THE XXXX GROUP, INC.,
as Issuer,
THE GUARANTORS NAMED HEREIN,
and
THE BANK OF NEW YORK,
as Trustee
-----------------------
INDENTURE
Dated as of January 21, 1998
-----------------------
9 3/4% Senior Notes due 2006
TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions.......................................... 1
SECTION 1.2. Incorporation by Reference of TIA.................... 21
SECTION 1.3. Rules of Construction................................ 22
ARTICLE II
THE NOTES
SECTION 2.1. Form and Dating...................................... 22
SECTION 2.2. Execution and Authentication......................... 23
SECTION 2.3. Registrar and Paying Agent........................... 24
SECTION 2.4. Paying Agent to Hold Assets in Trust................. 25
SECTION 2.5. Noteholder Lists..................................... 25
SECTION 2.6. Transfer and Exchange................................ 25
SECTION 2.7. Replacement Notes.................................... 31
SECTION 2.8. Outstanding Notes.................................... 32
SECTION 2.9. Treasury Notes....................................... 32
SECTION 2.10. Temporary Notes...................................... 32
SECTION 2.11. Cancellation......................................... 33
SECTION 2.12. Defaulted Interest................................... 33
SECTION 2.13. CUSIP Numbers........................................ 34
ARTICLE III
REDEMPTION
SECTION 3.1. Right of Redemption.................................. 35
SECTION 3.2. Notices to Trustee................................... 36
SECTION 3.3. Selection of Notes to Be Redeemed.................... 36
SECTION 3.4. Notice of Redemption................................. 36
SECTION 3.5. Effect of Notice of Redemption....................... 37
SECTION 3.6. Deposit of Redemption Price.......................... 38
SECTION 3.7. Notes Redeemed in Part............................... 38
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ARTICLE IV
COVENANTS
SECTION 4.1. Payment of Notes..................................... 38
SECTION 4.2. Maintenance of Office or Agency...................... 39
SECTION 4.3. Limitation on Restricted Payments.................... 39
SECTION 4.4. Corporate and Partnership Existence.................. 41
SECTION 4.5. Payment of Taxes and Other Claims.................... 41
SECTION 4.6. Maintenance of Properties and Insurance.............. 41
SECTION 4.7. Compliance Certificate; Notice of Default............ 42
SECTION 4.8. Reports.............................................. 42
SECTION 4.9. Limitation on Status as Investment Company........... 43
SECTION 4.10. Limitation on Transactions with Affiliates........... 43
SECTION 4.11. Limitation on Incurrence of Additional
Indebtedness and Disqualified Capital Stock.......... 43
SECTION 4.12. Limitations on Dividends and Other Payment
Restrictions Affecting Subsidiaries.................. 45
SECTION 4.13. Reserved............................................. 46
SECTION 4.14. Limitation on Sales of Assets and Subsidiary Stock... 46
SECTION 4.15. Waiver of Stay, Extension or Usury Laws.............. 48
SECTION 4.16. Limitation on Liens Securing Indebtedness............ 49
SECTION 4.17. Rule 144A Information Requirement.................... 49
SECTION 4.18. Limitations on Lines of Business..................... 49
ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.1. Limitation on Merger, Sale or Consolidation.......... 49
SECTION 5.2. Successor Corporation Substituted.................... 50
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES
SECTION 6.1. Events of Default.................................... 51
SECTION 6.2. Acceleration of Maturity Date; Rescission
and Annulment........................................ 52
SECTION 6.3. Collection of Indebtedness and Suits for
Enforcement by Trustee............................... 53
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SECTION 6.4. Trustee May File Proofs of Claim..................... 54
SECTION 6.5. Trustee May Enforce Claims Without Possession
of Notes............................................. 55
SECTION 6.6. Priorities........................................... 55
SECTION 6.7. Limitation on Suits.................................. 56
SECTION 6.8. Unconditional Right of Holders to Receive
Principal, Premium and Interest...................... 56
SECTION 6.9. Rights and Remedies Cumulative....................... 57
SECTION 6.10. Delay or Omission Not Waiver......................... 57
SECTION 6.11. Control by Holders................................... 57
SECTION 6.12. Waiver of Existing or Past Default................... 57
SECTION 6.13. Undertaking for Costs................................ 58
SECTION 6.14. Restoration of Rights and Remedies................... 58
ARTICLE VII
TRUSTEE
SECTION 7.1. Duties of Trustee.................................... 59
SECTION 7.2. Rights of Trustee.................................... 60
SECTION 7.3. Individual Rights of Trustee......................... 61
SECTION 7.4. Trustee's Disclaimer................................. 61
SECTION 7.5. Notice of Default.................................... 62
SECTION 7.6. Reports by Trustee to Holders........................ 62
SECTION 7.7. Compensation and Indemnity........................... 62
SECTION 7.8. Replacement of Trustee............................... 63
SECTION 7.9. Successor Trustee by Merger, Etc..................... 64
SECTION 7.10. Eligibility; Disqualification........................ 64
SECTION 7.11. Preferential Collection of Claims Against Company.... 65
ARTICLE VIII
DISCHARGE; LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.1. Discharge; Option to Effect Legal Defeasance
or Covenant Defeasance............................... 65
SECTION 8.2. Legal Defeasance and Discharge....................... 65
SECTION 8.3. Covenant Defeasance.................................. 66
SECTION 8.4. Conditions to Legal or Covenant Defeasance........... 66
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SECTION 8.5. Deposited Cash and U.S. Government Obligations
to be Held in Trust; Other Miscellaneous Provisions.. 67
SECTION 8.6. Repayment to the Company............................. 67
SECTION 8.7. Reinstatement........................................ 68
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1. Supplemental Indentures Without Consent of Holders... 68
SECTION 9.2. Amendments, Supplemental Indentures and
Waivers with Consent of Holders...................... 70
SECTION 9.3. Compliance with TIA.................................. 71
SECTION 9.4. Revocation and Effect of Consents.................... 71
SECTION 9.5. Notation on or Exchange of Notes..................... 72
SECTION 9.6. Trustee to Sign Amendments, Etc...................... 72
ARTICLE X
RIGHT TO REQUIRE REPURCHASE
SECTION 10.1. Repurchase of Notes at Option of the Holder
Upon a Change of Control............................. 73
ARTICLE XI
GUARANTEE
SECTION 11.1. Guarantee............................................ 75
SECTION 11.2. Execution and Delivery of Guarantee.................. 77
SECTION 11.3. Certain Bankruptcy Events............................ 77
SECTION 11.4. Limitation on Merger of Subsidiary Guaran-
tors and Release of Subsidiary Guarantors............ 78
SECTION 11.5. Future Subsidiary Guarantors......................... 78
ARTICLE XII
RESERVED
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ARTICLE XIII
MISCELLANEOUS
SECTION 13.1. TIA Controls......................................... 79
SECTION 13.2. Notices.............................................. 79
SECTION 13.3. Communications by Holders with Other Holders......... 80
SECTION 13.4. Certificate and Opinion as to Conditions Precedent... 80
SECTION 13.5. Statements Required in Certificate or Opinion........ 81
SECTION 13.6. Rules by Trustee, Paying Agent, Registrar............ 81
SECTION 13.7. Legal Holidays....................................... 81
SECTION 13.8. Governing Law........................................ 81
SECTION 13.9. No Adverse Interpretation of Other Agreements........ 82
SECTION 13.10. No Personal Liability of Stockholders, Officers
Directors, Employees................................. 82
SECTION 13.11. Successors........................................... 82
SECTION 13.12. Duplicate Originals.................................. 83
SECTION 13.13. Severability......................................... 83
SECTION 13.14. Table of Contents, Headings, Etc..................... 83
SECTION 13.15. Qualification of Indenture........................... 83
SECTION 13.16. Registration Rights.................................. 83
SIGNATURES............................................................. 84
EXHIBIT A -- FORM OF NOTE...................................................A-1
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
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310(a)(1).................................................... 7.10
(a)(2).................................................... 7.10
(a)(3).................................................... N.A.
(a)(4).................................................... N.A.
(a)(5).................................................... 7.10
(b)....................................................... 7.8; 7.10; 13.2
(c)....................................................... N.A.
311(a)....................................................... 7.11
(b)....................................................... 7.11
(c)....................................................... N.A.
312(a)....................................................... 2.5
(b)....................................................... 13.3
(c)....................................................... 13.3
313(a)....................................................... 7.6
(b)(1).................................................... 7.6
(b)(2).................................................... 7.6
(c)....................................................... 7.6;13.2
(d)....................................................... 7.6
314(a)....................................................... 4.7(a); 4.8;
(b)....................................................... N.A.
(c)(1).................................................... 2.2; 7.2; 13.4
(c)(2).................................................... 7.2; 13.4
(c)(3).................................................... N.A.
(d)....................................................... N.A.
(e)....................................................... 13.5
(f)....................................................... N.A.
315(a)....................................................... 7.1(b)
(b)....................................................... 7.5; 7.6; 13.2
(c)....................................................... 7.1(a)
(d)....................................................... 6.11; 7.1(b), (c)
(e)....................................................... 6.13
316(a)(last sentence)........................................ 2.9
(a)(1)(A)................................................. 6.11
(a)(1)(B)................................................. 6.12
(a)(2).................................................... N.A.
(b)....................................................... 6.12; 6.7; 6.8
317(a)(1).................................................... 6.3
(a)(2).................................................... 6.4
(b)....................................................... 2.4
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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 this Indenture.
vi
INDENTURE, dated as of January 21, 1998, by and among The Xxxx Group, Inc.,
a Delaware corporation (the "Company"), Xxxx Cargo Systems, Inc., a Delaware
corporation, Xxxx Hauling and Warehousing System, Inc., a Pennsylvania
corporation, Wilmington Stevedores, Inc., a Delaware corporation, Xxxxxx Marine
Services, Inc., a Delaware corporation, NPR Holding Corporation, a Delaware
corporation, NPR S.A., Inc., a Delaware corporation, NPR, Inc., a Delaware
corporation, and NPR-Navieras Receivables, Inc., a Delaware corporation, as
guarantors (the "Guarantors" or "Subsidiary Guarantors" and individually, each a
"Guarantor" or "Subsidiary Guarantor") and The Bank of New York, a New York
banking corporation, as trustee (the "Trustee").
Each party hereto agrees as follows for the benefit of each other party and
for the equal and ratable benefit of the Holders of (i) the Company's 9 3/4%
Series A Senior Notes due 2006 issued on the Closing Date, (ii) any Additional
Notes (as defined herein) that may be issued on any other Issue Date and (iii)
the Company's 9 3/4% Series B Senior Notes due 2006 to be exchanged for the
9 3/4% Series A Senior Notes due 2006. Except as otherwise provided herein, the
Notes (as defined herein) will be limited to $200,000,000 in aggregate principal
amount outstanding, of which $140,000,000 in aggregate principal amount will be
initially issued on the Closing Date. Subject to the conditions set forth
herein, the Company may issue up to an additional $60,000,000 aggregate
principal amount of Additional Notes.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions.
"Acquired Indebtedness" means Indebtedness or Disqualified Capital Stock of
any person existing at the time such person becomes a Subsidiary of the Company,
including by designation, or is merged or consolidated into or with the Company
or one of its Subsidiaries.
"Acquisition" means the purchase or other acquisition of any person or all
or substantially all the assets of any person by any other person, whether by
purchase, merger, consolidation, or other transfer, and whether or not for
consideration.
"Additional Notes" shall mean up to $60.0 million in aggregate principal
amount of the Company's 9 3/4% Series A Senior Notes due 2006 having identical
terms and conditions to the Original Notes; provided, however, that Additional
Notes issued after the Company has issued Exchange Notes shall have identical
terms and conditions to the Exchange Notes and must be issued pursuant to a
registration statement under the Securities Act; and provided, further, that the
issuance of any Additional Notes subsequent to the Closing Date pursuant to
Article II must be in compliance with Section 4.11.
"Affiliate" means any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company. For
purposes of this definition, the term "control" means the power to direct the
management and policies of a person, directly or through one or more
intermediaries, whether through the ownership of voting securities, by contract,
or otherwise, provided that, with respect to ownership interest in the Company
and its Subsidiaries, a Beneficial Owner of 10% or more of the total voting
power normally entitled to vote in the election of directors, managers or
trustees, as applicable, shall for such purposes be deemed to constitute
control.
"Affiliate Transaction" shall have the meaning specified in Section 4.10.
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Asset Sale" shall have the meaning specified in Section 4.14.
"Asset Sale Offer" shall have the meaning specified in Section 4.14.
"Asset Sale Offer Amount" shall have the meaning specified in Section 4.14.
"Asset Sale Offer Period" shall have the meaning specified in Section 4.14.
"Asset Sale Offer Price" shall have the meaning specified in Section 4.14.
"Average Life" means, as of the date of determination, with respect to any
security or instrument, the quotient obtained by dividing (i) the sum of the
products (a) of the number of months from the date of determination to the date
or dates of each successive scheduled principal (or redemption) payment of such
security or instrument and (b) the amount of each such respective principal (or
redemption) payment by (ii) the sum of all such principal (or redemption)
payments.
"Bankruptcy Law" means Title 11, U.S. Code, or any similar Federal, state
or foreign law for the relief of debtors.
"Beneficial Owner" or "beneficial owner" for purposes of the definition of
Change of Control and Affiliate has the meaning attributed to it in Rules 13d-3
and 13d-5 under the Exchange Act (as in effect on the Issue Date), whether or
not applicable, except that a "person" shall be deemed to have "beneficial
ownership" of all shares that any such person has the right to acquire, whether
such right is exercisable immediately or only after the passage of time.
"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 authorized, with respect to any particular matter, to exercise the power
of the board of directors of such person.
2
"Board Resolution" means, with respect to any Person, a duly adopted
resolution of the Board of Directors of such Person.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York, New York are
authorized or obligated by law or executive order to close.
"Capital Stock" means, with respect to any corporation, any and all shares,
interests, rights to purchase (other than convertible or exchangeable
Indebtedness that is not itself otherwise capital stock), warrants, options,
participations or other equivalents of or interests (however designated) in
stock issued by that corporation.
"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" or "cash" 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 or private debts.
"Cash Equivalent" means (i) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) or (ii) time deposits and
certificates of deposit and commercial paper issued by the parent corporation of
any domestic commercial bank of recognized standing having capital and surplus
in excess of $500.0 million or (iii) commercial paper issued by others rated at
least A-2 or the equivalent thereof by Standard & Poor's Corporation or at least
P-2 or the equivalent thereof by Xxxxx'x Investors Service, Inc., and in the
case of each of (i), (ii) and (iii) maturing within one year after the date of
acquisition.
"Change of Control" means (i) prior to the consummation of an initial
Public Equity Offering an Excluded Person shall cease to own beneficially,
directly or indirectly and of record 51% of the Capital Stock of the Company; or
(ii) following the consummation of an initial Public Equity Offering (A) any
merger or consolidation of the Company with or into any person or any sale,
transfer or other conveyance, whether direct or indirect, of all or
substantially all of the assets of the Company, on a consolidated basis, in one
transaction or a series of related transactions, if, immediately after giving
effect to such transaction(s), any "person" or "group" (as such terms are used
for purposes of Sections 13(d) and 14(d) of the Exchange Act, whether or not
applicable) (other than an Excluded Person) is or becomes the "beneficial
owner," directly or indirectly, of more than 35% of the total voting power in
the aggregate normally entitled to vote in the election of directors, managers,
or trustees, as applicable, of the transferee(s) or surviving entity or entities
unless an Excluded Person "beneficially owns," directly or indirectly, in the
aggregate a greater percentage of the total voting power in the aggregate
normally entitled to vote in the election of directors, managers, or trustees,
as applicable, of the transferee(s) or surviving entity or entities; or
3
(B) any "person" or "group" (as such terms are used for purposes of Sections
13(d) and 14(d) of the Exchange Act, whether or not applicable) (other than an
Excluded Person) is or becomes the "beneficial owner," directly or indirectly,
of more than 35% of the total voting power in the aggregate of all classes of
Capital Stock of the Company then outstanding normally entitled to vote in
elections of directors, unless an Excluded Person "beneficially owns," directly
or indirectly, in the aggregate a greater percentage of the total voting power
of all classes of Capital Stock of the Company then outstanding normally
entitled to vote in the election of directors; or (iii) during any period of 12
consecutive months after the Issue Date, individuals who at the beginning of any
such 12-month period constituted the Board of Directors of the Company (together
with any new directors whose election by such Board of Directors or whose
nomination for election by the shareholders of the Company was approved by a
vote of a majority of the directors then still in office who were either
directors at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the Board of Directors of the Company then in office.
"Change of Control Offer" shall have the meaning specified in Section 10.1.
"Change of Control Offer Period" shall have the meaning specified in
Section 10.1.
"Change of Control Purchase Date" shall have the meaning specified in
Section 10.1.
"Change of Control Purchase Price" shall have the meaning specified in
Section 10.1.
"Closing Date" means January 21, 1998.
"Code" means the Internal Revenue Code of 1986, as amended.
"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 Coverage Ratio" of any person on any date of determination
(the "Transaction Date") means the ratio, on a pro forma basis, of (a) the
aggregate amount of Consolidated EBITDA of such person attributable to
continuing operations and businesses (exclusive of amounts attributable to
operations and businesses permanently discontinued or disposed of) for the
Reference Period to (b) the aggregate Consolidated Fixed Charges of such person
(exclusive of amounts attributable to operations and businesses permanently
discontinued or disposed of, but only to the extent that the obligations giving
rise to such Consolidated Fixed Charges would no longer be obligations
contributing to such person's Consolidated Fixed Charges subsequent to the
Transaction Date) during the Reference Period; provided, that for purposes of
such calculation, (i) Acquisitions which occurred during the Reference Period or
subsequent to the Reference Period and on or prior to the Transaction Date shall
be assumed to have occurred on the first day of the Reference Period,
(ii) transactions giving rise to the need to calculate the Consolidated Coverage
4
Ratio shall be assumed to have occurred on the first day of the Reference
Period, (iii) the incurrence of any Indebtedness or issuance of any Disqualified
Capital Stock during the Reference Period or subsequent to the Reference Period
and on or prior to the Transaction Date (and the application of the proceeds
therefrom to the extent used to refinance or retire other Indebtedness) shall be
assumed to have occurred on the first day of the Reference Period, and (iv) the
Consolidated Fixed Charges of such person attributable to interest on any
Indebtedness or dividends on any Disqualified Capital Stock bearing a floating
interest (or dividend) rate shall be computed on a pro forma basis as if the
average rate in effect from the beginning of the Reference Period to the
Transaction Date had been the applicable rate for the entire period, unless such
Person or any of its Subsidiaries is a party to an Interest Swap and Hedging
Obligation (which shall remain in effect for the 12-month period immediately
following the Transaction Date) that has the effect of fixing the interest rate
on the date of computation, in which case such rate (whether higher or lower)
shall be used.
"Consolidated EBITDA" means, with respect to any person, for any period,
the Consolidated Net Income of such person for such period adjusted to add
thereto (to the extent deducted from net revenues in determining Consolidated
Net Income), without duplication, the sum of (i) Consolidated income tax
expense, (ii) Consolidated depreciation and amortization expense (including
amortization of debt discount and deferred financing costs in connection with
any Indebtedness of such person and its Subsidiaries) and (iii) Consolidated
Fixed Charges, provided that consolidated depreciation and amortization expense
of a Subsidiary that is a less than wholly owned Subsidiary shall only be added
to the extent of the equity interest of the Company in such Subsidiary.
"Consolidated Fixed Charges" of any person means, for any period, the
aggregate amount (without duplication and determined in each case in accordance
with GAAP) of (a) interest expensed or capitalized, paid, accrued, or scheduled
to be paid or accrued (including, in accordance with the following sentence,
interest attributable to Capitalized Lease Obligations) of such person and its
Consolidated Subsidiaries during such period, including (i) original issue
discount and non-cash interest payments or accruals on any Indebtedness, (ii)
the interest portion of all deferred payment obligations, and (iii) all
commissions, discounts and other fees and charges owed with respect to bankers'
acceptances and letters of credit financings and currency and Interest Swap and
Hedging Obligations, in each case to the extent attributable to such period, (b)
one-third (1/3) of Consolidated Rental Expense for such period attributable to
operating leases of such person and its Consolidated Subsidiaries, and (c) the
amount of dividends accrued or payable (or guaranteed) by such person or any of
its Consolidated Subsidiaries in respect of Preferred Stock (other than by
Subsidiaries of such person to such person or such person's wholly owned
Subsidiaries). For purposes of this definition, (x) interest on a Capitalized
Lease Obligation shall be deemed to accrue at an interest rate reasonably
determined by the Company to be the rate of interest implicit in such
Capitalized Lease Obligation in accordance with GAAP and (y) interest expense
attributable to any Indebtedness represented by the guaranty by such person or a
Subsidiary of such person of an obligation of another person shall be deemed to
be the interest expense attributable to the Indebtedness guaranteed.
5
"Consolidated Net Income" means, with respect to any person for any period,
the net income (or loss) of such person and its Consolidated Subsidiaries
(determined on a consolidated basis in accordance with GAAP) for such period,
adjusted to exclude (only to the extent included in computing such net income
(or loss) and without duplication): (a) all gains (but not losses) which are
either extraordinary (as determined in accordance with GAAP) or are either
unusual or nonrecurring (including any gain from the sale or other disposition
of assets outside the ordinary course of business or from the issuance or sale
of any capital stock), (b) the net income, if positive, of any person, other
than a Consolidated Subsidiary, in which such person or any of its Consolidated
Subsidiaries has an interest, except to the extent of the amount of any
dividends or distributions actually paid in cash to such person or a
Consolidated Subsidiary of such person during such period, but in any case not
in excess of such person's pro rata share of such person's net income for such
period, (c) the net income or loss of any person acquired in a pooling of
interests transaction for any period prior to the date of such acquisition, and
(d) the net income, if positive, of any of such person's Consolidated
Subsidiaries in the event and solely to the extent that the declaration or
payment of dividends or similar distributions is not at the time permitted by
operation of the terms of its charter or bylaws or any other agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to such Consolidated Subsidiary.
"Consolidated Rental Expense" of any Person means the aggregate rental
obligations of such Person and its Consolidated Subsidiaries (not including
taxes, insurance, maintenance and similar expenses that the lessee is obligated
to pay under the terms of the relevant leases), determined on a consolidated
basis in conformity with GAAP, payable in respect of such period under leases of
real or personal property (net of income from subleases thereof, not including
taxes, insurance, maintenance and similar expenses that the sublessee is
obligated to pay under the terms of such sublease), whether or not such
obligations are reflected as liabilities or commitments on a consolidated
balance sheet of such Person and its Subsidiaries or in the notes thereto,
excluding, however, in any event, that portion of Consolidated Fixed Charges of
such Person representing payments by such Person or any of its Consolidated
Subsidiaries in respect of Capitalized Lease Obligations.
"Consolidated Subsidiary" means, for any person, each Subsidiary of such
person (whether now existing or hereafter created or acquired) the financial
statements of which are consolidated for financial statement reporting purposes
with the financial statements of such person in accordance with GAAP.
"Consolidation" means, with respect to the Company, the consolidation of
the accounts of its Subsidiaries with those of the Company, all in accordance
with GAAP; provided that "consolidation" shall not include consolidation of the
accounts of any Unrestricted Subsidiary with the accounts of the Company. The
term "consolidated" has a correlative meaning to the foregoing.
"Corporate Trust Office" means the principal corporate trust office of the
Trustee in the Borough of Manhattan, The City of New York.
6
"Covenant Defeasance" shall have the meaning specified in Section 8.3.
