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 any
Notes when the same becomes due and payable and the Default continues
for a period of 30 days;
(2) the Company defaults in the payment of the stated
principal amount of any Notes when the same becomes due and payable at
maturity, upon acceleration or redemption or pursuant to an offer to
purchase required hereunder;
(3) the Company fails to observe or perform any other covenant
or agreement contained in the Notes or this Indenture and the Default
continues for the period and after the notice specified below;
(4) there shall be a failure to pay at stated maturity the
principal amount of any Indebtedness of the Company or any Restricted
Subsidiary of the Company, or the acceleration of the stated maturity
of any such Indebtedness, if the aggregate principal amount of such
Indebtedness, together with the principal amount of any other such
Indebtedness in default for failure to pay principal at stated maturity
or which has been accelerated, aggregates $20,000,000 or more at any
time;
(5) one or more judgments in an aggregate amount in excess of
$20,000,000 shall have been rendered against the Company or any of its
Restricted Subsidiaries and such judgments remain undischarged or
unstayed for a period of 60 days after such judgment or judgments
become final and non-appealable and after the notice specified below;
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(6) the Company or any Significant Restricted Subsidiary (A)
admits in writing its inability to pay its debts generally as they
become due, (B) commences a voluntary case or proceeding under any
Bankruptcy Law with respect to itself, (C) consents to the entry of a
judgment, decree or order for relief against it in an involuntary case
or proceeding under any Bankruptcy Law, (D) consents to the appointment
of a Custodian of it or for substantially all of its property, (E)
consents to or acquiesces in the institution of a bankruptcy or an
insolvency proceeding against it, (F) makes a general assignment for
the benefit of its creditors, or (G) takes any corporate action to
authorize or effect any of the foregoing; and
(7) a court of competent jurisdiction enters a judgment,
decree or order for relief in respect of the Company or any Significant
Restricted 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 Restricted Subsidiary, (B)
appoint a Custodian of the Company or any Significant Restricted
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.
A Default under clause (3) above (other than in the case of
any Default under Section 4.15, 4.16 or 5.01, which Defaults shall be Events of
Default with the notice specified in this paragraph but without the passage of
time specified in this paragraph) is not an Event of Default until the Trustee
notifies the Company, or the Holders of at least 25% in principal amount of the
outstanding Notes notify the Company and the Trustee of the Default, and the
Company does not cure the Default within 30 days after receipt of the notice.
The notice must specify the Default, demand that it be remedied and state that
the notice is a "Notice of Default." Such notice shall be
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given by the Trustee if so requested by the Holders of at least 25% in principal
amount of the Notes then outstanding. A Default under clause (5) above shall be
an Event of Default with the notice specified in this paragraph but without the
passage of time referred to in this paragraph.
SECTION 6.02. Acceleration.
If an Event of Default (other than an Event of Default
specified in Section 6.01(6) or (7) with respect to the Company) 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 principal amount of the
Notes 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 Notes outstanding, together with accrued but unpaid
interest thereon to the date of payment, to be due and payable and, upon any
such declaration, the same shall become and be due and payable; provided,
however, that the Trustee shall be under no obligation to follow any request of
any of the Holders unless such Holders shall have offered to the Trustee, after
request by the Trustee, reasonable security or indemnity against the costs,
expenses and liabilities that may be incurred by it in compliance with such
request, order or direction. If an Event of Default specified in Section 6.01(6)
or (7) occurs with respect to the Company, all unpaid principal and accrued
interest on the Notes 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 Noteholder. Upon payment of such principal amount and
interest all of the Company's obligations under the Notes and this Indenture,
other than obligations under Section 7.07, shall terminate. The Holders of a
majority in principal amount of the Notes then outstanding by notice to the
Trustee may rescind an 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, other than the non-payment of
the principal and interest on the Notes which have become due solely by such
declaration of acceleration, have been cured
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or waived, (iii) to the extent the payment of such interest is lawful, interest
on overdue installments of interest and overdue principal, which has become due
otherwise than by such declaration of acceleration, has been paid, (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 Section
6.01(6) or (7), the Trustee shall have received an Officer's Certificate and an
Opinion of Counsel that such Default has been cured or waived. No such
rescission shall affect any subsequent default or impair any right consequent
thereto.
SECTION 6.03. Other Remedies.
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 Notes or to enforce the performance
of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Noteholder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
SECTION 6.04. Waiver of Past Defaults.
Subject to Sections 6.07 and 9.02, the Holders of a majority
in principal amount of the outstanding Notes 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 Note as specified in clauses
(1) and (2) of Section 6.01.
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SECTION 6.05. Control by Majority.
The Holders of a majority in principal amount of the
outstanding Notes may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or 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 refuse to
follow any direction that conflicts with any law or this Indenture or that the
Trustee determines may be unduly prejudicial to the rights of another
Noteholder, or that may involve the Trustee in personal liability; provided that
the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
SECTION 6.06. Limitation on Suits.
A Noteholder may not pursue any remedy with respect to this
Indenture or the Notes 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 Notes make a written request to the Trustee to pursue the
remedy;
(3) such Holders offer to the Trustee reasonable indemnity
against any loss, liability or expense to be incurred in compliance
with such request;
(4) the Trustee does not comply with the request within 45
days after receipt of the request and the offer of satisfactory
indemnity; and
(5) during such 45-day period the Holders of a majority in
principal amount of the outstanding Notes do not give the Trustee a
direction which, in the opinion of the Trustee, is inconsistent with
the request.
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A Noteholder may not use this Indenture to prejudice the
rights of another Noteholder or to obtain a preference or priority over such
other Noteholder.
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 Note,
on or after the respective due dates expressed in such Note, 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 Notes 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, in each case at the rate per annum
borne by the Notes and such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
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
Holders allowed in any judicial proceedings relating to the Company or any other
obligor upon the Notes, any of their respective creditors or any of their
respective property and shall be entitled and empowered to collect and receive
any monies or other property payable or deliverable on any such claims and to
distribute
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the same, and any Custodian in any such judicial proceedings is hereby
authorized by each Holder to make such payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, taxes, disbursements and advances of the Trustee, its
agent and counsel, and any other amounts due the Trustee under Section 7.07.
Nothing herein contained shall be deemed to authorize the Trustee to authorize
or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
SECTION 6.10. Priorities.
If the Trustee collects any money pursuant to this Article
Six, it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: if the Holders are forced to proceed against the
Company directly without the Trustee, to Holders for their collection
costs;
Third: to Holders for amounts due and unpaid on the Notes for
principal and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Notes for
principal and interest, respectively; and
Fourth: to the Company or any other obligor on the Notes, 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 Holders pursuant to this Section
6.10.
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SECTION 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by 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 Notes.
ARTICLE SEVEN
TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this
Indenture and covenants and agrees to perform the same, as herein expressed.
SECTION 7.01. Duties of Trustee.
(a) If a Default or an Event of Default of which the Trustee
has notice or knowledge hereunder has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture and
use the same degree of care and skill in its exercise thereof as a prudent
Person would exercise or use under the circumstances in the conduct of his own
affairs.
(b) Except during the continuance of a Default or an Event of
Default:
(1) The Trustee need perform only those duties as are
specifically set forth in this Indenture and no covenants
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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 or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements
of this Indenture.
(c) The Trustee may not be relieved from 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 Sections 6.02 or 6.05.
(d) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder or in the exercise of any of its
rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(e) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b), (c) and (d) of this Section 7.01.
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(f) The Trustee shall not be liable for interest on any money
or assets received by it except as the Trustee may agree with the Company in
writing. Assets held in trust by the Trustee need not be segregated from other
assets except to the extent required by law.
SECTION 7.02. Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may rely and shall be fully protected in
acting or refraining from acting upon any document believed by it to be
genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
consult with counsel 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 any action it takes or omits to
take in good faith in reliance on such certificate or opinion.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any
attorney or agent appointed with due care.
(d) The Trustee shall not be liable for any action that it
takes or omits to take in good faith which it believes to be authorized
or within its rights or powers.
