EXHIBIT 4.1
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THE GSI GROUP, INC., as Issuer
and
LASALLE NATIONAL BANK, as Trustee
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INDENTURE
Dated as of November 1, 1997
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$100,000,000
10 1/4% Senior Subordinated Notes due 2007
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Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of November 1, 1997
Trust Indenture Indenture
Act Section Section
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(S)(S) 310 (a)(1)..................................................... 6.09
(a)(2)..................................................... 6.09
(a)(3)..................................................... N/A
(a)(4)..................................................... N/A
(a)(5)..................................................... 6.09
(b)........................................................ 6.08
(S)(S) 311 (a)........................................................ 6.13
(b)........................................................ 6.13
(S)(S) 312 (a)........................................................ 7.01
(b)........................................................ 7.02
(c)........................................................ 7.02
(S)(S) 313 (a)........................................................ 7.03
(b)........................................................ 7.03
(c)........................................................ 7.03
(d)........................................................ 7.03
(S)(S) 314 (a)(1)..................................................... 7.04
(a)(2)..................................................... 7.04
(a)(3)..................................................... 7.04
(a)(4)..................................................... 10.08
(b)........................................................ N/A
(c)(1)................................................... 1.04, 4.03
(c)(2)................................................... 1.04, 4.03
(c)(3)..................................................... N/A
(d)........................................................ N/A
(e)........................................................ 1.04
(S)(S) 315 (a)........................................................ 6.01(a)
(b)........................................................ 6.02
(c)........................................................ 6.01(b)
(d)........................................................ 6.01(c)
(e)........................................................ 5.14
(S)(S) 316 (a) (last sentence)..............................1.1 ("Outstanding")
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(a)(1)(A).................................................. 5.12
(a)(1)(B).................................................. 5.13
(a)(2)..................................................... N/A
(b)........................................................ 5.08
(S)(S) 317 (a)(1)..................................................... 5.03
(a)(2)..................................................... 5.04
(b)........................................................ 10.03
(S)(S) 318 (a)........................................................ 1.08
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Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of this Indenture. "N/A" means Not Applicable.
TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions..................................................... 1
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Section 1.02. Other Definitions............................................... 19
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Section 1.03. Rules of Construction........................................... 20
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Section 1.04. Form of Documents Delivered to Trustee.......................... 20
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Section 1.05. Acts of Holders................................................. 22
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Section 1.06. Notices, etc., to the Trustee and the Company................... 22
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Section 1.07. Notice to Holders; Waiver....................................... 23
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Section 1.08. Conflict with Trust Indenture Act............................... 23
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Section 1.09. Effect of Headings and Table of Contents........................ 24
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Section 1.10. Successors and Assigns.......................................... 24
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Section 1.11. Separability Clause............................................. 24
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Section 1.12. Benefits of Indenture........................................... 24
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Section 1.13. GOVERNING LAW................................................... 24
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Section 1.14. No Recourse Against Others...................................... 25
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Section 1.15. Independence of Covenants....................................... 25
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Section 1.16. Exhibits and Schedules.......................................... 25
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Section 1.17. Counterparts.................................................... 25
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Section 1.18. Duplicate Originals............................................. 25
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Section 1.19. Incorporation by Reference of TIA............................... 25
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ARTICLE TWO
SECURITY FORMS
Section 2.01. Form and Dating................................................. 26
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Section 2.02. Execution and Authentication; Aggregate Principal Amount........ 27
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Section 2.03. Restrictive Legends............................................. 28
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Section 2.04. Book-Entry Provisions for Global Notes.......................... 31
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Section 2.05. Special Transfer Provisions..................................... 32
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Note: This table of contents shall not, for any purposes, be deemed to be a
part of this Indenture.
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ARTICLE THREE
THE NOTES
Section 3.01. Title and Terms................................................... 34
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Section 3.02. Denominations..................................................... 35
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Section 3.03. Temporary Notes................................................... 35
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Section 3.04. Registration, Registration of Transfer and Exchange............... 35
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Section 3.05. Mutilated, Destroyed, Lost and Stolen Notes....................... 37
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Section 3.06. Payment of Interest; Interest Rights Preserved.................... 37
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Section 3.07. Persons Deemed Owners............................................. 38
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Section 3.08. Cancellation...................................................... 39
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Section 3.09. Computation of Interest........................................... 39
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Section 3.10. Legal Holidays.................................................... 39
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Section 3.11. CUSIP Number...................................................... 39
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Section 3.12. Payment of Additional Interest Under Registration Rights
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Agreement................................................. 40
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ARTICLE FOUR
DEFEASANCE OR COVENANT DEFEASANCE
Section 4.01. Defeasance........................................................ 40
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Section 4.02. Covenant Defeasance............................................... 40
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Section 4.03. Conditions to Defeasance or Covenant Defeasance................... 40
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Section 4.04. Deposited Money and U.S. Government Obligations To
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Be Held in Trust; Etc......................................... 41
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Section 4.05. Reinstatement..................................................... 42
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Section 4.06. Repayment to Company.............................................. 42
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ARTICLE FIVE
REMEDIES
Section 5.01. Events of Default................................................. 43
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Section 5.02. Acceleration of Maturity; Rescission and Annulment................ 44
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Section 5.03. Collection of Indebtedness and Suits for Enforcement by
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Trustee; Other Remedies....................................... 46
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Section 5.04. Trustee May File Proofs of Claims................................. 46
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Section 5.05. Trustee May Enforce Claims Without Possession of Notes............ 47
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Section 5.06. Application of Money Collected.................................... 47
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Section 5.07. Limitation on Suits............................................... 48
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Section 5.08. Unconditional Right of Holders To Receive Principal,
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Premium and Interest.......................................... 48
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Section 5.09. Restoration of Rights and Remedies................................ 49
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Section 5.10. Rights and Remedies Cumulative.................................... 49
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Section 5.11. Delay or Omission Not Waiver...................................... 49
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Section 5.12. Control by Majority............................................... 49
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Section 5.13. Waiver of Past Defaults........................................... 50
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Section 5.14. Undertaking for Costs............................................. 50
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Section 5.15. Waiver of Stay, Extension or Usury Laws........................... 50
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ARTICLE SIX
THE TRUSTEE
Section 6.01. Certain Duties and Responsibilities............................. 51
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Section 6.02. Notice of Defaults.............................................. 52
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Section 6.03. Certain Rights of Trustee....................................... 52
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Section 6.04. Trustee Not Responsible for Recitals, Dispositions of Notes
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or Application of Proceeds Thereof.......................... 53
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Section 6.05. Trustee and Agents May Hold Notes; Collections; etc............. 54
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Section 6.06. Money Held in Trust............................................. 54
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Section 6.07. Compensation and Indemnification of Trustee and Its Prior Claim. 54
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Section 6.08. Conflicting Interests........................................... 55
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Section 6.09. Corporate Trustee Required; Eligibility......................... 55
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Section 6.10. Resignation and Removal; Appointment of Successor Trustee....... 55
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Section 6.11. Acceptance of Appointment by Successor.......................... 57
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Section 6.12. Successor Trustee by Merger, etc................................ 57
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Section 6.13. Preferential Collection of Claims Against Issuers............... 58
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01. Preservation of Information; Company To Furnish Trustee
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Names and Addresses of Holders.............................. 58
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Section 7.02. Communications of Holders....................................... 58
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Section 7.03. Reports by Trustee.............................................. 59
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Section 7.04. Reports by Company.............................................. 59
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ARTICLE EIGHT
SUCCESSOR CORPORATION
Section 8.01. When Company May Merge, etc..................................... 59
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Section 8.02. Successor Substituted........................................... 60
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ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01. Without Consent of Holders...................................... 61
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Section 9.02. With Consent of Holders......................................... 62
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Section 9.03. Compliance with Trust Indenture Act............................. 63
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Section 9.04. Effect of Supplemental Indentures............................... 63
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Section 9.05. Revocation and Effect of Consents............................... 63
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Section 9.06. Notation on or Exchange of Notes................................ 64
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Section 9.07. Trustee May Sign Amendments, etc................................ 64
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ARTICLE TEN
COVENANTS
Section 10.01. Payment of Principal, Premium and Interest...................... 65
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Section 10.02. Maintenance of Office or Agency................................. 65
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Section 10.03. Money for Note Payments To Be Held in Trust..................... 65
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Section 10.04. Existence....................................................... 67
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Section 10.05. Payment of Taxes and Other Claims............................... 67
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Section 10.06. Maintenance of Properties....................................... 67
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Section 10.07. Insurance....................................................... 68
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Section 10.08. Compliance Certificate.......................................... 68
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Section 10.09. Reporting Requirements.......................................... 68
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Section 10.10. Limitation on Guarantees by Restricted Subsidiaries............. 69
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Section 10.11. Limitation on Indebtedness...................................... 69
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Section 10.12. Limitation on Restricted Payments............................... 72
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Section 10.13. Limitation on Transactions with Affiliates...................... 76
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Section 10.14. Disposition of Proceeds of Asset Sales.......................... 77
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Section 10.15. Change of Control............................................... 79
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Section 10.16. Limitation on Liens............................................. 81
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Section 10.17. Limitation on Dividends and Other Payment
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Restrictions Affecting Restricted Subsidiaries.............. 82
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Section 10.18. Restrictions on Preferred Stock of Restricted Subsidiaries...... 82
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Section 10.19. Limitation on Designations of Unrestricted Subsidiaries......... 82
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Section 10.20. Limitation on Other Senior Subordinated Indebtedness............ 83
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ARTICLE ELEVEN
REDEMPTION OF NOTES
Section 11.01. Optional and Special Redemption................................. 84
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Section 11.02. Applicability of Article........................................ 84
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Section 11.03. Election To Redeem; Notice to Trustee........................... 84
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Section 11.04. Selection of Notes To Be Redeemed............................... 85
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Section 11.05. Notice of Redemption............................................ 85
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Section 11.06. Deposit of Redemption Price..................................... 86
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Section 11.07. Notes Payable on Redemption Date................................ 86
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Section 11.08. Notes Redeemed or Purchased in Part............................. 87
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ARTICLE TWELVE
SATISFACTION AND DISCHARGE
Section 12.01. Satisfaction and Discharge of Indenture......................... 87
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Section 12.02. Application of Trust Money...................................... 88
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ARTICLE THIRTEEN
GUARANTEE OF NOTES
Section 13.01. Guarantee....................................................... 89
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Section 13.02. Execution and Delivery of Guarantee............................. 90
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Section 13.03. Additional Guarantors........................................... 91
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Section 13.04. Guarantee Obligations Subordinated to
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Guarantor Senior Indebtedness................................... 91
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Section 13.05. Payment Over of Proceeds upon Dissolution, etc., of a Guarantor. 92
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Section 13.06. Suspension of Guarantee Obligations When Guarantor
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Senior Indebtedness in Default.............................. 93
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Section 13.07. Release of a Guarantor.......................................... 94
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Section 13.08. Waiver of Subrogation........................................... 94
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Section 13.09. Guarantee Subordination Provisions Solely To Define
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Relative Rights............................................. 95
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Section 13.10. Trustee To Effectuate Subordination of Guarantee Obligations.... 96
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Section 13.11. No Waiver of Guarantee Subordination Provisions................. 96
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Section 13.12. Guarantors To Give Notice to Trustee............................ 97
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Section 13.13. Reliance on Judicial Order or Certificate of Liquidating
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Agent Regarding Dissolution, etc., of Guarantors............ 98
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Section 13.14. Rights of Trustee as a Holder of Guarantor Senior
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Indebtedness; Preservation of Trustee's Rights.............. 98
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Section 13.15. Article Thirteen Applicable to Paying Agents.................... 98
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Section 13.16. No Suspension of Remedies Subject to Rights of
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Holders of Guarantor Senior Indebtedness.................... 98
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Section 13.17. Trustee's Relation to Guarantor Senior Indebtedness............. 99
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Section 13.18. Subrogation..................................................... 99
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ARTICLE FOURTEEN
SUBORDINATION OF NOTES
Section 14.01. Notes Subordinate to Senior Indebtedness........................ 100
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Section 14.02. Payment Over of Proceeds upon Dissolution, etc.................. 100
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Section 14.03. Suspension of Payment When Designated Senior
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Indebtedness is in Default.................................. 101
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Section 14.04. Trustee's Relation to Senior Indebtedness....................... 103
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Section 14.05. Subrogation to Rights of Holders of Senior Indebtedness......... 103
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Section 14.06. Provisions Solely To Define Relative Rights..................... 103
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Section 14.07. Trustee To Effectuate Subordination............................. 104
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Section 14.08. No Waiver of Subordination Provisions........................... 104
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Section 14.09. Notice to Trustee............................................... 105
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Section 14.10. Reliance on Judicial Order or Certificate of Liquidating Agent.. 106
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Section 14.11. Rights of Trustee as a Holder of Senior Indebtedness;
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Preservation of Trustee's Rights............................ 106
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Section 14.12. Article Applicable to Paying Agents............................. 106
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Section 14.13. No Suspension of Remedies....................................... 107
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TESTIMONIUM
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SIGNATURES
Exhibit A -Form of Initial Note..................................................... A-1
Exhibit B -Form of Exchange Note.................................................... B-1
Exhibit C -Form of Certificate To Be Delivered in Connection with Transfers
to Non-QIB Accredited Investors....................................... C-1
Exhibit D -Form of Certificate To be Delivered in Connection with Transfers
Pursuant to Regulation S.............................................. D-1
Exhibit E -Form of Guarantee........................................................ X-0
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XXXXXXXXX, dated as of November 1, 1997, between THE GSI GROUP, INC.,
a corporation incorporated under the laws of the State of Delaware (the
"Company"), as issuer and LASALLE NATIONAL BANK, an Illinois banking
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corporation, as trustee (the "Trustee").