"Credit Agreement" means the credit agreement dated as of November 20, 1997
by and among the Company, certain of its subsidiaries and CoreStates Bank, N.A.,
providing for an aggregate $25.0 million revolving credit facility, including
any related notes, guarantees, collateral documents, instruments and agreements
executed in connection therewith, as such credit agreement and/or related
documents may be amended, restated, supplemented, renewed, replaced or otherwise
modified from time to time, whether or not with the same lender, trustee,
representative lenders or holders, and, subject to the proviso to the next
succeeding sentence, irrespective of any changes in the terms and conditions
thereof. Without limiting the generality of the foregoing, the term "Credit
Agreement" shall include agreements in respect of Interest Swap and Hedging
Obligations with lenders party to the Credit Agreement and shall also include
any amendment, amendment and restatement, renewal, extension, restructuring,
supplement or modification to the Credit Agreement and all refundings,
refinancings and replacements of the Credit Agreement, including any agreement
(i) extending the maturity of any Indebtedness incurred thereunder or
contemplated thereby, (ii) adding or deleting borrowers or guarantors
thereunder, so long as borrowers and issuers include one or more of the Company
and its Subsidiaries and their respective successors and assigns,
(iii) increasing the amount of Indebtedness incurred thereunder or available to
be borrowed thereunder, provided that on the date such Indebtedness is incurred
it would not be prohibited by Section 4.11 or (iv) otherwise altering the terms
and conditions thereof in a manner not prohibited by the terms hereof.
"Custodian" means any receiver, trustee, assignee, liquidator, sequestrator
or similar official under any Bankruptcy Law.
"Debt Incurrence Ratio" shall have the meaning specified in Section 4.11.
"Default" means any event or condition the occurrence of which is, or with
the lapse of time or the giving of notice (by the Trustee or the Holders in
accordance with the provisions of this Indenture) or both would be, an Event of
Default.
"Defaulted Interest" shall have the meaning specified in Section 2.12.
"Definitive Notes" means Notes that are in the form of Note attached hereto
as Exhibit A that do not include the information called for by footnotes 3 and 6
thereof.
"Depositary" means, with respect to the Notes issuable or issued in whole
or in part in global form, the person specified in Section 2.3 as the Depositary
with respect to the Notes, until a successor shall have been appointed and
become such pursuant to the applicable provision of this Indenture, and,
thereafter, "Depositary" shall mean or include such successor.
"Disqualified Capital Stock" means (a) except as set forth in (b), with
respect to any person, Equity Interests of such person that, by its terms or by
the terms of any security into which
7
it is convertible, exercisable or exchangeable, is, or upon the happening of an
event or the passage of time or both would be, required to be redeemed or
repurchased (including at the option of the holder thereof) by such person or
any of its Subsidiaries, in whole or in part, on or prior to the date that is 91
days after the date which is following the Stated Maturity of the Notes and (b)
with respect to any Subsidiary of such person (including with respect to any
Subsidiary of the Company), any Equity Interests other than any common equity
with no preference, privileges, or redemption or repayment provisions.
"Employee Stock Plan" means the NPR Holding Corporation 1997 Phantom Stock
Plan under which certain members of the management of NPR, Inc. have received
grants of phantom stock units in connection with the acquisition of NPR Holding
Corporation, NPR-Navieras Receivables, Inc., NPR, Inc. and NPR S.A., Inc.
"Equity Interest" of any Person means any shares, interests, participations
or other equivalents (however designated) in such Person's equity, and shall in
any event include any Capital Stock issued by, or partnership or membership
interests in, such Person.
"Event of Default" shall have the meaning specified in Section 6.1.
"Event of Loss" means, with respect to any property or asset, any (i) loss,
destruction or damage of such property or asset or (ii) any condemnation,
seizure or taking, by exercise of the power of eminent domain or otherwise, of
such property or asset, or confiscation or requisition of the use of such
property or asset.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated by the SEC thereunder.
"Exchange Notes" means the 9 3/4% Series B Senior Notes due 2006, as
supplemented from time to time in accordance with the terms hereof, to be issued
pursuant to this Indenture in connection with the offer to exchange Exchange
Notes for the Initial Notes that may be made by the Company pursuant to the
Registration Rights Agreement that contain the information referred to in
footnotes 1, 2 and 8 to the form of Note attached hereto as Exhibit A.
"Excluded Person" means, individually or collectively, Xxxxxx X. Xxxx, Xx.,
and any of his estates, spouse, heirs, ancestors, lineal descendants, legatees,
and legal representatives and the trustee of any bona fide trust of which one or
more of the foregoing are the sole beneficiaries.
"Exempted Affiliate Transaction" means (a) customary employee compensation
arrangements approved by a majority of independent (as to such transactions)
members of the Board of Directors of the Company, (b) dividends expressly
permitted under the terms of Section 4.3 and payable, in form and amount, on a
pro rata basis to all holders of common stock of the Company, and
(c) transactions solely between the Company and any of its wholly owned
Consolidated Subsidiaries or solely among wholly owned Consolidated Subsidiaries
of the Company.
8
"Existing Indebtedness" means Indebtedness of the Company and the
Guarantors (other than Indebtedness under the Credit Agreement) in existence on
the Issue Date, until such amounts are repaid or refinanced in accordance with
this Indenture.
"GAAP" means United States generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant segment of the
accounting profession in the United States as in effect on the Issue Date.
"Global Note" means a Note that contains the information referred to in
footnotes 3 and 6 to the form of Note attached hereto as Exhibit A.
"Guarantee" shall have the meaning provided in Section 11.1.
"Guarantors" means certain present and future Subsidiary Guarantors of the
Company except for any Non-Recourse Subsidiaries or Unrestricted Subsidiaries.
"Holder" or "Noteholder" means the Person in whose name a Note is
registered on the Registrar's books.
"Incur" or "incur" shall have the meaning specified in Section 4.11.
"Incurrence Date" shall have the meaning specified in Section 4.11.
"Indebtedness" of any person means, without duplication, (a) all
liabilities and obligations, contingent or otherwise, of any such person, to the
extent such liabilities and obligations would appear as a liability upon the
consolidated balance sheet of such person in accordance with GAAP, (i) in
respect of borrowed money (whether or not the recourse of the lender is to the
whole of the assets of such person or only to a portion thereof), (ii) evidenced
by bonds, notes, debentures or similar instruments, or (iii) representing the
balance deferred and unpaid of the purchase price of any property or services,
except (other than accounts payable or other obligations to trade creditors
which have remained unpaid for more than 60 days past their original due date)
those incurred in the ordinary course of its business that would constitute
ordinarily a trade payable to trade creditors; (b) all liabilities and
obligations, contingent or otherwise, of such person (i) evidenced by bankers'
acceptances or similar instruments issued or accepted by banks, (ii) relating to
any Capitalized Lease Obligation, or (iii) evidenced by a letter of credit or a
reimbursement obligation of such person with respect to any letter of credit;
(c) all net obligations of such person under Interest Swap and Hedging
Obligations; (d) all liabilities and obligations of others of the kind described
in the preceding clauses (a), (b) or (c) that such person has guaranteed or that
is otherwise its legal liability or which are secured by any assets or property
of such person; (e) any and all deferrals, renewals, extensions, refinancing and
refundings (whether direct or indirect) of, or amendments, modifications or
supplements to, any liability of the kind described in any of the preceding
clauses (a), (b), (c) or (d),
9
or this clause (e), whether or not between or among the same parties; and (f)
all Disqualified Capital Stock of such Person (measured at the greater of its
voluntary or involuntary maximum fixed repurchase price plus accrued and unpaid
dividends). For purposes hereof, the "maximum fixed repurchase price" of any
Disqualified Capital Stock which does not have a fixed repurchase price shall be
calculated in accordance with the terms of such Disqualified Capital Stock as if
such Disqualified Capital Stock were purchased on any date on which Indebtedness
shall be required to be determined pursuant to this Indenture, and if such price
is based upon, or measured by, the fair market value of such Disqualified
Capital Stock, such fair market value to be determined in good faith by the
board of directors of the issuer (or managing general partner of the issuer) of
such Disqualified Capital Stock.
"Indenture" means this Indenture, as amended or supplemented from time to
time in accordance with the terms hereof.
"Initial Notes" means the 9 3/4% Series A Senior Notes due 2006 and any
Additional Notes if issued prior to the issuance of the Exchange Notes, as
supplemented from time to time in accordance with the terms hereof, issued under
this Indenture that contain the information referred to in footnotes 4, 5 and 7
to the form of Note attached hereto as Exhibit A.
"Initial Purchaser" means Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation.
"Interest Payment Date" means the stated due date of an installment of
interest on the Notes.
"Interest Swap and Hedging Obligation" means any obligation of any person
pursuant to any interest rate swap agreement, interest rate cap agreement,
interest rate collar agreement, interest rate exchange agreement, currency
exchange agreement or any other agreement or arrangement designed to protect
against fluctuations in interest rates or currency values, including, without
limitation, any arrangement whereby, directly or indirectly, such person is
entitled to receive from time to time periodic payments calculated by applying
either a fixed or floating rate of interest on a stated notional amount in
exchange for periodic payments made by such person calculated by applying a
fixed or floating rate of interest on the same notional amount.
"Investment" by any person in any other person means (without duplication)
(a) the acquisition (whether by purchase, merger, consolidation or otherwise) by
such person (whether for cash, property, services, securities or otherwise) of
capital stock, bonds, notes, debentures, partnership or other ownership
interests or other securities, including any options or warrants, of such other
person or any agreement to make any such acquisition; (b) the making by such
person of any deposit with, or advance, loan or other extension of credit to,
such other person (including the purchase of property from another person
subject to an understanding or agreement, contingent or otherwise, to resell
such property to such other person) or any commitment to make any such advance,
loan or extension (but excluding accounts receivable, endorsements for
collection or deposits arising in the ordinary course of business); (c) other
than guarantees of Indebtedness of the
10
Company or any Subsidiary Guarantor to the extent permitted by Section 4.11, the
entering into by such person of any guarantee of, or other credit support or
contingent obligation with respect to, Indebtedness or other liability of such
other person; (d) the making of any capital contribution by such person to such
other person; and (e) the designation by the Board of Directors of the Company
of any person to be an Unrestricted Subsidiary. The Company shall be deemed to
make an Investment in an amount equal to the fair market value of the net assets
of any subsidiary (or, if neither the Company nor any of its Subsidiaries has
theretofore made an Investment in such subsidiary, in an amount equal to the
Investments being made), at the time that such subsidiary is designated an
Unrestricted Subsidiary, and any property transferred to an Unrestricted
Subsidiary from the Company or a Subsidiary of the Company shall be deemed an
Investment valued at its fair market value at the time of such transfer.
"Issue Date" means the date on which any Initial Notes are originally
issued under this Indenture.
"Legal Defeasance" shall have the meaning specified in Section 8.2.
"Legal Holiday" shall have the meaning specified in Section 13.7.
"Lien" means any mortgage, charge, pledge, lien (statutory or otherwise),
privilege, security interest, hypothecation or other encumbrance upon or with
respect to any property of any kind, real or personal, movable or immovable, now
owned or hereafter acquired.
"Liquidated Damages" shall have the meaning specified in the Registration
Rights Agreement.
"Maturity Date" means, when used with respect to any Note, the date
specified on such Note as the fixed date on which the final installment of
principal of such Note is due and payable (in the absence of any acceleration
thereof pursuant to the provisions of this Indenture regarding acceleration of
Indebtedness or any Change of Control Offer or Asset Sale Offer).
"Xxxxx'x" means Xxxxx'x Investors Services, Inc. and its successors.
"Net Cash Proceeds" means the aggregate amount of cash or Cash Equivalents
received by the Company in the case of a sale of Qualified Capital Stock and by
the Company and its Subsidiaries in respect of an Asset Sale plus, in the case
of an issuance of Qualified Capital Stock upon any exercise, exchange or
conversion of securities (including options, warrants, rights and convertible or
exchangeable debt) of the Company that were issued for cash on or after the
Issue Date, the amount of cash originally received by the Company upon the
issuance of such securities (including options, warrants, rights and convertible
or exchangeable debt) less, in each case, the sum of all payments, fees,
commissions and reasonable and customary expenses (including, without
limitation, the fees and expenses of legal counsel and investment banking fees
and expenses) incurred in connection with such Asset Sale or sale of Qualified
Capital Stock, and, in the case of
11
an Asset Sale only, less the amount (estimated reasonably and in good faith by
the Company) of income, franchise, sales and other applicable taxes required to
be paid by the Company or any of its respective Subsidiaries in connection with
such Asset Sale.
"Non-Recourse Subsidiary" means a Subsidiary which is a single purpose
company, partnership or other legal person formed for the purpose of incurring
Permitted Non-Recourse Vessel Indebtedness.
"Noteholder" or "Holder" means the Person in whose name a Note is
registered on the Registrar's books.
"Notes" means, collectively, the Initial Notes and, when and if issued as
provided in the Registration Rights Agreement, the Exchange Notes. "Notes" shall
include such Additional Notes for purposes of this Indenture and all Exchange
Notes from time to time issued with respect to any Initial Notes that constitute
such Additional Notes.
"Note Custodian" means the Trustee, as custodian with respect to the Notes
in global form, or any successor entity thereto.
"Obligation" means any principal, premium or interest payment, or monetary
penalty, due by the Company or any Guarantor under the terms of the Notes or
this Indenture, including any Liquidated Damages due pursuant to the terms of
the Registration Rights Agreement.
"Offering Memorandum" means the final Offering Memorandum of the Company
dated January 14, 1998, relating to the offering of the Initial Notes in a
transaction exempt from the requirements of Section 5 of the Securities Act.
"Officer" means, with respect to the Company or any Subsidiary Guarantor,
the Chief Executive Officer, the President, any Vice President, the Chief
Financial Officer, the Treasurer, the Controller, or the Secretary of the
Company.
"Officers' Certificate" means, with respect to the Company or any
Subsidiary Guarantor, a certificate signed by two Officers or by an Officer and
an Assistant Secretary of the Company and otherwise complying with the
requirements of Sections 13.4 and 13.5.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee complying with the requirements of Sections
13.4 and 13.5.
"Original Notes" means the 9 3/4% Series A Senior Notes due 2006 issued on
the Closing Date.
"Packer Avenue Proceeding" shall mean that certain outstanding action
commenced by Xxxx Cargo, Xxxx Hauling & Warehousing System, Inc. and Astro
Holding, Inc. (the "Plaintiffs")
12
in the United States District Court for the Eastern District of Pennsylvania
against the Delaware River Port Authority (the "DRPA"), the Philadelphia
Regional Port Authority (the "PRPA") and the Ports of Philadelphia and Camden
(together with the DRPA and PPC, the "Defendants"). The Plaintiffs allege that
the Defendants, along with other unnamed co-conspirators, acting under the color
of state law, committed predatory acts under a conspiracy designed to injure,
harass and appropriate the property of the Plaintiffs. Plaintiffs are seeking
damages for Defendants' conduct which constitutes a violation of Plaintiffs'
substantive due process, equal protection and procedural due process rights
under 41 U.S.C. Section 1983.
"Paying Agent" shall have the meaning specified in Section 2.3.
"Permitted Indebtedness" means any of the following:
(a) the Company and the Guarantors may incur up to an aggregate
principal amount of Indebtedness evidenced by the Notes and represented by this
Indenture;
(b) the Company and the Guarantors, as applicable, may incur
Refinancing Indebtedness with respect to any Indebtedness or Disqualified
Capital Stock, as applicable, described in clause (a) of this definition or
incurred under the Debt Incurrence Ratio test of Section 4.11 or which is
outstanding on the Issue Date;
(c) the Company and the Guarantors may incur Indebtedness solely in
respect of bankers acceptances, letters of credit and performance bonds (to the
extent that such incurrence does not result in the incurrence of any obligation
to repay any obligation relating to borrowed money of others), all in the
ordinary course of business in accordance with customary industry practices, in
amounts and for the purposes customary in the Company's industry; provided, that
the aggregate principal amount outstanding of such Indebtedness (including any
Indebtedness issued to refinance, refund or replace such Indebtedness) shall at
no time exceed $20.0 million;
(d) the Company may incur Indebtedness to any Subsidiary Guarantor, and
any Subsidiary Guarantor may incur Indebtedness to any other Subsidiary
Guarantor or to the Company; provided, that, in the case of Indebtedness of the
Company, such obligations shall be unsecured and subordinated in all respects to
the Company's obligations pursuant to the Notes and the date of any event that
causes such Subsidiary Guarantor to no longer be a Subsidiary Guarantor shall be
an Incurrence Date; and
(e) any Guarantor may guaranty any Indebtedness of the Company or
another Guarantor that was permitted to be incurred pursuant to this Indenture,
substantially concurrently with such incurrence or at the time such person
becomes a Guarantor.
"Permitted Investment" means Investments in (a) any of the Notes; (b) Cash
Equivalents; and (c) intercompany notes to the extent permitted under clause (d)
of the definition of "Permitted Indebtedness."
13
"Permitted Lien" means (a) Liens existing on the Issue Date; (b) Liens
securing Indebtedness incurred under the credit facility in accordance with
Section 4.11; (c) Liens imposed by governmental authorities for taxes,
assessments or other charges not yet subject to penalty or which are being
contested in good faith and by appropriate proceedings, if adequate reserves
with respect thereto are maintained on the books of the Company in accordance
with GAAP; (d) statutory liens of carriers, warehousemen, mechanics,
materialmen, landlords, repairmen, crew's wages, wages of stevedores, salvage or
other like Liens arising by operation of law in the ordinary course of business
(including relating to maritime activities); provided that (i) the underlying
obligations are not overdue for a period of more than 30 days, or (ii) such
Liens are being contested in good faith and by appropriate proceedings and
adequate reserves with respect thereto are maintained on the books of the
Company in accordance with GAAP; (e) Liens securing the performance of bids,
trade contracts (other than borrowed money), leases, statutory obligations,
surety and appeal bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business; (f) easements,
rights-of-way, zoning, similar restrictions and other similar encumbrances or
title defects which, singly or in the aggregate, do not in any case materially
detract from the value of the property subject thereto (as such property is used
by the Company or any of its Subsidiaries) or interfere with the ordinary
conduct of the business of the Company or any of its Subsidiaries; (g) Liens
arising by operation of law in connection with judgments, only to the extent,
for an amount and for a period not resulting in an Event of Default with respect
thereto; (h) pledges or deposits made in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other types of
social security legislation; (i) Liens securing the Notes; (j) Liens securing
Indebtedness of a Person existing at the time such Person becomes a Subsidiary
or is merged with or into the Company or a Subsidiary or Liens securing
Indebtedness incurred in connection with an Acquisition, provided that such
Liens were in existence prior to the date of such acquisition, merger or
consolidation, were not incurred in anticipation thereof, and do not extend to
any other assets; (k) Liens arising from Purchase Money Indebtedness permitted
to be incurred under clause (a) of the second paragraph of Section 4.11,
provided such Liens relate solely to the property which is subject to such
Purchase Money Indebtedness; (l) leases or subleases granted to other persons in
the ordinary course of business not materially interfering with the conduct of
the business of the Company or any of its Subsidiaries or materially detracting
from the value of the relative assets of the Company or any such Subsidiary;
(m) Liens arising from precautionary Uniform Commercial Code financing statement
filings regarding operating leases entered into by the Company or any of its
Subsidiaries in the ordinary course of business; (n) Liens incurred in
connection with Permitted Non-Recourse Vessel Indebtedness; and (o) Liens
securing Refinancing Indebtedness, incurred to refinance any Indebtedness that
was previously so secured in a manner no more adverse to the Holders of the
Notes than the terms of the Liens securing such refinanced Indebtedness provided
that the Indebtedness secured is not increased and the lien is not extended to
any additional assets or property.
"Permitted Non-Recourse Vessel Indebtedness" means the incurrence by any
Non-Recourse Subsidiary of Indebtedness for so long as (a) the liabilities of
such Non-Recourse Subsidiary in respect thereof are not directly or indirectly
the subject of a guarantee, indemnity or any other form of assurance,
undertaking or support from the Company or any Guarantor which
14
would constitute Indebtedness of the Company or the Guarantor, (b) in respect of
which the person or persons making such Indebtedness available to such
Non-Recourse Subsidiary have no recourse whatsoever to the Company or any
Guarantor for the repayment of or payment of any sum relating to such
Indebtedness and (c) which such Indebtedness is used for the purpose of
refinancing seagoing vessels owned on the Issue Date or financing newly acquired
seagoing vessels, any such vessels to be used solely by the Company, a Guarantor
or such Non-Recourse Subsidiary.
"Permitted Tax Distribution" means with respect to each tax year that the
Company or a Guarantor (a "Taxpayer") qualifies as an S Corporation under the
Internal Revenue Code of 1986 (as amended, or any successor statute), or any
similar provision of state or local law, distributions of Tax Amounts, provided
that prior to any distribution of Tax Amounts a knowledgeable and duly
authorized officer of the Taxpayer making such distribution certifies, and
counsel reasonably acceptable to the Trustee opines, that such Taxpayer
qualifies as an S Corporation for Federal income tax purposes and for the states
in respect of which such distributions are being made and that at the time of
such distributions, the most recent audited financial statements of the Company
covering such Taxpayer provide that such Taxpayer was treated as an
S Corporation for Federal income tax purposes for the period of such financial
statements.
"Person" or "person" means any corporation, individual, limited liability
company, joint stock company, joint venture, partnership, limited liability
company, unincorporated association, governmental regulatory entity, country,
state or political subdivision thereof, trust, municipality or other entity.
"Preferred Stock" means an Equity Interest of any class or classes of a
Person (however designated) which is preferred as to payments of dividends, or
as to distributions upon any liquidation or dissolution, over Equity Interests
of any other class of such Person.
"principal" of any Indebtedness means the principal of such Indebtedness.
"pro forma" means, as used in and with respect to the definition of
"Consolidated Coverage Ratio", pro forma in accordance with Regulation S-X of
the SEC.
"property" means any right or interest in or to property or assets of any
kind whatsoever, whether real, personal or mixed and whether tangible,
intangible, contingent, direct or indirect.
"Public Equity Offering" means an underwritten offering of common stock of
the Company not constituting Disqualified Capital Stock for cash pursuant to an
effective registration statement under the Securities Act.
"Purchase Agreement" means (a) with respect to the Original Notes, the
Purchase Agreement dated January 21, 1998 for the purchase of $140,000,000
principal amount of Original Notes among the Company, the Subsidiary Guarantors
signatory thereto and the Initial Purchaser as
15
such agreement may be amended, modified or supplemented from time to time in
accordance with the terms thereof and (b) with respect to any Additional Notes,
any purchase or underwriting agreement entered into by the Company, any
Subsidiary Guarantors and the initial purchasers or underwriters with respect
thereto, as such agreement may be amended, modified or supplemented from time to
time in accordance with the terms thereof.
"Purchase Money Indebtedness" of any person means any Indebtedness of such
person to any seller or other person incurred to finance the acquisition
(including in the case of a Capitalized Lease Obligation, the lease) of any
after acquired real or personal tangible property which, in the reasonable good
faith judgment of the Board of Directors of the Company, is directly related to
a Related Business of the Company and which is incurred within 120 days of such
acquisition and is secured only by the assets so financed.
"Qualified Capital Stock" means any Capital Stock of the Company that is
not Disqualified Capital Stock.
"Qualified Exchange" means any legal defeasance, redemption, retirement,
repurchase or other acquisition of Capital Stock or Indebtedness of the Company
issued on or after the Issue Date with the Net Cash Proceeds received by the
Company from the substantially concurrent sale of its Qualified Capital Stock
for any Capital Stock or Indebtedness of the Company issued on or after the
Issue Date.
"Record Date" means a Record Date specified in the Notes whether or not
such Record Date is a Business Day, or, if applicable, as specified in Section
2.12.
"Redemption Date," when used with respect to any Note to be redeemed, means
the date fixed for such redemption pursuant to Article III of this Indenture and
Paragraphs 5 and 6 in the form of Note attached hereto as Exhibit A.
"Redemption Price," when used with respect to any Note to be redeemed,
means the redemption price for such redemption pursuant to Paragraph 5 in the
form of Note attached hereto as Exhibit A, which shall include, without
duplication, in each case, accrued and unpaid interest and Liquidated Damages,
if any, to the Redemption Date.
"Reference Period" with regard to any person means the four full fiscal
quarters (or such lesser period during which such person has been in existence)
ended immediately preceding any date upon which any determination is to be made
pursuant to the terms of the Notes or this Indenture.