(e) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, notice, request, direction, consent,
order, bond, debenture, or other paper or document, but the Trustee, in
its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled, upon reasonable notice
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to the Company, to examine the books, records, and premises of the
Company, personally or by agent or attorney.
(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 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 is not required to take notice or deemed to
have notice of any Default or Event of Default hereunder, except a
Default or Event of Default under Sections 6.01(a) and 6.01(b), unless
a Trust Officer has actual knowledge of or has received notice in
writing of such Default or Event of Default from the Company, any
Subsidiary, or from the Holders of at least 25% in aggregate principal
amount of the Outstanding Notes, and in the absence of any such notice,
the Trustee may conclusively assume that no Default or Event of Default
exists.
(h) The Trustee is not required to give any bond or surety
with respect to the performance of its duties or the exercise of its
powers under this Indenture.
(i) Except for the information provided by the Trustee
concerning the Trustee, the Trustee shall have no responsibility for
compliance with any state or federal securities laws in connection with
the Notes.
SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may otherwise deal with the Company any
Subsidiary of the Company, 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.
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SECTION 7.04. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Notes, it shall not be accountable for the
Company's use of the proceeds from the Notes, and it shall not be responsible
for any statement in the Notes other than the Trustee's certificate of
authentication.
SECTION 7.05. Notice of Default.
If a Default or an Event of Default occurs and is continuing
and if it is known to the Trustee, the Trustee shall mail to each Noteholder
notice of the uncured Default or Event of Default within 90 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 Note, 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, the Trustee may withhold the notice if
and so long as its board of directors, the executive committee of its board of
directors or a committee of its directors and/or Trust Officers in good faith
determines that withholding the notice is in the interest of the Noteholders.
SECTION 7.06. Reports by Trustee to Holders.
Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, 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 Noteholder a brief report dated
as of such May 15 that complies with TIA Section 313(a). The Trustee also shall
comply with TIA Sections 313(b) and 313(c).
A copy of each report at the time of its mailing to
Noteholders shall be mailed to the Company and filed with the SEC and each stock
exchange, if any, on which the Notes are listed.
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The Company shall notify the Trustee if the Notes become
listed on any stock exchange.
SECTION 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time
reasonable compensation for its services. 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 tax obligations imposed
on the Trustee related to this Indenture and all reasonable out-of-pocket
expenses incurred or made by it. 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, stockholders and directors for, and hold them harmless against, any
loss, liability or expense incurred by them except for such actions to the
extent caused by any negligence or bad faith on their part, arising out of or in
connection with the administration of this trust including the reasonable costs
and expenses of defending themselves against any claim or liability in
connection with the exercise or performance of any of their rights, powers or
duties hereunder. The Trustee shall notify the Company promptly of any claim
asserted against the Trustee for which it may seek indemnity. 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 any
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 Notes
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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 Notes.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(6) or (7) occurs, such expenses and
the compensation for such services are intended to constitute expenses of
administration under any Bankruptcy Law.
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 Notes 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
(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 Notes may appoint a successor Trustee to replace the successor
Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided in Section 7.07, the resignation
or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers
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and duties of the Trustee under this Indenture. A successor Trustee shall mail
notice of its succession to each Noteholder.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of at least 10% in principal amount of the outstanding
Notes may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding 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.
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)(5). 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
$100,000,000 as set forth in its most recent published annual report of
condition. In addition, if the Trustee is a corporation included in a bank
holding company system, the Trustee, independently of such bank holding company,
shall meet the capital requirements of TIA Section 310(a)(2). The Trustee shall
comply with TIA
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Section 310(b); provided, however, that there shall be excluded from the
operation of TIA ss. 310(b)(1) any indenture or indentures under which other
securities, or certificates of interest or participation in other securities,
of the Company are outstanding, if the requirements for such exclusion set
forth in TIA Section 310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated therein.
ARTICLE EIGHT
SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Termination of Company's Obligations.
This Indenture shall cease to be of further effect (except
that the Company's obligations under Sections 7.07, 8.04 and 8.05 shall survive
the effect of this Article Eight) when all outstanding Notes theretofore
authenticated and issued have been delivered to the Trustee for cancellation.
In addition, at the Company's option, either (a) the Company
shall be deemed to have been Discharged (as defined below) from its obligations
with respect to the Notes at any time 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 Sections
4.03, 4.05, 4.09, 4.11 through 4.18 and 5.01 at any time 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
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solely to, the benefit of the Holders of the Notes (i) money in an
amount, or (ii) U.S. Legal Tender or U.S. Government Obligations (as
defined below) that through the payment of interest and principal in
respect thereof in accordance with their terms will provide, not later
than one business day before the due date of any payment, money in an
amount, or (iii) a combination of (i) and (ii), sufficient, in the
opinion (with respect to (i) and (ii)) of a nationally recognized firm
of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge each installment
of principal of and interest on the outstanding Notes on the dates such
installments of interest or principal are due; provided, that no
deposits made pursuant to this Section 8.01(1) shall cause the Trustee
to have a conflicting interest as defined in and for purposes of the
TIA; provided, further, that 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) No Event of Default or Default with respect to the Notes
shall have occurred and be continuing on the date of such deposit;
(3) The Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that (i) the Holders of the Notes will not
recognize income, gain or loss for federal income tax purposes as a
result of the Company's exercise of its option under this Section 8.01
other than in the same manner and at the same times as would have been
the case if such option had not been exercised, and, accompanied by a
ruling to that effect received from or published by the Internal
Revenue Service, and (ii) all conditions precedent to the Discharge
pursuant to this Section 8.01 have been complied with, together with an
Officers' Certificate to such effect;
(4) The Company shall have paid or duly provided for payment
of all amounts then due to the Trustee pursuant to Section 7.07 hereof;
and
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(5) 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.
Notwithstanding the foregoing, the Opinion of Counsel required
by clause (i) of paragraph (3) above need not be delivered if all Notes 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 represented by, and obligations
under, the Notes and to have satisfied all the obligations under this Indenture
relating to the Notes (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same), except (i) the rights of the
Holders of Notes to receive, from the trust fund described in clause (1) above,
payment of the principal of and the interest on such Notes when such payments
are due, (ii) the Company's obligations with respect to the Notes under Sections
2.03, 2.04, 2.05, 2.06, 2.07, 7.07 and 7.08 and (iii) the rights, powers,
trusts, duties and immunities of the Trustee hereunder.
SECTION 8.02. Acknowledgment of Discharge by Trustee.
Subject to Section 8.05, after (i) the conditions of Section
8.01 have been satisfied, (ii) the Company has paid or caused to be paid all
other sums payable hereunder by the Company and (iii) the Company has delivered
to the Trustee an Opinion of Counsel, stating that all conditions precedent
referred to in clause (i) above relating to the satisfaction and discharge of
this Indenture have been complied with, the Trustee upon written request shall
acknowledge in writing the discharge
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of the Company's obligations under this Indenture except for those surviving
obligations specified in this Article Eight.
"U.S. Government Obligations" means direct obligations of, and
obligations guaranteed by, the United States of America for the payment of which
the full faith and credit of the United States of America is pledged.
SECTION 8.03. Application of Trust Money.
The Trustee shall hold in trust, money, U.S. Legal Tender or
U.S. Government Obligations deposited with it pursuant to Section 8.01. It shall
apply the deposited money and the money from U.S. Legal Tender and U.S.
Government Obligations through the Paying Agent and in accordance with this
Indenture to the payment of principal and accrued and unpaid interest on the
Notes.
SECTION 8.04. Repayment to the Company.
The Trustee and the Paying Agent shall promptly pay to the
Company any money held by them for the payment of principal or interest that
remains unclaimed for one year; provided, however, 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 money remains 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 money then remaining will
be repaid to the Company. After payment to the Company, Holders entitled to the
money 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 money shall cease.
SECTION 8.05. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money,
U.S. Legal Tender or U.S. Government Obligations in accordance
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with Section 8.01 by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Notes shall be revived and reinstated as though no deposit had
occurred pursuant to Section 8.01 until such time as the Trustee or Paying Agent
is permitted to apply all such money, U.S. Legal Tender or U.S. Government
Obligations in accordance with Section 8.01; provided, however, that if the
Company has made any payment of interest on or principal of any Notes because of
the reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such Notes to receive such payment from the money, U.S.