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RECITALS OF THE COMPANY
The Company has duly authorized the issuance of $100,000,000 aggregate
principal amount of 10 1/4% Senior Subordinated Notes due 2007, (the "Initial
Notes"), and the issuance of 10 1/4% Senior Subordinated Notes due 2007, to be
exchanged for the Initial Notes, including the Exchange Securities and the
Private Exchange Securities contemplated by the Registration Rights Agreement
(as defined herein) (the "Exchange Notes" and, together with the Initial Notes,
the "Notes");
Upon the effectiveness of the Exchange Offer Registration Statement or
the Shelf Registration Statement (each as defined herein), this Indenture will
be subject to, and shall be governed by, the provisions of the Trust Indenture
Act (as defined herein) that are required to be part of and to govern indentures
qualified under the Trust Indenture Act; and
All acts and things necessary have been done to make (i) the Notes,
when duly issued and executed by the Company and authenticated and delivered
hereunder, the valid obligations of the Company and (ii) this Indenture a valid
agreement of the Company in accordance with the terms of this Indenture.
NOW, THEREFOR, THIS INDENTURE WITNESSSETH:
For and in consideration of the premises and the purchase of the Notes
by the Holders (as defined herein) thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the Notes, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions.
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"Acquired Indebtedness" means Indebtedness of a Person (i) assumed in
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connection with an Asset Acquisition from such Person or (ii) existing at the
time such Person becomes a Restricted Subsidiary of any other Person (other than
any Indebtedness incurred in connection with, or in contemplation of, such Asset
Acquisition or such Person becoming such a Restricted Subsidiary).
"Affiliate" means, with respect to any specified Person (i) any other
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Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person, (ii) any other Person that
owns, directly or indirectly, 10% or more of any class or series of such
Person's, or the parent of such Person's, capital stock or any officer, director
or affiliate of any such other Person or (iii) with respect to any other natural
Person, any Person having a relationship with such other person by blood,
marriage or adoption not more remote than first cousin. For the purposes of this
definition, "control" when used with respect to any specified Person, means the
power to direct the management and policies of such Person,
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directly or indirectly, whether through the ownership of Voting Stock, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Affiliate Transaction" has the meaning set forth in Section 10.13.
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"Asset Acquisition" means (i) an Investment by the Company or any
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Restricted Subsidiary in any other Person pursuant to which such Person will
become a Restricted Subsidiary or will be merged or consolidated with or into
the Company or any Restricted Subsidiary or (ii) the acquisition by the Company
or any Restricted Subsidiary of the assets of any Person which constitute
substantially all of the assets of such Person, or any division or line of
business of such Person, or which is otherwise outside of the ordinary course of
business.
"Asset Sale" means any direct or indirect sale, issuance, conveyance,
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transfer, lease or other disposition (including, without limitation, any merger,
consolidation or sale-leaseback transaction) to any Person other than the
Company or a Restricted Subsidiary, in one or a series of related transactions,
of (i) any Capital Stock of any Restricted Subsidiary; (ii) all or substantially
all of the assets of any division or line of business of the Company or any
Restricted Subsidiary; or (iii) any other properties or assets of the Company or
any Restricted Subsidiary other than in the ordinary course of business. For
the purposes of this definition, the term "Asset Sale" will not include (a) any
sale, issuance, conveyance, transfer, lease or other disposition of properties
or assets governed by the provisions of Article Eight; (b) sales of property or
equipment that have become worn out, obsolete or damaged or otherwise unsuitable
for use in connection with the business of the Company or any Restricted
Subsidiary, as the case may be; or (c) any transaction consummated in compliance
with Section 10.12. For purposes of Section 10.14, the term "Asset Sale" shall
not include any sale, conveyance, transfer, lease or other disposition of any
property or asset, whether in one transaction or a series of related
transactions, involving assets with a Fair Market Value not in excess of $1.0
million.
"Asset Sale Offer" has the meaning set forth in Section 10.14.
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"Average Life to Stated Maturity" means, with respect to any
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Indebtedness, as at any date of determination, the quotient obtained by dividing
(i) the sum of the products of (a) the number of years from such date to the
date or dates of each successive scheduled principal payment (including, without
limitation, any sinking fund requirements) of such Indebtedness multiplied by
(b) the amount of each such principal payment by (ii) the sum of all such
principal payments.
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Bankruptcy Code of
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1978, as amended, or any similar United States Federal or state law relating to
bankruptcy, insolvency, receivership, winding-up, liquidation, reorganization or
relief of debtors, or any amendment to, succession to or change in any such law.
"Board of Directors" means, with respect to any Person, the board of
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directors, management committee or similar governing body or any authorized
committee thereof responsible for the management of the business and affairs of
such Person.
"Board Resolution" means, with respect to any Person, a copy of a
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resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
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"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
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Friday which is not a day on which banking institutions in The City of New York,
State of New York, or The City of Chicago, State of Illinois, are authorized or
obligated by law, regulation or executive order to close.
"Capital Stock" means, with respect to any Person, any and all shares,
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interests, participation, rights in or other equivalents (however designated) of
such Person's capital stock, and any rights (other than debt securities
convertible into capital stock), warrants or options exchangeable for or
convertible into such capital stock.
"Capitalized Lease Obligation" means any obligation under a lease of
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(or other agreement conveying the right to use) any property (whether real,
personal or mixed) required to be classified and accounted for as a capital
lease obligation under GAAP, and, for the purpose of the Indenture, the amount
of such obligation at any date shall be the capitalized amount thereof at such
date, determined in accordance with GAAP consistently applied.
"Cash Equivalents" means, at any time, (i) any evidence of
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Indebtedness with a maturity of not more than one year 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); (ii) certificates of deposit
or acceptances with a maturity of not more than one year of any financial
institution that is a member of the Federal Reserve System having combined
capital and surplus and undivided profits of not less than $500,000,000; (iii)
commercial paper with a maturity of not more than one year issued by a
corporation that is not an Affiliate of the Company organized under the laws of
any state of the United States or the District of Columbia and rated at least A-
1 by Standard & Poor's Rating Services, a division of the McGraw Hill Companies,
Inc. or at least P-1 by Xxxxx'x Investors Service, Inc.; and (iv) repurchase
obligations with a term of not more than seven days for underlying securities of
the types described in clauses (i) and (ii) above entered into with any
financial institution meeting the qualifications specified in clause (ii) above.
"Change of Control" means the occurrence of any of the following
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events: (i) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Exchange Act), other than Permitted Holders or their successors
and assigns who are Affiliates of the Permitted Holders, members of their
families and their heirs and executors, is or becomes the "beneficial owner" (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person
will be deemed to have "beneficial ownership" of all securities that such Person
has the right to acquire, whether such right is exercisable immediately or only
after the passage of time), directly or indirectly, of 50% of the total voting
power of the then outstanding Voting Stock of the Company; (ii) the Company
consolidates with, or merges with or into, another Person or sells, assigns,
conveys, transfers, leases or otherwise disposes of all or substantially all of
its assets to any Person (other than any such transaction where the Holders of
the Voting Stock of the Company immediately prior to such transaction own,
directly or indirectly, not less than a majority of the total voting power of
the then outstanding Voting Stock of the surviving or transferee corporation
immediately after such transaction); or (iii) during any consecutive two-year
period, individuals who at the beginning of such period constituted the Board of
Directors of the Company (together with any new directors whose election by such
Board of Directors or whose nomination for election by the stockholders of the
Company was approved by a vote of 66 2/3% 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" has the meaning set forth in Section 10.15.
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"Commission" or "SEC" means the Securities and Exchange Commission,
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as from time to time constituted, or if at any time after the execution of this
Indenture such Commission is not existing and performing the applicable duties
now assigned to it, then the body or bodies performing such duties at such time.
"Company" means The GSI Group, Inc., a Delaware corporation, unless
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and until a successor replaces it in accordance with this Indenture, and
thereafter means such Surviving Person.
"Company Request" or "Company Order" means a written request or order
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of the Company signed in the name of the Company by an officer of the Company.
"Consolidated Cash Flow Available for Fixed Charges" means, for any
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period, (i) the sum of, without duplication, the amounts for such period, taken
as a single accounting period, of (a) Consolidated Net Income, (b) to the extent
reducing Consolidated Net Income, Consolidated Non-cash Charges, (c) to the
extent reducing Consolidated Net Income, Consolidated Interest Expense, and (d)
to the extent reducing Consolidated Net Income, Consolidated Income Tax Expense
less (ii) (A) all non-cash items increasing Consolidated Net Income for such
period and (B) all cash payments during such period relating to non-cash charges
that were added back in determining Consolidated Cash Flow Available for Fixed
Charges in any prior period.
"Consolidated Fixed Charge Coverage Ratio" means the ratio of the
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aggregate amount of Consolidated Cash Flow Available for Fixed Charges of the
Company for the four full fiscal quarters immediately preceding the date of the
transaction (the "Transaction Date") giving rise to the need to calculate the
Consolidated Fixed Charge Coverage Ratio for which consolidated financial
information of the Company is internally available (such four full fiscal
quarter period being referred to herein as the "Four Quarter Period") to the
aggregate amount of Consolidated Fixed Charges of the Company for such Four
Quarter Period. For purposes of this definition, "Consolidated Cash Flow
Available for Fixed Charges" and "Consolidated Fixed Charges" will be
calculated, without duplication, after giving effect on a pro forma basis for
the period of such calculation to (i) the incurrence of any Indebtedness of the
Company or any of the Restricted Subsidiaries during the period commencing on
the first day of the Four Quarter Period to and including the Transaction Date
(the "Reference Period"), including, without limitation, the incurrence of the
Indebtedness giving rise to the need to make such calculation, as if such
incurrence occurred on the first day of the Reference Period, (ii) an adjustment
to eliminate or include, as applicable, the Consolidated Cash Flow Available for
Fixed Charges and Consolidated Fixed Charges of the Company directly
attributable to assets which are the subject of any Asset Sale or Asset
Acquisition (including, without limitation, any Asset Acquisition giving rise to
the need to make such calculation as a result of the Company or one of the
Restricted Subsidiaries (including any Person who becomes a Restricted
Subsidiary as a result of the Asset Acquisition) incurring, assuming or
otherwise being liable for Acquired Indebtedness) occurring during the Reference
Period, as if such Asset Sale or Asset Acquisition occurred on the first day of
the Reference Period and (iii) the retirement of Indebtedness during the
Reference Period which cannot thereafter be reborrowed occurring as if retired
on the first day of the Reference Period. Furthermore, in calculating
Consolidated Fixed Charges for purposes of determining the denominator (but not
the numerator) of this definition of "Consolidated Fixed Charge Coverage Ratio,"
(1) interest on Indebtedness determined on a fluctuating basis as of the
Transaction Date and which will continue to be so determined thereafter will be
deemed to accrue at a fixed rate per annum equal to the rate of interest on such
Indebtedness in effect on the Transaction Date; (2) if interest on any
Indebtedness actually incurred on the Transaction Date may optionally be
determined at an interest rate based upon a factor of a prime or similar rate, a
eurocurrency interbank offered rate, or other rates, then the interest rate in
effect on the Transaction Date shall be deemed to have been in effect during the
Reference Period; and (3) notwithstanding clause (1) above, interest on
Indebtedness determined on a fluctuating basis, to the extent such interest is
covered by
-5-
agreements relating to Interest Rate Protection Obligations, will be deemed to
accrue at the rate per annum resulting after giving effect to the operation of
such agreements. If the Company or any Restricted Subsidiaries directly or
indirectly guarantees Indebtedness of a third Person, the above definition will
give effect to the incurrence of such guaranteed Indebtedness as if the Company
or any Restricted Subsidiary had directly incurred or otherwise assumed such
guaranteed Indebtedness.
"Consolidated Fixed Charges" means, for any period, the sum of,
--------------------------
without duplication, the amounts for such period of (i) Consolidated Interest
Expense; and (ii) the aggregate amount of cash dividends and other distributions
paid or accrued during such period in respect of Redeemable Capital Stock of the
Company.
"Consolidated Income Tax Expense" means, for any period, the
-------------------------------
provision for federal, state, local and foreign income taxes payable by the
Company and the Restricted Subsidiaries for such period as determined on a
consolidated basis in accordance with GAAP, plus any Permitted Tax Payments made
during such period.
"Consolidated Interest Expense" means, for any period, without
-----------------------------
duplication, the sum of (a) the interest expense of the Company and the
Restricted Subsidiaries for such period as determined on a consolidated basis in
accordance with GAAP, including, without limitation, (i) any amortization of
debt discount attributable to such period, (ii) the net cost under Interest Rate
Protection Obligations (including any amortization of discounts), (iii) the
interest portion of any deferred payment obligation, (iv) all commissions,
discounts and other fees and charges owed with respect to letters of credit and
bankers' acceptance financing and (v) all capitalized interest and all accrued
interest, and (b) all but the principal component of Capitalized Lease
Obligations paid, accrued and/or scheduled to be paid or accrued by the Company
and the Restricted Subsidiaries during such period and as determined on a
consolidated basis in accordance with GAAP, minus amortization of deferred
financing costs and expenses.