"Refinancing Indebtedness" means Indebtedness or Disqualified Capital Stock
(a) issued in exchange for, or the proceeds from the issuance and sale of which
are used substantially concurrently to repay, redeem, defease, refund,
refinance, discharge or otherwise retire for value, in whole or in part, or
(b) constituting an amendment, modification or supplement to, or a deferral or
renewal of ((a) and (b) above are, collectively, a "Refinancing"), any
Indebtedness or Disqualified
16
Capital Stock in a principal amount or, in the case of Disqualified Capital
Stock, liquidation preference, not to exceed (after deduction of reasonable fees
and expenses incurred in connection with such Refinancing) the lesser of (i) the
principal amount or, in the case of Disqualified Capital Stock, liquidation
preference, of the Indebtedness or Disqualified Capital Stock so Refinanced and
(ii) if such Indebtedness being Refinanced was issued with an original issue
discount, the accreted value thereof (as determined in accordance with GAAP) at
the time of such Refinancing; provided, that (A) such Refinancing Indebtedness
of any Subsidiary of the Company shall only be used to Refinance outstanding
Indebtedness or Disqualified Capital Stock of such Subsidiary, (B) such
Refinancing Indebtedness shall (x) not have an Average Life shorter than (i) the
Indebtedness or Disqualified Capital Stock to be so refinanced at the time of
such Refinancing or (ii) the Notes, but only in the case of Refinancing
Indebtedness described by (C)(ii) below, and (y) in all respects, be no less
subordinated or junior, if applicable, to the rights of Holders of the Notes
than was the Indebtedness or Disqualified Capital Stock to be refinanced,
(C) such Refinancing Indebtedness shall have a final stated maturity or
redemption date, as applicable, no earlier than (i) the final stated maturity or
redemption date, as applicable, of the Indebtedness or Disqualified Capital
Stock to be so refinanced or (ii) the Stated Maturity, but only if such final
stated maturity or redemption date, as applicable, of the Indebtedness or
Disqualified Capital Stock to be so refinanced falls after the Stated Maturity
and (D) such Refinancing Indebtedness shall be secured (if secured) in a manner
no more adverse to the Holders of the Notes than the terms of the Liens securing
such refinanced Indebtedness, including, without limitation, the amount of
Indebtedness secured shall not be increased.
"Registrar" shall have the meaning specified in Section 2.3.
"Registration Rights Agreement" means the Registration Rights Agreement
dated as of the date hereof by and between the Initial Purchaser and the
Company, as such agreement may be amended, modified or supplemented from time to
time in accordance with the terms thereof.
"Related Business" means the business conducted (or proposed to be
conducted) by the Company and its Subsidiaries as of the Issue Date and any and
all businesses that in the good faith judgment of the Board of Directors of the
Company are materially related businesses.
"Restricted Investment" means, in one or a series of related transactions,
any Investment, other than investments in Cash Equivalents and other Permitted
Investments; provided, however, that (i) a merger of another person with or into
the Company or a Subsidiary Guarantor in accordance with the terms of this
Indenture shall not be deemed to be a Restricted Investment so long as the
surviving entity is the Company or a Subsidiary Guarantor and (ii) Investments
in any Person, so long as immediately upon such Investment such Person becomes a
Subsidiary Guarantor, shall not be deemed to be a Restricted Investment.
"Restricted Payment" means, with respect to any person, (a) the declaration
or payment of any dividend or other distribution in respect of Equity Interests
of such person or any parent or Subsidiary of such person (including, without
limitation, pursuant to the Employee Stock
17
Plan), (b) any payment on account of the purchase, redemption or other
acquisition or retirement for value of Equity Interests of such person or any
Subsidiary or parent of such person, (c) other than with the proceeds from the
substantially concurrent sale of, or in exchange for, Refinancing Indebtedness,
any purchase, redemption, or other acquisition or retirement for value of, any
payment in respect of any amendment of the terms of or any defeasance of, any
Subordinated Indebtedness, directly or indirectly, by such person or any
Subsidiary of such person prior to the scheduled maturity, any scheduled
repayment of principal, or scheduled sinking fund payment, as the case may be,
of such Indebtedness and (d) any Restricted Investment by such person; provided,
however, that the term "Restricted Payment" does not include (i) any dividend,
distribution or other payment on or with respect to Equity Interests of an
issuer to the extent payable solely in shares of Qualified Capital Stock of such
issuer; or (ii) any dividend, distribution or other payment to the Company, or
to any of the Subsidiary Guarantors, by the Company or any of its Subsidiaries.
"Restricted Security" means a Note, unless or until it has been
(i) effectively registered under the Securities Act and disposed of in
accordance with the registration statement covering it or (ii) distributed to
the public pursuant to Rule 144 (or any similar provision then in force) under
the Securities Act; provided, that in no case shall an Exchange Note issued in
accordance with this Indenture and the terms and provisions of the Registration
Rights Agreement be a Restricted Security.
"S&P" means Standard & Poor's, a division of The McGraw Hill Companies, and
its successors.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
"Senior Debt" of the Company or any Guarantor means Indebtedness of the
Company or such Guarantor arising under the Credit Agreement and without
duplication, certain Existing Indebtedness or Indebtedness that, by the terms of
the instrument creating or evidencing such Indebtedness, is expressly designated
Senior Debt and made senior in right of payment to the Notes or the applicable
Guarantee; provided, that in no event shall Senior Debt include (a) Indebtedness
to any Subsidiary of the Company or any officer, director or employee of the
Company or any Subsidiary of the Company, (b) Indebtedness incurred in violation
of the terms of this Indenture, (c) Indebtedness to trade creditors, (d)
Disqualified Capital Stock, (e) Capitalized Lease Obligations, and (f) any
liability for taxes owed or owing by the Company or such Guarantor.
"Significant Subsidiary" shall have the meaning provided under Regulation
S-X of the Securities Act, as in effect on the Issue Date.
"Special Record Date" for payment of any Defaulted Interest means a date
fixed by the Trustee pursuant to Section 2.12.
18
"Stated Maturity," when used with respect to any Note, means January 15,
2006.
"Subordinated Indebtedness" means Indebtedness of the Company or a
Subsidiary Guarantor that is subordinated in right of payment by its terms or
the terms of any document or instrument or instrument relating thereto to the
Notes or such Guarantee, as applicable, in any respect or has a final stated
maturity after the Stated Maturity.
"Subsidiary" with respect to any person, means (i) a corporation a majority
of whose Equity Interests with voting power, under ordinary circumstances, to
elect directors is at the time, directly or indirectly, owned by such person, by
such person and one or more Subsidiaries of such person or by one or more
Subsidiaries of such person, (ii) any other person (other than a corporation) in
which such person, one or more Subsidiaries of such person, or such person and
one or more Subsidiaries of such person, directly or indirectly, at the date of
determination thereof has at least majority ownership interest, or (iii) a
partnership in which such person or a Subsidiary of such person is, at the time,
a general partner. Notwithstanding the foregoing, an Unrestricted Subsidiary
shall not be a Subsidiary of the Company or of any Subsidiary of the Company.
Unless the context requires otherwise, Subsidiary means each direct and indirect
Subsidiary of the Company.
"Subsidiary Guarantors" means the parties named as such in the preamble of
this Indenture and future Subsidiaries of the Company specified in Section 11.5.
Subsidiary Guarantors do not include Non-Recourse Subsidiaries or Unrestricted
Subsidiaries.
"Tax Amounts" with respect to any year means (a) an amount equal to the
higher of (i) the product of (A) the taxable income of the relevant Taxpayer for
such year as determined in good faith by its Board of Directors; and (B) the Tax
Percentage (as defined below), and (ii) the product of (A) the alternative
minimum taxable income attributable to such Taxpayer for such year as determined
in good faith by its Board of Directors; and (B) the Tax Percentage, in either
case, reduced by (b) to the extent not previously taken into account, any income
tax benefit attributable to such Taxpayer solely as a result of the
stockholder's investment in such Taxpayer (including without limitation, tax
losses, alternative minimum tax credits, other tax credits and carryforwards and
carrybacks thereof to the extent such benefit is realized in the year for which
the Tax Amount is being determined); provided, however, that in no event shall
such Tax Percentage exceed the greater of (1) the highest aggregate applicable
statutory marginal rate of Federal, state and local income tax (or, when
applicable, alternative minimum tax), to which a corporation doing business in
New York City would be subject in the relevant year of determination (as
certified to the Trustee by a nationally recognized tax accounting firm); and
(2) 50%. Any part of the Tax Amount not distributed in respect of a tax period
for which it is calculated shall be available for distribution in subsequent tax
periods. The term "Tax Percentage" is the highest aggregate applicable statutory
marginal rate of Federal, state and local income tax or, when applicable,
alternative minimum tax, to which an individual shareholder of the Taxpayer
could be subject in the relevant year of determination (calculated in good faith
by the Taxpayer and certified to the Trustee by a nationally recognized tax
accounting firm). Distributions of Tax Amounts may be made from time to time
with respect to a tax year based on reasonable estimates, with a reconciliation
within 40 days of the earlier
19
of (i) the Taxpayer's filing of the Internal Revenue Service Form 1120S for the
applicable taxable year; and (ii) the last date such form is required to be
filed (without regard to any extensions). The stockholders of each Taxpayer will
enter into a binding agreement with each Taxpayer to reimburse the applicable
Taxpayer for certain positive differences between the distributed amount and the
Tax Amount, which difference must be paid at the time of such reconciliation.
"TIA" means the Trust Indenture Act of 1939, as amended, (15 U.S. Code
ss.77aaa-77bbbb) as in effect on the date of the execution of this Indenture,
except as provided in Section 9.3.
"TNX Shareholders Agreement" means the Shareholders Agreement, dated as of
November 20, 1997, by and among NPR Holding Corporation, certain members of NPR
Holding Corporation's senior management and the other entities and individuals
signatory thereto.
"Transfer Restricted Securities" means Notes that bear or are required to
bear the legend set forth in Section 2.6.
"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.
"Trust Officer" means any officer within the corporate trust division (or
any successor group) of the Trustee or any other officer of the Trustee
customarily performing functions similar to those performed by the Persons who
at that time shall be such officers, and also means, with respect to a
particular corporate trust matter, any other officer of the Trustee to whom such
trust matter is referred because of his knowledge of and familiarity with the
particular subject.
"Unrestricted Subsidiary" means any subsidiary of the Company that does not
own any Capital Stock of, or own or hold any Lien on any property of, the
Company or any other Subsidiary of the Company and that, at the time of
determination, shall be an Unrestricted Subsidiary (as designated by the Board
of Directors of the Company); provided, that (i) such subsidiary shall not
engage, to any substantial extent, in any line or lines of business activity
other than a Related Business, (ii) neither immediately prior thereto nor after
giving pro forma effect to such designation would there exist a Default or Event
of Default and (iii) immediately after giving pro forma effect thereto, the
Company could incur at least $1.00 of Indebtedness pursuant to the Debt
Incurrence Ratio in Section 4.11. The Board of Directors of the Company may
designate any Unrestricted Subsidiary to be a Subsidiary, provided that (i) no
Default or Event of Default is existing or will occur as a consequence thereof
and (ii) immediately after giving effect to such designation, on a pro forma
basis, the Company could incur at least $1.00 of Indebtedness pursuant to the
Debt Incurrence Ratio in Section 4.11. Each such designation shall be evidenced
by filing with the Trustee a certified copy of the resolution giving effect to
such designation and an Officers' Certificate certifying that such designation
complied with the foregoing conditions. As of the Issue Date, The Riverfront
Development Corporation shall be an Unrestricted Subsidiary.
20
"U.S. Government Obligations" means direct non-callable obligations of, or
noncallable obligations guaranteed by, the United States of America for the
payment of which obligation or guarantee the full faith and credit of the United
States of America is pledged.
"Wholly-owned Subsidiary" means a Subsidiary all the Equity Interests of
which are owned by the Company or one or more Wholly-owned Subsidiaries of the
Company.
SECTION 1.2. 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.
"obligor" on the indenture securities means the Company, each Subsidiary
Guarantor and 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 thereby.
SECTION 1.3. 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;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the plural
include the singular;
(5) provisions apply to successive events and transactions;
(6) "herein," "hereof" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision; and
21
(7) references to Sections or Articles means reference to such Section or
Article in this Indenture, unless stated otherwise.
ARTICLE II
THE NOTES
SECTION 2.1. Form and Dating.
The Notes and the Trustee's certificate of authentication, in respect
thereof, shall be substantially in the form of Exhibit A hereto, which Exhibit
is part of this Indenture. The Notes may have notations, legends or endorsements
required by law, stock exchange rule or usage. The Company shall approve the
form of the Notes and any notation, legend or endorsement on them. Any such
notations, legends or endorsements not contained in the form of Note attached as
Exhibit A hereto shall be delivered in writing to the Trustee. Each Note shall
be dated the date of its authentication.
The terms and provisions contained in the forms of Notes 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.
Each Global Note shall represent such of the outstanding Notes as shall be
specified therein and each shall represent the aggregate amount of outstanding
Notes that may from time to time be reduced or increased, as appropriate, to
reflect exchanges, repurchases and redemptions. Any endorsement of a Global Note
to reflect the amount of any increase or decrease in the amount of outstanding
Notes represented thereby shall be made by the Trustee or the Note Custodian, at
the direction of the Trustee, in accordance with instructions given by the
Holder thereof as required by Section 2.6.
SECTION 2.2. Execution and Authentication.
Two Officers shall sign, or one Officer shall sign and one Officer shall
attest to, the Note for the Company by manual or facsimile signature.
If an Officer whose signature is on a Note was an Officer at the time of
such execution but no longer holds that office at the time the Trustee
authenticates the Note, the Note shall be valid nevertheless and the Company
shall nevertheless be bound by the terms of the Notes and this Indenture.
22
A Note shall not be valid until an authorized signatory of the Trustee
manually signs the certificate of authentication on the Note but such signature
shall be conclusive evidence that the Note has been authenticated pursuant to
the terms of this Indenture.
The Trustee shall authenticate (i) Original Notes for original issue on the
date hereof in the aggregate principal amount of $140,000,000, (ii) subject to
Section 4.11, Additional Notes in an aggregate principal amount of up to
$60,000,000 and (iii) Exchange Notes for original issue in the aggregate
principal amount of up to $200,000,000, in each case upon a written order of the
Company in the form of an Officers' Certificate; provided that such Exchange
Notes shall be issuable only upon the valid surrender for cancellation of
Initial Notes of a like aggregate principal amount in accordance with the
Registration Rights Agreement. The Additional Notes shall have identical terms
and conditions (i) if issued prior to the issuance of the Exchange Notes, to the
Original Notes or (ii) if issued after the issuance of the Exchange Notes, to
the Exchange Notes (subject to registration thereof pursuant to the Securities
Act). Any Additional Notes shall be part of the same issue as the Original Notes
and will vote on all matters with the Original Notes. The Officers' Certificate
shall specify the amount of Notes to be authenticated, the date on which the
Notes are to be authenticated and whether the Notes are to be Original Notes,
Additional 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 2.7. 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 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, any Affiliate of the Company, or any of their
respective Subsidiaries.
Notes shall be issuable only in registered form without coupons in
denominations of $1,000 and any integral multiples thereof.
SECTION 2.3. Registrar and Paying Agent.
The Company shall maintain an office or agency in the Borough of Manhattan,
The City of New York, where Notes may be presented for registration of transfer
or for exchange ("Registrar"), and an office or agency where Notes may be
presented for payment ("Paying Agent"), and where notices and demands to or upon
the Company in respect of the Notes may be served. The Company and Affiliates of
the Company may act as Registrar or Paying Agent, except that, for the purposes
of Articles III, VIII and X hereof and as otherwise specified in this Indenture,
neither the Company nor any Affiliate of the Company shall act as Paying Agent.
The Registrar shall keep a register of the Notes and of their transfer and
exchange. The Company may have one or more co-Registrars and one or more
additional Paying Agents. The term "Registrar" includes any co-registrar
23
and the term "Paying Agent" includes any additional Paying Agent. The Company
hereby initially appoints the Trustee as Registrar and Paying Agent, and by its
acknowledgment and acceptance on the signature page hereto, the Trustee hereby
initially agrees so to act.
The Company shall enter into an appropriate written agency agreement with
any Agent (including the Paying Agent) not a party to this Indenture, which
agreement shall implement the provisions of this Indenture that relate to such
Agent, and shall furnish a copy of each such agreement to the Trustee. The
Company shall promptly notify the Trustee in writing 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.
The Company initially appoints The Depository Trust Company ("DTC") to act
as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as Note Custodian with
respect to the Global Notes.
Upon the occurrence of an Event of Default described in Section 6.1(iv) or
(v) hereof, the Trustee shall, or upon the occurrence of any other Event of
Default by notice to the Company, the Registrar and the Paying Agent, the
Trustee may assume the duties and obligations of the Registrar and the Paying
Agent hereunder.
The Company may conclusively rely on, and will be protected from relying
on, instructions from the Holder of the Global Note or DTC for all purposes.
24
SECTION 2.4. Paying Agent to Hold Assets in Trust.
The Company shall require each Paying Agent other than the Trustee to agree
in writing that each such Paying Agent shall hold in trust for the benefit of
Holders or the Trustee all assets held by such Paying Agent for the payment of
principal of, premium, if any, or interest (or Liquidated Damages, if any) 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 in writing of any
Default in making any such payment. If either of 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 for the benefit of the Holders or the Trustee. 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 or any Event of Default,
upon written request to a Paying Agent, require such Paying Agent to distribute
all assets held by it to the Trustee and to account for any assets distributed.
Upon distribution to the Trustee of all assets that shall have been delivered by
the Company to the Paying Agent, the Paying Agent (if other than the Company)
shall have no further liability for such assets.
SECTION 2.5. 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
Holders and shall otherwise comply with TIA ss.312(a). If the Trustee or any
Paying Agent is not the Registrar, the Company shall furnish to the Trustee on
or before the third Business Day preceding each Interest Payment Date and at
such other times as the Trustee or any such Paying Agent may request in writing
a list in such form and as of such date as the Trustee or any such Paying Agent
reasonably may require of the names and addresses of Holders and the Company
shall otherwise comply with TIA ss.312(a).
Neither the Company nor the Trustee shall be liable for any delay by the
Holder of the Global Notes or DTC in identifying the beneficial owners of Notes.
SECTION 2.6. Transfer and Exchange.
(a) Transfer and Exchange of Definitive Notes. When Definitive Notes
are presented to the Registrar with a request:
(x) to register the transfer of such Definitive Notes; or
(y) to exchange such Definitive Notes for an equal principal amount of
Definitive Notes of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if
its reasonable requirements for such transaction are met; provided, however,
that the Definitive Notes surrendered for registration of transfer or exchange:
25
(i) shall be duly endorsed or accompanied by a written instrument of
transfer in form reasonably satisfactory to the Company and the Registrar, duly
executed by the Holder thereof or such Holder's attorney duly authorized in
writing; and
(ii) in the case of Transfer Restricted Securities that are Definitive
Notes, shall be accompanied by the following additional information and
documents, as applicable:
(A) if such Transfer Restricted Security is being delivered to the
Registrar by a Holder for registration in the name of such Holder, without
transfer, a certification from such Holder to that effect (in substantially
the form set forth on the reverse of the Note); or
(B) if such Transfer Restricted Security is being transferred to a
"qualified institutional buyer" (within the meaning of Rule 144A
promulgated under the Securities Act) that is aware that any sale of Notes
to it will be made in reliance on Rule 144A under the Securities Act and
that is acquiring such Transfer Restricted Security for its own account or
for the account of another such "qualified institutional buyer," a
certification from such Holder to that effect (in substantially the form
set forth on the reverse of the Note); or
(C) if such Transfer Restricted Security is being transferred pursuant
to an exemption from registration in accordance with Rule 144, or outside
the United States in an offshore transaction in compliance with Rule 904
under the Securities Act, or pursuant to an effective registration
statement under the Securities Act, a certification from such Holder to
that effect (in substantially the form set forth on the reverse of the
Note); or
(D) if such Transfer Restricted Security is being transferred in
reliance on another exemption from the registration requirements of the
Securities Act and with all applicable securities laws of the States of the
United States, a certification from such Holder to that effect (in
substantially the form set forth on the reverse of the Note) and an Opinion
of Counsel reasonably acceptable to the Company and to the Registrar to the
effect that such transfer is in compliance with the Securities Act.
(b) Restrictions on Transfer of a Definitive Note for a Beneficial
Interest in a Global Note. A Definitive Note may not be exchanged for a
beneficial interest in a Global Note except upon satisfaction of the
requirements set forth below. Upon receipt by the Trustee of a Definitive Note,
duly endorsed or accompanied by appropriate instruments of transfer, in form
satisfactory to the Trustee, together with:
26
(i) if such Definitive Note is a Transfer Restricted Security,
certification, substantially in the form set forth on the reverse of the
Note, that such Definitive Note is being transferred to a "qualified
institutional buyer" (as defined in Rule 144A under the Securities Act) in
accordance with Rule 144A under the Securities Act; and
(ii) whether or not such Definitive Note is a Transfer Restricted
Security, written instructions directing the Trustee to make, or to direct
the Note Custodian to make, an endorsement on the Global Note to reflect an
increase in the aggregate principal amount of the Notes represented by the
Global Note,
then the Trustee shall cancel such Definitive Note and cause, or direct the Note
Custodian to cause, in accordance with the standing instructions and procedures
existing between the Depositary and the Note Custodian, the aggregate principal
amount of Notes represented by the Global Note to be increased accordingly. If
no Global Notes are then outstanding, the Company shall issue and the Trustee
shall authenticate a new Global Note in the appropriate principal amount.
(c) Transfer and Exchange of Global Notes. The transfer and exchange
of Global Notes or beneficial interests therein shall be effected through the
Depositary, in accordance with this Indenture (including applicable restrictions
on transfer set forth herein, if any) and the procedures of the Depositary
therefor.
(d) Transfer of a Beneficial Interest in a Global Note for a
Definitive Note.
(i) Any Person having a beneficial interest in a Global Note may upon
request exchange such beneficial interest for a Definitive Note. Upon
receipt by the Trustee of written instructions or such other form of
instructions as is customary for the Depositary, from the Depositary or its
nominee on behalf of any Person having a beneficial interest in a Global
Note, and upon receipt by the Trustee of a written instruction or such
other form of instructions as is customary for the Depositary or the Person
designated by the Depositary as having such a beneficial interest in a
Transfer Restricted Security only, the following additional information and
documents (all of which may be submitted by facsimile):
(A) if such beneficial interest is being transferred to the
Person designated by the Depositary as being the beneficial owner, a
certification from the transferor to that effect (in substantially the
form set forth on the reverse of the Note); or
(B) if such beneficial interest is being transferred to a
"qualified institutional buyer" (within the meaning of Rule 144A
promulgated under the Securities Act), that is aware that any sale of
Notes to it will be made in reliance on Rule 144A under the Securities
Act and that is acquiring such beneficial interest in the Transfer
Restricted Security for its own account or the account of another such
27
"qualified institutional buyer", a certification to that effect from
the transferor (in substantially the form set forth on the reverse of
the Note); or
(C) if such beneficial interest is being transferred pursuant to
an exemption from registration in accordance with Rule 144, or outside
the United States in an offshore transaction in compliance with Rule
904 under the Securities Act, or pursuant to an effective registration
statement under the Securities Act, a certification from the
transferor to that effect (in substantially the form set forth on the
reverse of the Note); or
(D) if such beneficial interest is being transferred in reliance
on another exemption from the registration requirements of the
Securities Act and in accordance with all applicable securities laws
of the States of the United States, a certification to that effect
from the transferor (in substantially the form set forth on the
reverse of the Note) and an Opinion of Counsel from the transferee or
transferor reasonably acceptable to the Company and to the Registrar
to the effect that such transfer is in compliance with the Securities
Act,
then the Trustee or the Note Custodian, at the direction of the Trustee,
will cause, in accordance with the standing instructions and procedures
existing between the Depositary and the Note Custodian, the aggregate
principal amount of the Global Note to be reduced and, following such
reduction, the Company will execute and, upon receipt of an authentication
order in the form of an Officers' Certificate, the Trustee's authenticating
agent will authenticate and deliver to the transferee a Definitive Note in
the appropriate principal amount.
(ii) Definitive Notes issued in exchange for a beneficial interest in
a Global Note pursuant to this Section 2.6(d) shall be registered in such
names and in such authorized denominations as the Depositary, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Definitive Notes to
the persons in whose names such Notes are so registered.
(e) Restrictions on Transfer and Exchange of Global Notes.