Legal Tender or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.
The Company, when authorized by a Board Resolution, and the
Trustee, together, may amend or supplement this Indenture or the Notes without
notice to or consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency; provided
that such amendment or supplement does not, in the opinion of the
Trustee, adversely affect the rights of any Holder in any material
respect;
(2) to comply with Article Five;
(3) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(4) to make any other change that does not adversely affect in
any material respect the rights of any Noteholders hereunder; or
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(5) to provide for issuance of the Exchange Notes, which will
have terms substantially identical in all material respects to the
Initial Notes (except that the transfer restrictions contained in the
Initial Notes will be modified or eliminated, as appropriate), and
which will be treated together with any outstanding Initial Notes, as a
single issue of securities;
provided, that the Company has delivered to the Trustee an Opinion of Counsel
and an Officers' Certificate, each stating that 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 aggregate principal amount of the
outstanding Notes, may amend or supplement this Indenture or the Notes, without
notice to any other Holders. Subject to Section 6.07, the Holder or Holders of a
majority in aggregate principal amount of the outstanding Notes may waive
compliance by the Company with any provision of this Indenture or the Notes
without notice to any other Noteholder. No amendment, supplement or waiver,
including a waiver pursuant to Section 6.04, shall, without the consent of each
Holder of each Note affected thereby:
(1) change the principal amount of Notes whose Holders must
consent to an amendment, supplement or waiver of any provision of this
Indenture or the Notes;
(2) reduce the rate or extend the time for payment of interest
on any Note;
(3) reduce the principal amount of any Note;
(4) change the Maturity Date of any Note, or alter the
optional redemption provisions contained in Article Three of this
Indenture and in Paragraph 5 of the Notes in a manner adverse to any
Holder;
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(5) make any changes in the provisions concerning waivers of
Defaults or Events of Default by Holders of the Notes or the rights of
Holders to recover the principal of, interest on, or optional
redemption payments with respect to, any Note; or
(6) make the principal of, or the interest on, any Note
payable with anything or in any manner other than as provided for in
this Indenture and the Notes.
It shall not be necessary for the consent of the Holders under
this Section 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, 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
Notes 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 Note or portion of a Note that evidences the same debt as
the consenting Holder's Note, even if notation of the consent is not made on any
Note. Subject to the following paragraph, any such Holder or subsequent Holder
may revoke the consent as to his Note or portion of his Note by notice to the
Trustee or the Company received before the date on which the Trustee receives an
Officers' Certificate certifying that the Holders of the requisite principal
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amount of Notes have consented (and not theretofore revoked such consent) to the
amendment, supplement or waiver.
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, which record date shall be at least 30 days
prior to the first solicitation of such consent. If a record date is fixed, then
notwithstanding the last sentence of the immediately preceding paragraph, those
Persons who were Holders at such record date (or their duly designated proxies),
and only those Persons, shall be entitled to revoke any consent previously
given, whether or not such Persons continue to be Holders after such record
date. No such consent shall be valid or effective for more than 90 days after
such record date.
After an amendment, supplement or waiver becomes effective, it
shall bind every Noteholder, 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 Note who has consented to
it and every subsequent Holder of a Note or portion of a Note that evidences the
same debt as the consenting Holder's Note; 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 Note, on or after the respective due dates expressed in such
Note, 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 Notes.
If an amendment, supplement or waiver changes the terms of a
Note, the Trustee may require the Holder of the Note to deliver it to the
Trustee. The Trustee may place an appropriate notation on the Note 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 Note shall issue, and the
Trustee shall authenticate, a new Note that reflects the changed terms.
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SECTION 9.06. Trustee To Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article Nine; 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 Nine is authorized or permitted by this
Indenture. Such Opinion of Counsel shall not be an expense of the Trustee.
ARTICLE TEN
GUARANTEE
SECTION 10.01. Unconditional Guarantee.
Each Subsidiary Guarantor, if any, hereby unconditionally
guarantees in accordance with the provisions of Section 4.18, to each Holder of
a Note authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, that: (i) the principal of and interest on the Notes
will be promptly paid in full when due, subject to any applicable grace period,
whether at maturity, by acceleration or otherwise and interest on the overdue
principal, if any, and interest on any interest, to the extent lawful, of the
Notes to the Holders or the Trustee will be promptly paid in full or performed,
all in accordance with the terms hereof and thereof; and (ii) in case of any
extension of time of payment or renewal of any Notes, the same will be promptly
paid in full when due or performed in accordance with the terms of the extension
or renewal, subject to any applicable grace period, whether at stated maturity,
by acceleration or otherwise, subject, however, in the case of clauses (i) and
(ii) above, to the limitations set forth in Section 10.03. Each Subsidiary
Guarantor, if any, hereby agrees that its obligations hereunder shall be
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unconditional, irrespective of the validity, regularity or enforceability of the
Notes or this Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Notes with respect to any provisions
hereof or thereof, the recovery of any judgment against the Company, and action
to enforce the same or any other circumstance that might otherwise constitute a
legal or equitable discharge or defense of a guarantor. Each Subsidiary
Guarantor, if any, hereby waives diligence, presentment, demand for payment,
filing of claims with a court in the event of insolvency or bankruptcy of the
Company, any right to require a proceeding first against the Company, protest,
notice and all demands whatsoever and covenants that its Subsidiary Guarantee
will not be discharged except by complete performance of the obligations
contained in the Notes, this Indenture and in its Subsidiary Guarantee. If any
Noteholder or the Trustee is required by any court or otherwise to return to the
Company, any Subsidiary Guarantor or any custodian, trustee, liquidator or other
similar official acting in relation to the Company or any such Subsidiary
Guarantor, any amount paid by the Company or any such Subsidiary Guarantor to
the Trustee or such Noteholder, each Subsidiary Guarantee to the extent
theretofore discharged, shall be reinstated in full force and effect. Each
Subsidiary Guarantor further agrees that, as between it and all other Subsidiary
Guarantors, on the one hand, and the Holders and the Trustee, on the other hand,
(x) the maturity of the obligations guaranteed hereby may be accelerated as
provided in Article Six for the purposes of a Subsidiary Guarantee
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y) in the
event of any acceleration of such obligations as provided in Article Six, such
obligations (whether or not due and payable) shall forthwith become due and
payable by the Subsidiary Guarantors for the purpose of the Subsidiary
Guarantees.
SECTION 10.02. Severability.
In case any provision of this Article Ten shall be invalid,
illegal or unenforceable, the validity, legality and
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enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 10.03. Limitation of Liability.
Each Subsidiary Guarantor, and by its acceptance hereof each
Holder, hereby confirms that it is the intention of all such parties that the
guarantee by each Subsidiary Guarantor pursuant to its Subsidiary Guarantee not
constitute a fraudulent transfer or conveyance for purposes of any Bankruptcy
Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act
or any similar Federal or state law. To effectuate the foregoing intention, the
Holders and each Subsidiary Guarantor hereby irrevocably agree that the
obligations of each Subsidiary Guarantor under its Subsidiary Guarantee shall be
limited to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of such Subsidiary Guarantor and after giving
effect to any collections from or payments made by or on behalf of any of the
other Subsidiary Guarantors in respect of the obligations of such other
Subsidiary Guarantors under the other Subsidiary Guarantees or pursuant to
Section 10.05, result in the obligations of such Subsidiary Guarantor under its
Subsidiary Guarantee not constituting such fraudulent transfer or conveyance.
SECTION 10.04. Subsidiary Guarantors May Consolidate, etc., on Certain Terms.
(a) Nothing contained in this Indenture or in the Notes shall
prevent any consolidation or merger of a Subsidiary Guarantor with or into the
Company or another Subsidiary Guarantor or shall prevent any sale of assets or
conveyance of the property of a Subsidiary Guarantor as an entirety or
substantially as an entirety, to the Company or another Subsidiary Guarantor.