"Consolidated Net Income" means, for any period, the consolidated
-----------------------
net income (or loss) of the Company and the Restricted Subsidiaries for such
period as determined in accordance with GAAP, adjusted, to the extent included
in calculating such net income, by excluding, without duplication, (i) all
extraordinary gains or losses (net of fees and expenses relating to the
transaction giving rise thereto), (ii) the portion of net income (or loss) of
the Company and the Restricted Subsidiaries allocable to minority interests in
unconsolidated Persons, except to the extent that cash dividends or
distributions are actually received by the Company or one of the Restricted
Subsidiaries, (iii) net income (or loss) of any Person combined with the Company
or one of the Restricted Subsidiaries in a "pooling of interests" basis
attributable to any period prior to the date of combination, (iv) any gain or
loss, net of taxes, realized upon the termination of any employee pension
benefit plan, (v) gains or losses in respect of any Asset Sales by the Company
or one of the Restricted Subsidiaries (net of fees and expenses relating to the
transaction giving rise thereto), (vi) the net income of any Restricted
Subsidiary to the extent that the declaration of dividends or similar
distributions by that Restricted Subsidiary of that income is not at the time
permitted, directly or indirectly, by operation of the terms of its charter or
any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulations applicable to that Restricted Subsidiary or its
stockholders and (vii) any Permitted Tax Payments made during such period.
"Consolidated Non-cash Charges" means, for any period, the aggregate
-----------------------------
depreciation, amortization and other non-cash expenses of the Company and the
Restricted Subsidiaries reducing Consolidated Net Income for such period,
determined on a consolidated basis in accordance with GAAP.
-6-
"Corporate Trust Office" means the office of the Trustee at which at
----------------------
any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is located
at 000 X. XxXxxxx Xxxxxx, Xxxx 0000; attention: Corporate Trust Administration,
Xxxxxxx, Xxxxxxxx 00000.
"covenant defeasance" has the meaning set forth in Article Four.
-------------------
"Currency Agreement" means any foreign exchange contract, currency
------------------
swap agreement or other similar agreement or arrangement designed to protect the
Company against fluctuations in currency values.
"Currency Agreement Obligations" means the obligations of any person
------------------------------
under a foreign exchange contract, currency swap agreement or other similar
agreement or arrangement to protect such person against fluctuations in currency
values.
"Default" means any event that is, or after notice or passage of time
-------
or both would be, an Event of Default.
"defeasance" has the meaning set forth in Article Four.
----------
"Depositary" means The Depository Trust Company, or such other
----------
depositary as the Company may appoint as a successor thereto.
"Designated Senior Indebtedness" means (a) all Senior Indebtedness
------------------------------
outstanding under the New Credit Agreement and (b) any other Senior Indebtedness
which, at the time of determination, is specifically designated in the
instrument governing such Senior Indebtedness as "Designated Senior
Indebtedness" by the Company.
"Designation" has the meaning set forth in Section 10.19.
-----------
"Designation Amount" has the meaning set forth in Section 10.19.
------------------
"DMC Acquisition" means the acquisition by the Company of Xxxxx
---------------
Manufacturing Co. as contemplated by the letter of intent dated September 15,
1997.
"Dollars" or "$" means lawful money of the United States of America.
------- -
"Domestic Subsidiary" means a Restricted Subsidiary organized under
-------------------
the laws of the United States, any State or territory thereof or the District of
Columbia.
"Equity Offering" has the meaning set forth in Section 11.01.
---------------
"Event of Default" has the meaning set forth in Section 5.01.
----------------
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
------------
and the rules and regulations promulgated by the Commission thereunder.
"Exchange Notes" has the meaning set forth in the preamble hereto.
--------------
-7-
"Existing Leases" means the Master Equipment Lease Agreement dated as
---------------
of June 7, 1994 by and between Keycorp Leasing Ltd. and the Company and the
Master Equipment Lease Agreement dated December 19, 1996 by and between Fleet
Capital Corporation and the Company.
"Fair Market Value" means, with respect to any asset, the price which
-----------------
could be negotiated in an arm's-length free market transaction, for cash,
between a willing seller and a willing buyer, neither of which is under pressure
or compulsion to complete the transaction. Fair Market Value shall be determined
by the Board of Directors of the Company acting in good faith evidenced by a
board resolution thereof delivered to the Trustee.
"Four Quarter Period" has the meaning set forth in the definition of
-------------------
"Consolidated Fixed Charge Coverage Ratio."
"GAAP" means generally accepted accounting principles set forth in the
----
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession of the United States, which are applicable as of the Issue Date and
are consistently applied.
"guarantee" means, as applied to any obligation, (i) a guarantee
---------
(other than by endorsement of negotiable instruments for collection in the
ordinary course of business), direct or indirect, in any manner, of any part or
all of such obligation and (ii) an agreement, direct or indirect, contingent or
otherwise, the practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of non-performance) of all or
any part of such obligation, including, without limiting the foregoing, the
payment of amounts drawn down by letters of credit.
"Guarantor" means each Domestic Subsidiary, if any, formed, created or
---------
acquired before or after the Issue Date, required to become a Guarantor after
the Issue Date pursuant to Section 10.10.
"Guarantor Senior Indebtedness" means, with respect to the
-----------------------------
Indebtedness of any Guarantor, any such Indebtedness represented by a guarantee
by such Guarantor of any Senior Indebtedness.
"Holder" or "Noteholder" means a Person in whose name a Note is
------ ----------
registered in the Note Register.
"incur" has the meaning set forth in Section 10.11 and "incurrence,"
-----
"incurred" and "incurring" shall have the meanings correlative to the foregoing.
"Indebtedness" means, with respect to any Person, without duplication,
------------
(i) all indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services, excluding any trade payable and other
accrued current liabilities incurred in the ordinary course of business, but
including, without limitation, all obligations, contingent or otherwise, of such
Person in connection with any letters of credit, bankers acceptance or other
similar credit transaction and in connection with any agreement to purchase,
redeem, exchange, convert or otherwise acquire for value any Capital Stock of
such Person, or any warrants, rights or options to acquire such Capital Stock,
now or hereafter outstanding (provided, that any future payment obligations of
the Company issued by the Company in accordance with the Stockholder Agreements
shall not be "Indebtedness" hereunder, if such obligations are expressly
subordinated to the Notes; and provided, further, that no cash payments may be
made by the Company in respect of such future payment
-8-
obligations to the extent such payments do not violate the limitations set forth
in Section 10.12), (ii) all obligations of such Person evidenced by bonds,
notes, debentures or other similar instruments, (iii) all indebtedness created
or arising under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even if the rights and remedies of
the seller or lender under such agreement in the event of default are limited to
repossession or sale of such property), but excluding trade accounts payable
arising in the ordinary course of business, (iv) all Capitalized Lease
Obligations of such Person, (v) all Indebtedness referred to in the preceding
clauses of other Persons and all dividends of other Persons, the payment of
which is secured by (or for which the Holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien upon
property (including, without limitation, accounts and contract rights) owned by
such Person, even though such Person has not assumed or become liable for the
payment of such Indebtedness (the amount of such obligation being deemed to be
the lesser of the value of such property or asset or the amount of the
obligation so secured), (vi) all guarantees of Indebtedness by such Person,
provided, however, that any such guarantee shall not be deemed Indebtedness
unless the Company shall have received a demand for payment thereunder and the
Company shall have failed to make such payment within ten business days of the
date required for payment, (vii) all Redeemable Capital Stock valued at the
greater of its voluntary or involuntary maximum fixed repurchase price plus
accrued and unpaid dividends, (viii) all obligations under or in respect of
Currency Agreements and Interest Rate Protection Obligations of such Person, and
(ix) any amendment, supplement, modification, deferral, renewal, extension or
refunding of any liability of the types referred to in clauses (i) through
(viii) above. For purposes hereof, the "maximum fixed repurchase price" of any
Redeemable Capital Stock which does not have a fixed repurchase price will be
calculated in accordance with the terms of such Redeemable Capital Stock as if
such Redeemable Capital Stock were purchased on any date on which Indebtedness
will 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 Redeemable Capital
Stock, such Fair Market Value is to be determined in good faith by the Board of
Directors of the issuer of such Redeemable Capital Stock.
"Indenture" means this instrument as originally executed (including
---------
all exhibits and schedules hereto) and as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof.
"Independent Financial Advisor" means an accounting, appraisal or
-----------------------------
investment banking firm (i) which does not, and whose directors, officers and
employees or Affiliates do not have, a direct or indirect financial interest in
the Company and (ii) which, in the judgment of the Board of Directors of the
Company, is otherwise independent and qualified to perform the task for which it
is to be engaged.
"Initial Purchasers" means Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
------------------
Incorporated and Xxxxxx Xxxxxxx & Co. Incorporated.
"Insolvency or Liquidation Proceeding" means, with respect to any
------------------------------------
Person, any liquidation, dissolution or winding up of such Person, or any
bankruptcy, reorganization, insolvency, receivership or similar proceeding with
respect to such Person, whether voluntary or involuntary.
"Institutional Accredited Investor" means an institution that is an
---------------------------------
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act.
"Interest Payment Date" means, when used with respect to any Note,
---------------------
the Stated Maturity of an installment of interest on such Note, as set forth in
such Note.
-9-
"Interest Rate Protection Obligations" means the obligations of any
------------------------------------
Person pursuant to any arrangement with any other Person whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such Person
calculated by applying a fixed or a floating rate of interest on the same
notional amount or any other arrangement involving payments by or to such Person
based upon fluctuations in interest rates.
"Investment" means, with respect to any Person, any direct or indirect
----------
advance, loan or other extension of credit (including by means of a guarantee)
or capital contribution to (by means of any transfer of cash or other property
to others or any payment for property or services for the account or use of
others or otherwise), or any purchase or acquisition by such Person of any
Capital Stock, bonds, notes, debentures or other securities or evidences of
Indebtedness issued by any other Person. Investments shall exclude extensions
of trade credit on commercially reasonable terms in accordance with the
Company's normal trade practices. In addition to the foregoing, any foreign
exchange contract, currency swap, Interest Rate Protection Obligation or similar
agreement shall constitute an Investment.
"Issue Date" means the original issue date of the Notes under this
----------
Indenture.
"Lien" means any mortgage, charge, pledge, lien (statutory or other),
----
privilege, security interest, hypothecation, cessation and transfer, lease of
real property, assignment for security, claim, deposit arrangement, or
preference or priority or other encumbrance upon or with respect to any property
of any kind, whether real, Personal or mixed, movable or immovable, now owned or
hereafter acquired. A Person will be deemed to own subject to a Lien any
property it has acquired or holds subject to the interest of a vendor or lessor
under any conditional sale agreement, capital lease or other title retention
agreement.
"Material Subsidiary" means any Restricted Subsidiary of the Company
-------------------
that is a "significant subsidiary" as defined in Rule 1-02 of Regulation S-X
under the Securities Act (as such regulation is in effect on the Issue Date).
"Net Cash Proceeds" means, with respect to any Asset Sale, the
-----------------
proceeds thereof in the form of cash or Cash Equivalents including payments in
respect of deferred payment obligations when received in the form of cash or
Cash Equivalents (except to the extent that such obligations are financed or
sold with recourse to the Company or any Restricted Subsidiary) net of (i)
brokerage commissions and other reasonable fees and expenses (including fees and
expenses of legal counsel and investment bankers) related to such Asset Sale,
(ii) provisions for all taxes payable as a result of such Asset Sale, (iii)
amounts required to be paid to any Person (other than the Company or any
Restricted Subsidiary) owning a beneficial interest in or having a Lien on the
assets subject to the Asset Sale and (iv) appropriate amounts to be provided by
the Company or any Restricted Subsidiary, as the case may be, as a reserve
required in accordance with GAAP consistently applied against any liabilities
associated with such Asset Sale and retained by the Company or any Restricted
Subsidiary, as the case may be, after such Asset Sale, including, without
limitation, pension and other post-employment benefit liabilities, liabilities
related to environmental matters and liabilities under any indemnification
obligations associated with such Asset Sale.
"New Credit Agreement" means the Credit Agreement between the Company
--------------------
and LaSalle National Bank, as in effect on the Issue Date, and as such agreement
may be amended, renewed, extended, substituted, refinanced, replaced,
supplemented or otherwise modified from time to time, and includes (a) related
notes, guarantees and other agreements executed in connection therewith and (b)
any agreement (i) extending the maturity of all or any portion of the
Indebtedness thereunder, (ii) adding additional borrowers or
-10-
guarantors thereunder and (iii) increasing the amount to be borrowed thereunder;
provided, however, that in the case of clauses (i), (ii) and (iii), any such
agreement is not prohibited by this Indenture.
"Non-payment Default" means, for purposes of Article Fourteen hereof,
-------------------
any default (other than a Payment Default) with respect to any Designated Senior
Indebtedness of the Company or any Guarantor pursuant to which the maturity
thereof may be accelerated.
"Non-U.S. Person" means a person who is not a U.S. person, as
---------------
defined in Regulation S.
"Note Guarantee" means a guarantee by a Guarantor, if any, of the
--------------
Notes and the Company's obligations under this Indenture.
"Notes" has the meaning set forth in the preamble hereto.
-----
"Obligations" means any principal, interest, penalties, fees,
-----------
indemnifications, reimbursement obligations, damages and other liabilities
payable under the documentation governing any Indebtedness.
"Offering"" shall have the meaning set forth in the Offering
--------
Memorandum.