Notwithstanding any other provisions of this Indenture (other than the
provisions set forth in subsection (f) of this Section 2.6), a Global Note may
not be transferred as a whole except by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
(f) Authentication of Definitive Notes in Absence of Depositary. If at
any time:
28
(i) the Depositary for the Notes notifies the Company that the
Depositary is unwilling or unable to continue as Depositary for the Global
Notes and a successor Depositary for the Global Notes is not appointed by
the Company within ninety days after delivery of such notice; or
(ii) the Company, in its sole discretion, notifies the Trustee in
writing that it elects to cause the issuance of Definitive Notes under this
Indenture, then the Company will execute, and the Trustee, upon receipt of
an Officers' Certificate requesting the authentication and delivery of
Definitive Notes, will, or its authenticating agent will, authenticate and
deliver Definitive Notes, in an aggregate principal amount equal to the
principal amount of the Global Notes, in exchange for such Global Notes.
(g) Legends.
(i) Except as permitted by the following paragraph (ii), each Note
certificate evidencing the Global Notes and the Definitive Notes (and all
Notes issued in exchange therefor or substitution thereof) shall bear a
legend in substantially the following form:
"THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS, EXCEPT AS SET FORTH IN THE THIRD SENTENCE HEREOF. BY ITS
ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) (A "QIB") OR (B) IT IS ACQUIRING THIS
NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT AND (2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER
THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B) TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR 904 OF THE SECURITIES ACT, (D) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (E) IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY) OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN
EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES
29
LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION
AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN
INTEREST HEREIN IS TRANSFERRED, A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED
STATES" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER
THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE
TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE
FOREGOING."
(ii) Upon any sale or transfer of a Transfer Restricted Security
(including any Transfer Restricted Security represented by a Global Note)
pursuant to Rule 144 under the Act or an effective registration statement
under the Securities Act:
(A) in the case of any Transfer Restricted Security that is a
Definitive Note, the Registrar shall permit the Holder thereof to
exchange such Transfer Restricted Security for a Definitive Note that
does not bear the legend set forth above and rescind any restriction
on the transfer of such Transfer Restricted Security; and
(B) any such Transfer Restricted Security represented by a Global
Note shall not be subject to the provisions set forth in (i) above
(such sales or transfers being subject only to the provisions of
Section 2.6(c) hereof); provided, however, that with respect to any
request for an exchange of a Transfer Restricted Security that is
represented by a Global Note for a Definitive Note that does not bear
a legend, which request is made in reliance upon Rule 144, the Holder
thereof shall certify in writing to the Registrar that such request is
being made pursuant to Rule 144 (such certification to be
substantially in the form set forth on the reverse of the Note).
(iii) Any Exchange Notes issued in connection with the Exchange Offer
shall not bear the legend set forth in (i) above and the Trustee shall
rescind any restriction on the transfer of such Exchange Notes.
(h) Cancellation and/or Adjustment of Global Note. At such time as all
beneficial interests in a Global Note have either been exchanged for Definitive
Notes, redeemed, repurchased or cancelled, such Global Note shall be returned to
or retained and cancelled by the Trustee. At any time prior to such
cancellation, if any beneficial interest in a Global Note is exchanged for
Definitive Notes, redeemed, repurchased or cancelled, the principal amount of
Notes represented by such Global Note shall be reduced and an endorsement shall
be made on such Global Note, by the Trustee or the Note Custodian, at the
direction of the Trustee, to reflect such reduction.
30
(i) Obligations with respect to Transfers and Exchanges of Definitive
Notes.
(i) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee or any authenticating agent of the Trustee
shall authenticate Definitive Notes and Global Notes at the Registrar's
request.
(ii) No service charge shall be made to a Holder for any registration
of transfer or exchange, but the Company may require payment of a sum
sufficient to cover any transfer tax, assessments, or similar governmental
charge payable in connection therewith (other than any such transfer taxes,
assessments, or similar governmental charge payable upon exchanges or
transfers pursuant to Section 2.2 (fourth paragraph), 2.10, 3.7, 4.14, 9.5,
or 10.1 hereof).
(iii) The Registrar shall not be required to register the transfer of
or exchange of (a) any Definitive Note selected for redemption in whole or
in part pursuant to Article III, except the unredeemed portion of any
Definitive Note being redeemed in part, or (b) any Note for a period
beginning 15 Business Days before the mailing of a notice of an offer to
repurchase pursuant to Article X or Section 4.14 hereof or redemption of
Notes pursuant to Article III hereof and ending at the close of business on
the day of such mailing.
(iv) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to any
transfer of any interest in any Note (including any transfers between or
among Depositary participants or beneficial owners of interests in any
Global Note) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and
when expressly required by the terms of, this Indenture, and to examine the
same to determine substantial compliance as to form with the express
requirements thereof.
(j) Prior to due presentment for the registration of a transfer of any
Note, the Trustee, any Agent and the Company may deem and treat the Person in
whose name any Note is registered as the absolute owner of such Note for all
purposes, and none of the Trustee, any Agent or the Company shall be affected by
notice to the contrary.
SECTION 2.7. Replacement Notes.
If a mutilated Note is surrendered to the Trustee or if the Holder of a
Note claims and submits an affidavit or other evidence, satisfactory to the
Trustee, to the Trustee to the effect 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. 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 which any of them may
31
suffer if a Note is replaced. The Company may charge such Holder for its
reasonable, out-of-pocket expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company.
SECTION 2.8. Outstanding Notes.
Notes outstanding at any time are all the Notes that have been
authenticated by the Trustee (including any Note represented by a Global Note)
except those cancelled by it, those delivered to it for cancellation, those
reductions in the interest in a Global Note effected by the Trustee hereunder
and those described in this Section 2.8 as not outstanding. A Note does not
cease to be outstanding because the Company or an Affiliate of the Company holds
the Note, except as provided in Section 2.9 hereof.
If a Note is replaced pursuant to Section 2.7 hereof (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 2.7 hereof.
If on a Redemption Date or the Maturity Date the Paying Agent (other than
the Company or an Affiliate of the Company) holds cash sufficient to pay all of
the principal and interest and premium, if any, due on the Notes payable on that
date and payment of the Notes called for redemption is not otherwise prohibited,
then on and after that date such Notes cease to be outstanding and interest on
them ceases to accrue.
SECTION 2.9. Treasury Notes.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, amendment, supplement, waiver or consent,
Notes owned by the Company or Affiliates of the Company shall be disregarded,
except that, for the purposes of determining whether the Trustee shall be
protected in relying on any such direction, amendment, supplement, waiver or
consent, only Notes that a Trust Officer of the Trustee actually knows are so
owned shall be disregarded.
SECTION 2.10. Temporary Notes.
Until Definitive Notes are ready for delivery, the Company may prepare and
the Trustee shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form of Definitive Notes but may have variations that the
Company reasonably and in good faith consider appropriate for temporary Notes.
Without unreasonable delay, the Company shall prepare and the Trustee shall,
upon receipt of a written order of the Company in the form of an Officers'
Certificate, authenticate Definitive Notes in exchange for temporary Notes.
Until so exchanged, the temporary
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Notes shall in all respects be entitled to the same benefits under this
Indenture as permanent Notes authenticated and delivered hereunder.
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 registration, transfer, exchange or payment. The
Trustee, or at the direction of the Trustee, the Registrar or the Paying Agent
(other than the Company or an Affiliate of the Company), and no one else, shall
cancel and, without the written direction of the Company to the contrary, shall
dispose of all Notes surrendered for transfer, exchange, payment or cancellation
in accordance with its customary procedures. Subject to Section 2.7 hereof, the
Company may not issue new Notes to replace Notes that have been paid or
delivered to the Trustee for cancellation. No Notes shall be authenticated in
lieu of or in exchange for any Notes cancelled as provided in this Section 2.11
hereof, except as expressly permitted in the form of Notes and as permitted by
this Indenture.
SECTION 2.12. Defaulted Interest.
Interest on any Note which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the person in whose
name that Note (or one or more predecessor Notes) is registered at the close of
business on the Record Date for such interest.
Any interest on any Note which is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date plus any interest payable on the
defaulted interest at the rate and in the manner provided in Section 4.1 hereof
and the Note (herein called "Defaulted Interest"), shall forthwith cease to be
payable to the registered holder on the relevant Record Date, or, as applicable,
the Special Record Date (as defined below), and such Defaulted Interest may be
paid by the Company, at its election in each case, as provided in clause (1) or
(2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the persons in whose names the Notes (or their respective predecessor
Notes) are registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee and the Paying Agent
in writing of the amount of Defaulted Interest proposed to be paid on each
Note and the date of the proposed payment, and at the same time the Company
shall deposit with the Paying Agent an amount of cash equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest
or shall make arrangements satisfactory to the Paying Agent for such
deposit prior to the date of the proposed payment, such cash when deposited
to be held in trust for the benefit of the persons entitled to such
Defaulted Interest as provided in this clause (1). Thereupon the Paying
Agent shall fix a special record date for the payment of such Defaulted
Interest (a "Special Record Date"), which shall be not more than 15 days,
and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Paying Agent of the
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notice of the proposed payment. The Paying Agent shall promptly notify the
Company and the Trustee of such Special Record Date and, in the name and at
the expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder at his address as it appears in
the Note register not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been mailed as aforesaid, such Defaulted
Interest shall be paid to the persons in whose names the Notes (or their
respective predecessor Notes) are registered on such Special Record Date
and shall no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes may be listed, and upon such notice
as may be required by such exchange, if, after notice given by the Company
to the Trustee and the Paying Agent of the proposed payment pursuant to
this clause, such manner shall be deemed practicable by the Trustee and the
Paying Agent.
Subject to the foregoing provisions of this Section, each Note delivered
under this Indenture upon the registration of transfer of or in exchange for or
in lieu of any other Note shall carry the rights to interest accrued and unpaid,
and to accrue, which were carried by such other Note.
SECTION 2.13. CUSIP Numbers.
The Company in issuing the Notes may use "CUSIP" numbers (if then generally
in use), and, if so, the Trustee shall use "CUSIP" numbers in notices of
redemption as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the Notes or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Notes, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Company will promptly notify the Trustee of any
change in the "CUSIP" numbers.
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ARTICLE III
REDEMPTION
SECTION 3.1. Right of Redemption.
Redemption of Notes, as permitted by the provisions of this Indenture,
shall be made in accordance with such provisions and this Article III. Except as
described in this Section and Paragraph 5 of the Notes, the Company will not
have the right to redeem any Notes prior to January 15, 2002. The Notes will be
redeemable for cash at the option of the Company, in whole or in part, at any
time on or after January 15, 2002, upon not less than 30 days nor more than 60
days notice to each holder of Notes, at the following redemption prices
(expressed as percentages of the principal amount) if redeemed during the
12-month period commencing January 15 of the years indicated below, in each case
(subject to the right of Holders of record on a Record Date to receive interest
due on an Interest Payment Date that is on or prior to such Redemption Date)
together with accrued and unpaid interest and Liquidated Damages, if any,
thereon to the Redemption Date:
Year Percentage
---- ----------
2002.............................................................104.8750%
2003.............................................................102.4375%
2004 and thereafter..............................................100.0000%
Until January 15, 2001 upon an Public Equity Offering of common stock for
cash of the Company, up to 35% of the sum of (i) the original aggregate
principal amount of the Notes and (ii) the original aggregate principal amount
of any Additional Notes may be redeemed at the option of the Company within 90
days of such Public Equity Offering, on not less than 30 days, but not more than
60 days, notice to each holder of the Notes to be redeemed, with cash from the
Net Cash Proceeds of such Public Equity Offering, at a redemption price equal to
109 3/4% of principal (subject to the right of Holders of record on a Record
Date to receive interest due on an Interest Payment Date that is on or prior to
such Redemption Date), together with accrued and unpaid interest and Liquidated
Damages, if any, to the date of redemption; provided, however, that immediately
following such redemption not less than 65% of the sum of (i) the original
aggregate principal amount of the Notes and (ii) the original aggregate
principal amount of any Additional Notes remains outstanding.
The Notes will not have the benefit of any sinking fund.
Except as provided in this Section and paragraph 5 of the Notes, the Notes
may not otherwise be redeemed at the option of the Company.
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SECTION 3.2. 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 Notes to be redeemed and whether it wants the
Paying Agent to give notice of redemption to the Holders.
If the Company elects to reduce the principal amount of Notes to be
redeemed pursuant to Paragraph 5 of the Notes by crediting against any such
redemption Notes it has not previously delivered to the Trustee and the Paying
Agent for cancellation, it shall so notify the Trustee, in the form of an
Officers' Certificate, and the Paying Agent of the amount of the reduction and
deliver such Notes with such notice.
The Company shall give each notice to the Trustee and the Paying Agent
provided for in this Section 3.2 at least 45 days before the Redemption Date
(unless a shorter notice shall be satisfactory to the Trustee and the Paying
Agent). 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 3.3. Selection of Notes to Be Redeemed.
If less than all of the Notes are to be redeemed pursuant to Paragraph 5
thereof, the Trustee shall select the Notes to be redeemed on a pro rata basis,
by lot or by such other method as the Trustee shall determine to be appropriate
and fair and in such manner as complies with any applicable Depositary, legal
and stock exchange requirements.
The Trustee shall make the selection from the Notes outstanding and not
previously called for redemption and shall promptly notify the Company and the
Paying Agent 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.
SECTION 3.4. Notice of Redemption.
At least 30 days, but not more than 60 days prior to the Redemption Date,
the Company shall mail a notice of redemption by first class mail, postage
prepaid, to the Trustee, the Paying Agent and each Holder whose Notes are to be
redeemed. At the Company's request, the Paying Agent 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:
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(1) the Redemption Date;
(2) the Redemption Price, including accrued and unpaid interest and
Liquidated Damages, if any, to be paid upon such redemption;
(3) the name and address of the Paying Agent;
(4) that Notes called for redemption must be surrendered to the Paying
Agent at the address specified in such notice to collect the Redemption
Price;
(5) that, unless (a) the Company defaults in its obligation to deposit
with the Paying Agent cash which through the scheduled payment of principal
and interest in respect thereof in accordance with their terms shall
provide the amount to fund the Redemption Price in accordance with Section
3.6 hereof or (b) such redemption payment is prohibited, 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, including accrued and unpaid interest (and
Liquidated Damages, if any) to the Redemption Date, upon surrender to the
Paying Agent of the Notes called for redemption and to be redeemed;
(6) if any Note is being redeemed in part, the portion of the
principal amount, equal to $1,000 or any integral multiple thereof, of such
Note to be redeemed and that, after the Redemption Date, and upon surrender
of such Note, a new Note or Notes in aggregate principal amount equal to
the unredeemed portion thereof shall be issued;
(7) if less 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 such Notes to be redeemed and the aggregate
principal amount of Notes to be outstanding after such partial redemption;
(8) the CUSIP number of the Notes to be redeemed; and
(9) that the notice is being sent pursuant to this Section 3.4 and
pursuant to the optional redemption provisions of Paragraph 5 of the Notes.
SECTION 3.5. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.4 hereof,
Notes called for redemption become due and payable on the Redemption Date and at
the Redemption Price, including accrued and unpaid interest (and Liquidated
Damages, if any) to the Redemption Date. Upon surrender to the Trustee or Paying
Agent, such Notes called for redemption shall be paid at the Redemption Price,
including interest and Liquidated Damages, if any, accrued and unpaid to the
Redemption Date; provided that if the Redemption Date is after a regular Record
Date and on or
37
prior to the Interest Payment Date, to which such Record Date relates, the
accrued interest (and Liquidated Damages, if any) shall be payable to the Holder
of the redeemed Notes registered on the relevant Record Date; and provided,
further, that if a Redemption Date is a Legal Holiday, payment shall be made on
the next succeeding Business Day and no interest shall accrue for the period
from such Redemption Date to such succeeding Business Day.
SECTION 3.6. Deposit of Redemption Price.
On or prior to the Redemption Date, the Company shall deposit with the
Paying Agent (other than the Company or an Affiliate of the Company) cash
sufficient to pay the Redemption Price of all Notes to be redeemed on such
Redemption 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 cash so
deposited which is not required for that purpose upon the written request of the
Company.
If the Company complies with the preceding paragraph and payment of the
Notes called for redemption is not prohibited for any reason, interest on the
Notes to be redeemed shall cease to accrue on the applicable Redemption Date,
whether or not such Notes are presented for payment. Notwithstanding anything
herein to the contrary, if any Note surrendered for redemption in the manner
provided in the Notes shall not be so paid upon surrender for redemption because
of the failure of the Company to comply with the preceding paragraph, interest
shall continue to accrue and be paid from the Redemption Date until such payment
is made on the unpaid principal, and, to the extent lawful, on any interest not
paid on such unpaid principal, in each case at the rate and in the manner
provided in Section 4.1 hereof and the Note.
SECTION 3.7. Notes Redeemed in Part.
Upon surrender of a Note that is to be redeemed in part, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder, without
service charge to the Holder, a new Note or Notes equal in principal amount to
the unredeemed portion of the Note surrendered.
ARTICLE IV
COVENANTS
SECTION 4.1. Payment of Notes.
The Company shall pay the principal of and interest (and Liquidated
Damages, if any) on the Notes on the dates and in the manner provided herein and
in the Notes. An installment of principal of or interest (or Liquidated Damages,
if any) on the Notes shall be considered paid on the date it is due if the
Trustee or Paying Agent (other than the Company or an Affiliate of the Company)
holds for the benefit of the Holders (on or before 10:00 a.m. New York City time
to the extent
38
necessary to provide the funds to the Depositary in accordance with the
Depositary's procedures) on that date cash deposited and designated for and
sufficient to pay the installment.
The Company shall pay interest on overdue principal and on overdue
installments of interest (and Liquidated Damages, if any) at the rate specified
in the Notes compounded semi-annually, to the extent lawful.
SECTION 4.2. Maintenance of Office or Agency.
The Company and the Guarantors shall maintain in the Borough of Manhattan,
The City of New York, an office or agency where Notes may be presented or
surrendered for payment, where Notes may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company and
the Guarantors in respect of the Notes and this Indenture may be served. The
Company and the Guarantors shall give prompt written notice to the Trustee and
the Paying Agent of the location, and any change in the location, of such office
or agency. If at any time the Company and the Guarantors shall fail to maintain
any such required office or agency or shall fail to furnish the Trustee and the
Paying Agent 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 13.2 hereof.
The Company and the Guarantors may also from time to time designate one or
more other offices or agencies where the Notes may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company and the Guarantors of their obligation to
maintain an office or agency in the Borough of Manhattan, The City of New York,
for such purposes. The Company and the Guarantors shall give prompt written
notice to the Trustee and the Paying Agent of any such designation or rescission
and of any change in the location of any such other office or agency. The
Company hereby initially designates the Corporate Trust Office of the Trustee as
such office.
SECTION 4.3. Limitation on Restricted Payments.
The Company and the Guarantors shall not, and shall not permit any of their
Subsidiaries to, directly or indirectly, make any Restricted Payment if, after
giving effect to such Restricted Payment on a pro forma basis, (1) a Default or
an Event of Default shall have occurred and be continuing, (2) the Company is
not permitted to incur at least $1.00 of additional Indebtedness pursuant to the
Debt Incurrence Ratio in Section 4.11 or (3) the aggregate amount of all
Restricted Payments made by the Company and its Subsidiaries, including after
giving effect to such proposed Restricted Payment, from and after the Issue
Date, would exceed the sum of (a) 50% of the aggregate Consolidated Net Income
of the Company for the period (taken as one accounting period), commencing on
the first day of the first full fiscal quarter commencing after the Issue Date,
to and including the last day of the fiscal quarter ended immediately prior to
the date of each such calculation (or, in the event Consolidated Net Income for
such period is a deficit, then minus 100%
39
of such deficit), plus (b) the aggregate Net Cash Proceeds received by the
Company from the sale of the Company's Qualified Capital Stock (other than (i)
to a Subsidiary of the Company and (ii) to the extent applied in connection with
a Qualified Exchange), after the Issue Date.
The foregoing clauses (2) and (3) of the immediately preceding paragraph,
however, shall not prohibit (t) pro rata dividends and other distributions on
Equity Interests of a Subsidiary by such Subsidiary, (u) Restricted Investments,
provided that, after giving pro forma effect to any such Investment, the
aggregate amount of all such Investments made on or after the Issue Date that
are outstanding (after giving effect to any such Investments that are returned
to the Company or the Subsidiary that made such prior Investment, without
restriction, in cash on or prior to the date of any such calculation) at any
time does not exceed $10.0 million plus (i) any cash proceeds received by the
Company or any Guarantor from the Packer Avenue Proceeding and (ii) the Net Cash
Proceeds received by the Company from the sale (other than to any of its
Affiliates, to the extent used to effect a Qualified Exchange, or to the extent
used to make Restricted Payments other than pursuant to this clause (u)) of its
Qualified Capital Stock after the Issue Date, (v)(i) payments pursuant to the
Employee Stock Plan and (ii) repurchases of Capital Stock from employees of the
Company or its Subsidiaries upon their death (or from such employees' estate or
heirs in the case of any such death) or disability or the termination of their
employment, such payments under (i) and (ii) collectively not to exceed $15.0
million in the aggregate on and after the Issue Date and (w) payments required
to be made under put rights pursuant to the TNX Shareholders Agreement not to
exceed $10.0 million in the aggregate, and the provisions of the immediately
preceding paragraph shall not prohibit (x) a Qualified Exchange, (y) the payment
of any dividend on Qualified Capital Stock within 60 days after the date of its
declaration if such dividend could have been made on the date of such
declaration in compliance with the foregoing provisions and (z) so long as the
Company is a Subchapter S Corporation or substantially similar pass-through
entity for federal income tax purposes, cash distributions paid by the Company
to its shareholders from time to time in amounts permitted by and otherwise in
accordance with the definition of Permitted Tax Distribution. The full amount of
any Restricted Payment made pursuant to the foregoing clauses (t), (u), (v) and
(y) (but not pursuant to clauses (w), (x) and (z)) of the immediately preceding
sentence, however, shall be deducted in the calculation of the aggregate amount
of Restricted Payments available to be made referred to in clause (3) of the
immediately preceding paragraph.
For purposes of this Section 4.3, the amount of any Restricted Payment, if
other than in cash, shall be the fair market value thereof, as determined in the
good faith reasonable judgment of the Board of Directors of the Company.
Additionally, at the time of each Restricted Payment, the Company shall deliver
an Officers' Certificate to the Trustee describing in reasonable detail the
nature of such Restricted Payment, stating the amount of such Restricted
Payment, stating in reasonable detail the provisions of this Indenture pursuant
to which such Restricted Payment was made and certifying that such Restricted
Payment was made in compliance with the terms of this Indenture.
40
SECTION 4.4. Corporate and Partnership Existence.
Except as otherwise permitted by Article V, Section 4.14 or Section 11.4,
the Company and the Guarantors shall do or cause to be done all things necessary
to preserve and keep in full force and effect their respective corporate,
partnership or other organizational existence, as the case may be, and the
corporate, partnership or other organizational existence, as the case may be, of
each of their Subsidiaries in accordance with the respective organizational
documents of each of them and the material rights (charter and statutory) and
material corporate franchises of the Company, the Guarantors and each of their
respective Subsidiaries; provided, however, that neither the Company nor any
Guarantor shall be required to preserve, with respect to themselves, any right
or franchise, and with respect to any of their respective Subsidiaries, any such
existence, right or franchise, if (a) the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and (b) the loss thereof is not adverse in any material respect to
the Holders.
SECTION 4.5. Payment of Taxes and Other Claims.
The Company and the Guarantors shall, and shall cause each of their
Subsidiaries to, pay or discharge or cause to be paid or discharged, before the
same shall become delinquent, (i) all material taxes, assessments and
governmental charges (including withholding taxes and any penalties, interest
and additions to taxes) levied or imposed upon the Company, any Guarantor or any
of their Subsidiaries or any of their respective properties and assets and (ii)
all lawful claims, whether for labor, materials, supplies or services, which
have become due and payable and which by law have or may become a Lien upon the
property and assets of the Company, any Guarantor or any of their Subsidiaries;
provided, however, that neither the Company nor any Guarantor shall be required
to pay or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate proceedings and for which disputed amounts adequate
reserves have been established in accordance with GAAP.
SECTION 4.6. Maintenance of Properties and Insurance.