Upon any such consolidation, merger, sale or conveyance, the Subsidiary
Guarantee given by such Subsidiary Guarantor shall no longer have any force or
effect.
(b) Upon the sale or disposition as an entirety (whether by
merger, stock purchase, asset sale or otherwise) of a Subsidiary Guarantor (or
all or substantially all its assets)
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to a Person that is not a Subsidiary of the Company and which sale or
disposition is otherwise in compliance with Section 4.18 and the other terms of
this Indenture, such Subsidiary Guarantor shall be deemed released from all
obligations under this Article Ten without any further action required on the
part of the Trustee or any Holder.
The Trustee shall deliver an appropriate instrument evidencing
such release upon receipt of a request by the Company accompanied by Officers'
Certificates and Opinions of Counsel certifying as to the compliance with this
Section 10.04. Any Subsidiary Guarantor not so released remains liable for the
full amount of principal of and interest on the Securities as provided in this
Article Ten.
SECTION 10.05. Contribution.
In order to provide for just and equitable contribution among
the Subsidiary Guarantors, the Subsidiary Guarantors agree, inter se, that in
the event any payment or distribution is made by any Subsidiary Guarantor (a
"Funding Guarantor") under any of the Subsidiary Guarantees, such Funding
Guarantor shall be entitled to a contribution from all other Subsidiary
Guarantors in a pro rata amount based on the Adjusted Net Assets (as defined
below) of each of the Subsidiary Guarantors (including the Funding Guarantor)
for all payments, damages and expenses incurred by that funding Guarantor in
discharging the Company's obligations with respect to the Notes or any
obligations of any of the other Subsidiary Guarantors with respect to any of the
Subsidiary Guarantees or based on such other determination as may be mutually
agreed upon between or among each such Subsidiary Guarantor. "Adjusted Net
Assets" of any Person at any date shall mean the lesser of the amount by which
(x) the fair value of the property of such Person exceeds the total amount of
liabilities, including, without limitation, contingent liabilities (after giving
effect to all other fixed and contingent liabilities incurred or assumed on such
date), but excluding liabilities under a Subsidiary Guarantee of such person at
such date and (y) the present fair salable value of the assets of such Person at
such date exceeds the amount that will be required to pay the probable liability
of such Person on its
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debts (after giving effect to all other fixed and contingent liabilities
incurred or assumed on such date), excluding debt in respect of the Subsidiary
Guarantee of such Person, as they become absolute and matured.
SECTION 10.06. Waiver of Subrogation.
Until all Obligations under each of the Subsidiary Guarantees,
the Notes and this Indenture are paid in full, each of the Subsidiary Guarantors
hereby irrevocably waives any claims or other rights that it may now or
hereafter acquire against the Company that arise from the existence, payment,
performance or enforcement of its obligations under its Subsidiary Guarantee and
this Indenture, including, without limitation, any right of subrogation,
reimbursement, exoneration, indemnification and any right to participate in any
claim or remedy of any Holder of Notes 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 of the Subsidiary Guarantors in violation of
the preceding sentence and the Notes shall not have been paid in full, such
amount shall have been deemed to have been paid to such Person for the benefit
of, and held in trust for the benefit of, the Holders of the Notes, and shall,
forthwith be paid to the Trustee for the benefit of such Holders to be credited
and applied upon the Notes, whether matured or unmatured, in accordance with the
terms of this Indenture. Each of the Subsidiary Guarantors acknowledges that it
will receive direct and indirect benefits from the financing arrangements
contemplated by this Indenture and that the waiver set forth in this Section
10.06 is knowingly made in contemplation of such benefits.
SECTION 10.07. Execution of Guarantee.
To evidence their guarantee to the Noteholders set forth in
this Article Ten, each Subsidiary Guarantor hereby agrees to execute a
Subsidiary Guarantee in substantially the
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form of Exhibit E to this Indenture, which shall be endorsed on each Note
ordered to be authenticated and delivered by the Trustee. Each Subsidiary
Guarantor hereby agrees that its Subsidiary Guarantee set forth in this Article
Ten shall remain in full force and effect notwithstanding any failure to endorse
on each Note a notation of a Subsidiary Guarantee. A Subsidiary Guarantee shall
be signed on behalf of a Subsidiary Guarantor by two Officers, or an Officer and
an Assistant Secretary, or one Officer shall sign and one Officer or an
Assistant Secretary (each of whom shall, in each case, have been duly authorized
by all requisite corporate or partnership actions) shall attest to the
Subsidiary Guarantee prior to the authentication of the Note on which it is
endorsed, and the delivery of such Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Subsidiary Guarantee on
behalf of such Subsidiary Guarantor. Such signatures upon a Subsidiary Guarantee
may be by manual or facsimile signature of such officers and may be imprinted or
otherwise reproduced on the Subsidiary Guarantee and in case any such officer
who shall have signed a Subsidiary Guarantee shall cease to be such officer
before the Note on which the Subsidiary Guarantee is endorsed shall have
authenticated and delivered by the Trustee or disposed of by the Company, such
Note nevertheless may be authenticated and delivered or disposed of as though
the Person who signed the Subsidiary Guarantee had not ceased to be such officer
of the Subsidiary Guarantor. At any time after a Subsidiary Guarantee is
terminated pursuant to the terms of this Indenture, the Trustee shall upon
written notice from the Company (and delivery of an Officer's Certificate)
remove any such endorsement which relates to such Subsidiary Guarantee.
SECTION 10.08. Waiver of Stay, Extension or Usury Laws.
Each Subsidiary Guarantor, if any, 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 such
Subsidiary Guarantor from performing a Subsidiary Guarantee as
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contemplated herein, wherever enacted, now or at any time hereafter in force, or
which may affect the covenants or the performances of this Indenture; and (to
the extent that it may lawfully do so) each Subsidiary Guarantor, if any, 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.
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. TIA Controls.
If any provision of this Indenture limits, qualifies, or
conflicts with another provision which is required to be included in this
Indenture by the TIA, the required provision shall control.
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 commercial courier service, by telex, by telecopier or registered
or certified mail, postage prepaid, return receipt requested, addressed as
follows:
if to the Company:
Xxxxxxx Container Corporation
000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
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with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxxx, Esq.
if to the Trustee:
State Street Bank and Trust Company
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, XX 00000
Attention: Corporate Trust Administration
Each of the Company and the Trustee by written notice to each
other such Person may designate additional or different addresses for notices to
such Person. Any notice or communication to the Company or the Trustee shall be
deemed to have been given or made as of the date so delivered if personally
delivered; when receipt is confirmed if delivered by commercial courier; when
answered back, if telexed; when receipt is acknowledged, if faxed; and upon
receipt if sent by registered or certified mail, postage prepaid.
Any notice or communication mailed to a Noteholder 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 Noteholder or
any defect in it shall not affect its sufficiency with respect to other
Noteholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
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SECTION 11.03. Communications by Holders with Other Holders.
Noteholders may communicate pursuant to TIA Section 312(b)
with other Noteholders with respect to their rights under this Indenture or the
Notes. The Company, the Trustee, the Registrar and any other Person shall have
the protection of TIA Section 312(c).
SECTION 11.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee
to take any action under this Indenture, the Company shall furnish to the
Trustee upon request:
(1) an Officers' Certificate, in form and substance
satisfactory to the Trustee, stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 11.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture, other than the Officers'
Certificate required by Section 4.07, shall include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
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(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 Noteholders. 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, Hartford, Connecticut, Boston, Massachusetts 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. Each of the parties hereto agrees to submit to
the jurisdiction of the courts of the State of New York in any action or
proceeding arising out of or relating to this Indenture.
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SECTION 11.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of any of the Company or any of its Subsidiaries. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
SECTION 11.10. No Recourse Against Others.
A director, officer, employee, stockholder or incorporator, as
such, of the Company or the Trustee shall not have any liability for any
obligations of the Company under the Notes or the Indenture or for any claim
based on, in respect of or by reason of such obligations or their creations.
Each Noteholder by accepting a Note waives and releases all such liability. Such
waiver and release are part of the consideration for the issuance of the Notes.
SECTION 11.11. Successors.