"Offering Memorandum" means the offering memorandum dated as of
-------------------
October 30, 1997 relating to the Offering and sale of the Notes.
"Officer" means, with respect to any Person, the Chairman, President,
-------
Chief Executive Officer, Chief Financial Officer, Chief Operating Officer, any
Vice President, Treasurer or Secretary, or any other officer designated by the
Board of Directors serving in a similar capacity.
"Officers' Certificate" means a certificate signed by two Officers
---------------------
or by an Officer and an Assistant Treasurer or Assistant Secretary of the
Company or a Guarantor, as the case may be.
"Opinion of Counsel" means a written opinion of counsel, who may be an
------------------
employee of or counsel to the Company, and who shall be reasonably acceptable to
the Trustee.
"Outstanding" means, as of the date of determination, all Notes
-----------
theretofor authenticated and delivered under this Indenture, except:
(i) Notes theretofor cancelled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Notes, or portions thereof, for whose payment or redemption
money in the necessary amount has been theretofor deposited with the
Trustee or any Paying Agent (other than the Company or any Affiliate
thereof) in trust for the Holders of such Notes; provided, however, that if
such Notes are to be redeemed, notice of such redemption has been duly and
irrevocably given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(iii) Notes with respect to which the Company has effected defeasance
or covenant defeasance as provided in Article Four, to the extent provided
in Sections 4.02 and 4.03; and
-11-
(iv) Notes in exchange for or in lieu of which other Notes have been
authenticated and delivered pursuant to this Indenture, other than any such
Notes in respect of which there shall have been presented to the Trustee
proof satisfactory to it that such Notes are held by a bona fide purchaser
in whose hands the Notes are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Notes owned by
the Company or any other obligor under the Notes or any Affiliate of the Company
or such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Notes which the Trustee knows to be so owned shall be so
disregarded. Notes so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Notes and that the
pledgee is not the Company or any other obligor under the Notes or any Affiliate
of the Company or such other obligor.
"Pari Passu Indebtedness" means any Indebtedness of the Company or any
-----------------------
Guarantor ranking pari passu in right of payment with the Notes or the Note
Guarantee of such Guarantor, as applicable.
"Paying Agent" means any Person authorized by the Company to pay the
------------
principal, premium, if any, or interest on any Notes on behalf of the Company.
"Payment Blockage Period" shall have the meaning set forth in Section
-----------------------
14.03.
"Payment Default" means any default in the payment when due (whether
---------------
at Stated Maturity, by acceleration or otherwise) of principal or interest on,
or of unreimbursed amounts under drawn letters of credit or fees relating to
letters of credit constituting, any Senior Indebtedness or Guarantor Senior
Indebtedness, as applicable, of the Company or any Guarantor.
"Permitted Holders" means Xxxxx Xxxxx, Xxxxx Xxxxxxx, Xxxx X. Xxxx and
-----------------
Xxxxxx X. Xxxxxxx or their successors and assigns who are Affiliates of the
Permitted Holders, members of their families and their heirs or executors.
"Permitted Indebtedness" has the meaning set forth in Section 10.11.
----------------------
"Permitted Investments" means (a) Cash Equivalents; (b) Investments in
---------------------
prepaid expenses, negotiable instruments held for collection and lease, utility
and workers' compensation, performance and other similar deposits; (c) loans and
advances to employees made in the ordinary course of business not to exceed
$250,000 in the aggregate at any one time outstanding; (d) Interest Rate
Protection Obligations and Currency Agreements; and (e) Investments not to
exceed $15.0 million in the aggregate outstanding at any time.
"Permitted Tax Payments" has the meaning set forth in Section 10.12.
----------------------
"Person" means any individual, corporation, limited liability company,
------
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Preferred Stock" means, with respect to any Person, Capital Stock of
---------------
any class or classes (however designated) which is preferred as to the payment
of dividends or distributions, or as to the distribu-
-12-
tion of assets upon any voluntary or involuntary liquidation or dissolution of
such Person, over Capital Stock of any other class of such Person.
"Private Placement Legend" means the legend initially set forth on the
------------------------
Initial Notes in the form set forth in Section 2.03.
"Purchase Money Indebtedness" means Indebtedness of the Company or any
---------------------------
Restricted Subsidiary incurred for the purpose of financing all or any part of
the purchase price or the cost of construction or improvement of any property,
plant or equipment, provided that the aggregate principal amount of such
Indebtedness does not exceed the lesser of the Fair Market Value of such
property or such purchase price or cost.
"Qualified Institutional Buyer" or "QIB" shall have the meaning
----------------------------- ---
specified in Rule 144A under the Securities Act.
"Redeemable Capital Stock" means any class or series of Capital Stock
------------------------
to the extent that, either by its terms, by the terms of any security into which
it is convertible or exchangeable, or by contract or otherwise, is or upon the
happening of an event or passage of time would be, required to be redeemed prior
to the final Stated Maturity of the Notes or is redeemable at the option of the
Holder thereof at any time prior to such Stated Maturity, or is convertible into
or exchangeable for debt securities at any time prior to such Stated Maturity,
provided the Capital Stock subject to the Stockholder Agreements shall not be
deemed Redeemable Capital Stock.
"Redemption Date" means, with respect to any Note to be redeemed, any
---------------
date fixed for such redemption by or pursuant to this Indenture and the terms of
the Notes.
"Redemption Price" means, with respect to any Note to be redeemed,
----------------
the price at which it is to be redeemed pursuant to this Indenture and the terms
of the Notes.
"Reference Period" has the meaning set forth under the definition of
----------------
"Consolidated Fixed Charge Coverage Ratio."
"Refinance" means, with respect to any Indebtedness, any refinancing,
---------
redemption, retirement, renewal, substitution, replacement, extension or
refunding of such Indebtedness.
"Registration Rights Agreement" means the Registration Rights
-----------------------------
Agreement dated on or about the Issue Date between the Company and the Initial
Purchasers for the benefit of themselves and the Holders as the same may be
amended from time to time in accordance with the terms thereof.
"Regular Record Date" means the Regular Record Date specified in the
-------------------
Notes.
"Regulation S" means Regulation S under the Securities Act.
------------
"Responsible Officer" means, with respect to the Trustee, the
-------------------
chairman or vice chairman of the board of directors, the chairman or vice
chairman of the executive committee of the board of directors, the president,
any vice president, the secretary, any assistant secretary, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any trust officer or
assistant trust officer, the controller and any assistant controller or any
other officer of the Trustee customarily performing functions similar to those
performed by any
-13-
of the above designated officers and also means, with respect to a particular
corporate trust matter, any other officer of the Trustee to whom any corporate
trust matter is referred because of his or her knowledge of and familiarity with
the particular subject.
"Restricted Payment" has the meaning set forth in Section 10.12.
------------------
"Restricted Security" has the meaning assigned to such term in Rule
-------------------
144(a)(3) under the Securities Act; provided, however, that the Trustee shall be
entitled to receive, at its request, and conclusively rely on an Opinion of
Counsel with respect to whether any Note constitutes a Restricted Security.
"Restricted Subsidiary" means any Subsidiary of the Company that has
---------------------
not been designated by the Board of Directors of the Company, by a board
resolution delivered to the Trustee, as an Unrestricted Subsidiary pursuant to
and in compliance with Section 10.19. Any such designation may be revoked by a
board resolution of the Board of Directors of the Company delivered to the
Trustee, subject to the provisions of Section 10.19.
"Revocation" has the meaning set forth in Section 10.19.
----------
"Rule 144A" means Rule 144A under the Securities Act.
---------
"Securities Act" means the Securities Act of 1933, as amended, and
--------------
the rules and regulations promulgated by the Commission thereunder.
"Senior Indebtedness" means the principal of, premium, if any, and
-------------------
interest on any Indebtedness of the Company, whether outstanding on the Issue
Date or thereafter created, incurred or assumed, unless, in the case of any
particular Indebtedness, the instrument creating or evidencing the same or
pursuant to which the same is outstanding expressly provides that such
Indebtedness shall not be senior in right of payment to any Indebtedness of the
Company. Without limiting the generality of the foregoing, "Senior Indebtedness"
will include (a) the principal of, premium, if any, and interest (including
interest that would accrue but for the filing of a petition initiating any
proceeding under any state or federal bankruptcy laws, whether or not such claim
is allowable in such proceeding) on all obligations of every nature of the
Company from time to time owed to the lenders under the New Credit Agreement,
including, without limitation, principal of and interest on, and all fees and
expenses payable under the New Credit Agreement and (b) amounts owing under the
Existing Leases. Notwithstanding the foregoing, "Senior Indebtedness" shall not
include, to the extent constituting Indebtedness, (i) Indebtedness evidenced by
the Notes, (ii) Indebtedness that is subordinate or junior in right of payment
to any Indebtedness of the Company, (iii) Indebtedness which, when incurred and
without respect to any election under Section 1111(b) of Xxxxx 00, Xxxxxx Xxxxxx
Code, is without recourse to the Company, (iv) Indebtedness which is represented
by Redeemable Capital Stock, (v) Indebtedness for goods, materials or services
purchased in the ordinary course of business or Indebtedness consisting of trade
payables or other current liabilities (other than any current liabilities owing
under the New Credit Agreement or the current portion of any long-term
Indebtedness which would constitute Senior Indebtedness but for the operation of
this clause (v)), (vi) Indebtedness of or amounts owed by the Company for
compensation to employees or for services rendered to the Company, (vii) any
liability for federal, state, local or other taxes owed or owing by the Company,
(viii) Indebtedness of the Company to a Subsidiary of the Company, (ix) that
portion of any Indebtedness which at the time of issuance is issued in violation
of this Indenture and (x) any obligation to purchase Capital Stock under the
Stock Purchase Agreements.
-14-
"Senior Representative" means the representative or representatives
---------------------
designated in writing to the Trustee of the holders of any class or issue of
Designated Senior Indebtedness; provided that, in the absence of a
representative of the type described above, any holder or holders of a majority
of the principal amount outstanding of any class or issue of Designated Senior
Indebtedness may collectively act as Senior Representative for such class or
issue.
"Stated Maturity" means, with respect to any Note or any installment
---------------
of interest thereon, the dates specified in such Note as the fixed date on which
the principal of such Note or such installment of interest is due and payable,
and when used with respect to any other Indebtedness, means the date specified
in the instrument governing such Indebtedness as the fixed date on which the
principal of such Indebtedness or any installment of interest is due and
payable.
"Stockholder Agreements" means each of the Stock Restriction and Buy-
----------------------
Sell Agreements, made as of June 6, 1996 by and between each of the Permitted
Holders and the Company with respect to the Company's voting Capital Stock, as
amended, and the Stock Restriction and Buy-Sell Agreement made as of January 1,
1997 among the Company, the Permitted Holders and other persons named therein
with respect to the Company's non-voting Capital Stock, as amended.
"Subordinated Indebtedness" means, with respect to the Company,
-------------------------
Indebtedness of the Company which is expressly subordinated in right of payment
to the Notes or, with respect to any Guarantor, Indebtedness of such Guarantor
which is expressly subordinated in right of payment to the Note Guarantee of
such Guarantor.
"Subsidiary" means, with respect to any Person, (a) any corporation
----------
of which the outstanding shares of Voting Stock having at least a majority of
the votes entitled to be cast in the election of directors shall at the time be
owned, directly or indirectly, by such Person, or (b) any other Person of which
at least a majority of the shares of Voting Stock are at the time, directly or
indirectly, owned by such first named Person.
"Surviving Person" means, with respect to any Person involved in any
----------------
consolidation or merger, or any sale, assignment, conveyance, transfer, lease or
other disposition of all or substantially all of its properties and assets as an
entirety, the Person formed by or surviving such merger or consolidation or the
Person to which such sale, assignment, conveyance, transfer or lease is made.
"Tax Amount" means, with respect to any period, without duplication,
----------
the amount of taxable income of any Person attributable to the income of the
Company and its Restricted Subsidiaries for such period multiplied by the
highest marginal combined federal, state and local tax rates applicable to
individuals during such period.
"Transaction Date" has the meaning set forth under the definition of
----------------
"Consolidated Fixed Charge Coverage Ratio".
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
------------------- ---
as amended, and as in effect from time to time.
"Trustee" means the Person named as the "Trustee" in the first
-------
paragraph of this Indenture, until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
-15-
"Unrestricted Subsidiary" means a Subsidiary of the Company (other
-----------------------
than a Guarantor) designated as such pursuant to and in compliance with Section
10.19. Any such designation may be revoked by a Board Resolution of the Company
delivered to the Trustee, subject to the provisions of Section 10.19.
"U.S. Government Obligations" means securities that are (i) direct
---------------------------
obligations of the United States of America for the timely payment of which its
full faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America, which, in either
case, are not callable or redeemable at the option of the issuer thereof, and
shall also include a Depositary receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act) as custodian with respect to any such U.S.
Government Obligation or a specific payment of principal of or interest on any
such U.S. Government Obligation held by such custodian for the account of the
Holder of such Depositary receipt; provided, however, that (except as required
-------- -------
by law) such custodian is not authorized to make any deduction from the amount
payable to the Holder of such Depositary receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of principal of or interest on the U.S. Government Obligation evidenced by such
Depositary receipt.
"Unutilized Net Cash Proceeds" has the meaning set forth in Section
----------------------------
10.14.