The Company and the Guarantors shall cause all material properties used or
useful to the conduct of their business and the business of each of their
Subsidiaries to be maintained and kept in good condition, repair and working
order (reasonable wear and tear excepted) and supplied with all necessary
equipment and shall cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in their reasonable
judgment may be necessary, so that the business carried on in connection
therewith may be properly conducted at all times; provided, however, that
nothing in this Section 4.6 shall prevent the Company or any Guarantor from
discontinuing any operation or maintenance of any of such properties, or
disposing of any of them, if such discontinuance or disposal is (a)(i) in the
judgment of the Board of Directors of the Company, desirable in the conduct of
the business of the Company and (ii) not adverse in any material respect to the
Holders or (b) otherwise permitted under Section 4.14.
41
The Company and the Guarantors shall provide, or cause to be provided, for
themselves and each of their Subsidiaries, insurance (including appropriate
self-insurance) against loss or damage of the kinds that, in the reasonable,
good faith opinion of the Board of Directors of the Company is adequate and
appropriate for the conduct of the business of the Company, the Guarantors and
such Subsidiaries in a prudent manner, with (except for self-insurance)
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 and adequate and appropriate for the conduct of the business of the
Company, the Guarantors and such Subsidiaries in a prudent manner for entities
similarly situated in the industry.
SECTION 4.7. Compliance Certificate; Notice of Default.
(a) The Company shall deliver to the Trustee within 120 days after the end
of its fiscal year an Officers' Certificate, one of the signers of which shall
be the principal executive, principal financial or principal accounting officer
of the Company, complying with Section 314(a)(4) of the TIA and stating that a
review of its activities and the activities of its Subsidiaries, if any, during
the preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture (without regard to
notice requirements or grace periods) and further stating, as to each such
Officer signing such certificate, whether or not the signer knows of any failure
by the Company, any Guarantor or any Subsidiary of the Company to comply with
any conditions or covenants in this Indenture and, if such signer does know of
such a failure to comply, the certificate shall describe such failure with
particularity. The Officers' Certificate shall also notify the Trustee should
the relevant fiscal year end on any date other than the current fiscal year end
date.
(b) The Company shall, so long as any of the Notes are outstanding, deliver
to the Trustee, promptly upon becoming aware of any Default or Event of Default,
an Officers' Certificate specifying such Default or Event of Default and what
action the Company is taking or proposes to take with respect thereto. The
Trustee shall not be deemed to have knowledge of any Default, any Event of
Default or any such fact unless one of its Trust Officers receives written
notice thereof from the Company or any of the Holders.
SECTION 4.8. Reports.
Whether or not the Company is subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act, the Company shall furnish to the
Trustee, to each Holder and to prospective purchasers of Notes identified to the
Company by an Initial Purchaser, within 15 days after it is or would have been
(if it were subject to such reporting requirements) required to file such with
the Commission, annual and quarterly financial statements substantially
equivalent to financial statements that would have been included in reports
filed with the Commission, if the Company were subject to the requirements of
Section 13 or 15(d) of the Exchange Act, including, with respect to
42
annual information only, a report thereon by the Company's certified independent
public accountants as such would be required in such reports to the Commission,
and, in each case, together with a management's discussion and analysis of
financial condition and results of operations which would be so required; and,
unless the Commission shall not accept such reports, file with the Commission
the annual, quarterly and other reports which it is or would have been required
to file with the Commission. Notwithstanding anything contrary herein the
Trustee shall have no duty to review such documents for purposes of determining
compliance with any provisions of this Indenture.
SECTION 4.9. Limitation on Status as Investment Company.
The Company and the Subsidiaries shall not become required to register as
an "investment company" (as that term is defined in the Investment Company Act
of 1940, as amended), or otherwise become subject to regulation under the
Investment Company Act.
SECTION 4.10. Limitation on Transactions with Affiliates.
Neither the Company nor any of its Subsidiaries shall be permitted on or
after the Issue Date to enter into or suffer to exist any contract, agreement,
arrangement or transaction with any Affiliate (an "Affiliate Transaction"), or
any series of related Affiliate Transactions (other than Exempted Affiliate
Transactions), (i) unless it is determined that the terms of such Affiliate
Transaction are fair and reasonable to the Company, and no less favorable to the
Company, than could have been obtained in an arm's length transaction with a
non-Affiliate, (ii) if involving consideration to either party in excess of $1.0
million unless such Affiliate Transaction(s) is the subject of an Officers'
Certificate addressed and delivered to the Trustee certifying that such
Affiliate Transaction (or Transactions) has been approved by a majority of the
members of the Board of Directors that are disinterested in such transaction and
(iii) if involving consideration to either party in excess of $10.0 million,
unless, in addition, the Company, prior to the consummation thereof, obtains a
written favorable opinion as to the fairness of such transaction to the Company
from a financial point of view from an independent investment banking firm of
national reputation or, if pertaining to a matter for which such investment
banking firms do not customarily render such opinions, an appraisal or valuation
firm of national reputation; provided, however, that clause (iii) of this
Section 4.10 also shall be applicable to any Affiliate Transaction involving
consideration to either party in excess of $5.0 million but equal to or less
than $10.0 million unless such Affiliate Transaction is only with an Affiliate
(x) engaged in business substantially similar and related to the business then
conducted by the Company and its Subsidiaries (as permitted under this
Indenture) and (y) such Affiliate Transaction is entered into in the ordinary
course of business for purposes customary in the Company's industry.
SECTION 4.11. Limitation on Incurrence of Additional Indebtedness and
Disqualified Capital Stock.
Except as set forth in this Section 4.11, the Company and the Guarantors
shall not, and shall not permit any of their Subsidiaries to, directly or
indirectly, issue, assume, guaranty, incur,
43
become directly or indirectly liable with respect to (including as a result of
an Acquisition), or otherwise become responsible for, contingently or otherwise
(individually and collectively, to "incur" or, as appropriate, an"incurrence"),
any Indebtedness or issue any Disqualified Capital Stock (including Acquired
Indebtedness), other than Permitted Indebtedness. Notwithstanding the foregoing,
if (i) no Default or Event of Default shall have occurred and be continuing at
the time of, or would occur after giving effect on a pro forma basis to, such
incurrence of Indebtedness or issuance of Disqualified Capital Stock and (ii) on
the date of such incurrence or issuance (the "Incurrence Date"), the
Consolidated Coverage Ratio of the Company for the Reference Period immediately
preceding the Incurrence Date, after giving effect on a pro forma basis to such
incurrence of such Indebtedness or issuance of Disqualified Capital Stock and,
to the extent set forth in the definition of Consolidated Coverage Ratio, the
use of proceeds thereof, would be at least 2.0 to l (the "Debt Incurrence
Ratio"), then the Company may incur such Indebtedness or issue Disqualified
Capital Stock and the Guarantors may incur such Indebtedness (other than
Disqualified Capital Stock).
In addition, the foregoing limitations shall not apply to:
(a) the incurrence by the Company or any Guarantor of Purchase Money
Indebtedness on or after the Issue Date; provided, that (i) the aggregate
principal amount of such Indebtedness incurred on or after the Issue Date and
outstanding at any time pursuant to this paragraph (a) (including any
Indebtedness incurred to refinance, replace or refund such Indebtedness) shall
not exceed $25.0 million, and (ii) in each case, such Indebtedness shall not
constitute more than 100% of the cost (determined in accordance with GAAP) to
the Company or such Guarantor, as applicable, of the property so purchased,
leased or financed;
(b) if no Event of Default shall have occurred and be continuing, the
incurrence by the Company or any Guarantor of Indebtedness in an aggregate
principal amount outstanding at any time (including Indebtedness incurred to
refinance, replace or refund such Indebtedness) of up to $25.0 million;
(c) the incurrence by the Company or any Guarantor of Indebtedness
pursuant to the Credit Agreement up to an aggregate principal amount outstanding
at any time (including any Indebtedness incurred to refinance, replace or refund
such Indebtedness) of $50.0 million, minus the amount of any such Indebtedness
(i) retired with the Net Cash Proceeds from any Asset Sale applied to reduce
permanently the outstanding amounts or the commitments with respect to such
Indebtedness pursuant to clause (1)(b)(ii) of the first paragraph of Section
4.14 or (ii) assumed by a transferee in an Asset Sale;
(d) the incurrence by the Company or any Guarantor of Existing
Indebtedness; and
(e) the incurrence by any Non-Recourse Subsidiary of Permitted
Non-Recourse Vessel Indebtedness.
44
Indebtedness or Disqualified Capital Stock of any Person which is
outstanding at the time such Person becomes a Subsidiary of the Company
(including upon designation of any subsidiary or other person as a Subsidiary)
or is merged with or into or consolidated with the Company or a Subsidiary of
the Company shall be deemed to have been incurred at the time such Person
becomes such a Subsidiary of the Company or is merged with or into or
consolidated with the Company or a Subsidiary of the Company, as applicable. The
Company and the Guarantors shall not, and shall not permit any of their
Subsidiaries to, directly or indirectly, incur, or suffer to exist any
Indebtedness that is contractually subordinate in right of payment to any other
Indebtedness of the Company or a Guarantor unless, by its terms, such
Indebtedness is subordinate to the same extent in right of payment to the Notes
or the Guarantee, as applicable.
SECTION 4.12. Limitations on Dividends and Other Payment Restrictions
Affecting Subsidiaries.
The Company and the Guarantors shall not, and shall not permit any of their
Subsidiaries to, directly or indirectly, create, assume or suffer to exist any
consensual restriction on the ability of any Subsidiary of the Company to pay
dividends or make other distributions to or on behalf of, or to pay any
obligation to or on behalf of, or otherwise to transfer assets or property to or
on behalf of, or make or pay loans or advances to or on behalf of, the Company
or any Subsidiary of the Company, except (a) restrictions imposed by the Notes
or this Indenture or by other indebtedness of the Company (which may also be
guaranteed by the Guarantors) ranking pari passu with the Notes (and the
guarantees, as applicable), provided such restrictions are no more restrictive
than those imposed by this Indenture and the Notes, (b) restrictions imposed by
applicable law, (c) restrictions under the Existing Indebtedness and Permitted
Non-Recourse Vessel Indebtedness, (d) restrictions under any Acquired
Indebtedness not incurred in violation of this Indenture or any agreement
relating to any property, asset, or business acquired by the Company or any of
its Subsidiaries, which restrictions in each case existed at the time of
acquisition, were not put in place in connection with or in anticipation of such
acquisition and are not applicable to any person, other than the person
acquired, or to any property, asset or business, other than the property, assets
and business so acquired, (e) any such restriction or requirement imposed by
Indebtedness incurred under Section 4.11, provided such restriction or
requirement is no more restrictive than that imposed by the Credit Agreement as
of the Issue Date, (f) restrictions with respect solely to a Subsidiary of the
Company imposed pursuant to a binding agreement which has been entered into for
the sale or disposition of all or substantially all of the Equity Interests or
assets of such Subsidiary, provided further such restrictions apply solely to
the Equity Interests or assets of such Subsidiary which are being sold, (g)
restrictions on transfer contained in Purchase Money Indebtedness incurred
pursuant to clause (a) of the second paragraph of Section 4.11, provided such
restrictions relate only to the transfer of the property acquired with the
proceeds of such Purchase Money Indebtedness, and (h) in connection with and
pursuant to permitted Refinancings, replacements of restrictions imposed
pursuant to clauses (a), (c) or (d) of this paragraph that are not more
restrictive than those being replaced and do not apply to any other person or
assets other than those that would have been covered by the restrictions in the
Indebtedness so refinanced. Notwithstanding the foregoing, neither (a) customary
provisions restricting subletting or assignment of any lease entered into in the
45
ordinary course of business, consistent with industry practice, nor (b) Liens
permitted under the terms of this Indenture on assets securing Senior Debt or
Purchase Money Indebtedness incurred in accordance with Section 4.11 shall in
and of themselves be considered a restriction on the ability of the applicable
Subsidiary to transfer such agreement or assets, as the case may be.
SECTION 4.13. Reserved.
SECTION 4.14. Limitation on Sales of Assets and Subsidiary Stock.
The Company and the Guarantors shall not, and shall not permit any of their
Subsidiaries to, in one or a series of related transactions, convey, sell,
transfer, assign or otherwise dispose of, directly or indirectly, any of its
property, business or assets, including by merger or consolidation (in the case
of a Guarantor or a Subsidiary of the Company), and including any sale or other
transfer or issuance of any Equity Interests of any Subsidiary of the Company,
whether by the Company or a Subsidiary or through the issuance, sale or transfer
of Equity Interests by a Subsidiary of the Company, and including any sale and
leaseback transaction (any of the foregoing, an "Asset Sale"), unless (1)(a) the
Net Cash Proceeds therefrom (the "Asset Sale Offer Amount") are applied, subject
to the next paragraph below, within 330 days after the date of such Asset Sale,
to (i) the optional redemption of (a) Indebtedness secured by the items so
subject to such Asset Sale or (b) the Notes in accordance with the terms of this
Indenture and other indebtedness of the Company ranking on a parity with the
Notes from time to time outstanding with similar provisions requiring the
Company to make an offer to purchase or to redeem such Indebtedness with the
proceeds of asset sales, pro rata in proportion to the respective principal
amounts (or accreted values in the case of Indebtedness issued with an original
issue discount) of the Notes and such other Indebtedness then outstanding or
(ii) to the repurchase of (a) Indebtedness secured by the items so subject to
such Asset Sale or (b) the Notes and such other Indebtedness ranking on a parity
with the Notes and having similar provisions requiring the Company to purchase
or redeem such Indebtedness with the proceeds from asset sales pursuant to a
cash offer subject only to conditions, if any, required by law (pro rata in
proportion to the respective principal amounts (or accreted values in the case
of Indebtedness issued with an original issue discount) of the Notes and such
other Indebtedness then outstanding) (the "Asset Sale Offer") at a purchase
price of 100% of principal amount (or accreted value in the case of Indebtedness
issued with an original issue discount) (the "Asset Sale Offer Price") together
with accrued and unpaid interest and Liquidated Damages, if any, to the date of
payment, made within 330 days of such Asset Sale or (b) within 330 days
following such Asset Sale, the Asset Sale Offer Amount is (i) invested in assets
and property (except in connection with the acquisition of a Wholly-owned
Subsidiary, other than notes, bonds, obligation and securities) which in the
good faith reasonable judgment of the Board of Directors of the Company shall
immediately constitute or be a part of a Related Business of the Company or such
Subsidiary (if it continues to be a Subsidiary) immediately following such
transaction or (ii) used to retire permanently Indebtedness permitted to be
incurred pursuant to clause (c) of the second paragraph of Section 4.11
(including that in the case of a revolver or similar arrangement that makes
credit available, such commitment is so permanently reduced by such amount), (2)
at least 75% of the consideration for such Asset Sale or series of related Asset
Sales consists of Cash or Cash Equivalents, (3) no Default
46
or Event of Default shall have occurred and be continuing at the time of, or
would occur after giving effect, on a pro forma basis, to, such Asset Sale, and
(4) the Board of Directors of the Company determines in good faith that the
Company or such Subsidiary, as applicable, receives fair market value for such
Asset Sale.
An acquisition of Notes pursuant to an Asset Sale Offer may be deferred
until the accumulated Net Cash Proceeds from Asset Sales not applied to the uses
set forth in clause (1)(a)(i) or clause (l)(b) above (the "Excess Proceeds")
exceeds $10.0 million and that each Asset Sale Offer shall remain open for 20
Business Days following its commencement (the "Asset Sale Offer Period"). Upon
expiration of the Asset Sale Offer Period, the Company shall apply the Asset
Sale Offer Amount plus an amount equal to accrued and unpaid interest and
Liquidated Damages, if any, to the purchase of all Indebtedness properly
tendered (on a pro rata basis (in $1,000 increments) if the Asset Sale Offer
Amount is insufficient to purchase all Indebtedness so tendered) at the Asset
Sale Offer Price (together with accrued interest and Liquidated Damages, if
any). To the extent that the aggregate amount of Notes tendered pursuant to an
Asset Sale Offer is less than the Asset Sale Offer Amount, the Company may use
any remaining Net Cash Proceeds for general corporate purposes as otherwise
permitted by this Indenture and following each Asset Sale Offer the Excess
Proceeds amount shall be reset to zero. For purposes of clause (2) above, total
consideration received means the total consideration received for such Asset
Sales minus the amount of Purchase Money Indebtedness or Permitted Non-Recourse
Vessel Indebtedness secured solely by and repaid with the proceeds from the
assets sold or assumed by a transferee.
Notwithstanding, and without complying with, the provisions of this
Section 4.14:
(i) the Company and its Subsidiaries may, in the ordinary course of
business, (1) convey, sell, transfer, assign or otherwise dispose of
inventory acquired and held for resale in the ordinary course of business
or (2) liquidate Cash Equivalents;
(ii) the Company and its Subsidiaries may (x) convey, sell, transfer,
assign or otherwise dispose of assets pursuant to and in accordance with
the limitation on mergers, sales or consolidations provisions in this
Indenture and (y) make Restricted Payments permitted by Section 4.3;
(iii) the Company and its Subsidiaries may sell or dispose of damaged,
worn out or other obsolete personal property in the ordinary course of
business so long as such property is no longer necessary for the proper
conduct of the business of the Company or such Subsidiary, as applicable;
(iv) the Company and the Guarantors may convey, sell, transfer, assign
or otherwise dispose of assets to the Company or any of its Subsidiary
Guarantors; and
47
(v) the Company and each of its Subsidiaries may surrender or waive
contract rights or settle, release or surrender contract, tort or other
claims of any kind or grant Liens not prohibited by this Indenture.
All Net Cash Proceeds from an Event of Loss (other than the proceeds of any
business interruption insurance) shall be invested, or used to repurchase (a)
Indebtedness secured by the items so subject to such Event of Loss or (b) Notes
and on a pro rata basis with the Notes other Indebtedness ranking on a parity
with the Notes, all within the period and as otherwise provided above in the
first paragraph of this Section 4.14.
In addition to the foregoing, the Company shall not, and shall not permit
any of its Subsidiaries to, directly or indirectly make any Asset Sale of any of
the Equity Interests of any Subsidiary of the Company except (i) pursuant to an
Asset Sale of all the Equity Interests of such Subsidiary or (ii) pursuant to an
Asset Sale of common stock with no preferences or special rights or privileges
and with no redemption or prepayment provisions, provided that after such sale,
the Company or its Subsidiaries own a majority of the voting and economic Equity
Interests of such Subsidiary.
Any Asset Sale Offer shall be made in compliance with all applicable laws,
rules, and regulations, including, if applicable, Regulation 14E of the Exchange
Act and the rules and regulations thereunder and all other applicable Federal
and state securities laws. To the extent that the provisions of any securities
laws or regulations conflict with the provisions of this Section 4.14,
compliance by the Company or any of its subsidiaries with such laws and
regulations shall not in and of itself cause a breach of its obligations under
this Section 4.14.
If the payment date in connection with an Asset Sale Offer hereunder is on
or after an interest payment Record Date and on or before the associated
Interest Payment Date, any accrued and unpaid interest (and Liquidated Damages,
if any) shall be paid to the person in whose name a Note is registered at the
close of business on such Record Date, and such interest (and Liquidated
Damages, if applicable) shall not be payable to Holders who tender Notes
pursuant to such Asset Sale Offer.
SECTION 4.15. Waiver of Stay, Extension or Usury Laws.
Each of the Company and the Guarantors covenants (to the extent that it may
lawfully do so) that it shall not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law which would prohibit or forgive the
Company or any Guarantor from paying all or any portion of the principal of,
premium of, or interest (or Liquidated Damages, if any) 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) each of the Company and the Guarantors hereby
expressly waives all benefit or advantage of any such law, and covenants
48
that it shall not hinder, delay or impede the execution of any power herein
granted to the Trustee, but shall suffer and permit the execution of every such
power as though no such law had been enacted.
SECTION 4.16. Limitation on Liens Securing Indebtedness.
The Company and the Guarantors shall not, and shall not permit any of their
Subsidiaries to, create, incur, assume or suffer to exist any Lien of any kind,
other than Permitted Liens, upon any of their respective assets now owned or
hereafter acquired on or after the Issue Date of this Indenture or upon any
income or profits therefrom securing any Indebtedness of the Company or any
Guarantor, provided that only with respect to other senior Indebtedness of the
Company (which may also be guaranteed by the Guarantors) ranking on a parity
with the Notes (and the guarantees, as applicable), the Company provides, and
causes its Subsidiaries to provide, concurrently therewith, that the Notes are
equally and ratably so secured.
SECTION 4.17. Rule 144A Information Requirement.
The Company shall furnish to the Holders of the Securities and prospective
purchasers of Securities designated by the Holders of Transfer Restricted
Securities, upon their request, the information required to be delivered
pursuant to Rule 144A(d)(4) under the Securities Act until such time as either
the Company has concluded an offer to exchange the Exchange Notes for the
Initial Notes or a registration statement relating to resales of the Securities
has become effective under the Securities Act. The Company shall also furnish
such information during the pendency of any suspension of effectiveness of such
resale registration statement.
SECTION 4.18. Limitations on Lines of Business.
Neither the Company nor any of its Subsidiaries shall directly or
indirectly engage to any substantial extent in any line or lines of business
activity other than that which, in the reasonable good faith judgment of the
Board of Directors of the Company, is a Related Business.
ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.1. Limitation on Merger, Sale or Consolidation.
The Company shall not consolidate with or merge with or into another person
or, directly or indirectly, sell, lease, convey or transfer all or substantially
all of its assets (computed on a consolidated basis), whether in a single
transaction or a series of related transactions, to another Person or group of
affiliated Persons or adopt a plan of liquidation, unless (i) either (a) the
Company is the continuing entity or (b) the resulting, surviving or transferee
entity or, in the case of a plan of liquidation, the entity which receives the
greatest value from such plan of liquidation is a corporation
49
organized under the laws of the United States, any state thereof or the District
of Columbia and expressly assumes by supplemental indenture all of the
obligations of the Company in connection with the Notes and this Indenture; (ii)
no Default or Event of Default shall exist or shall occur immediately after
giving effect on a pro forma basis to such transaction; and (iii) (unless such
transaction is solely the merger of the Company and one of its previously
existing Wholly-owned Subsidiaries which is also a Guarantor and such
transaction is not in connection with any other transaction) immediately after
giving effect to such transaction on a pro forma basis, the consolidated
resulting, surviving or transferee entity or, in the case of a plan of
liquidation, the entity which receives the greatest value from such plan of
liquidation would immediately thereafter be permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Debt Incurrence Ratio set forth in
Section 4.11.
Upon any consolidation or merger or any transfer of all or substantially
all of the assets of the Company or consummation of a plan of liquidation in
accordance with the foregoing, the successor corporation formed by such
consolidation or into which the Company is merged or to which such transfer is
made or, in the case of a plan of liquidation, the entity which receives the
greatest value from such plan of liquidation shall succeed to (except in the
case of a lease), 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
corporation had been named therein as the Company, and (except in the case of a
lease) the Company shall be released from the obligations under the Notes and
this Indenture except with respect to any obligations that arise from, or are
related to, such transaction.
For purposes of the foregoing, the transfer (by lease, assignment, sale or
otherwise) of all or substantially all of the properties and assets of one or
more Subsidiaries, the Company's interest in 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 5.2. Successor Corporation Substituted.
Upon any consolidation or merger or any transfer of all or substantially
all of the assets of the Company or consummation of a plan of liquidation in
accordance with Section 5.1 the successor corporation formed by such
consolidation or into which the Company is merged or to which such transfer is
made or, in the case of a plan of liquidation, the entity which receives the
greatest value from such plan of liquidation shall succeed to, and (except in
the case of a lease) be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such successor
corporation had been named therein as the Company, and (except in the case of a
lease) the Company shall be released from the obligations under the Notes and
this Indenture except with respect to any obligations that arise from, or are
related to, such transaction.
50
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES
SECTION 6.1. Events of Default.