All agreements of the Company in this Indenture and the Notes
shall bind its successors. All agreements of the Trustee in this Indenture shall
bind its successors.
SECTION 11.12. Duplicate Originals.
All parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together shall represent
the same agreement.
SECTION 11.13. Severability.
In case any one or more of the provisions in this Indenture or
in the Notes shall be held invalid, illegal or unenforceable, in any respect for
any reason, the validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions shall not in any way be
affected or impaired thereby, it being intended that all of the provisions
hereof shall be enforceable to the full extent permitted by law.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed, all as of the date first written above.
XXXXXXX CONTAINER CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Assistant Treasurer
STATE STREET BANK AND TRUST
COMPANY,
as Trustee
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
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EXHIBIT A
[FORM OF SERIES A SECURITY]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT
OF, U.S. PERSONS EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE ACT) OR (B) IT IS AN "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE ACT) (AN "ACCREDITED
INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN
OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE
ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER THIS SECURITY
EXCEPT (A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES
TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 000X XXXXX XXX XXX,
(X) XXXXXX XXX XXXXXX XXXXXX TO AN ACCREDITED INVESTOR THAT, PRIOR TO SUCH
TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO
THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM OF WHICH
LETTER CAN BE OBTAINED FROM THE TRUSTEE FOR THIS SECURITY), (D) OUTSIDE THE
UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 OF
REGULATION S UNDER THE ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE ACT (IF AVAILABLE) OR (F) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND (3) AGREES THAT IT WILL GIVE
TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS SECURITY
WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THE SECURITY, IF THE PROPOSED
TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO
SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE ISSUER SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS
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OF THE ACT. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES"
AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE ACT.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY ANY SUCH NOMINEE
OF THE DEPOSITARY, OR BY THE DEPOSITARY OR NOMINEE OF SUCH SUCCESSOR DEPOSITARY
OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN SECTION 2.17 OF THE INDENTURE.
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CUSIP No.:
XXXXXXX CONTAINER CORPORATION
9 3/8% Senior Note due 2007, Series A
No. 1 $
XXXXXXX CONTAINER CORPORATION, a Delaware corporation (the
"Company," which term includes any successor entity), for value received
promises to pay to Cede & Co. or registered assigns, the principal sum of
Dollars, on June 15, 2007.
Interest Payment Dates: June 15 and December 15, commencing
June 15, 1998
Record Dates: June 1 and December 1
Reference is made to the further provisions of this Note
contained herein, which will for all purposes have the same effect as if set
forth at this place.
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IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officers.
Dated: February 23, 1998
XXXXXXX CONTAINER CORPORATION
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
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This is one of the Notes described in the within-mentioned
Indenture.
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By
-------------------------------------
Authorized Signatory
Dated: February 23, 1998
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118
(REVERSE OF SECURITY)
XXXXXXX CONTAINER CORPORATION
9 3/8% Senior Note due 2007, Series A
1. INTEREST.
XXXXXXX CONTAINER CORPORATION, a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Note at the
rate per annum shown above. Interest on the Notes will accrue from the most
recent date on which interest has been paid or, if no interest has been paid,
from the Issue Date. The Company will pay interest semi-annually in arrears on
each Interest Payment Date, commencing June 15, 1998. 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 from time
to time on demand at the rate of 10 3/8% per annum; it shall pay interest on
overdue installments of interest (without regard to any applicable grace
periods) from time to time on demand at the rate of 10 3/8% per annum.
2. Method of Payment.
The Company shall pay interest on the Notes (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
Notes are cancelled on registration of transfer or registration of exchange
after such Record Date. Holders must surrender Notes to a Paying Agent to
collect principal payments. The Company shall pay principal and interest in
money of the United States that at the time of payment is legal tender for
payment of public and private debts ("U.S. Legal Tender"). However, the Company
may pay principal and interest by its check payable in such U.S. Legal Tender.
The Company may deliver any such interest payment to the Paying Agent or to a
Holder at the Holder's registered address.
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3. Paying Agent and Registrar.
Initially, State Street Bank and Trust Company (the "Trustee")
will act as Paying Agent and Registrar. The Company may change any Paying Agent,
Registrar or co-Registrar without notice to the Holders. The Company or any of
its Subsidiaries may, subject to certain exceptions, act as Paying Agent,
Registrar or co-Registrar.
4. Indenture.
The Company issued the Notes under an Indenture, dated as of
February 23, 1998 (the "Indenture"), between the Company and the Trustee. This
Note is one of a duly authorized issue of Notes of the Company designated as its
9 3/8% Senior Notes due 2007, Series A (the "Notes"), limited (except as
otherwise provided in the Indenture) in aggregate principal amount to
$200,000,000, which may be issued under the Indenture. Capitalized terms herein
are used as defined in the Indenture unless otherwise defined herein. The terms
of the Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code
Sections 77aaa-77bbbb) (the "TIA"), as in effect on the date of the Indenture.
Notwithstanding anything to the contrary herein, the Notes are subject to all
such terms, and Holders of Notes are referred to the Indenture and the TIA for
a statement of them. The Notes are general unsecured obligations of the
Company.
5. Optional Redemption.
The Notes may not be redeemed at the option of the Company
prior to June 15, 2002. Thereafter, the Company may redeem all or any of the
Notes at any time at redemption prices (expressed in percentages of the
principal amount), set forth below plus accrued interest, if any, to the
Redemption Date if redeemed during the 12-month period beginning on June 15 in
the years indicated below:
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Year Percentage
---- ----------
2002................................. 104.688%
2003................................. 103.125%
2004................................. 101.563%
2005 and thereafter.................. 100.000%
Notwithstanding the foregoing, at any time prior to June 15,
2000, the Company may redeem up to 33% of the aggregate principal amount of
Notes with the net proceeds from one or more Equity Offerings of the Company at
a redemption price equal to 109.375% of the principal amount thereof, plus
accrued and unpaid interest, if any, thereon to the date of redemption;
provided, however, that, after giving effect to any such redemption, at least
$100,000,000 aggregate principal amount of the Notes originally issued remain
outstanding. Any such redemption must occur on or prior to 120 days after the
receipt of such net proceeds.
In addition, upon the occurrence of a Change of Control prior
to June 15, 2002, the Company, at its option, may redeem all, but not less than
all, of the outstanding Notes at a redemption price equal to 100% of the
principal amount thereof plus the applicable Make-Whole Premium (a "Change of
Control Redemption"). The Company shall give not less than 30 nor more than 60
days notice of such redemption within 30 days following a Change of Control.
"Make-Whole Premium" with respect to a Note means an amount
equal to the greater of (i) 1.0% of the outstanding principal amount of such
Note and (ii) the excess of (a) the present value of the remaining interest,
premium and principal payments due on such Note as if such Note were redeemed on
June 15, 2002 computed using a discount rate equal to the Treasury Rate plus
62.5 basis points, over (b) the outstanding principal amount of such Note.
6. Notice of Redemption.
Notice of redemption will be mailed at least 30 days but not
more than 60 days before the Redemption Date to each Holder of Notes to be
redeemed at such Holder's registered address.
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Notes in denominations larger than $1,000 may be redeemed in part.
Except as set forth in the Indenture, from and after any
Redemption Date, if monies for the redemption of the Notes called for redemption
shall have been deposited with the Paying Agent for redemption on such
Redemption Date, then, unless the Company defaults in the payment of such
Redemption Price, the Notes called for redemption will cease to bear interest
and the only right of the Holders of such Notes will be to receive payment of
the Redemption Price.
7. 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 purchase all of the then outstanding Notes 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 purchase. Holders of
Notes which are the subject of such an offer to repurchase shall receive an
offer to repurchase and may elect to have such Notes repurchased pursuant to and
in accordance with the terms of the Indenture.
8. Limitation on Disposition of Assets.
Under certain circumstances the Company is required to apply
the net proceeds from Asset Sales to offer to repurchase Notes at a price equal
to 100% of the aggregate principal amount thereof, plus accrued interest to the
date of purchase.