"Voting Stock" means any class or classes of Capital Stock pursuant
------------
to which the Holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the Board of Directors, managers
or trustees of any Person (irrespective of whether or not, at the time, stock of
any other class or classes shall have, or might have, voting power by reason of
the happening of any contingency).
"Weighted Average Life to Maturity" means, when applied to any
---------------------------------
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required scheduled payment
of principal, including payment at final maturity, in respect thereof, with (b)
the number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment, by (ii) the then outstanding
aggregate principal amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" means any Restricted Subsidiary
----------------------------------
of which 100% of the outstanding Capital Stock is owned by the Company and/or
another Wholly-Owned Restricted Subsidiary. For purposes of this definition, any
directors' qualifying shares shall be disregarded in determining the ownership
of a Restricted Subsidiary.
Section 1.02. Other Definitions.
-----------------
Defined in
Term Section
---- ----------
"Act" 1.05
"Agent Members" 2.04
"Asset Sale Offer Price" 10.14
"Asset Sale Offer Trigger Date" 10.14
"Authenticating Agent" 2.02
"Change of Control Date" 10.15
"Change of Control Offer" 10.15
-16-
Defined in
Term Section
---- ----------
"Change of Control Purchase Date" 10.15
"Change of Control Purchase Price" 10.15
"covenant defeasance" 4.03
"Defaulted Interest" 3.06
"Defeased Guarantees" 4.01
"Defeased Notes" 4.01
"Existing Indebtedness" 10.11
"Global Notes" 2.01
"Initial Notes" Recitals
"Note Register" 3.04
"Note Registrar" 3.04
"Notice of Default" 5.01
"Offshore Global Note" 2.01
"Offshore Physical Note" 2.01
"Optional Redemption Price" 11.01
"Other Obligations" 1.20
"Payment Blockage Notice" 14.03
"Physical Notes" 2.01
"Refinancing Indebtedness" 10.11
"Repurchase Payments" 10.12
"Required Filing Dates" 10.09
"U.S. Global Note" 2.01
"U.S. Physical Notes" 2.01
Section 1.03. Rules of Construction.
---------------------
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
-17-
(d) the words "herein," "hereof" and "hereunder" and other words of
------ ------ ---------
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision;
(e) all references to "$"" or "dollars" shall refer to the lawful
- -------
currency of the United States of America;
(f) the words "include," "included" and "including" as used herein
------- -------- ---------
shall be deemed in each case to be followed by the phrase "without
-------
limitation";
----------
(g) words in the singular include the plural, and words in the plural
include the singular; and
(h) any reference to a Section or Article refers to such Section or
Article of this Indenture unless otherwise indicated.
Section 1.04. Form of Documents Delivered to Trustee.
--------------------------------------
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee (a) an
Officers' Certificate in form and substance reasonably satisfactory to the
Trustee stating that, in the opinion of the signers, all conditions precedent
(including any covenants compliance with which constitutes a condition
precedent), if any, provided for in this Indenture relating to the proposed
action have been complied with, (b) an Opinion of Counsel in form and substance
reasonably satisfactory to the Trustee stating that, in the opinion of counsel,
all such conditions (including any covenants compliance with which constitutes a
condition precedent), have been complied with and (c) where applicable, a
certificate or opinion by an accountant that complies with Section 314(c) of the
Trust Indenture Act.
Each Officers' Certificate and Opinion of Counsel with respect to
compliance with a condition or covenant provided for in this Indenture shall
include:
(a) a statement that the Person making such certificate or Opinion of
Counsel has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements contained in such Officers'
Certificate or Opinion of Counsel are based;
(c) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been complied with.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
-18-
Any certificate or opinion of an Officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous. Opinions of Counsel required to be delivered to the
Trustee may have qualifications customary for opinions of the type required and
counsel delivering such Opinions of Counsel may rely on certificates of the
Company or government of other officials customary for opinions of the type
required, including certificates certifying as to matters of fact, including
that various financial covenants have been complied with.
Any certificate of opinion of an officer of the Company, and Guarantor
of other obligor on the Notes may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of, or representations by, an accountant
or firm of accountants in the employ of the Company, unless such officer knows,
or in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to accounting matters upon which his
certificate or opinion may be based are erroneous. Any certificate or opinion
of any independent firm of public accountants filed with the Trustee shall
contain a statement that such firm is independent with respect to the Company.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated, with
proper identification of each matter covered therein, and form one instrument.
Section 1.05. Acts of Holders.
---------------
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in Person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
---
such instrument or instruments. Proof of execution (as provided below in
subsection (b) of this Section 1.05) of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 6.01 hereof) conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient including, without limitation, by verification from a notary
public or signature guarantee.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Note shall bind every future Holder
of the same Note or the Holder of every Note issued upon the transfer thereof or
in exchange therefor or in lieu thereof to the same extent as the original
Holder, in
-19-
respect of anything done, suffered or omitted to be done by the Trustee, any
Paying Agent or the Company in reliance thereon, whether or not notation of such
action is made upon such Note.
Section 1.06. Notices, etc., to the Trustee and the Company.
---------------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with:
(a) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed, in writing,
to or with the Trustee at its Corporate Trust Office or at any other
address previously furnished in writing to the Holders and the Company by
the Trustee or at the office of any drop agent specified by or on behalf of
the Trustee to the Holders and the Company from time to time; and
(b) the Company by the Trustee or by any Holder shall be sufficient
for every purpose (except as otherwise expressly provided herein)
hereunder if in writing and mailed, first-class postage prepaid, to the
Company, addressed to it at 0000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000, Attention: Xxxx X. Xxxx, with a copy to Xxxxx, Xxxxx &
Xxxxx, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxx
Xxxxxx, or at any other address previously furnished in writing to the
Trustee by the Company.
Section 1.07. Notice to Holders; Waiver.
-------------------------
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise expressly provided herein)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at the address of such Holder as it appears in the Note Register,
not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Any notice when mailed to a Holder in the
aforesaid manner shall be conclusively deemed to have been received by such
Holder whether or not actually received by such Holder. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause, it shall be impracticable to mail notice of any event
as required by any provision of this Indenture, then any method of giving such
notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice.
Section 1.08. Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with any
provision of the Trust Indenture Act or another provision which is required or
deemed to be included in this Indenture by any of the provisions of the Trust
Indenture Act, such provision or requirement of the Trust Indenture Act shall
control.
-20-
If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, such provision
of the Trust Indenture Act shall be deemed to apply to this Indenture as so
modified or excluded, as the case may be, if this Indenture shall then be
qualified under the TIA.
Section 1.09. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 1.10. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company and
Trustee shall bind their respective successors and assigns, whether so expressed
or not.
Section 1.11. Separability Clause.
-------------------
In case any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 1.12. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Notes issued pursuant hereto,
express or implied, shall give to any Person (other than the parties hereto and
their successors hereunder, any Paying Agent and the Holders) any benefit or any
legal or equitable right, remedy or claim under this Indenture, except as
provided in Article Thirteen and Article Fourteen.
SECTION 1.13. GOVERNING LAW.
-------------
THIS INDENTURE, THE NOTES AND THE GUARANTEES SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING
EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF). THE TRUSTEE, THE COMPANY,
EACH GUARANTOR AND ANY OTHER OBLIGOR IN RESPECT OF THE NOTES AND THE HOLDERS
AGREE TO SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL
OR STATE COURT LOCATED IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW YORK IN
ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE
NOTES.
Section 1.14. No Recourse Against Others.
--------------------------
No director, officer, employee or stockholder of the Company or any
Guarantor, as such, shall have any liability for any obligations of the Company
or any Guarantor under the Notes, the Guarantees or this Indenture. Each Holder
of Notes by accepting a Note waives and releases all such liability, and such
waiver and release is part of the consideration for the issuance of the Notes.
-21-
Section 1.15. Independence of Covenants.
-------------------------
All covenants and agreements in this Indenture shall be given
independent effect so that if a particular action or condition is not permitted
by any of such covenants, the fact that it would be permitted by an exception
to, or be otherwise within the limitations of, another covenant shall not avoid
the occurrence of a Default if such action is taken or condition exists.
Section 1.16. Exhibits and Schedules.
----------------------
All exhibits and schedules attached hereto are by this reference made
a part hereof with the same effect as if herein set forth in full.
Section 1.17. Counterparts.
------------
This Indenture may be executed in any number of counterparts, each of
which shall be an original; but such counterparts shall together constitute but
one and the same instrument.
Section 1.18. Duplicate Originals.
-------------------
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
Section 1.19. Incorporation by Reference of TIA.
---------------------------------
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in, and made a part of, this Indenture.
Any terms incorporated by reference in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission rule
under the TIA have the meanings so assigned to them therein.
ARTICLE TWO
SECURITY FORMS
Section 2.01. Form and Dating.
---------------
The Initial Notes and the Trustee's certificate of authentication
relating thereto shall be substantially in the form of Exhibit A hereto. The
---------
Exchange Notes and the Trustee's certificate of authentication relating thereto
shall be substantially in the form of Exhibit B hereto. The Notes may have
---------
notations, legends or endorsements required by law, stock exchange rule or
Depositary rule or usage. The Company shall approve the form of the Notes and
any notation, legend or endorsement on them. Each Note shall be dated the date
of its authentication and shall show the date of its authentication.
The additional terms and provisions contained in the forms of Notes
and Guarantees, annexed hereto as Exhibits A and E, respectively, 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.
-22-
Notes will initially be issued in either of the following forms:
(a) Notes offered and sold in reliance on Rule 144A issued initially
in the form of one or more global Notes in registered form, substantially
in the form set forth in Exhibit A (the "U.S. Global Note"), deposited with
---------
the Trustee, as custodian for the Depositary, duly executed by the Company
and authenticated by the Trustee as hereinafter provided and shall bear the
legend set forth in Section 2.03 hereof. The aggregate principal amount of
the U.S. Global Note may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for the
Depositary.
(b) Notes offered and sold in offshore transactions in reliance on
Regulation S represented upon issuance by a temporary global Note (the
"Offshore Global Note" and, together with the U.S. Global Note, the "Global
Notes"), which will be exchangeable for certificated Notes in registered
form in substantially the form set forth in Exhibit A (the "Offshore
---------
Physical Notes") only upon the expiration of the "40-day restricted period"
within the meaning of Rule 903(c)(3) of Regulation S.
Subsequent to the initial issuance of the Global Notes provided for in
paragraphs (a) and (b) above, physical certificates for notes transferred in
reliance on any exemption from registration under the Securities Act, other than
as described in the preceding two paragraphs, shall be issued in substantially
the form set forth in Exhibit A, subject to the Company's and the Trustee's
---------
right prior to any such transfer to require the delivery of an Opinion of
Counsel, certifications and/or other information satisfactory to each of them
(the "U.S. Physical Notes"). The Offshore Physical Notes and the U.S. Physical
Notes are sometimes collectively herein referred to as the "Physical Notes."
Physical Notes may initially be registered in the name of the Depositary or a
nominee of such Depositary and be delivered to the Trustee as custodian for such
Depositary. Beneficial owners of Physical Notes, however, may request
registration of such Physical Notes in their names or the names of their
nominees.
Section 2.02. Execution and Authentication; Aggregate Principal
-------------------------------------------------
Amount.
------
The Notes shall be executed on behalf of the Company by two Officers
of the Company. The signature of any Officer on the Notes may be manual or
facsimile.
If an Officer or Assistant Secretary whose manual or facsimile
signature is on a Note was an Officer or Assistant Secretary at the time of such
execution but no longer holds that office or position at the time the Trustee
authenticates the Note, the Note shall nevertheless be valid.
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any Note
shall be conclusive evidence, and the only evidence, that such Note has been
duly authenticated and delivered hereunder.
The Trustee shall authenticate (i) Initial Notes for original issue in
the aggregate principal amount not to exceed $100,000,000 and (ii) Exchange
Notes from time to time for issue only in exchange for a like principal amount
of Initial Notes, in each case upon a written order of the Company in the form
of an Officers' Certificate. The Officers' Certificate shall specify the amount
of Notes to be authenticated and the date on which the Notes are to be
authenticated, whether the Notes are to be Initial Notes or Exchange Notes and
whether the Notes are to be issued as Physical Notes or Global Notes or such
other information as the
-23-
Trustee may reasonably request. The aggregate principal amount of Notes
outstanding at any time may not exceed $100,000,000, except as provided in
Section 3.05 hereof.
The Trustee may appoint an authenticating agent (the "Authenticating
Agent") reasonably acceptable to the Company to authenticate Notes. Unless
otherwise provided in the appointment, an Authenticating Agent may authenticate
Notes whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such Authenticating
Agent. An Authenticating Agent has the same rights as an agent to deal with the
Company or with any Affiliate of the Company.
Section 2.03. Restrictive Legends.