"Event of Default," wherever used herein, means any one of the following
events (whatever the reason for such Event of Default and whether it shall be
caused voluntarily or involuntarily or effected, without limitation, by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(i) failure by the Company to pay any installment of interest (or
Liquidated Damages, if any) on the Notes as and when the same becomes due
and payable, and the continuance of any such failure for a period of 30
days;
(ii) failure by the Company to pay all or any part of the principal,
or premium, if any, on the Notes when and as the same becomes due and
payable at maturity, upon redemption, by acceleration, or otherwise,
including, without limitation, payment of the Change of Control Purchase
Price or the Asset Sale Offer Price, or otherwise;
(iii) failure by the Company or any Subsidiary of the Company to
observe or perform any other covenant or agreement contained in the Notes
or this Indenture and, the continuance of such failure for a period of 30
days after written notice is given to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Notes outstanding, specifying such Default;
(iv) a decree, judgment, or order by a court of competent jurisdiction
shall have been entered adjudicating the Company or any of its Significant
Subsidiaries as bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization of the Company or any of its Significant
Subsidiaries under any bankruptcy or similar law, and such decree or order
shall have continued undischarged and unstayed for a period of 60 days; or
a decree, judgment or order of a court of competent jurisdiction appointing
a receiver, liquidator, trustee, or assignee in bankruptcy or insolvency
for the Company, any of its Significant Subsidiaries, or any substantial
part of the property of any such Person, or for the winding up or
liquidation of the affairs of any such Person, shall have been entered, and
such decree, judgment, or order shall have remained in force undischarged
and unstayed for a period of 60 days;
(v) the Company or any of its Significant Subsidiaries shall institute
proceedings to be adjudicated a voluntary bankrupt, or shall consent to the
filing of a bankruptcy proceeding against it, or shall file a petition or
answer or consent seeking reorganization under any bankruptcy or similar
law or similar statute, or shall consent to the filing of any such
petition, or shall consent to the appointment of a Custodian, receiver,
51
liquidator, trustee, or assignee in bankruptcy or insolvency of it or any
substantial part of its assets or property, or shall make a general
assignment for the benefit of creditors, or shall admit in writing its
inability to pay its debts generally as they become due, fail generally to
pay its debts as they become due, or take any corporate action in
furtherance of any of the foregoing;
(vi) a default in any issue of Indebtedness of the Company or any of
its Subsidiaries with an aggregate principal amount in excess of $10.0
million (a) resulting from the failure to pay principal or interest when
due or (b) as a result of which the maturity of such Indebtedness has been
accelerated prior to its stated maturity; and
(vii) final unsatisfied judgments not covered by insurance for the
payment of money, or the issuance of any warrant of attachment against any
portion of the property or assets of the Company or any of its
Subsidiaries, aggregating in excess of $10.0 million, at any one time shall
be rendered against the Company or any of its Subsidiaries and not be
stayed, bonded or discharged for a period (during which execution shall not
be effectively stayed) of 60 days.
If a Default occurs and is continuing, the Trustee must, within 90 days
after the occurrence of such default, give to the Holders notice of such
default.
SECTION 6.2. Acceleration of Maturity Date; Rescission and Annulment.
If an Event of Default occurs and is continuing (other than an Event of
Default specified in Section 6.1 (iv) or section 6.1 (v) above relating to the
Company or any of its Significant Subsidiaries), then in every such case, unless
the principal of all of the Notes shall have already become due and payable,
either the Trustee or the Holders of at least 25% in aggregate principal amount
of the Notes then outstanding, by notice in writing to the Company (and to the
Trustee if given by Holders) (an "Acceleration Notice"), may declare all
principal, determined as set forth below, and accrued interest (and Liquidated
Damages, if any) thereon to be due and payable immediately. If an Event of
Default specified in Section 6.1 (iv) or Section 6.1 (v) above, relating to the
Company or any of its Significant Subsidiaries occurs, all principal and accrued
interest (and Liquidated Damages, if any) thereon shall be immediately due and
payable on all outstanding Notes without any declaration or other act on the
part of Trustee or the Holders.
At any time after such a declaration of acceleration being made and before
a judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter provided in this Article VI, the Holders of not less than
a majority in aggregate principal amount of then outstanding Notes, by written
notice to the Company and the Trustee, may rescind, on behalf of all Holders,
any such declaration of acceleration if:
(1) the Company has paid or deposited with the Trustee cash sufficient
to pay:
52
(A) all overdue interest and Liquidated Damages, if any, on all
Notes,
(B) the principal of (and premium, if any, applicable to) any
Notes which would become due other than by reason of such declaration
of acceleration, and interest thereon at the rate borne by the Notes,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate borne by the Notes,
(D) all sums paid or advanced by the Trustee hereunder and the
compensation, expenses, disbursements and advances of the Trustee and
its agents and counsel, and all other amounts due the Trustee under
Section 7.7 and
(2) all Events of Default, other than the non-payment of the principal
of, premium, if any, and interest on Notes which have become due solely by
such declaration of acceleration, have been cured or waived as provided in
Section 6.12.
Notwithstanding the previous sentence of this Section 6.2, no waiver shall be
effective against any Holder for any Event of Default or event which with notice
or lapse of time or both would be an Event of Default with respect to (i) any
covenant or provision which cannot be modified or amended without the consent of
the Holder of each outstanding Note affected thereby, unless all such affected
Holders agree, in writing, to waive such Event of Default or other event and
(ii) any provision requiring supermajority approval to amend, unless such
default has been waived by such a supermajority. No such waiver shall cure or
waive any subsequent default or impair any right consequent thereon.
SECTION 6.3. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if an Event of Default in payment of principal,
premium or interest specified in clause (i) or (ii) of Section 6.1 hereof occurs
and is continuing, the Company shall, upon demand of the Trustee, pay to it, for
the benefit of the Holders of such Notes, the whole amount then due and payable
on such Notes for principal, premium (if any), and interest (and Liquidated
Damages, if any), and, to the extent that payment of such interest shall be
legally enforceable, interest on any overdue principal (and premium, if any),
and on any overdue interest (and Liquidated Damages, if any), at the rate borne
by the Notes, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including compensation
to, and expenses, disbursements and advances of the Trustee and its agents and
counsel and all other amounts due the Trustee under Section 7.7.
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If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust in favor of the
Holders, may institute a judicial proceeding for the collection of the sums so
due and unpaid, may prosecute such proceeding to judgment or final decree and
may enforce the same against the Company or any other obligor upon the Notes and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon the Notes,
wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effective to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 6.4. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the Notes
or the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the Notes shall then be due
and payable as therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand on the Company for the payment
of overdue principal, premium, if any (and Liquidated Damages, if any), or
interest) shall be entitled and empowered, by intervention in such proceeding or
otherwise to take any and all actions under the TIA, including
(1) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest (and Liquidated Damages, if any) owing and
unpaid in respect of the Notes and to file such other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee and its agent and counsel and all
other amounts due the Trustee under Section 7.7) and of the Holders allowed
in such judicial proceeding, and
(2) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee and its agents and counsel, and any
other amounts due the Trustee under Section 7.7 hereof.
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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 6.5. Trustee May Enforce Claims Without Possession of Notes.
All rights of action and claims under this Indenture or the Notes may be
prosecuted and enforced by the Trustee without the possession of any of the
Notes or the production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name as trustee
of an express trust in favor of the Holders, and any recovery of judgment shall,
after provision for the payment of compensation to, and expenses, disbursements
and advances of the Trustee and its agents and counsel and all other amounts due
the Trustee under Section 7.7, be for the ratable benefit of the Holders of the
Notes in respect of which such judgment has been recovered.
SECTION 6.6. Priorities.
Any money collected by the Trustee pursuant to this Article VI shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal, premium (if
any), or interest (or Liquidated Damages, if any), upon presentation of the
Notes and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the Trustee in payment of all amounts due pursuant to Section 7.7
hereof;
SECOND: To the Holders in payment of the amounts then due and unpaid for
principal of, premium (if any), and interest (and Liquidated Damages, if any)
on, the Notes in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Notes for principal, premium (if any),
and interest (and Liquidated Damages, if any), respectively; and
THIRD: To the Company, the Subsidiary Guarantors or such other Person as
may be lawfully entitled thereto, the remainder, if any, each as their
respective interests may appear.
The Trustee may, but shall not be obligated to, fix a record date and
payment date for any payment to the Holders under this Section 6.6.
SECTION 6.7. Limitation on Suits.
No Holder of any Note shall have any right to order or direct the Trustee
to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
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(A) such Holder has previously given written notice to the Trustee of
a continuing Event of Default;
(B) the Holders of not less than 25% in aggregate principal amount of
then outstanding Notes shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
(C) such Holder or Holders have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities to be
incurred or reasonably probable to be incurred in compliance with such
request;
(D) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(E) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
aggregate principal amount of the outstanding Notes;
it being understood and intended that no one or more Holders shall have any
right in any manner whatsoever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 6.8. Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision of this Indenture, the Holder of any
Note shall have the right, which is absolute and unconditional, to receive
payment of the principal of, and premium (if any), and interest (and Liquidated
Damages, if any) on, such Note on the Maturity Dates of such payments as
expressed in such Note (in the case of redemption, the Redemption Price on the
applicable Redemption Date, in the case of a Change of Control, the Change of
Control Purchase Price on the Change of Control Purchase Date, and in the case
of an Asset Sale, the Asset Sale Offer Price on the relevant purchase date) and
to institute suit for the enforcement of any such payment after such respective
dates, and such rights shall not be impaired without the consent of such Holder.
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SECTION 6.9. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Notes in Section 2.7 hereof, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 6.10. Delay or Omission Not Waiver.
No delay or omission by the Trustee or by any Holder of any Note to
exercise any right or remedy arising upon any Event of Default shall impair the
exercise of any such right or remedy or constitute a waiver of any such Event of
Default. Every right and remedy given by this Article VI or by law to the
Trustee or to the Holders may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 6.11. Control by Holders.
Subject to all provisions of this Indenture and applicable law, the Holders
of a majority in aggregate principal amount of the Notes at the time outstanding
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee, provided, that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee shall not determine that the action so directed would
be unjustly prejudicial to the Holders not taking part in such direction,
and
(3) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 6.12. Waiver of Existing or Past Default.
Subject to Section 6.8, the Holder or Holders of not less than a majority
in aggregate principal amount of the outstanding Notes may, on behalf of all
Holders, waive any existing or past Default or Event of Default hereunder and
its consequences under this Indenture, except a default
(A) in the payment of the principal of, premium, if any, or interest
(or Liquidated Damages, if any) on, any Note as specified in clauses (i)
and (ii) of Section 6.1 hereof and not yet cured, or
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(B) in respect of a covenant or provision hereof which, under Article
IX, cannot be modified or amended without the consent of the Holder of each
outstanding Note affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair the exercise of any right arising therefrom.
SECTION 6.13. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Note by his
acceptance thereof shall be deemed to have agreed, that 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, suffered or omitted to be taken by it as
Trustee, any court may in its discretion require the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section 6.13 shall not apply to any
suit instituted by the Company, to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in aggregate principal amount of the outstanding Notes, or to any
suit instituted by any Holder for enforcement of the payment of principal of, or
premium (if any), or interest (or Liquidated Damages, if any) on, any Note on or
after the respective Maturity Date expressed in such Note (including, in the
case of redemption, on or after the Redemption Date).
SECTION 6.14. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every case, subject to any determination in such
proceeding, the Company, the Subsidiary Guarantors, the Trustee and the Holders
shall be restored severally and respectively to their former positions hereunder
and thereafter all rights and remedies of the Trustee and the Holders shall
continue as though no such proceeding had been instituted.
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ARTICLE VII
TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this Indenture and
covenants and agrees to perform the same, as herein expressed, subject to the
terms hereof.
SECTION 7.1. Duties of Trustee.
(a) If a Default or an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested
in it by this Indenture and use the same degree of care and skill in their
exercise as a prudent Person would exercise or use under the circumstances
in the conduct of his or her 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 others, and no
covenants or obligations shall be implied in or read into this
Indenture which are adverse to the Trustee, and
(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, in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall examine the certificates
and opinions to determine whether or not they conform to the
requirements of this Indenture.
(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 7.1,
(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, and
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.11 hereof.
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(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 to take or omit to take any
action under this Indenture or at the request, order or direction of the
Holders or in the exercise of any of its rights or powers if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c), (d) and (f) of this Section
7.1.
(f) The Trustee shall not be liable for interest on any assets
received by it except as the Trustee may agree in writing with the Company
(including without limitation to the extent the Trustee receives funds
prior to the interest payment date in order to comply with the provisions
of Section 4.1). Assets held in trust by the Trustee need not be segregated
from other assets except to the extent required by law.
SECTION 7.2. Rights of Trustee.
Subject to Section 7.1 hereof:
(a) The Trustee may conclusively rely on 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 such 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 13.4 and 13.5 hereof. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
such certificate or advice of counsel.
(c) The Trustee may act through its attorneys and agents and shall not
be responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it or its agent
takes or omits to take in good faith which it believes to be authorized or
within its rights or powers conferred upon it by this Indenture.
(e) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, 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.
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(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
therein or thereby.
(g) Unless otherwise specifically provided for in this Indenture, any
demand, request, direction or notice from the Company or any Subsidiary
Guarantor shall be sufficient if signed by an Officer of the Company or such
Subsidiary Guarantor, as applicable.
(h) The Trustee shall have no duty to inquire as to the performance of
the Company's or any Subsidiary Guarantor's covenants in Article IV hereof or as
to the performance by any Agent of its duties hereunder. In addition, the
Trustee shall not be deemed to have knowledge of any Default or Event of Default
except (i) any Event of Default occurring pursuant to Sections 6.1(i), 6.1(ii)
and 4.1 hereof, or (ii) any Default or Event of Default of which the Trustee
shall have received written notification or obtained actual knowledge.
(i) Whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate.
(j) The Trustee may conclusively rely on, and will be protected in
relying on, instructions from the Holder of the Global Note or DTC for all
purposes.
(k) The Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon.
SECTION 7.3. 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
Guarantor, any of their Subsidiaries, 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
hereof.
SECTION 7.4. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of this
Indenture or the Notes and it shall not be accountable for the Company's use of
the proceeds from the Notes, and it shall not be responsible for any statement
in the Notes, other than the Trustee's certificate of
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authentication, or the use or application of any funds received by a Paying
Agent other than the Trustee.
SECTION 7.5. Notice of Default.
If 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 Event
of Default within 90 days after such Event of Default occurs. Except in the case
of an Event of Default in payment of principal (or premium, if any), of, or
interest (or Liquidated Damages, if any) on, any Note (including the payment of
the Change of Control Purchase Price on the Change of Control Payment Date, the
payment of the Redemption Price on the Redemption Date and the payment of the
Asset Sale Offer Price on the relevant purchase date), the Trustee may withhold
the notice if and so long as a Trust Officer in good faith determines that
withholding the notice is in the interest of the Noteholders.
SECTION 7.6. 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, if required by law, mail to each
Noteholder a brief report dated as of such May 15 that complies with TIA
ss.313(a). The Trustee also shall comply with TIA ss.313(b) and 313(c).
The Company shall promptly notify the Trustee in writing if the Notes
become listed on any stock exchange or automatic quotation system.
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.
SECTION 7.7. Compensation and Indemnity.
The Company and the Subsidiary Guarantors jointly and severally agree to
pay to the Trustee from time to time such compensation as the Company and the
Trustee shall from time to time agree 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 and the Subsidiary Guarantors shall reimburse the
Trustee upon request for all reasonable disbursements, expenses and advances
incurred or made by it in accordance with this Indenture. Such expenses shall
include the reasonable compensation, disbursements and expenses of the Trustee's
agents, accountants, experts and counsel.
The Company and the Subsidiary Guarantors jointly and severally agree to
indemnify each of the Trustee (in its capacity as Trustee) and any predecessor
trustee and each of its officers, directors, attorneys-in-fact and agents for,
and hold it harmless against, any claim, demand, damage, expense (including but
not limited to reasonable compensation, disbursements and expenses of the
Trustee's agents and counsel), loss or liability incurred by it without
negligence or bad faith on the part of the Trustee, arising out of or in
connection with the acceptance or administration of this trust
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and its rights or duties hereunder, including the reasonable costs and expenses
of defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The Trustee
shall notify the Company promptly of any claim asserted against the Trustee for
which it may seek indemnity. The Company and the Subsidiary Guarantors shall
defend the claim and the Trustee shall provide reasonable cooperation at the
Company's and the Subsidiary Guarantors' expense in the defense. The Trustee may
have separate counsel and the Company and the Subsidiary Guarantors shall pay
the reasonable fees and expenses of such counsel; provided, that the Company and
the Subsidiary Guarantors will not be required to pay such fees and expenses if
they assume the Trustee's defense and there is no conflict of interest between
the Company and the Subsidiary Guarantors and the Trustee in connection with
such defense. The Company and the Subsidiary Guarantors need not pay for any
settlement made without their written consent. The Company and the Subsidiary
Guarantors 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 and the Subsidiary Guarantors' payment obligations
in this Section 7.7, the Trustee shall have a lien prior to the Notes on all
assets held or collected by the Trustee, in its capacity as Trustee, except
assets held in trust to pay principal and premium, if any, of or interest on
particular Notes.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1(iv) or (v) of this Indenture occurs, the
expenses and the compensation for the services are intended to constitute
expenses of administration under any Bankruptcy Law.
The Company's and the Subsidiary Guarantors' obligations under this Section
7.7 and any lien arising hereunder shall survive the resignation or removal of
the Trustee, the discharge of the Company's and the Subsidiary Guarantors'
obligations pursuant to Article VIII of this Indenture and any rejection or
termination of this Indenture under any Bankruptcy Law.
SECTION 7.8. Replacement of Trustee.
The Trustee may resign by so notifying the Company in writing. The Holder
or Holders of a majority in aggregate principal amount of the outstanding Notes
may remove the Trustee by so notifying the Company and the Trustee in writing
and may appoint a successor trustee with the Company's consent. The Company may
remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged bankrupt or insolvent;
(c) a receiver, custodian or other public officer takes charge of the
Trustee or its property;
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(d) the Trustee becomes incapable of acting; or
(e) in the absence of a Default or an Event of Default, the Company
elects to remove the Trustee, in its discretion and without the requirement of a
reason or cause.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holder or
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 and provided
that all sums owing to the retiring Trustee provided for in Section 7.7 hereof
have been paid, the retiring Trustee shall transfer all property held by it as
trustee to the successor Trustee, subject to the lien provided in Section 7.7
hereof, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights, powers and
duties of the Trustee under this Indenture. A successor Trustee shall mail
notice of its succession to each Holder.
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
Holder or 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 hereof, any Noteholder 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 7.8,
the Company's and the Subsidiary Guarantors' obligations under Section 7.7
hereof shall continue for the benefit of the retiring Trustee.
SECTION 7.9. 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.
The Trustee shall at all times satisfy the requirements of TIA
ss.310(a)(1), (2) and (5). The Trustee shall have a combined capital and surplus
of at least $25 million as set forth in its most recent published annual report
of condition. The Trustee shall comply with TIA ss.310(b).
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SECTION 7.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA ss.311(a), excluding any creditor
relationship listed in TIA ss.311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss.311(a) to the extent indicated.
ARTICLE VIII
DISCHARGE; LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.1. Discharge; Option to Effect Legal Defeasance or Covenant
Defeasance.
This Indenture shall cease to be of further effect (except that the
Company's and the Subsidiary Guarantors' obligations under Section 7.7 and the
Trustee's and the Paying Agent's obligations under Sections 8.6 and 8.7 shall
survive) when all outstanding Notes theretofore authenticated and issued have
been delivered (other than destroyed, lost or stolen Notes that have been
replaced or paid) to the Trustee for cancellation and the Company or the
Subsidiary Guarantors have paid all sums payable hereunder. In addition, the
Company may elect at any time to have Section 8.2 or Section 8.3, at the
Company's option, of this Indenture applied to all outstanding Notes upon
compliance with the conditions set forth below in this Article VIII.
SECTION 8.2. Legal Defeasance and Discharge.
The Company may, at its option and at any time within one year of the
Stated Maturity of the Notes, elect to have its obligations and the obligations
of the Guarantors discharged with respect to the outstanding Notes ("Legal
Defeasance"). Such Legal Defeasance means that the Company shall be deemed to
have paid and discharged the entire indebtedness represented, and this Indenture
shall cease to be of further effect as to all outstanding Notes and Guarantees,
except as to (i) rights of Holders of outstanding Notes to receive payments in
respect of the principal of, premium, if any, and interest (and Liquidated
Damages, if any) on such Notes when such payments are due from the trust
described in Section 8.5; (ii) the Company's obligations with respect to such
Notes concerning issuing temporary Notes, registration of Notes, mutilated,
destroyed, lost or stolen Notes, and the maintenance of an office or agency for
payment and money for security payments held in trust; (iii) the rights, powers,
trust, duties, and immunities of the Trustee, and the Company's obligations in
connection therewith; and (iv) the Legal Defeasance provisions of this
Indenture. Subject to compliance with this Article VIII, the Company may
exercise its option under this Section 8.2 notwithstanding the prior exercise of
its option under Section 8.3 hereof with respect to the Notes.
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SECTION 8.3. Covenant Defeasance.
In addition, the Company may, at its option and at any time, elect to have
the obligations of the Company and the Guarantors released from their respective
obligations under the covenants contained in Sections 4.3, 4.6, 4.7, 4.8, 4.10,
4.11, 4.12, 4.14, 4.15, 4.16, 4.17, and 4.18, Article V and Article X hereof
with respect to the outstanding Notes on or after the date of the conditions set
forth below are satisfied ("Covenant Defeasance"), and the Notes shall
thereafter be deemed not "outstanding" for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
"outstanding" for all other purposes hereunder. For this purpose, such Covenant
Defeasance means that, with respect to the outstanding Notes, neither the
Company nor any Subsidiary Guarantor need comply with and shall have any
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document, but, except as specified
above, the remainder of this Indenture and such Notes shall be unaffected
thereby. In addition, upon the Company's exercise under Section 8.1 hereof of
the option applicable to this Section 8.3, Sections 6.1(iii) through 6.1(vi)
hereof shall not constitute Events of Default with respect to the Notes.
SECTION 8.4. Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either Section
8.2 or 8.3 hereof to the outstanding Notes:
(a) (i) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of
Section 7.10 hereof who shall agree to comply with the provisions of this
Article VIII applicable to it), in trust, for the benefit of the Holders of the
Notes, cash, U.S. Government Obligations, or a combination thereof, in such
amounts as will be sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay the principal of, premium, if any, and
interest (and Liquidated Damages, if any) on such outstanding Notes on the
stated date for payment thereof or on the redemption date of such principal or
installment date of principal of, premium, if any, or interest on such Notes,
and the holders of Notes must have a valid, perfected, exclusive security
interest in such trust, (ii) in the case of Legal Defeasance before the date
that is one year prior to the Stated Maturity, the Company shall have delivered
to the Trustee an opinion of counsel in the United States reasonably acceptable
to the trustee confirming that (A) the Company has received from, or there has
been published by, the Internal Revenue Service a ruling or (B) since the date
of this Indenture, there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such opinion of
counsel shall confirm that, the Holders of such outstanding Notes will not
recognize income, gain or loss for Federal income tax purposes as a result of
such Legal Defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such Legal Defeasance had not occurred; (iii) in the case of Covenant Defeasance
before the date that is one year prior to the Stated Maturity, the Company shall
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have delivered to the Trustee an opinion of counsel in the United States
reasonably acceptable to such Trustee confirming that the Holders of such
outstanding Notes will not recognize income, gain or loss for Federal income tax
purposes as a result of such Covenant Defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such Covenant Defeasance had not occurred; (iv) no
Default or Event of Default shall have occurred and be continuing on the date of
such deposit; (v) such Legal Defeasance or Covenant Defeasance will not result
in a breach or violation of, or constitute a default under any material
agreement or instrument to which the Company or any of its Subsidiaries is a
party or by which the Company or any of its Subsidiaries is bound; (vi) the
Company shall have delivered to the Trustee an Officers' Certificate stating
that the deposit was not made by the Company with the intent of preferring the
Holders of such Notes over the other creditors of the Company with the intent of
defeating, hindering, delaying or defrauding other creditors of the Company; and
(vii) the Company shall have delivered to the Trustee an Officers' Certificate
and an opinion of counsel, each stating that the conditions precedent provided
for in, in the case of the Officers' Certificate, (i) through (vi) and, in the
case of the opinion of counsel, clauses (i), (with respect to the validity and
perfection of the security interest) (ii), (iii) and (v) of this paragraph, have
been complied with.
SECTION 8.5. Deposited Cash and U.S. Government Obligations to be Held in
Trust; Other Miscellaneous Provisions.