9. Denominations; Transfer; Exchange.
The Notes 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 Notes in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay certain transfer taxes or similar
governmental charges payable in connection therewith as
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122
permitted by the Indenture. The Registrar need not register the transfer of or
exchange any Notes or portions thereof selected for redemption.
10. Persons Deemed Owners.
The registered Holder of a Note shall be treated as the owner
of it for all purposes.
11. Unclaimed Money.
If money for the payment of principal or interest remains
unclaimed for one year, the Trustee and the Paying Agents will pay the money
back to the Company. After that, all liability of the Trustee and such Paying
Agents with respect to such money shall cease.
12. Discharge Prior to Redemption or Maturity.
If the Company at any time deposits with the Trustee U.S.
Legal Tender or U.S. Government Obligations sufficient to pay the principal of
and interest on the Notes to redemption or maturity and complies with the other
provisions of the Indenture relating thereto, the Company will be discharged
from certain provisions of the Indenture and the Notes (including certain
covenants, but excluding its obligation to pay the principal of and interest on
the Notes).
13. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Notes may
be amended or supplemented with the written consent of the Holders of at least a
majority in aggregate principal amount of the Notes then outstanding, and any
existing Default or Event of Default or compliance with any provision may be
waived with the consent of the Holders of a majority in aggregate principal
amount of the Notes then outstanding. Without notice to or consent of any
Holder, the parties thereto may amend or supplement the Indenture or the Notes
to, among other things, cure any ambiguity, defect or inconsistency, provide for
uncertificated Notes in addition to or in place of certificated
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123
Notes, or comply with Article Five of the Indenture or make any other change
that does not adversely affect in any material respect the rights of any Holder
of a Note.
14. 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, enter into transactions with Affiliates, create dividend or other
payment restrictions affecting Subsidiaries, merge or consolidate with any other
Person, incur liens, 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.
15. Successors.
When a successor assumes, in accordance with the Indenture,
all the obligations of its predecessor under the Notes and the Indenture, the
predecessor will be released from those obligations.
16. 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 Notes then
outstanding may declare all the Notes to be due and payable in the manner, at
the time and with the effect provided in the Indenture. Holders of Notes may not
enforce the Indenture or the Notes except as provided in the Indenture. The
Trustee is not obligated to enforce the Indenture or the Notes unless it has
received indemnity satisfactory to it. The Indenture permits, subject to certain
limitations therein provided Holders of a majority in aggregate principal amount
of the Notes then outstanding to direct the Trustee in its exercise of any trust
or power. The Trustee may withhold from Holders of Notes notice of any
continuing Default or Event
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of Default (except a Default in payment of principal or interest) if it
determines that withholding notice is in their interest.
17. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any
other capacity, may become the owner or pledgee of Notes and may otherwise deal
with the Company, its Subsidiaries or their respective Affiliates as if it were
not the Trustee.
18. No Recourse Against Others.
No stockholder, director, officer, employee or incorporator,
as such, of the Company shall have any liability for any obligation of the
Company under the Notes or the Indenture or for any claim based on, in respect
of or by reason of, such obligations or their creation. Each Holder of a Note by
accepting a Note waives and releases all such liability. The waiver and release
are part of the consideration for the issuance of the Notes.
19. Authentication.
This Note shall not be valid until the Trustee or
authenticating agent manually signs the certificate of authentication on this
Note.
20. Governing Law.
The Laws of the State of New York shall govern this Note and
the Indenture, without regard to principles of conflict of laws.
21. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of
a Note or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
X-00
000
00. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on
Uniform Note Identification Procedures, the Company will cause CUSIP numbers to
be printed on the Notes as a convenience to the Holders of the Notes. No
representation is made as to the accuracy of such numbers as printed on the
Notes and reliance may be placed only on the other identification numbers
printed hereon.
23. Registration Rights.
Pursuant to the Registration Rights Agreement, the Company will be obligated
upon the occurrence of certain events to consummate an exchange offer pursuant
to which the Holder of this Security shall have the right to exchange this
Series A Note for the Company's 9 3/8% Senior Notes due 2007, Series B, which
have been registered under the Securities Act, in like principal amount at
maturity and having terms identical in all material respects as the Series A
Notes. The Holders 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.
24. Indenture.
Each Holder, by accepting a Note, agrees to be bound by all of
the terms and provisions of the Indenture, as the same may be amended from time
to time.
The Company will furnish to any Holder of a Note upon written
request and without charge a copy of the Indenture, which has the text of this
Note in larger type. Requests may be made to: XXXXXXX CONTAINER CORPORATION, 000
Xxxx Xxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000, Attn: Secretary.
A-13
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[FORM OF ASSIGNMENT]
I or we assign to
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER
--------------------------------
-------------------------------------------------------------------------------
(please print or type name and address)
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
-------------------------------------------------------------------------------
attorney to transfer the Note on the books of the Issuer with full power of
substitution in the premises.
Dated:
------------------------- --------------------------------------------
NOTICE: The signature on this assignment must
correspond with the name as it appears upon
the face of the within Note in every
particular without alteration or enlargement
or any change whatsoever and be guaranteed by
the endorser's bank or broker.
In connection with any transfer of this Note occurring prior
to the date which is the earlier of (i) the date of the declaration by the SEC
of the effectiveness of a registration statement under the Securities Act of
1933, as amended (the "Securities Act") covering resales of this Note (which
effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii) , the undersigned
A-14
127
confirms that it has not utilized any general solicitation or general
advertising in connection with the transfer and that this Note is being
transferred:
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[Check One]
(1) ___ to the Company or a subsidiary thereof; or
(2) ___ pursuant to and in compliance with Rule 144A under the Securities
Act; or
(3) ___ to an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act) that has
furnished to the Trustee a signed letter containing certain
representations and agreements (the form of which letter can be
obtained from the Trustee); or
(4) ___ outside the United states to a "foreign person" in compliance with
Rule 904 of Regulation S under the Securities Act; or
(5) ___ pursuant to the exemption from registration provided by Rule 144
under the Securities Act; or
(6) ___ pursuant to an effective registration statement under the Securities
Act; or
(7) ___ pursuant to another available exemption from the registration
requirements of the Securities Act.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Notes evidenced by this certificate in the name of any person other than the
registered Holder thereof; provided, that if box (3), (4), (5) or (7) is
checked, the Company or the Trustee may require, prior to registering any such
transfer of the Notes, in its sole discretion, such legal opinions,
certifications (including an investment letter in the case of box (3) or (4))
and other information as the Trustee or the Company has reasonably requested to
confirm that such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities Act.
A-16
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If none of the foregoing boxes is checked, the Trustee or Registrar shall not be
obligated to register this Note in the name of any person other than the Holder
hereof unless and until the conditions to any such transfer of registration set
forth herein and in Section 2.17 of the Indenture shall have been satisfied.
Dated: Signed:
------------------------- ------------------------------------
(Sign exactly as name appears on the
other side of this Security)
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing
this Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated:
------------------------- ------------------------------------
NOTICE: To be executed by an
executive officer
A-17
130
[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Note purchased by the
Company pursuant to Section 4.15 or Section 4.16 of the Indenture, check the
appropriate box:
Section 4.15 [ ]
Section 4.16 [ ]
If you want to elect to have only part of this Note purchased
by the Company pursuant to Section 4.15 or Section 4.16 of the Indenture, state
the amount you elect to have purchased:
$
---------------------
Dated:
------------------------- ------------------------------------
NOTICE: The signature on this
assignment must correspond with the
name as it appears upon the face of
the within Note in every particular
without alteration or enlargement
or any change whatsoever and be
guaranteed by the endorser's bank
or broker.
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EXHIBIT B
CUSIP No.:
XXXXXXX CONTAINER CORPORATION
9 3/8% Senior Note due 2007, Series B
No. 2 $
XXXXXXX CONTAINER CORPORATION, a Delaware corporation (the
"Company," which term includes any successor entity), for value received
promises to pay to Cede & Co. or registered assigns, the principal sum of
Dollars, on June 15, 2007.