-------------------
Each Global Note and Physical Note that constitutes a Restricted
Security shall bear the following legend (the "Private Placement Legend") on the
------------------------
face thereof until the third anniversary of the Issue Date, unless otherwise
agreed by the Company and the Holder thereof:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
ANY STATE OR OTHER SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED
OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE TRANSACTION
IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS
ACCEPTANCE HEREOF AGREES THAT IT WILL NOT PRIOR TO (X) THE DATE
WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED
BY RULE 144(k) UNDER THE SECURITIES ACT OR ANY SUCCESSOR
PROVISION THEREUNDER) AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF (OR OF ANY PREDECESSOR OF THIS SECURITY) OR THE LAST DAY
ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE
OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) AND
(Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE
LAWS (THE "RESALE RESTRICTION TERMINATION DATE"), OFFER, SELL OR
OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE ISSUER OR ANY
SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C)
FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE IN RULE 144A, (D) INSIDE THE
UNITED STATES TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN
THE MEANING OF SUBPARAGRAPH (A)(1),(2),(3) OR (7) OF RULE 501
UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS
OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
"ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A
VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (E) PURSUANT TO
OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUT-
-24-
SIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER
THE SECURITIES ACT, PURSUANT TO RULE 904 OF REGULATION S OR (F)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND AGREES THAT IT WILL GIVE
TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT THE
COMPANY, THE TRUSTEE AND THE TRANSFER AGENT AND REGISTRAR
PRESERVE THE RIGHT PRIOR TO ANY OFFER, SALE OR OTHER TRANSFER
PURSUANT TO CLAUSES (D),(E) OR (F) ABOVE TO REQUIRE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATIONS AND OTHER INFORMATION
SATISFACTORY TO THE COMPANY, THE TRUSTEE AND THE TRANSFER AGENT
AND REGISTRAR. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF
THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND
"U.S. PERSON" HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM BY
REGULATION S UNDER THE SECURITIES ACT.
Each Global Note shall also bear a legend on the face thereof in
substantially the following form:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF
THE DEPOSITARY, OR BY ANY SUCH NOMINEE OF THE DEPOSITARY, OR BY
THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE 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 IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF
PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION
2.05 OF THE INDENTURE.
Section 2.04. Book-Entry Provisions for Global Notes.
--------------------------------------
This Section 2.04 shall apply only to the Global Notes deposited with
the Depositary or its custodian.
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(1) So long as the Notes are eligible for book-entry settlement with
the Depositary, or unless otherwise required by law, the Global Notes initially
shall (i) be registered in the name of the Depositary or the nominee of such
Depositary, (ii) be delivered to the Trustee as custodian for such Depositary
and (iii) bear legends as set forth in Section 2.03.
Members of, or participants in, the Depositary ("Agent Members") shall
-------------
have no rights under this Indenture with respect to any Global Note held on
their behalf by the Depositary, or the Trustee as its custodian, or under the
Global Notes, and the Depositary may be treated by the Company, the Trustee and
any agent of the Company or the Trustee as the absolute owner of the Global
Notes for all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Trustee or any Agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary
and its Agent Members, the operation of customary practices governing the
exercise of the rights of a Holder of any Note.
(2) Transfers of the Global Notes shall be limited to transfers in
whole, but, subject to the immediately succeeding sentence, not in part, to the
Depositary, its successors or their respective nominees. Interests of beneficial
owners in the Global Notes may be transferred or exchanged for Physical Notes in
accordance with the rules and procedures of the Depositary and the provisions of
Section 2.05 hereof. In addition, Physical Notes shall be transferred to all
beneficial owners in exchange for their beneficial interests in the Global Notes
if (i) the Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for the Global Notes and a successor depositary is not
appointed by the Company within 90 days of such notice or (ii) an Event of
Default has occurred and is continuing and the Note Registrar has received a
written request from the Depositary to issue Physical Notes.
(3) In connection with any transfer or exchange of a portion of the
beneficial interest in a Global Note to beneficial owners pursuant to paragraph
(2), the Note Registrar shall (if one or more Physical Notes are to be issued)
reflect on its books and records the date and a decrease in the principal amount
of the Global Note in an amount equal to the principal amount of the beneficial
interest in the Global Note to be transferred, and the Company shall execute,
and the Trustee shall authenticate and deliver, one or more Physical Notes of
like tenor and amount.
(4) In connection with the transfer of the beneficial interests in an
entire Global Note to beneficial owners pursuant to paragraph (2), the Global
Note shall be deemed to be surrendered to the Trustee for cancellation, and the
Company shall execute, and the Trustee shall authenticate and deliver to each
beneficial owner identified by the Depositary in exchange for its beneficial
interest in the Global Note, an equal aggregate principal amount of Physical
Notes of authorized denominations.
(5) Any Physical Note constituting a Restricted Security delivered in
exchange for a beneficial interest in a Global Note pursuant to paragraph (2) or
(3) shall, except as otherwise provided by paragraphs (1)(a)(x) and (3) of
Section 2.05 hereof, bear the Private Placement Legend.
(6) The owner of a beneficial interest in a Global Note may grant
proxies and otherwise authorize any person, including Agent Members and persons
that may hold interests through Agent Members, to take any action which a Holder
is entitled to take under this Indenture or the Notes.
-26-
Section 2.05. Special Transfer Provisions.
---------------------------
(1) Transfers to Non-QIB Institutional Accredited Investors and Non-
-----------------------------------------------------------------
U.S. Persons. The following provisions shall apply with respect to the
------------
registration of any proposed transfer of a Note constituting a Restricted
Security to any Institutional Accredited Investor which is not a QIB or to any
Non-U.S. Person:
(a) the Note Registrar shall register the transfer of any Note
constituting a Restricted Security, whether or not such Note bears the
Private Placement Legend, if (x) the requested transfer is after the second
anniversary of the Issue Date or (y) (A) in the case of a transfer to an
Institutional Accredited Investor which is not a QIB (excluding Non-U.S.
Persons), the proposed transferee has delivered to the Note Registrar a
certificate substantially in the form of Exhibit C hereto or (B) in the
---------
case of a transfer to a Non-U.S. Person, the proposed transferor has
delivered to the Note Registrar a certificate substantially in the form of
Exhibit D hereto; and
---------
(b) if the proposed transferor is an Agent Member holding a
beneficial interest in the Global Note, upon receipt by the Note Registrar
of (x) the certificate, if any, required by paragraph (a) above and (y)
written instructions given in accordance with the Depositary's and the Note
Registrar's procedures,
whereupon (i) the Note Registrar shall reflect on its books and records the date
and (if the transfer does not involve a transfer of outstanding Physical Notes)
a decrease in the principal amount of the applicable Global Note in an amount
equal to the principal amount of the beneficial interest in the Global Note to
be transferred, and (ii) the Company shall execute and the Trustee shall
authenticate and deliver one or more Physical Notes of like tenor and amount.
(2) Transfers to QIBs. The following provisions shall apply with
-----------------
respect to the registration of any proposed transfer of a Note constituting a
Restricted Security to a QIB (excluding transfers to Non-U.S. Persons):
(a) the Note Registrar shall register the transfer if such transfer
is being made by a proposed transferor who has checked the box provided for
on the form of Note stating, or has otherwise advised the Company and the
Note Registrar in writing, that the sale has been made in compliance with
the provisions of Rule 144A to a transferee who has signed the
certification provided for on the form of Note stating, or has otherwise
advised the Company and the Note Registrar in writing, that it is
purchasing the Note for its own account or an account with respect to which
it exercises sole investment discretion and that it and any such account is
a QIB within the meaning of Rule 144A, and is aware that the sale to it is
being made in reliance on Rule 144A and acknowledges that it has received
such information regarding the Company as it has requested pursuant to Rule
144A or has determined not to request such information and that it is aware
that the transferor is relying upon its foregoing representations in order
to claim the exemption from registration provided by Rule 144A; and
(b) the proposed transferee is an Agent Member, and the Notes to be
transferred consist of Physical Notes which after transfer are to be
evidenced by an interest in a Global Note, upon receipt by the Note
Registrar of written instructions given in accordance with the Depositary's
and the Note Registrar's procedures, the Note Registrar shall reflect on
its books and records the date and an increase in the principal amount of
the applicable Global Note in an amount equal to the principal amount of
the Physical Notes to be transferred, and the Trustee shall cancel the
Physical Notes so transferred.
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(3) Private Placement Legend. Upon the transfer, exchange or
------------------------
replacement of Notes not bearing the Private Placement Legend, the Note
Registrar shall deliver Notes that do not bear the Private Placement Legend.
Upon the transfer, exchange or replacement of Notes bearing the Private
Placement Legend, the Note Registrar shall deliver only Notes that bear the
Private Placement Legend unless (i) the requested transfer is after the second
anniversary of the Issue Date, or (ii) there is delivered to the Note Registrar
an Opinion of Counsel reasonably satisfactory to the Company and the Trustee to
the effect that neither such legend nor the related restrictions on transfer are
required in order to maintain compliance with the provisions of the Securities
Act.
(4) General. By its acceptance of any Note bearing the Private
-------
Placement Legend, each Holder of such a Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in this
Indenture.
The Note Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 2.04 hereof or this
Section 2.05. The Company shall have the right to inspect and make copies of all
such letters, notices or other written communications at any reasonable time
during the Note Registrar's normal business hours upon the giving of reasonable
written notice to the Note Registrar.
In connection with any transfer of the Notes, the Trustee, the Note
Registrar and the Company shall be entitled to receive, shall be under no duty
to inquire into, may conclusively presume the correctness of, and shall be fully
protected in relying upon the certificates, opinions and other information
referred to herein (or in the forms provided herein, attached hereto or to the
Notes, or otherwise) received from any Holder and any transferee of any Note
regarding the validity, legality and due authorization of any such transfer, the
eligibility of the transferee to receive such Note and any other facts and
circumstances related to such transfer.
ARTICLE THREE
THE NOTES
Section 3.01. Title and Terms.
---------------
The aggregate principal amount of Notes which may be authenticated and
delivered under this Indenture is limited to $100,000,000, except for Notes
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Notes pursuant to Section 3.03, 3.04, 3.05, 9.05,
10.12, 10.14, 10.15 or 11.08.
The Notes shall be known and designated as the "10 1/4% Senior
Subordinated Notes due 2007" of the Company. The final Stated Maturity of the
Notes shall be November 1, 2007. Interest on the Notes will accrue at the rate
of 10 1/4% per annum and will be payable semi-annually in arrears on May 1 and
November 1 in each year, commencing on May 1, 1998, to Holders of record on the
immediately preceding April 15 and October 15, respectively. Interest on the
Notes will accrue from the most recent date to which interest has been paid or
duly provided for or, if no interest has been paid, from the Issue Date.
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The additional terms and provisions contained in the forms of Notes
and the Guarantees, annexed hereto as Exhibits A and E, respectively, 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.
Section 3.02. Denominations.
-------------
The Notes shall be issuable only in fully registered form without
coupons and in denominations of $1,000 and any integral multiple thereof.
Section 3.03. Temporary Notes.
---------------
Pending the preparation and delivery of definitive Notes, the Company
may execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Notes. Temporary Notes may be printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Notes in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the Officers executing such Notes may consider appropriate, as
conclusively evidenced by their execution of such Notes.
If temporary Notes are issued, the Company will cause definitive Notes
to be prepared without unreasonable delay. After the preparation of definitive
Notes, the temporary Notes shall be exchangeable for definitive Notes upon
surrender of the temporary Notes at the office or agency of the Company
designated for such purpose pursuant to Section 10.02, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Notes the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Notes of authorized
denominations. Until so exchanged the temporary Notes shall in all respects be
entitled to the same benefits under this Indenture as definitive Notes.
Section 3.04. Registration, Registration of Transfer and Exchange.
---------------------------------------------------
The Company shall cause to be kept at the Corporate Trust Office a
register (the register maintained in such office and in any other office or
agency designated pursuant to Section 10.02 being herein sometimes referred to
as the "Note Register") in which, subject to such reasonable regulations as the
Person appointed as being responsible for the keeping of the Note Register (the
"Note Registrar") may prescribe, the Company shall provide for the registration
of Notes and of transfers of Notes. The Note Register shall be in written form
or in any form capable of being converted into written form within a reasonable
period of time. The Trustee is hereby initially appointed Note Registrar for the
purpose of registering Notes and transfers of Notes as herein provided. The
Company may appoint one or more co-registrars.
Upon surrender for registration of transfer of any Note at the office
or agency of the Company designated pursuant to Section 10.02, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Notes of any authorized
denomination or denominations, of a like aggregate principal amount and bearing
such restrictive legends as may be required by Section 2.03.
At the option of the Holder, Notes in certificated form may be
exchanged for other Notes of any authorized denomination or denominations, of a
like aggregate principal amount, upon surrender of the Notes to be exchanged at
such office or agency. Whenever any Notes are so surrendered for exchange, the
-29-
Company shall execute, and the Trustee shall authenticate and deliver, the Notes
which the Holder making the exchange is entitled to receive.
All Notes issued upon any registration of transfer or exchange of
Notes shall be the valid obligations of the Company, evidencing the same
indebtedness, and entitled to the same benefits under this Indenture, as the
Notes surrendered upon such registration of transfer or exchange and no such
transfer or exchange shall constitute a repayment of any obligation nor create
any new obligations of the Company.
Every Note presented or surrendered for registration of transfer, or
for exchange or redemption, shall (if so required by the Company, the Trustee,
the Note Registrar or any co-registrar) be duly endorsed or be accompanied by a
written instrument of transfer in form satisfactory to the Company, the Trustee,
and the Note Registrar or any co-registrar, duly executed by the Holder thereof
or his attorney duly authorized in writing.
No service charge shall be made to a Holder for any registration of
transfer or exchange or redemption of Notes, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of Notes,
other than exchanges pursuant to Section 3.03, 9.05, 10.14, 10.15 or 11.08 not
involving any transfer.