Subject to Section 8.6 hereof, all cash and U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this Section 8.5, the "Paying Agent")
pursuant to Section 8.4 hereof in respect of the outstanding Notes shall be held
in trust and applied by the Paying Agent, in accordance with the provisions of
such Notes and this Indenture, to the payment, either directly or through any
other Paying Agent as the Trustee may determine, to the Holders of such Notes of
all sums due and to become due thereon in respect of principal, premium, if any,
and interest (and Liquidated Damages, if any), but such money need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 8.4 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of Outstanding Notes.
SECTION 8.6. Repayment to the Company.
(a) Anything in this Article VIII to the contrary notwithstanding, the
Trustee or the Paying Agent shall deliver or pay to the Company from time to
time upon the request of the Company any cash or U.S. Government Obligations
held by it as provided in Section 8.4 hereof which in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee (which may be the opinion
delivered under Section 8.4 hereof), are in excess of the amount thereof that
would then be required to be deposited to effect an equivalent Legal Defeasance
or Covenant Defeasance.
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(b) Any cash and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of, premium, if any, or
interest (and Liquidated Damages, if any) on any Note and remaining unclaimed
for two years after such principal, and premium, if any, or interest has become
due and payable shall be paid to the Company on its written request; and the
Holder of such Note shall thereafter look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent with respect to
such trust money shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in the New York Times and The
Wall Street Journal (national edition), notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such notification or publication, any unclaimed balance of such
money then remaining will be repaid to the Company.
SECTION 8.7. Reinstatement.
If the Trustee or Paying Agent is unable to apply any cash or U.S.
Government Obligations in accordance with Section 8.2 or 8.3 hereof, as the case
may be, of this Indenture by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's and the Subsidiary Guarantors' obligations under
this Indenture and the Notes shall be revived and reinstated as though no
deposit had occurred pursuant to Section 8.2 or 8.3 hereof until such time as
the Trustee or Paying Agent is permitted to apply such money in accordance with
Sections 8.2 and 8.3 hereof, as the case may be; provided, however, that, if the
Company makes any payment of principal of, premium, if any, or interest (and
Liquidated Damages, if any) on any Note following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the cash or U.S. Government Obligations
held by the Trustee or Paying Agent.
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holder, the Company or any Subsidiary Guarantor,
when authorized by Board Resolutions, and the Trustee, at any time and from time
to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to cure any ambiguity, defect, or inconsistency, or make any other
provisions with respect to matters or questions arising under this
Indenture which shall not be inconsistent with the provisions of this
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Indenture, provided such action pursuant to this clause (1) shall not
adversely affect the interests of any Holder in any respect;
(2) to add to the covenants of the Company or the Subsidiary
Guarantors for the benefit of the Holders, or to surrender any right or
power herein conferred upon the Company or the Subsidiary Guarantors or
make any other change that does not adversely affect the rights of any
Holder;
(3) to provide for collateral for or additional Subsidiary Guarantors
of the Notes;
(4) to evidence the succession of another Person to the Company, and
the assumption by any such successor of the obligations of the Company,
herein and in the Notes in accordance with Article V;
(5) to comply with the TIA;
(6) to evidence the succession of another corporation to any
Subsidiary Guarantor and assumption by any such successor of the Guarantee
of such Subsidiary Guarantor (as set forth in Section 11.4) in accordance
with Article XI;
(7) to evidence the release of any Subsidiary Guarantor in accordance
with Article XI;
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Notes;
(9) in any other case where a supplemental indenture is required or
permitted to be entered into pursuant to the provisions of this Indenture
without the consent of any Holder;
(10) to provide for the issuance and authorization of the Exchange
Notes; or
(11) to provide for the issuance and authorization of any Additional
Notes.
SECTION 9.2. Amendments, Supplemental Indentures and Waivers with Consent
of Holders.
Subject to Section 6.8 hereof, with the consent of the Holders of at least
a majority in aggregate principal amount of the Notes then outstanding
(including consents obtained in
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connection with a tender offer or exchange offer for such Notes), by written act
of said Holders delivered to the Company and the Trustee, the Company or any
Subsidiary Guarantor, when authorized by Board Resolutions, and the Trustee may
amend or supplement this Indenture or the Notes or enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
the Notes or of modifying in any manner the rights of the Holders under this
Indenture or the Notes; provided that no such modification may, without the
consent of holders of at least 66 2/3% in aggregate principal amount of Notes at
the time outstanding, modify the provisions (including the defined terms
therein) of Article X or Article XI of this Indenture in a manner adverse to the
holders. Subject to Section 6.8, the Holder or Holders of not less than a
majority in aggregate principal amount of then outstanding Notes may waive
compliance by the Company or any Subsidiary Guarantor with any provision of this
Indenture or the Notes. Notwithstanding any of the above, however, no such
amendment, supplemental indenture or waiver shall, without the consent of the
Holder of each outstanding Note affected thereby:
(1) change the Maturity Date on any Note, or reduce the principal
amount thereof or the rate (or extend the time for payment) of interest
thereon or any premium payable upon the redemption at the option of the
Company thereof, or change the place of payment where, or the coin or
currency in which, any Note or any premium or the interest thereon is
payable, or impair the right to institute suit for the enforcement of any
such payment on or after the Maturity Date thereof (or in the case of
redemption at the option of the Company, on or after the Redemption Date),
or reduce the Change of Control Purchase Price or the Asset Sale Offer
Price or alter the provisions (including the defined terms used herein) of
Article III of this Indenture or Paragraph 5 of the Notes regarding the
right of the Company to redeem the Notes at its option in a manner adverse
to the Holders; or
(2) reduce the percentage in principal amount of the outstanding
Notes, the consent of whose Holders is required for any such amendment,
supplemental indenture or wavier provided for in this Indenture; or
(3) modify any of the waiver provisions, except to increase any
required percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of
each outstanding Note affected thereby; or
(4) cause the Notes or any Guarantee to become subordinate in right of
payment to any other Indebtedness.
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It shall not be necessary for the consent of the Holders under this Section
9.2 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 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 or waiver.
After an amendment, supplement or waiver under this Section 9.2 or under
Section 9.4 hereof becomes effective, it shall bind each Holder.
In connection with any amendment, supplement or waiver under this Article
IX, the Company may, but shall not be obligated to, offer to any Holder who
consents to such amendment, supplement or waiver, or to all Holders,
consideration for such Holder's consent to such amendment, supplement or waiver.
SECTION 9.3. Compliance with TIA.
Every amendment, waiver or supplement of this Indenture or the Notes shall
comply with the TIA as then in effect.
SECTION 9.4. 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. However,
any such Holder or subsequent Holder may revoke the consent as to his Note or
portion of his Note by written notice to the Company or the Person designated by
the Company as the Person to whom consents should be sent if such revocation is
received by the Company or such Person before the date on which the Trustee
receives an Officers' Certificate certifying that the Holders of the requisite
principal amount of Notes have consented (and not theretofore revoked such
consent) to the amendment, supplement or waiver.
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 the date so fixed by the
Company notwithstanding the provisions of the TIA. 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, and only those Persons (or
their duly designated proxies), shall be entitled to revoke any consent
previously given, whether or not such Persons continue to be Holders after such
record date.
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After an amendment, supplement or waiver becomes effective, it shall bind
every Noteholder, unless it makes a change described in Section 9.2 hereof, 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 and premium of and interest (and Liquidated
Damages, if any) on a Note, on or after the respective dates set for such
amounts to become due and payable expressed in such Note, or to bring suit for
the enforcement of any such payment on or after such respective dates.
SECTION 9.5. 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 or
require the Holder to put an appropriate notation on the Note. 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. Any failure to make the appropriate
notation or to issue a new Note shall not affect the validity of such amendment,
supplement or waiver.
SECTION 9.6. Trustee to Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement or waiver authorized
pursuant to this Article IX; 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 stating that the execution of any amendment, supplement or
waiver authorized pursuant to this Article IX is authorized or permitted by this
Indenture.
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ARTICLE X
RIGHT TO REQUIRE REPURCHASE
SECTION 10.1. Repurchase of Notes at Option of the Holder Upon a Change of
Control.
(a) In the event that a Change of Control has occurred, each holder of
Notes shall have the right, at such holder's option, pursuant to an offer
(subject only to conditions required by applicable law, if any) by the Company
(the "Change of Control Offer"), to require the Company to repurchase all or any
part of such holder's Notes (provided, that the principal amount of such Notes
must be $1,000 or an integral multiple thereof) on a date (the "Change of
Control Purchase Date") that is no later than 45 Business Days after the
occurrence of such Change of Control, at a cash price equal to 101% of the
principal amount thereof (the "Change of Control Purchase Price"), together with
accrued and unpaid interest and Liquidated Damages, if any, to the Change of
Control Purchase Date.
(b) In the event that, pursuant to this Section 10.1, the Company
shall be required to commence a Change of Control Offer, the Company shall
follow the procedures set forth in this Section 10.1 as follows:
(i) the Change of Control Offer shall commence within 15 Business Days
following the occurrence of a Change of Control;
(ii) the Change of Control Offer shall remain open for at least 20
Business Days following its commencement (the "Change of Control Offer
Period");
(iii) upon the expiration of the Change of Control Offer Period, the
Company promptly shall purchase all of the tendered Notes at the Change of
Control Purchase Price;
(iv) if the Change of Control is on or after an interest payment
Record Date and on or before the associated Interest Payment Date, any
accrued and unpaid interest (and Liquidated Damages, if any, due on such
Interest Payment Date) will be paid to the Person in whose name a Note is
registered at the close of business on such Record Date, and such interest
(and Liquidated Damages, if applicable) will not be payable to Noteholders
who tender Notes pursuant to the Change of Control Offer;
(v) the Company shall provide the Trustee and the Paying Agent with
written notice of the Change of Control Offer at least three Business Days
before the commencement of any Change of Control Offer; and
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(vi) on or before the commencement of any Change of Control Offer, the
Company or the Trustee (upon the request and at the expense of the Company)
shall send, by first-class mail, a notice to each of the Noteholders, which
(to the extent consistent with this Indenture) shall govern the terms of
the Change of Control Offer and shall state:
(A) that the Change of Control Offer is being made pursuant to
this Section 10.1 and that all Notes, or portions thereof, tendered
will be accepted for payment;
(B) the Change of Control Purchase Price (including the amount of
accrued but unpaid interest (and Liquidated Damages, if any)) and the
Change of Control Purchase Date;
(C) that any Note, or portion thereof, not tendered or accepted
for payment will continue to accrue interest;
(D) that, unless the Company defaults in depositing cash with the
Paying Agent in accordance with the last paragraph of this Section
10.1, or such payment is prevented for any reason, any Note, or
portion thereof, accepted for payment pursuant to the Change of
Control Offer shall cease to accrue interest after the Change of
Control Purchase Date;
(E) that Holders electing to have a Note, or portion thereof,
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
(which may not for purposes of this Section 10.1, notwithstanding
anything in this Indenture to the contrary, be the Company or any
Affiliate of the Company) at the address specified in the notice prior
to the expiration of the Change of Control Offer;
(F) that Holders will be entitled to withdraw their election, in
whole or in part, if the Paying Agent receives, prior to the
expiration of the Change of Control Offer, a facsimile transmission or
letter setting forth the name of the Holder, the principal amount of
the Notes the Holder is withdrawing and a statement containing a
facsimile signature and stating that such Holder is withdrawing his
election to have such principal amount of Notes purchased;
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(G) that Holders whose Notes are purchased only in part will be
issued new Notes equal in principal amount to the unpurchased portion
of the Notes surrendered; and
(H) a brief description of the events resulting in such Change of
Control.
Any Change of Control Offer shall be made in compliance with all applicable
laws, rules and regulations, including, if applicable, Regulation 14E under the
Exchange Act and the rules thereunder and all other applicable Federal and state
securities laws and any provisions of this Indenture which conflict with such
laws shall be deemed to be superseded by the provisions of such laws.
On or before the Change of Control Purchase Date, the Company shall (i)
accept for payment Notes or portions thereof properly tendered pursuant to the
Change of Control Offer, (ii) deposit with the Paying Agent cash sufficient to
pay the Change of Control Purchase Price (together with accrued and unpaid
interest and Liquidated Damages, if any), of all Notes so tendered and (iii)
deliver to the Trustee Notes so accepted together with an Officers' Certificate
listing the Notes or portions thereof being purchased by the Company. The Paying
Agent promptly will pay the Holders of Notes so accepted an amount equal to the
Change of Control Purchase Price (together with accrued and unpaid interest and
Liquidated Damages, if any), and the Trustee promptly will authenticate and
deliver to such Holders a new Note equal in principal amount to any unpurchased
portion of the Note surrendered. Any Notes not so accepted will be delivered
promptly by the Company to the Holder thereof. The Company publicly will
announce the results of the Change of Control Offer on or as soon as practicable
after the Change of Control Purchase Date.
ARTICLE XI
GUARANTEE
SECTION 11.1. Guarantee.
(a) In consideration of good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, to the fullest extent permitted
by applicable law, each of the Subsidiary Guarantors hereby irrevocably and
unconditionally guarantees (the "Guarantee") to the Trustee and its successors
and assigns, irrespective of the validity and enforceability against the Company
and any other Subsidiary Guarantors of this Indenture, the Notes or the
obligations of the Company under this Indenture or the Notes, that: (x) the
principal of and premium (if any), and interest (and Liquidated Damages, if any)
on the Notes will be paid in full when due, whether at the Maturity Date or
Interest Payment Date, by acceleration, call for redemption, upon a Change of
Control, an Asset Sale Offer or otherwise; (y) all other obligations of the
Company to
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the Holders or the Trustee under this Indenture or the Notes will be promptly
paid in full or performed, all in accordance with the terms of this Indenture
and the Notes; and (z) in case of any extension of time of payment or renewal of
any Notes or any of such other obligations, they will be paid in full when due
or performed in accordance with the terms of the extension or renewal, whether
at maturity, by acceleration, call for redemption, upon a Change of Control, an
Asset Sale Offer or otherwise. Failing payment when due of any amount so
guaranteed for whatever reason, each Subsidiary Guarantor shall be obligated to
pay the same before failure so to pay becomes an Event of Default.
If the Company or a Subsidiary Guarantor defaults in the payment of the
principal of, premium, if any, or interest (or Liquidated Damages, if any) on,
the Notes when and as the same shall become due, whether upon maturity,
acceleration, call for redemption, upon a Change of Control Offer, upon an Asset
Sale Offer or otherwise, without the necessity of action by the Trustee or any
Holder, each Subsidiary Guarantor shall be required, jointly and severally, to
promptly make such payment in full.
(b) Each Subsidiary Guarantor hereby agrees to the fullest extent
permitted by applicable law, that its obligations with regard to this Guarantee
shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this Indenture, the absence of any action to
enforce the same, any delays in obtaining or realizing upon or failures to
obtain or realize upon collateral, the recovery of any judgment against the
Company, any action to enforce the same or any other circumstances that might
otherwise constitute a legal or equitable discharge or defense of a Subsidiary
Guarantor. Each Subsidiary Guarantor hereby waives to the fullest extent
permitted by applicable law diligence, presentment, demand of payment, filing of
claims with a court in the event of insolvency or bankruptcy of the Company, any
right to require a proceeding first against the Company or right to require the
prior disposition of the assets of the Company to meet its obligations, protest,
notice and all demands whatsoever and covenants that this Guarantee will not be
discharged except by complete performance of the obligations contained in the
Notes and this Indenture.
(c) If any Holder or the Trustee is required by any court or otherwise
to return to either the Company or any Subsidiary Guarantor, or any Custodian or
similar official acting in relation to either the Company or such Subsidiary
Guarantor, any amount paid by either the Company or such Subsidiary Guarantor to
the Trustee or such Holder, this Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect. Each Subsidiary
Guarantor agrees that it will not be entitled to any right of subrogation in
relation to the Holders in respect of any obligations guaranteed hereby until
payment in full of all obligations guaranteed hereby. Each Subsidiary Guarantor
further agrees that, as between such Subsidiary Guarantor, on the one hand, and
the Holders and the Trustee, on the other hand, (i) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Section 6.2
hereof for the purposes of this Guarantee, notwithstanding any stay, injunction
or other prohibition preventing such acceleration as to the Company of the
obligations guaranteed hereby, and (ii) in the event of any declaration of
acceleration of those obligations as provided in Section 6.2 hereof, those
obligations (whether or not due and
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payable) will forthwith become due and payable by each of the Subsidiary
Guarantors for the purpose of this Guarantee.
(d) It is the intention of each Subsidiary Guarantor and the Company
that the obligations of each Subsidiary Guarantor hereunder shall be in, but not
in excess of, the maximum amount permitted by applicable law. Accordingly, if
the obligations in respect of the Guarantee would be annulled, avoided or
subordinated to the creditors of any Subsidiary Guarantor by a court of
competent jurisdiction in a proceeding actually pending before such court as a
result of a determination both that such Guarantee was made by such Subsidiary
Guarantor without fair consideration and, immediately after giving effect
thereto, such Subsidiary Guarantor was insolvent or unable to pay its debts as
they mature or left with an unreasonably small capital, then the obligations of
such Subsidiary Guarantor under such Guarantee shall be reduced by such court if
and to the extent such reduction would result in the avoidance of such
annulment, avoidance or subordination; provided, however, that any reduction
pursuant to this paragraph shall be made in the smallest amount as is strictly
necessary to reach such result. For purposes of this paragraph, "fair
consideration", "insolvency", "unable to pay its debts as they mature",
"unreasonably small capital" and the effective times of reductions, if any,
required by this paragraph shall be determined in accordance with applicable
law.
SECTION 11.2. Execution and Delivery of Guarantee.
Each Subsidiary Guarantor shall, by virtue of such Subsidiary Guarantor's
execution and delivery of this Indenture or such Subsidiary Guarantor's
execution and delivery of an indenture supplement pursuant to Section 11.1
hereof, be deemed to have signed on each Note issued hereunder the notation of
guarantee set forth on the form of the Notes attached hereto as Exhibit A to the
same extent as if the signature of such Subsidiary Guarantor appeared on such
Note.
The delivery of any Note by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of the guarantee set forth in Section
11.1 on behalf of each Subsidiary Guarantor. The notation of a guarantee set
forth on any Note shall be null and void and of no further effect with respect
to the guarantee of any Subsidiary Guarantor which, pursuant to Section 11.4, is
released from such Guarantee.
SECTION 11.3. Certain Bankruptcy Events.
Each Subsidiary Guarantor hereby covenants and agrees, to the fullest
extent that it may do so under applicable law, that in the event of the
insolvency, bankruptcy, dissolution, liquidation or reorganization of the
Company, such Subsidiary Guarantor shall not file (or join in any filing of), or
otherwise seek to participate in the filing of, any motion or request seeking to
stay or to prohibit (even temporarily) execution on the Guarantee and hereby
waives and agrees not to take the benefit of any such stay of execution, whether
under Section 362 or 105 of the United States Bankruptcy Code or otherwise.
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SECTION 11.4. Limitation on Merger of Subsidiary Guarantors and Release of
Subsidiary Guarantors.
No Subsidiary Guarantor shall consolidate or merge with or into (whether or
not such Subsidiary Guarantor is the surviving person) another person unless (i)
subject to the provisions of the following paragraph and certain other
provisions of this Indenture, the person formed by or surviving any such
consolidation or merger (if other than such Subsidiary Guarantor) assumes all
the obligations of such Subsidiary Guarantor pursuant to a supplemental
indenture in form reasonably satisfactory to the Trustee, pursuant to which such
person shall unconditionally guarantee, on a senior basis, all of such
Subsidiary Guarantor's obligations under such Subsidiary Guarantor's guarantee
and this Indenture on the terms set forth in this Indenture, and (ii)
immediately before and immediately after giving effect to such transaction on a
pro forma basis, no Default or Event of Default shall have occurred or be
continuing.
Upon the sale or disposition (whether by merger, stock purchase, asset sale
or otherwise) of a Subsidiary Guarantor or all of its assets to an entity which
is not a Subsidiary Guarantor or the designation of a Subsidiary to become an
Unrestricted Subsidiary, which transaction is otherwise in compliance with this
Indenture (including, without limitation, the provisions of Section 4.11), such
Subsidiary Guarantor shall be deemed released from its obligations under its
Guarantee of the Notes; provided, however, that any such termination shall occur
only to the extent that all obligations of such Subsidiary Guarantor under all
of its guarantees of, and under all of its pledges of assets or other security
interests which secure, any Indebtedness of the Company or any other Subsidiary
of the Company shall also terminate upon such release, sale or transfer.
SECTION 11.5. Future Subsidiary Guarantors.
If any Person becomes a Subsidiary of the Company, whether pursuant to the
acquisition by the Company or any Subsidiary Guarantor of Equity Interests of
such Person, or otherwise, such Subsidiary (in each case, a "Subsidiary
Guarantor") shall, to the fullest extent permitted by applicable law,
irrevocably and unconditionally guarantee the obligations of the Company with
respect to payment and performance of the Notes and the other obligations of the
Company under this Indenture to the same extent that such obligations are
guaranteed by the other Subsidiary Guarantors pursuant to Section 11.1 hereof.
Each Subsidiary Guarantor shall, within five Business Days after becoming a
Subsidiary of the Company, execute and deliver to the Trustee a supplemental
indenture, which shall be in a form satisfactory to the Trustee, making such
Subsidiary Guarantor a party to this Indenture.
78
ARTICLE XII
RESERVED
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1. TIA Controls.
If any provision of this Indenture limits, qualifies, or conflicts with the
duties imposed by operation of the TIA, the imposed duties, upon qualification
of this Indenture under the TIA, shall control.
SECTION 13.2. Notices.
Any notices or other communications to the Company or any Subsidiary
Guarantor or the Trustee required or permitted hereunder shall be in writing,
and shall be sufficiently given if made by hand delivery, by telecopier or
registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:
if to the Company or any Subsidiary Guarantor:
The Xxxx Group, Inc.
000 Xxxxx Xxxxxxxx
Xxxxxxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx X. Xxxx, Xx. and Xxxx X. Xxxxx, Esquire
Telecopy: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxxx LLP
3000 Two Xxxxx Square
Eighteeth and Arch Streets
Philadelphia, Pennsylvania 19103-4750
Attention: Xxxx X. Xxxxxxx
Telecopy: (000) 000-0000
79
if to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Trustee Administration
Telecopy: (000) 000-0000
Any party by notice to each other party may designate additional or
different addresses as shall be furnished in writing by such party. Any notice
or communication to any party shall be deemed to have been given or made as of
the date so delivered, if personally delivered; when receipt is acknowledged, if
telecopied; and five Business Days after mailing if sent by registered or
certified mail, postage prepaid (except that a notice of change of address shall
not be deemed to have been given until actually received by the addressee).
Any notice or communication mailed to a 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.
SECTION 13.3. Communications by Holders with Other Holders.
Noteholders may communicate pursuant to TIA ss.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 ss.312(c).
SECTION 13.4. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company or any Subsidiary Guarantor
to the Trustee to take any action under this Indenture, such Person shall
furnish to the Trustee:
(1) an Officers' Certificate (in form and substance reasonably
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 met; and
(2) an Opinion of Counsel (in form and substance reasonably
satisfactory to the Trustee) stating that, in the opinion of such counsel,
all such conditions precedent have been met.
80
SECTION 13.5. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture 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;
(3) a statement that, in the opinion of such Person, he or she has
made such examination or investigation as is necessary to enable him or her
to express an informed opinion as to whether or not such covenant or
condition has been met; and
(4) a statement as to whether or not, in the opinion of each such
Person, such condition or covenant has been met; provided, however, that
with respect to matters of fact an Opinion of Counsel may rely on an
Officers' Certificate or certificates of public officials.
SECTION 13.6. Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules for action by or at a meeting of
Noteholders. The Paying Agent or Registrar may make reasonable rules for its
functions.
SECTION 13.7. Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions in New York, New York are authorized or obligated by law or
executive order to close. 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 13.8. Governing Law.