Interest Payment Dates: June 15 and December 15, commencing
June 15, 1998
Record Dates: June 1 and December 1
Reference is made to the further provisions of this Note
contained herein, which will for all purposes have the same effect as if set
forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officers.
Dated: ,
XXXXXXX CONTAINER CORPORATION
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
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This is one of the Notes described in the within-mentioned
Indenture.
STATE STREET BANK AND TRUST
COMPANY,
as Trustee
By:
-------------------------------------
Authorized Signatory
Dated: ,
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133
(REVERSE OF SECURITY)
XXXXXXX CONTAINER CORPORATION
9 3/8% Senior Note due 2007, Series B
1. Interest.
XXXXXXX CONTAINER CORPORATION, a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Note at the
rate per annum shown above. Interest on the Notes will accrue from the most
recent date on which interest has been paid or, if no interest has been paid,
from the Issue Date. The Company will pay interest semi-annually in arrears on
each Interest Payment Date, commencing June 15, 1998. 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 from time
to time on demand at the rate of 10 3/8% per annum; it shall pay interest on
overdue installments of interest (without regard to any applicable grace
periods) from time to time on demand at the rate of 10 3/8% per annum.
2. Method of Payment.
The Company shall pay interest on the Notes (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
Notes are cancelled on registration of transfer or registration of exchange
after such Record Date. Holders must surrender Notes to a Paying Agent to
collect principal payments. The Company shall pay principal and interest in
money of the United States that at the time of payment is legal tender for
payment of public and private debts ("U.S. Legal Tender"). However, the Company
may pay principal and interest by its check payable in such U.S. Legal Tender.
The Company may deliver any such interest payment to the Paying Agent or to a
Holder at the Holder's registered address.
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3. Paying Agent and Registrar.
Initially, State Street Bank and Trust Company (the "Trustee")
will act as Paying Agent and Registrar. The Company may change any Paying Agent,
Registrar or co-Registrar without notice to the Holders. The Company or any of
its Subsidiaries may, subject to certain exceptions, act as Paying Agent,
Registrar or co-Registrar.
4. Indenture.
The Company issued the Notes under an indenture, dated as of
February 23, 1998 (the "Indenture"), between the Company and the Trustee. This
Note is one of a duly authorized issue of Notes of the Company designated as its
9 3/8% Senior Notes due 2007 (the "Notes"), limited (except as otherwise
provided in the Indenture) in aggregate principal amount to $200,000,000, which
may be issued under the Indenture. Capitalized terms herein are used as defined
in the Indenture unless otherwise defined herein. The terms of the Notes include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) (the
"TIA"), as in effect on the date of the Indenture. Notwithstanding anything to
the contrary herein, the Notes are subject to all such terms, and Holders of
Notes are referred to the Indenture and said Act for a statement of them. The
Notes are general unsecured obligations of the Company.
5. Optional Redemption.
The Notes may not be redeemed at the option of the Company
prior to June 15, 2002. Thereafter, the Company may redeem all or any of the
Notes at any time at redemption prices (expressed in percentages of the
principal amount), set forth below plus accrued interest, if any, to the
Redemption Date if redeemed during the 12-month period beginning on June 15 in
the years indicated below:
B-4
135
Year Percentage
---- ----------
2002........................................ 104.688%
2003........................................ 103.125%
2004........................................ 101.563%
2005 and thereafter......................... 100.000%
Notwithstanding the foregoing, at any time prior to June 15,
2000, the Company may redeem up to 33% of the aggregate principal amount of
Notes with the net proceeds from one or more Equity Offerings of the Company at
the redemption price equal to 109.375% of the principal amount thereof, plus
accrued and unpaid interest, if any, thereon to the date of redemption;
provided, however, that, after giving effect to any such redemption, at least
$100,000,000 aggregate principal amount of the Notes originally issued remain
outstanding. Any such redemption must occur on or prior to 120 days after the
receipt of such net proceeds.
In addition, upon the occurrence of a Change of Control prior
to June 15, 2002, the Company, at its option, may redeem all, but not less than
all, of the outstanding Notes at a redemption price equal to 100% of the
principal amount thereof plus the applicable Make-Whole Premium (a "Change of
Control Redemption"). The Company shall give not less than 30 nor more than 60
days notice of such redemption within 30 days following a Change of Control.
"Make-Whole Premium" with respect to a Note means an amount
equal to the greater of (i) 1.0% of the outstanding principal amount of such
Note and (ii) the excess of (a) the present value of the remaining interest,
premium and principal payments due on such Note as if such Note were redeemed on
June 15, 2002 computed using a discount rate equal to the Treasury Rate plus
62.5 basis points, over (b) the outstanding principal amount of such Note.
6. Notice of Redemption.
Notice of redemption will be mailed at least 30 days but not
more than 60 days before the Redemption Date to each Holder of Notes to be
redeemed at such Holder's registered address.
B-5
136
Notes in denominations larger than $1,000 may be redeemed in part.
Except as set forth in the Indenture, from and after any
Redemption Date, if monies for the redemption of the Notes called for redemption
shall have been deposited with the Paying Agent for redemption on such
Redemption Date, then, unless the Company defaults in the payment of such
Redemption Price, the Notes called for redemption will cease to bear interest
and the only right of the Holders of such Notes will be to receive payment of
the Redemption Price.
7. 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 purchase all of the then outstanding Notes pursuant to a 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 purchase Holders of the Notes
which are the subject of such an offer to repurchase shall receive an offer to
repurchase and may elect to have such Notes repurchased pursuant to and in
accordance with the terms of the Indenture.
8. Limitation on Disposition of Assets.
Under certain circumstances the Company is required to apply
the net proceeds from Asset Sales to offer to repurchase Notes at a price equal
to 100% of the aggregate principal amount thereof, plus accrued interest to the
date of purchase.
9. Denominations; Transfer; Exchange.
The Notes 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 Notes in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay certain transfer taxes or similar
governmental charges payable in connection therewith as
B-6
137
permitted by the Indenture. The Registrar need not register the transfer of or
exchange any Notes or portions thereof selected for redemption.
10. Persons Deemed Owners.
The registered Holder of a Note shall be treated as the owner
of it for all purposes.
11. Unclaimed Money.
If money for the payment of principal or interest remains
unclaimed for one year, the Trustee and the Paying Agents will pay the money
back to the Company. After that, all liability of the Trustee and such Paying
Agents with respect to such money shall cease.
12. Discharge Prior to Redemption or Maturity.
If the Company at any time deposits with the Trustee U.S.
Legal Tender or U.S. Government Obligations sufficient to pay the principal of
and interest on the Notes to redemption or maturity and complies with the other
provisions of the Indenture relating thereto, the Company will be discharged
from certain provisions of the Indenture and the Notes (including certain
covenants, but excluding its obligation to pay the principal of and interest on
the Notes).
13. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Notes may
be amended or supplemented with the written consent of the Holders of at least a
majority in aggregate principal amount of the Notes then outstanding, and any
existing Default or Event of Default or compliance with any provision may be
waived with the consent of the Holders of a majority in aggregate principal
amount of the Notes then outstanding. Without notice to or consent of any
Holder, the parties thereto may amend or supplement the Indenture or the Notes
to, among other things, cure any ambiguity, defect or inconsistency, provide for
uncertificated Notes in addition to or in place of certificated
B-7
138
Notes, or comply with Article Five of the Indenture or make any other change
that does not adversely affect in any material respect the rights of any Holder
of a Note.
14. 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, enter into transactions with Affiliates, create dividend or other
payment restrictions affecting Subsidiaries, merge or consolidate with any other
Person, incur liens, 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.
15. Successors.
When a successor assumes, in accordance with the Indenture,
all the obligations of its predecessor under the Notes and the Indenture, the
predecessor will be released from those obligations.
16. 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 Notes then
outstanding may declare all the Notes to be due and payable in the manner, at
the time and with the effect provided in the Indenture. Holders of Notes may not
enforce the Indenture or the Notes except as provided in the Indenture. The
Trustee is not obligated to enforce the Indenture or the Notes unless it has
received indemnity satisfactory to it. The Indenture permits, subject to certain
limitations therein provided, Holders of a majority in aggregate principal
amount of the Notes then outstanding to direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from Holders of Notes notice of any
continuing Default or Event
B-8
139
of Default (except a Default in payment of principal or interest) if it
determines that withholding notice is in their interest.
17. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any
other capacity, may become the owner or pledgee of Notes and may otherwise deal
with the Company, its Subsidiaries or their respective Affiliates as if it were
not the Trustee.
18. No Recourse Against Others.
No stockholder, director, officer, employee or incorporator,
as such, of the Company shall have any liability for any obligation of the
Company under the Notes or the Indenture or for any claim based on, in respect
of or by reason of, such obligations or their creation. Each Holder of a Note by
accepting a Note waives and releases all such liability. The waiver and release
are part of the consideration for the issuance of the Notes.
19. Authentication.
This Note shall not be valid until the Trustee or
authenticating agent manually signs the certificate of authentication on this
Note.
20. Governing Law.
The Laws of the State of New York shall govern this Note and
the Indenture, without regard to principles of conflict of laws.
21. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of
a Note or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
X-0
000
00. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on
Uniform Note Identification Procedures, the Company will cause CUSIP numbers to
be printed on the Notes as a convenience to the Holders of the Notes. No
representation is made as to the accuracy of such numbers as printed on the
Notes and reliance may be placed only on the other identification numbers
printed hereon.
23. Indenture.
Each Holder, by accepting a Note, agrees to be bound by all of
the terms and provisions of the Indenture, as the same may be amended from time
to time.
The Company will furnish to any Holder of a Note upon written
request and without charge a copy of the Indenture, which has the text of this
Note in larger type. Requests may be made to: XXXXXXX CONTAINER CORPORATION, 000
Xxxx Xxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000, Attn:
Secretary.
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141
[FORM OF ASSIGNMENT]
I or we assign to
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER
--------------------------------
--------------------------------------------------------------------------------
(please print or type name and address)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
--------------------------------------------------------------------------------
attorney to transfer the Note on the books of the Issuer with full power of
substitution in the premises.
Dated:
-------------------------- --------------------------------------------
NOTICE: The signature on this assignment
must correspond with the name as it appears
upon the face of the within Note in every
particular without alteration or enlargement
or any change whatsoever and be guaranteed
by the endorser's bank or broker.
B-11
142
[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Note purchased by the
Company pursuant to Section 4.15 or Section 4.16 of the Indenture, check the
appropriate box:
Section 4.15 [ ]
Section 4.16 [ ]
If you want to elect to have only part of this Note purchased
by the Company pursuant to Section 4.15 or Section 4.16 of the Indenture, state
the amount you elect to have purchased:
$
------------------------
Dated:
-------------------------- --------------------------------------------
NOTICE: The signature on this assignment
must correspond with the name as it appears
upon the face of the within Note in every
particular without alteration or enlargement
or any change whatsoever and be guaranteed
by the endorser's bank or broker.
B-12
143
Exhibit C
Form of Certificate To Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
,
-------------- ----
State Street Bank and Trust Company
000 Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxx, XX 00000
Attention: Corporate Trust Administration
Re: Xxxxxxx Container Corporation
9 3/8% Senior Notes due 2007
Ladies and Gentlemen:
In connection with our proposed purchase of 9 3/8% Senior
Notes due 2007 (the "Notes") of Xxxxxxx Container Corporation (the "Company"),
we confirm that:
1. We have received a copy of the Offering Memorandum (the
"Offering Memorandum") dated February 13, 1998 relating to the Notes and such
other information as we deem necessary in order to make our investment decision.
We acknowledge that we have read and agreed to the matters stated on pages
(i)-(ii) of the Offering Memorandum and in the section entitled "Transfer
Restrictions" of the Offering Memorandum, including the restrictions on
duplication and circulation of the Offering Memorandum.
2. We understand that any subsequent transfer of the Notes is
subject to certain restrictions and conditions set forth in the Indenture
relating to the Notes (as described in the Offering Memorandum) and the
undersigned agrees to be bound by, and not to resell, pledge or otherwise
transfer the Notes except in compliance with, such restrictions and conditions
and the Securities Act of 1933, as amended (the "Securities Act").
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3. We understand that the offer and sale of the Notes have not
been registered under the Securities Act, and that the Notes may not be offered
or sold except as permitted in the following sentence. We agree, on our own
behalf and on behalf of any accounts for which we are acting as hereinafter
stated, that if we should sell or otherwise transfer any Notes prior to the date
which is two years after the original issuance of the Notes, we will do so only
(i) to the Company or any of its subsidiaries, (ii) inside the United States in
accordance with Rule 144A under the Securities Act to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act), (iii) inside the
United States to an institutional "accredited investor" (as defined below) that,
prior to such transfer, furnishes (or has furnished on its behalf by a U.S.
broker-dealer) to the Trustee (as defined in the Indenture relating to the
Notes), a signed letter containing certain representations and agreements
relating to the restrictions on transfer of the Notes, (iv) outside the United
States in accordance with Rule 904 of Regulation S under the Securities Act, (v)
pursuant to the exemption from registration provided by Rule 144 under the
Securities Act (if available), or (vi) pursuant to an effective registration
statement under the Securities Act, and we further agree to provide to any
person purchasing any of the Notes from us a notice advising such purchaser that
resales of the Notes are restricted as stated herein.
4. We are not acquiring the Notes for or on behalf of, and
will not transfer the Notes to, any pension or welfare plan (as defined in
Section 3 of the Employee Retirement Income Security Act of 1974), except as
permitted in the section entitled "Transfer Restrictions" of the Offering
Memorandum.
5. We understand that, on any proposed resale of any Notes, we
will be required to furnish to the Trustee and the Company such certification,
legal opinions and other information as the Trustee and the Company may
reasonably require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Notes purchased by us will bear a
legend to the foregoing effect.
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6. 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 Notes, and
we and any accounts for which we are acting are each able to bear the economic
risk of our or their investment, as the case may be.
7. We are acquiring the Notes purchased by us for our account
or for one or more accounts (each of which is an institutional "accredited
investor") as to each of which we exercise sole investment discretion.
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
By:
-------------------------------------
Name:
Title:
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Exhibit D
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
,
-------------- ----
Attention:
Re: Xxxxxxx Container Corporation (the "Company")
9 3/8% % Senior Notes due 2007 (the "Notes")
Ladies and Gentlemen:
In connection with our proposed sale of $___________ aggregate
principal amount of the Notes, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the U.S. Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Notes was not made to a person in the
United States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed that the transferee was outside the
United States, or (b) the transaction was executed in, on or through
the facilities of a designated off-shore securities market and neither
we nor any person acting on our behalf knows that the transaction has
been pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S, as applicable;
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147
(4) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act; and
(5) we have advised the transferee of the transfer
restrictions applicable to the Notes.
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate have
the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
-------------------------------------
Authorized Signature
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148
Exhibit E
SUBSIDIARY GUARANTEE
The undersigned hereby unconditionally guarantees on a senior
unsecured basis to the Holder of this Note the payments of principal of and
interest on this Notes in the amounts and at the time when due and interest on
the overdue principal and interest, if any, of this Note, if lawful, and the
payment or performance of all other obligations of the Company under the
Indenture or the Notes, to the Holder of this Note and the Trustee, all in
accordance with and subject to the terms and limitations of this Note, Article
Ten of the Indenture and this Subsidiary Guarantee. This Subsidiary Guarantee
will become effective in accordance with Article Ten of the Indenture and its
terms shall be evidenced therein. The validity and enforceability of any
Subsidiary Guarantee shall not be affected by the fact that it is not affixed to
any particular Note.
The obligations of the undersigned to the Holders of Notes and
to the Trustee pursuant to this Subsidiary Guarantee and the Indenture are
expressly set forth in Article Ten of the Indenture and reference is hereby made
to the Indenture for the precise terms of this Subsidiary Guarantee and all of
the other provisions of the Indenture to which this Subsidiary Guarantee
relates.
The internal laws of the State of New York shall govern this
Subsidiary Guarantee without regard to principles of conflict of laws.
[ ]
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
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