None of the Company, the Trustee, the Note Registrar or any co-
registrar shall be required (a) to issue, register the transfer of or exchange
any Note during a period beginning at the opening of business 15 days before the
mailing of a notice of redemption of the Notes selected for redemption and
ending at the close of business on the day of such mailing, (b) to register the
transfer of or exchange any Note so selected for redemption in whole or in part,
except the unredeemed portion of Notes being redeemed in part or (c) to issue,
register, transfer or exchange any Note during a Change of Control Offer or an
Asset Sale Offer, if such note is tendered pursuant to such Change of Control
Offer or Asset Sale Offer.
When Notes are presented to the Note Registrar with a request to
register the transfer or to exchange them for an equal principal amount of Notes
of other authorized denominations, the Registrar shall register the transfer or
make the exchange as requested if its requirements for such transactions are
met. To permit registrations of transfers and exchanges, the Company shall
execute and the Trustee shall authenticate Notes at the Note Registrar's
request.
Section 3.05. Mutilated, Destroyed, Lost and Stolen Notes.
-------------------------------------------
If (a) any mutilated Note is surrendered to the Trustee, or (b) the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Note, and there is delivered to the Company
and the Trustee, such security or indemnity, in each case, as may be required by
them to save each of them harmless from any loss which either of them may suffer
if a Note is replaced, then, in the absence of notice to the Company or the
Trustee that such Note has been acquired by a bona fide purchaser, the Company
shall execute and the Trustee shall authenticate and deliver, in exchange for
any such mutilated Note or in lieu of any such destroyed, lost or stolen Note, a
replacement Note of like tenor and principal amount, bearing a number not
contemporaneously outstanding.
Upon the issuance of any replacement Notes under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
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Every replacement Note issued pursuant to this Section in lieu of any
destroyed, lost or stolen Note shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Note shall be at any time enforceable by anyone, and shall be entitled to
all benefits of this Indenture equally and proportionately with any and all
other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes.
Section 3.06. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Interest on any Note which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid by check or wire
transfer to the Person in whose name that Note (or one or more predecessor
Notes) is registered at the close of business on the Regular 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 and interest on such
defaulted interest at the then applicable interest rate borne by the Notes, to
the extent lawful (such defaulted interest and interest thereon herein
collectively called "Defaulted Interest"), shall forthwith cease to be payable
to the Holder on the Regular Record Date and such Defaulted Interest may be paid
by the Company, at its election in each case, as provided in subsection (a) or
(b) below:
(a) 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 in writing at least
20 days before such payment date 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 Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this subsection (a) provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest 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 Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company in writing of such Special Record
Date. In the name and at the expense of the Company, the Trustee 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 its 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 so mailed, 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 subsection (b).
(b) 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 written notice given
by the Company to the Trustee of the proposed payment pursuant to this
subsection (b), such payment shall be deemed practicable by the Trustee.
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Subject to the foregoing provisions of this Section, each Note
delivered under this Indenture upon 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 3.07. Persons Deemed Owners.
---------------------
Prior to and at the time of due presentment for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name any Note is registered in the Note Register
as the owner of such Note for the purpose of receiving payment of principal of,
premium, if any, and (subject to Section 3.06) interest on such Note and for all
other purposes whatsoever, whether or not such Note shall be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
Section 3.08. Cancellation.
------------
All Notes surrendered for payment, redemption, registration of
transfer or exchange shall be delivered to the Trustee and, if not already
cancelled, shall be promptly cancelled by it. The Company may at any time
deliver to the Trustee for cancellation any Notes previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, as evidenced by a Company Order instructing the Trustee that all
Notes so delivered shall be promptly cancelled by the Trustee. No Notes shall be
authenticated in lieu of or in exchange for any Notes cancelled as provided in
this Section 3.08, except as expressly permitted by this Indenture. Cancelled
Notes held by the Trustee shall be disposed of as directed by a Company Order;
provided, however, that the Trustee shall not be required to destroy such
-------- -------
cancelled Notes. The Trustee shall provide the Company with a list of all Notes
that have been cancelled from time to time as requested by the Company.
Section 3.09. Computation of Interest.
-----------------------
Interest on the Notes shall be computed on the basis of a 360-day year
of twelve 30-day months.
Section 3.10. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date, date
established for the payment of Defaulted Interest or Stated Maturity of any Note
shall not be a Business Day, then (notwithstanding any other provision of this
Indenture or of the Notes) payment of principal, premium, if any, or interest
need not be made on such date, but may be made on the next succeeding Business
Day with the same force and effect as if made on the Interest Payment Date,
Redemption Date, date established for the payment of Defaulted Interest or at
the Stated Maturity, as the case may be, and no interest shall accrue with
respect to such payment for the period from and after such Interest Payment
Date, Redemption Date, date established for the payment of Defaulted Interest or
Stated Maturity, as the case may be, to the next succeeding Business Day.
Section 3.11. CUSIP Number.
------------
The Company in issuing the Notes may use "CUSIP" numbers (if then
generally in use), and if so, the Trustee may use the CUSIP numbers in notices
of redemption or exchange as a convenience to Holders; provided, however, that
-------- -------
any such notice may state that no representation is made as to the correctness
or
-32-
accuracy of the CUSIP number printed in the notice or on the Notes, and that
reliance may be placed only on the other identification numbers printed on the
Notes. All Initial Notes shall bear identical CUSIP numbers and all Exchange
Notes shall bear identical CUSIP numbers. The Company shall promptly notify the
Trustee in writing of any change in the CUSIP number of the Notes.
Section 3.12. Payment of Additional Interest Under Registration
-------------------------------------------------
Rights Agreement.
----------------
Under certain circumstances the Company will be obligated to pay
certain additional amounts of interest to the Holders, as more particularly set
forth in section 2(e) of the Registration Rights Agreement. The terms of
Section 2(e) the Registration Rights Agreement are hereby incorporated herein by
reference and the Company shall be obligated to provide a copy of such
Registration Rights Agreement to the Trustee.
ARTICLE FOUR
DEFEASANCE OR COVENANT DEFEASANCE
Section 4.01. Defeasance.
----------
The Company may, at its option and at any time, terminate the
obligations of the Company and the Guarantors, if any, with respect to
Outstanding Notes ("defeasance"). Such defeasance means that the Company will be
deemed to have paid and discharged the entire Indebtedness represented by the
Outstanding Notes, except for (i) the rights of holders of Outstanding Notes to
receive payment in respect of the principal of, premium, if any, and interest on
such Notes when such payments are due, (ii) the Company's obligations to issue
temporary Notes, register the transfer or exchange of any Notes, replace
mutilated, destroyed, lost or stolen Notes and maintain an office or agency for
payments in respect of the Notes, (iii) the rights, powers, trusts, duties and
immunities of the Trustee and (iv) the defeasance provisions of the Indenture.
Section 4.02. Covenant Defeasance.
-------------------
In addition, the Company may, at its option and at any time, elect to
terminate the obligations of the Company and any Guarantor with respect to
Sections 10.05 through 10.20 and the provisions of Article Eight, and any
omission to comply with such obligations will not constitute a Default or an
Event of Default with respect to the Notes ("covenant defeasance"). For this
purpose, such covenant defeasance means that, with respect to the Outstanding
Notes, the Company and the Guarantors may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Section
5.01(c), (d) or (e), provided as specified above, the remainder of this
Indenture and such Outstanding Notes shall be unaffected thereby.
Section 4.03. Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
In order to exercise either defeasance or covenant defeasance:
(1) the Company must irrevocably deposit with the Trustee, in trust,
for the benefit of the Holders, cash in United States dollars, U.S.
Government Obligations, or a combination thereof, in
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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 on the outstanding Notes at maturity;
(2) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of the Outstanding Notes will not
recognize income, gain or loss for federal income tax purposes as a result
of such defeasance or 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 defeasance or covenant defeasance had not
occurred (in the case of defeasance, such opinion must refer to and be
based upon a ruling of the Internal Revenue Service or a change in
applicable federal income tax laws);
(3) no Default shall have occurred and be continuing on the date of
such deposit;
(4) such defeasance or covenant defeasance shall not cause the Trustee
to have a conflicting interest with respect to any securities of the
Company or any Guarantor;
(5) such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, any material
agreement or instrument to which the Company or any Guarantor is a party or
by which it is bound;
(6) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that (A) the trust funds will not be subject to any
rights of Holders of Senior Indebtedness, including, without limitation,
those arising under this Indenture and (B) after the 91st day following the
deposit, the trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally; and
(7) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent under this Indenture to either defeasance or covenant defeasance,
as the case may be, have been complied with.
Opinions and certificates required to be delivered under this Section
shall be in compliance with the requirements set forth in Section 1.04 and this
Section 4.03.
Section 4.04. Deposited Money and U.S. Government Obligations To Be
-----------------------------------------------------
Held in Trust; Etc.
-------------------
Subject to the provisions of the last paragraph of Section 10.03, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee (or such other Person that would qualify to act as successor
trustee under Article Six, collectively for purposes of this Section 4.04, the
"Trustee") pursuant to Section 4.03 in respect of the Company's election under
either Section 4.01 or 4.02, shall be held in trust and applied by the Trustee,
in accordance with the provisions of such Notes and this Indenture, to the
payment, either directly or through any Paying Agent (other than the Company or
any Affiliate of the Company) 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, but such money need not be segregated from other
funds except to the extent required by law.
-34-
The Company shall pay and indemnify the Trustee and its agents and
hold them harmless against any tax, fee or other charge imposed on or assessed
against the U.S. Government Obligations deposited pursuant to Section 4.03 or
the principal, premium, if any, and interest received in respect thereof other
than any such tax, fee or other charge which by law is for the account of the
Holders of the Defeased Notes.
Anything in this Article Four to the contrary notwithstanding, the
Trustee shall deliver to the Company from time to time upon Company Request any
money or U.S. Government Obligations held by it as provided in Section 4.03
hereof which, in the opinion of a nationally-recognized firm of independent
public accountants expressed in a written certification thereof to the Trustee,
are in excess of the amount thereof which would then be required to be deposited
to effect an equivalent defeasance or covenant defeasance.
Section 4.05. Reinstatement.
-------------
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with Section 4.03, by reason of any order
or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the obligations of the Company and
each of the Guarantors under this Indenture, the Notes and the Guarantees shall
be revived and reinstated as though no deposit had occurred pursuant to Section
4.03, until such time as the Trustee or Paying Agent is permitted to apply all
such money and U.S. Government Obligations in accordance with Section 4.03;
provided, however, that if the Company or the Guarantors make any payment of
principal, premium, if any, or interest on any Note following the reinstatement
of its obligations, the Company or the Guarantors, as the case may be, shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money and U.S. Government Obligations held by the Trustee or Paying
Agent.
Section 4.06. Repayment to Company.
--------------------
The Trustee shall pay to the Company (or, if appropriate, the
Guarantors) upon Company Request any money held by it for the payment of
principal or interest that remains unclaimed for two years. After payment to the
Company or the Guarantors, Noteholders entitled to money must look to the
Company and the Guarantors for payment as general creditors unless an applicable
abandoned property law designates another person and all liability of the
Trustee or Paying Agent with respect to such money shall thereupon cease.
ARTICLE FIVE
REMEDIES
Section 5.01. 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 voluntary or involuntary or be effected 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):
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(a) default in the payment of the principal of or premium, if any,
when due and payable, on any of the Notes (at its Stated Maturity, upon
optional redemption, required purchase, scheduled principal payment or
otherwise); or
(b) default in the payment of an installment of interest on any of the
Notes, when due and payable, continued for 30 days or more; or
(c) the Company or any Guarantor fails to comply with any of its
obligations described under Article Eight, Section 10.14 or Section 10.15;
or
(d) the Company or any Guarantor fails to perform or observe any other
term, covenant or agreement contained in the Notes, the Note Guarantees or
this Indenture (other than a default specified in (i), (ii) or (iii) above)
for a period of 30 days after written notice of such failure requiring the
Company to remedy the same shall have been given (x) to the Company by the
Trustee or (y) to the Company and the Trustee by the Holders of 25% in
aggregate principal amount of the Notes then outstanding; or
(e) default or defaults under one or more agreements, indentures or
instruments under which the Company or any Restricted Subsidiary then has
outstanding Indebtedness in excess of $7.5 million individually or in the
aggregate and either (a) such Indebtedness is already due and payable in
full or (b) such default or defaults results in the acceleration of the
maturity of such Indebtedness; or
(f) any Note Guarantee ceases to be in full force and effect or is
declared null and void or any Guarantor denies that it has any further
liability under any Note Guarantee, or gives notice to such effect (other
than by reason of the termination of this Indenture or the release of any
such Note Guarantee in accordance with Section 10.10) and such condition
shall have continued for a period of 30 days after notice to the Company by
the Trustee; or
(g) one or more judgments, orders or decrees of any court or
regulatory or administrative agency for the payment of money in excess of
$7.5 million either individually or in the aggregate shall have been
rendered against the Company or any Restricted Subsidiary or any of their
respective properties and shall not have been discharged and either (a) any
creditor shall have commenced an enforcement proceeding upon such judgment,
order or decree, and such judgment is not being appealed by the Company or
(b) there shall have been a period of 60 consecutive days during which a
stay of enforcement of such judgment, order or decree, by reason of a
pending appeal or otherwise, shall not be in effect; or
(h) (i) the Company or any Material Subsidiary commences a voluntary
case or proceeding under any applicable Bankruptcy Law or any other case or
proceeding to be adjudicated bankrupt or insolvent, (ii) the Company or any
Material Subsidiary consents to the entry of a decree or order for relief
in respect of the Company or such Material Subsidiary in an involuntary
case or proceeding under any applicable Bankruptcy Law or to the
commencement of any bankruptcy or insolvency case or proceeding against it,
(iii) the Company or any Material Subsidiary files a petition or answer or
consent seeking reorganization or relief under any applicable Federal or
state law, (iv) the Company or any Material Subsidiary (x) consents to the
filing of such petition or the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or such Material Subsidiary or of any
substantial part of their respective property,
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(y) makes an assignment for the benefit of creditors or (z) admits in
writing its inability to pay its debts generally as they become due.