THIS INDENTURE, THE GUARANTEES 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. EACH OF THE COMPANY
AND THE SUBSIDIARY GUARANTORS HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF
ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW
YORK OR ANY FEDERAL COURT SITTING IN THE
81
BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE AND THE NOTES, AND
IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. EACH OF THE COMPANY AND
THE SUBSIDIARY GUARANTORS IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING
HEREIN SHALL AFFECT THE RIGHT OF THE TRUSTEE OR ANY NOTEHOLDER TO SERVE PROCESS
IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST THE COMPANY AND THE SUBSIDIARY GUARANTORS IN ANY OTHER
JURISDICTION.
SECTION 13.9. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company or any Subsidiary Guarantor or any of their respective
Subsidiaries. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
SECTION 13.10. No Personal Liability of Stockholders, Officers, Directors,
Employees.
No direct or indirect stockholder, employee, officer or director, as such,
past, present or future of the Company, the Guarantors or any successor entity
shall have any personal liability in respect of the obligations of the Company
or the Guarantors under this Indenture or the Notes solely by reason of his or
its status as such stockholder, employee, officer or director, except that this
provision shall not limit the obligation of any Guarantor pursuant to its
guarantee of the Notes. 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. Notwithstanding the foregoing,
nothing in this paragraph shall in any way limit the obligation of any
Subsidiary Guarantor pursuant to its guarantee of the Notes.
SECTION 13.11. Successors.
All agreements of the Company and the Subsidiary Guarantors in this
Indenture and the Notes shall bind its successor. All agreements of the Trustee
in this Indenture shall bind its successor.
82
SECTION 13.12. Duplicate Originals.
All parties may sign any number of copies or counterparts of this
Indenture. Each signed copy or counterpart shall be an original, but all of them
together shall represent the same agreement.
SECTION 13.13. Severability.
In case any one or more of the provisions in this Indenture or in the Notes
or in the Guarantees shall be held invalid, illegal or unenforceable, in any
respect for any reason, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions shall not in
any way be affected or impaired thereby, it being intended that all of the
provisions hereof shall be enforceable to the full extent permitted by law.
SECTION 13.14. Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table and headings of the Articles
and the Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof and shall in no way
modify or restrict any of the terms or provisions hereof.
SECTION 13.15. Qualification of Indenture.
The Company shall qualify this Indenture under the TIA in accordance with
the terms and conditions of the Registration Rights Agreement and shall pay all
reasonable costs and expenses (including reasonable attorneys' fees for the
Company and the Trustee) incurred in connection therewith, including, but not
limited to, costs and expenses of qualification of this Indenture and the Notes
and printing this Indenture and the Notes. The Trustee shall be entitled to
receive from the Company any such Officers' Certificates, Opinions of Counsel or
other documentation as it may reasonably request in connection with any such
qualification of this Indenture under the TIA.
SECTION 13.16. Registration Rights.
Certain Holders of the Notes may be entitled to certain registration rights
with respect to such Notes pursuant to, and subject to the terms of, the
Registration Rights Agreement.
83
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the date first written above.
THE XXXX GROUP, INC.,
a Delaware corporation
By: /s/ Xxxx Xxxxx
------------------------------
Name: Xxxx Xxxxx
Title: Vice President
THE BANK OF NEW YORK,
as Trustee
By: /s/ Xxxx Xxxx Xxxxxxx
------------------------------
Name: Xxxx Xxxx Xxxxxxx
Title: Assistant Vice President
XXXX CARGO SYSTEMS, INC.,
as Guarantor
By: /s/ Xxxx Xxxxx
------------------------------
Name: Xxxx Xxxxx
Title: Vice President
XXXX HAULING AND WAREHOUSING
SYSTEM, INC.,
as Guarantor
By: /s/ Xxxx Xxxxx
------------------------------
Name: Xxxx Xxxxx
Title: Vice President
WILMINGTON STEVEDORES, INC.,
as Guarantor
By: /s/ Xxxx Xxxxx
------------------------------
Name: Xxxx Xxxxx
Title: Vice President
XXXXXX MARINE SERVICES, INC.,
as Guarantor
By: /s/ Xxxx Xxxxx
------------------------------
Name: Xxxx Xxxxx
Title: Vice President
NPR HOLDING CORPORATION,
as Guarantor
By: /s/ Xxxxxx Xxxxxx
------------------------------
Name: Xxxxxx Xxxxxx
Title: President
NPR, INC.,
as Guarantor
By: /s/ Xxxxxx Xxxxxx
------------------------------
Name: Xxxxxx Xxxxxx
Title: President
NPR S.A., INC.,
as Guarantor
By: /s/ Xxxxxx Xxxxxx
------------------------------
Name: Xxxxxx Xxxxxx
Title: President
NPR-NAVIERAS RECEIVABLES, INC.,
as Guarantor
By: /s/ Xxxxxx Xxxxxx
------------------------------
Name: Xxxxxx Xxxxxx
Title: President
EXHIBIT A
[FORM OF NOTE]
THE XXXX GROUP, INC.
9 3/4% SERIES A(1) SENIOR NOTE DUE 2006
CUSIP No. ______________
No. $
The Xxxx Group, Inc., a Delaware corporation (hereinafter called the
"Company", which term includes any successors under the Indenture hereinafter
referred to), for value received, hereby promises to pay to ___________________,
or registered assigns, the principal sum of _____________________ Dollars,
on __________ __, 2006.
Interest Payment Dates: January 15 and July 15
Record Dates: January 1 and July 1
Reference is made to the further provisions of this Note on the reverse
side, which will, for all purposes, have the same effect as if set forth at this
place.
IN WITNESS WHEREOF, the Company has caused this Instrument to be duly
executed.
Dated:
THE XXXX GROUP, INC.,
a Delaware corporation
By:
------------------------------
Name:
Title:
Attest:
--------------------------
Name:
Title:
----------
(1) Series A should be replaced with Series B in the Exchange Notes.
A-1
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Notes described in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By
--------------------------------
Authorized Signatory
Dated:
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THE XXXX GROUP, INC.
9 3/4% Series A(2) Senior Note due 2006
Unless and until it is exchanged in whole or in part for Notes in
definitive form, this Note may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. Unless this certificate is presented by an authorized representative
of The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) ("XXX"),
to the Company or its agent for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or such other
name as requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.(3)
THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS, EXCEPT AS SET FORTH IN THE THIRD SENTENCE HEREOF. BY ITS
ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) (A "QIB") OR (B) IT IS ACQUIRING THIS
NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT AND (2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER
THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B) TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR 904 OF THE SECURITIES ACT, (D) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (E) IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
----------
(2) Series A should be replaced with Series B in the Exchange Notes.
(3) This paragraph should only be added if the Note is issued in global form.
A-3
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY) OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION
AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN
INTEREST HEREIN IS TRANSFERRED, A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED
STATES" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER
THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE
TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE
FOREGOING.(4)
1. Interest.
The Xxxx Group, Inc., a Delaware corporation (hereinafter called the
"Company," which term includes any successors under the Indenture hereinafter
referred to), promises to pay interest on the principal amount of this Note at
the rate of 9 3/4% per annum. To the extent it is lawful, the Company promises
to pay interest on any interest payment due but unpaid on such principal amount
at a rate of 9 3/4% per annum compounded semi-annually.
The Company will pay interest semi-annually on January 15 and July 15
of each year (each, an "Interest Payment Date"), commencing July 15, 1998, to
the persons in whose names such Notes are registered at the close of business on
January 1 and July 1 immediately preceding such Interest Payment Date. Interest
on the Notes will accrue from the most recent date to which interest has been
paid or, if no interest has been paid on the Notes, from the date of the
original issuance. Interest will be computed on the basis of a 360-day year
consisting of twelve 30-day months.
On and after the date of redemption, interest will cease to accrue on
the Notes or portions thereof called for redemption, unless the Company defaults
in the payment thereof.
2. Method of Payment.
The Company shall pay interest (and Liquidated Damages, if any) 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. Holders must surrender Notes to a Paying Agent to collect
principal payments. Except as provided below, the Company shall pay principal
and interest (and Liquidated Damages, if any) in such coin
----------
(4) This paragraph should be included only for the Initial Notes.
A-4
or currency of the United States of America as at the time of payment shall be
legal tender for payment of public and private debts ("Cash"). The Notes will be
payable as to principal, premium and interest (and Liquidated Damages, if any)
at the office or agency of the Company maintained for such purpose within the
Borough of Manhattan, the City and State of New York or, at the option of the
Company, payment of principal, premium and interest (and Liquidated Damages, if
any) may be made by check mailed to the Holders at their addresses set forth in
the register of Holders, and provided that payment by wire transfer of
immediately available funds will be required with respect to principal of and
interest (and Liquidated Damages, if any) and premium on all Global Notes and
all other Notes the Holders of which shall have provided wire transfer
instructions to the Company or the Paying Agent at least 5 Business Days prior
to the relevant record date.
3. Paying Agent and Registrar.
Initially, The Bank of New York (the "Trustee"), will act as Paying
Agent and Registrar. The Company may change any Paying Agent, Registrar or
co-Registrar without notice to the Holders. The Company or any of its
Subsidiaries may, subject to certain exceptions, act as Paying Agent, Registrar
or co-Registrar.
4. Indenture.
The Company issued the Notes under an Indenture, dated as of January
21, 1998 (the "Indenture"), between the Company and the Trustee. 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, as
in effect on the date of the Indenture. 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 senior unsecured obligations of the Company limited in
aggregate principal amount to $200,000,000, of which $140,000,000 in aggregate
principal amount will be initially issued on the Closing Date. Subject to the
conditions set forth in the Indenture, the Company may issue up to an additional
$60,000,000 aggregate principal amount of Additional Notes. Each Holder of this
Note, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
action as may be provided in the Indenture and (c) appoints the Trustee his
attorney-in-fact for such purpose.
5. Redemption.
Except as provided in this Paragraph 5 or in Article III of the
Indenture, the Company will not have the right to redeem any Notes prior to
January 15, 2002. The Notes will be redeemable for cash at the option of the
Company, in whole or in part, at any time on or after January 15, 2002, upon not
less than 30 days nor more than 60 days notice to each holder of Notes, at the
following redemption prices (expressed as percentages of the principal
A-5
amount) if redeemed during the 12-month period commencing January 15 of the
years indicated below, in each case (subject to the right of Holders of record
on a Record Date to receive interest due on an Interest Payment Date that is on
or prior to such Redemption Date) together with accrued and unpaid interest and
Liquidated Damages, if any, thereon to the Redemption Date:
Year Percentage
---- ----------
2002.........................................................104.8750%
2003.........................................................102.4375%
2004 and thereafter..........................................100.0000%
Until January 15, 2001 upon an Public Equity Offering of common stock
for cash of the Company, up to 35% of the sum of (i) the original aggregate
principal amount of the Notes and (ii) the original aggregate principal amount
of any Additional Notes may be redeemed at the option of the Company within 90
days of such Public Equity Offering, on not less than 30 days, but not more than
60 days, notice to each holder of the Notes to be redeemed, with cash from the
Net Cash Proceeds of such Public Equity Offering, at a redemption price equal to
109 3/4% of principal (subject to the right of Holders of record on a Record
Date to receive interest due on an Interest Payment Date that is on or prior to
such Redemption Date), together with accrued and unpaid interest and Liquidated
Damages, if any, to the date of redemption; provided, however, that immediately
following such redemption not less than 65% of the sum of (i) the original
aggregate principal amount of the Notes and (ii) the original aggregate
principal amount of any Additional Notes remains outstanding. In the case of a
partial redemption, the Trustee shall select the Notes or portions thereof for
redemption on a pro rata basis, by lot or in such other manner it deems
appropriate and fair. The Notes may be redeemed in part in multiples of $1,000
only. The Notes will not have the benefit of any sinking fund.
Any such redemption will comply with Article III of the Indenture.
6. Notice of Redemption.
Notice of any redemption will be sent, by first class mail, at least
30 days and not more than 60 days prior to the date fixed for redemption to the
holder of each Note to be redeemed to such Holder's last address as then shown
upon the registry books of the Registrar. Any notice which relates to a Note to
be redeemed in part only must state the portion of the principal amount equal to
the unredeemed portion thereof and must state that on and after the date of
redemption, upon surrender of such Note, a new Note or Notes in a principal
amount equal to the unredeemed portion thereof will be issued.
A-6
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 on such Redemption Date, 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, plus any accrued
and unpaid interest (and Liquidated Damages, if any) to the Redemption Date.
7. Denominations; Transfer; Exchange.
The Notes are in registered form, without coupons, in denominations of
$1,000 and integral multiples of $1,000. A Holder may 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 any taxes and fees required by law or permitted by the
Indenture. The Registrar need not register the transfer of or exchange any Notes
(a) selected for redemption except the unredeemed portion of any Note being
redeemed in part or (b) for a period beginning 15 Business Days before the
mailing of a notice of an offer to repurchase or redemption and ending at the
close of business on the day of such mailing.
8. Persons Deemed Owners.
Prior to due presentment for the registration of a transfer of any
Note, the Trustee, any Agent and the Company may deem and treat the Person in
whose name any Note is registered as the absolute owner of such Note for all
purposes, and none of the Trustee, any Agent or the Company shall be affected by
notice to the contrary.
9. Unclaimed Money.
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee and the Paying Agent(s) will pay the money back to
the Company at its written request. After that, all liability of the Trustee and
such Paying Agent(s) with respect to such money shall cease.
10. Discharge Prior to Redemption or Maturity.
Except as set forth in the Indenture, if the Company irrevocably
deposits with the Trustee, in trust, for the benefit of the Holders, cash, U.S.
Government Obligations or a combination thereof, in such amounts as will be
sufficient in the opinion of a nationally recognized firm of independent public
accountants selected by the Trustee, to pay the principal of, premium, if any,
and interest (and Liquidated Damages, if any) 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 the financial covenants, but excluding its obligation
to pay the principal of,
A-7
premium, if any, and interest (and Liquidated Damages, if any) on the Notes).
Upon satisfaction of certain additional conditions set forth in the Indenture,
the Company may elect to have its obligations discharged with respect to
outstanding Notes.
11. 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 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 under certain circumstances amend or supplement the Indenture or the
Notes to, among other things, cure any ambiguity, defect or inconsistency, or
make any other change that does not adversely affect the rights of any Holder of
a Note.
12. Restrictive Covenants.
The Indenture imposes certain limitations on the ability of the
Company and any Subsidiary Guarantor to, among other things, incur additional
Indebtedness and issue Preferred Stock, pay dividends or make certain other
Restricted Payments, enter into certain transactions with Affiliates, incur
Liens, sell assets and subsidiary stock, merge or consolidate with any other
Person or transfer (by lease, assignment or otherwise) substantially all of the
properties and assets of the Company. The limitations are subject to a number of
important qualifications and exceptions. The Company must periodically report to
the Trustee on compliance with such limitations.
13. Ranking.
Payment of principal, premium, if any, and interest (and Liquidated
Damages, if any) on the Notes is senior, in the manner and to the extent set
forth in the Indenture, to all existing and future Indebtedness of the Company
that is subordinated to the Notes.
14. Repurchase at Option of Holder.
(a) If there is a Change of Control, the Company shall be required to
offer to purchase on the Change of Control Purchase Date all outstanding Notes
at a purchase price equal to 101% of the principal amount thereof, plus accrued
and unpaid interest (and Liquidated Damages, if any), if any, to the Change of
Control Purchase Date. Holders of Notes will receive a Change of Control Offer
from the Company prior to any related Change of Control Purchase Date and may
elect to have such Notes purchased by completing the form entitled "Option of
Holder to Elect Purchase" appearing below.
A-8
(b) The Indenture imposes certain limitations on the ability of the
Company, the Subsidiary Guarantors or any of their respective Subsidiaries to
sell assets and subsidiary stock. In the event the proceeds from an Asset Sale
exceed certain amounts, as specified in the Indenture, the Company will be
required either to reinvest the proceeds of such Asset Sale in a Related
Business, repay certain Indebtedness or make an offer to purchase each Holder's
Notes at 100% of the principal amount thereof, plus accrued interest (and
Liquidated Damages, if any), if any, to the purchase date.
15. Notation of Guarantee.
As set forth more fully in the Indenture, the Persons constituting
Subsidiary Guarantors from time to time, in accordance with the provisions of
the Indenture, unconditionally and jointly and severally guarantee, in
accordance with Section 11.1 of the Indenture, to the Holder and to the Trustee
and its successors and assigns, that (i) the principal of and interest (and
Liquidated Damages, if any) on the Note will be paid, whether at the Maturity
Date or Interest Payment Dates, by acceleration, call for redemption, upon a
Change of Control Offer, upon an Asset Sale Offer or otherwise, and all other
obligations of the Company to the Holder or the Trustee under the Indenture or
this Note will be promptly paid in full or performed, all in accordance with the
terms of the Indenture and this Note, and (ii) in the case of any extension of
payment or renewal of this Note or any of such other obligations, they will be
paid in full when due or performed in accordance with the terms of such
extension or renewal, whether at the Maturity Date, as so extended, by
acceleration, call for redemption, upon a Change of Control Offer, upon an Asset
Sale Offer or otherwise. Such guarantees shall cease to apply, and shall be null
and void, with respect to any Subsidiary Guarantor who, pursuant to Article XI
of the Indenture, is released from its guarantees, or whose guarantees otherwise
cease to be applicable pursuant to the terms of the Indenture.
When a successor assumes 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 any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount of the then outstanding
Notes may declare all the Notes to be due and payable immediately.
Notwithstanding the foregoing, in the case of an Event of Default arising from
certain events of bankruptcy or insolvency with respect to the Company or any of
its Significant Subsidiaries, all outstanding Notes will become due and payable
without further action or notice. Noteholders may not enforce the Indenture, the
Notes or the Guarantees except as provided in the Indenture. Subject to certain
limitations, Holders of a majority in aggregate principal amount of the then
outstanding Notes may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Noteholders notice of any continuing Default or
Event of Default (except a Default or Event of Default
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relating to the 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 make loans to, accept deposits from, and perform services for the
Company, any Guarantor, any of their Subsidiaries or any of their respective
Affiliates, and may otherwise deal with such Persons as if it were not the
Trustee.
18. No Recourse Against Others.
No direct or indirect stockholder, employee, officer or director, as
such, past, present or future of the Company, the Guarantors or any successor
entity shall have any personal liability in respect of the obligations of the
Company or the Guarantors under this Indenture or the Notes solely by reason of
his or its status as such stockholder, employee, officer or director, except
that this provision shall not limit the obligation of any Guarantor pursuant to
its guarantee of the Notes. 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. Notwithstanding the foregoing,
nothing in this paragraph shall in any way limit the obligation of any
Subsidiary Guarantor pursuant to any guarantee of the Notes.
19. Authentication.
This Note shall not be valid until the Trustee or authenticating agent
signs the certificate of authentication on the other side of this Note.
20. 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).
21. 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.
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22. Additional Rights of Holders of Transfer Restricted Securities.(5)
In addition to the rights provided to Holders of Notes under the
Indenture, Holders of Notes shall have all the rights set forth in the
Registration Rights Agreement.
23. Governing Law.
The Indenture and the Notes shall be governed by and construed in
accordance with the internal laws of the State of New York.
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(5) This paragraph should be included only for the Initial Notes.
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[FORM OF ASSIGNMENT]
I or we assign this Note to
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
Please insert Social Security or other identifying number of assignee
-------------------------------
and irrevocably appoint __________ agent to transfer this Note on the books of
the Company. The agent may substitute another to act for him.
Dated: Signed:
-------------------- ----------------------------------------------
--------------------------------------------------------------------------------
(Sign exactly as name appears on
the other side of this Note)
Signature Guarantee*
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* NOTICE: The Signature must be guaranteed by an Institution which is a
member of one of the following recognized signature Guarantee Programs: (i)
The Securities Transfer Agent Medallion Program (STAMP); (ii) The New York
Stock Exchange Medallion Program (MNSP); (iii) The Stock Exchange Medallion
Program (SEMP); or (iv) in such other guarantee program acceptable to the
Trustee.
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to
Section 4.14 or Article X of the Indenture, check the appropriate box: |_|
Section 4.14 |_| Article X.
If you want to elect to have only part of this Note purchased by the
Company pursuant to Section 4.14 or Article X of the Indenture, as the case may
be, state the amount you want to be purchased: $________.
Date: Signature:
---------------------- ------------------------------------------
(Sign exactly as your name appears
on the other side of this Note)
Signature Guarantee**
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** NOTICE: The Signature must be guaranteed by an Institution which is a
member of one of the following recognized signature Guarantee Programs:
(i) The Securities Transfer Agent Medallion Program (STAMP); (ii) The New
York Stock Exchange Medallion Program (MNSP); (iii) The Stock Exchange
Medallion Program (SEMP); or (iv) in such other guarantee program
acceptable to the Trustee.
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SCHEDULE OF EXCHANGES OF DEFINITIVE NOTES(6)
The following exchanges of a part of this Global Note for Definitive Notes
have been made:
Amount of Amount of Principal Amount Signature of
decrease in increase in of this Global authorized signatory
Principal Amount Principal Amount Note following of Trustee or
Date of of this Global of this Global such decrease (or Notes
Exchange Note Note increase) Custodian
----------------------------------------------------------------------------------------------------------------------
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(6) This schedule should only be added if the Note is issued in global form.
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CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER OF
TRANSFER RESTRICTED SECURITIES(7)
Re: 9 3/4% SERIES A SENIOR NOTES DUE 2006 OF THE XXXX GROUP, INC.
This Certificate relates to $______ principal amount of Notes held in
(check applicable space) _____ book-entry or ______ definitive form by
_________________ (the "Transferor").
The Transferor (check applicable box):
|_| has requested the Trustee by written order to deliver in exchange for
its beneficial interest in the Global Note held by the Depositary a Note or
Notes in definitive, registered form of authorized denominations and an
aggregate principal amount equal to its beneficial interest in such Global Note
(or the portion thereof indicated above); or
|_| has requested the Trustee by written order to exchange or register the
transfer of a Note or Notes.
In connection with such request and in respect of each such Note, the
Transferor does hereby certify that Transferor is familiar with the Indenture
relating to the above-captioned Notes and as provided in Section 2.6 of such
Indenture, the transfer of this Note does not require registration under the
Securities Act (as defined below) because:
|_| Such Note is being acquired for the Transferor's own account, without
transfer (in satisfaction of Section 2.6(a)(ii)(A) or Section 2.6(d)(i)(A) of
the Indenture).
|_| Such Note is being transferred to a "qualified institutional buyer"
(within the meaning of Rule 144A promulgated under the Securities Act), that is
aware that any sale of Notes to it will be made in reliance on Rule 144A under
the Securities Act and that is acquiring such Transfer Restricted Security for
its own account, or for the account of another such "qualified institutional
buyer" (in satisfaction of Section 2.06(a)(ii)(B) or Section 2.06(d)(i)(B) of
the Indenture).
|_| Such Note is being transferred pursuant to an exemption from
registration in accordance with Rule 144, or outside the United States in an
Offshore Transaction in compliance with Rule 904 under the Securities Act, or
pursuant to an effective registration statement under the Securities Act (in
satisfaction of Section 2.6(a)(ii)(C) or Section 2.6(d)(i)(C) of the Indenture).
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(7) This Certificate shall be included only for Initial Notes.
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|_| Such Note is being transferred in reliance on and in compliance with an
exemption from the registration requirements of the Securities Act and in
accordance with applicable securities laws of the states of the United States,
other than as provided in the immediately preceding paragraph. An Opinion of
Counsel to the effect that such transfer does not require registration under the
Securities Act accompanies this Certificate (in satisfaction of Section
2.6(a)(ii)(D) or Section 2.6(d)(i)(D) of the Indenture).
-----------------------------------
[INSERT NAME OF TRANSFEROR]
By:
------------------------------
Date:
----------------------
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CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER OF
NOTES(8)
Re: 9 3/4% SERIES B SENIOR NOTES DUE 2006 OF THE XXXX GROUP, INC.
This Certificate relates to $______ principal amount of Notes held in
(check applicable box) _____ book-entry or ______ definitive form by _____ (the
"Transferor").
The Transferor (check applicable box):
|_| has requested the Trustee by written order to deliver in exchange for
its beneficial interest in the Global Note held by the Depositary a Note or
Notes in definitive, registered form of authorized denominations and an
aggregate principal amount equal to its beneficial interest in such Global Note
(or the portion thereof indicated above); or
|_| has requested the Registrar by written order to exchange or register
the transfer of a Note or Notes.
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(8) This certificate shall be included only for the Exchange Notes.
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