The Company shall provide an Officers' Certificate to the Trustee
promptly upon any officer of the Company obtaining knowledge of any Default or
Event of Default that has occurred and, if applicable, describe such Default or
Event of Default and the status thereof.
Section 5.02. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default (other than as specified in Section 5.01(h)
with respect to the Company) shall occur and be continuing, the Trustee, by
notice to the Company, or the Holders of at least 25% in aggregate principal
amount of the Notes then outstanding, by notice to the Trustee and the Company,
may declare the principal of, premium, if any, and accrued interest on all of
the outstanding Notes due and payable immediately, upon which declaration all
such amounts payable in respect of the Notes will become and be immediately due
and payable; provided, however, that so long as the New Credit Agreement shall
be in force and effect, if an Event of Default shall have occurred and be
continuing (other than an Event of Default in Section 5.01(h) with respect to
the Company), any such acceleration shall not be effective until the earlier to
occur of (x) five business days following delivery of a notice of such
acceleration to the agent under the New Credit Agreement and (y) the
acceleration of any Indebtedness under the New Credit Agreement. If an Event of
Default specified in Section 5.01(h) above with respect to the Company occurs
and is continuing, then the principal of, premium, if any, and accrued interest
on all of the outstanding Notes will ipso facto become and be immediately due
and payable without any declaration or other act on the part of the Trustee or
any Holder of Notes.
Notwithstanding the preceding paragraph, in the event of a declaration
of acceleration in respect of the Notes because an Event of Default specified in
Section 5.01(e) shall have occurred and be continuing, such declaration of
acceleration will be automatically annulled if the Indebtedness that is the
subject of such Event of Default has been discharged or paid (if permitted by
the terms thereof and this Indenture) or the requisite Holders thereof have
rescinded their declaration of acceleration in respect of such Indebtedness, and
written notice of such discharge or rescission, as the case may be, shall have
been given to the Trustee by the Company, within 60 days after such declaration
of acceleration in respect of the Notes and no other Event of Default has
occurred which has not been cured or waived during such 60-day period.
After a declaration of acceleration, but before a judgment or decree
for payment of the money due has been obtained by the Trustee, the Holders of a
majority in aggregate principal amount of the outstanding Notes, by written
notice to the Company and the Trustee, may rescind such declaration if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(i) all sums paid or advanced by the Trustee under this Indenture
and the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel,
(ii) all overdue interest on all Notes,
(iii) the principal of and premium, if any, on any Notes which have
become due otherwise than by such declaration of acceleration and interest
thereon at the rate borne by the Notes, and
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(iv) to the extent that payment of such interest is lawful, interest
upon overdue interest at the rate borne by the Notes, and
(b) all Events of Default, other than the non-payment of principal
of, premium, if any, and interest on the Notes that has become due solely
by such declaration of acceleration, have been cured or waived.
Section 5.03. Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee; Other Remedies.
-----------------------
The Company covenants that if an Event of Default in payment of
principal, premium or interest specified in Section 5.01(a) or 5.01(b) hereof
occurs and is continuing, the Company will, upon demand of the Trustee, pay to
the Trustee, 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, with
interest upon the overdue principal, premium, if any, and, to the extent that
payment of such interest shall be legally enforceable, upon overdue installments
of interest, at the rate then borne by the Notes; and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
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, may, but is not
obligated under this paragraph to, institute a judicial proceeding for the
collection of the sums so due and unpaid and may, but is not obligated under
this paragraph to, prosecute such proceeding to judgment or final decree, and
may, but is not obligated under this paragraph to, enforce the same against the
Company, the Guarantors 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, but is not obligated under this paragraph to, (i) proceed to
protect and enforce its rights and the rights of the Holders under this
Indenture and the Notes by such appropriate private or judicial proceedings as
the Trustee shall deem most effectual to protect and enforce such rights,
whether for the specific enforcement of any covenant or agreement contained in
this Indenture or the Notes or in aid of the exercise of any power granted
herein or therein, or (ii) proceed to protect and enforce any other proper
remedy. No recovery of any such judgment upon any property of the Company shall
affect or impair any rights, powers or remedies of the Trustee or the Holders.
Section 5.04. Trustee May File Proofs of Claims.
---------------------------------
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company, the Guarantors or any other obligor
upon the Notes, or the property of the Company, the Guarantors 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 or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise, but is not obligated under this paragraph
(a) to file and prove a claim for the whole amount of principal,
premium, if any, and interest owing and unpaid in respect of the Notes and
to file such other papers or documents as may be
-38-
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of
the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.07 hereof.
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 5.05. 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 and as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Notes in respect of which such judgment has been recovered.
Section 5.06. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article 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, 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 for amounts due under Section 6.07;
Second: to Holders for interest accrued on the Notes, ratably,
without preference or priority of any kind, according to the amounts due
and payable on the Notes for interest;
Third: to Holders for principal amounts owing under the Notes,
ratably, without preference or priority of any kind, according to the
amounts due and payable on the Notes for principal and premium; and
Fourth: to the Company or, to the extent the Trustee collects any
amount from any Guarantor, to such Guarantor.
The Trustee, upon prior written notice to the Company, may fix a
record date and payment date for any payment to Noteholders pursuant to this
Section 5.06.
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Section 5.07. Limitation on Suits.
-------------------
No Holder of any Notes shall have any right 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
(a) the Holder or Holders of not less than 25.0% in aggregate
principal amount of the Outstanding Notes shall have made written
request(s) to the Trustee to institute proceedings in respect of such Event
of Default in its own name as Trustee hereunder;
(b) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(c) the Trustee for 15 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(d) no direction inconsistent with such written request has been given
to the Trustee during such 15-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 whatever by virtue of, or by availing of, any provision of
this Indenture or any Note 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 or any Note except in
the manner provided in this Indenture and for the equal and ratable benefit of
all the Holders.
Section 5.08. Unconditional Right of Holders To Receive Principal, Premium
------------------------------------------------------------
and Interest.
------------
Notwithstanding any other provision in this Indenture, the Holder of any
Note shall have the right, which is absolute and unconditional, to receive cash
payment, in United States dollars, of the principal of, premium, if any, and
(subject to Section 3.06 hereof) interest on such Note on the respective Stated
Maturities expressed in such Note (or, in the case of redemption or repurchase,
on the respective Redemption Dates or date fixed for repurchase) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the express consent of such Holder.
Section 5.09. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture or any Note 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 such case the Company, the
Trustee and the Holders shall, subject to any determination in such proceeding,
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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Section 5.10. Rights and Remedies Cumulative.
------------------------------
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 5.11. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Note to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article Five 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 5.12. Control by Majority.
-------------------
The Holders of not less than a majority in aggregate principal amount of
the Outstanding Notes 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, however, that:
(a) such direction shall not be in conflict with any rule of law or
with this Indenture or any Note or expose the Trustee to liability; and
(b) subject to the provisions of Section 315 of the TIA, the Trustee
may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
Section 5.13. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in aggregate principal amount of
the Outstanding Notes may on behalf of the Holders of all the Notes waive any
past Default hereunder and its consequences, except a Default:
(a) in the payment of the principal of, premium, if any, or interest
on any Note (which may only be waived with the consent of each Holder of
Notes affected); or
(b) in respect of a covenant or provision under this Indenture which
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 Event of Default or impair any right consequent thereon.
Section 5.14. 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 any court may in its
discretion require, in any suit for the enforcement of
-41-
any right or remedy under this Indenture or the Notes, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, 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, 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 shall not apply 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 principal amount of the
Outstanding Notes or to any suit instituted by any Holder for the enforcement of
the payment of the principal of, premium, if any, or interest on any Note on or
after the respective Stated Maturities expressed in such Note (or, in the case
of redemption or repurchase, on or after the respective Redemption Dates or
dates fixed for repurchase).
Section 5.15. Waiver of Stay, Extension or Usury Laws.
---------------------------------------
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law or any usury or
other law wherever enacted, now or at any time hereafter in force, which would
prohibit or forgive the Company from paying all or any portion of the principal
of, premium, if any, or interest on the Notes contemplated herein or in the
Notes or which may affect the covenants or the performance of this Indenture;
and the Company (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law, and covenants that it will not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
Section 6.01. Certain Duties and Responsibilities.
-----------------------------------
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against 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; but 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 or
its counsel shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Indenture.
(b) In case 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
such Person's own affairs.
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(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own gross negligent action, its own gross
negligent failure to act, or its own willful misconduct, except that (i) this
paragraph does not limit the effect of paragraph (a) of this Section 6.01; (ii)
the Trustee shall not be liable for any error of judgment made in good faith by
an officer of the Trustee or upon advice of its counsel, unless it is proved
that the Trustee was grossly negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it takes or
omits to take in good faith in accordance with a direction received by it
pursuant to Section 5.12.
(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 take any action at the request or direction of Holders
if it shall have reasonable grounds for believing that repayment of such funds
is not assured to it or it does not receive an indemnity satisfactory to it in
its sole discretion against such risk, liability, loss, fee or expense which
might be incurred by it in compliance with such request or direction.
(e) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section 6.01.
Section 6.02. Notice of Defaults.
------------------
Within 90 days after the occurrence of any Default, the Trustee shall
transmit by mail to all Holders, as their names and addresses appear in the Note
Register, notice of such Default hereunder known to the Trustee; provided,
however, that, except in the case of a Default in the payment of the principal
of, premium, if any, or interest on any Note, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of Responsible Officers or counsel of the Trustee
in good faith determines that the withholding of such notice is in the interest
of the Holders.
Section 6.03. Certain Rights of Trustee.
-------------------------
Subject to Section 6.01 hereof and the provisions of (S) 315 of the
TIA:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
approval, appraisal, bond, debenture, note, coupon, security, other
evidence of indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors of the Company may be sufficiently
evidenced by a Board Resolution of the Company thereof;
(c) 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 of the Company;
-43-
(d) the Trustee and its agents may consult with counsel and any
written 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
in accordance with such advice or Opinion of Counsel;
(e) the Trustee and its agents shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, approval, appraisal, bond, debenture, note,
coupon, security, other evidence of indebtedness 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 deem fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney during the reasonable business
hours of the Company;
(f) the Trustee and its agents may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent (other than an agent who
is an employee of the Trustee) or attorney appointed with due care by it
hereunder; or
(g) the Trustee shall not be charged with knowledge of any Default or
Event of Default, as the case may be, with respect to the Notes unless
either (1) a Responsible Officer of the Trustee shall have actual knowledge
of the Default or Event of Default, as the case may be, or (2) written
notice of such Default or Event of Default, as the case may be, shall have
been given to the Trustee by the Company, any other obligor on the Notes or
by any Holder of the Notes.
Section 6.04. Trustee Not Responsible for Recitals, Dispositions of
-----------------------------------------------------
Notes or Application of Proceeds Thereof.
----------------------------------------
The recitals contained herein and in the Notes, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company
and the Guarantors, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or the Notes, except that the Trustee represents
that it is duly authorized to execute and deliver this Indenture, authenticate
the Notes and perform its obligations hereunder and that the statements made by
it in a Statement of Eligibility and Qualification on Form T-1 supplied to the
Company and the Guarantors in connection with the registration of any Notes and
Guarantees issued hereunder are true and accurate subject to the qualifications
set forth therein. The Trustee shall not be accountable for the use or
application by the Company of Notes or the proceeds thereof.
Section 6.05. Trustee and Agents May Hold Notes; Collections; etc.
---------------------------------------------------
The Trustee, any Paying Agent, Note Registrar or any other agent of
the Company or the Guarantors, in its individual or any other capacity, may
become the owner or pledgee of Notes, with the same rights it would have if it
were not the Trustee, Paying Agent, Note Registrar or such other agent and,
subject to Sections 6.08 and 6.13 hereof and (S)(S) 310 and 311 of the Trust
Indenture Act, may otherwise deal with the Company or the Guarantors and
receive, collect, hold and retain collections from the Company or the Guarantors
with the same rights it would have if it were not the Trustee, Paying Agent,
Note Registrar or such other agent.
-44-
Section 6.06. Money Held in Trust.
-------------------
All moneys received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were received,
but need not be segregated from other funds except to the extent required herein
or by law. The Trustee shall not be under any liability for interest on any
moneys received by it hereunder.
Section 6.07. Compensation and Indemnification of Trustee and Its
---------------------------------------------------
Prior Claim.
-----------
The Company and the Guarantors covenant and agree: (a) to pay to the
Trustee from time to time, and the Trustee shall be entitled to, reasonable
compensation for all services rendered by it hereunder (which shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust); (b) to reimburse the Trustee and each predecessor Trustee upon
its request for all reasonable expenses, disbursements and advances incurred or
made by or on behalf of it in accordance with any of the provisions of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its counsel and of all agents and other Persons not regularly
in its employ), except any such reasonable expense, disbursement or advance as
may arise from its negligence or bad faith; and (c) to indemnify the Trustee and
each predecessor Trustee for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of this
Indenture or the trusts hereunder and the exercise or performance of any of its
powers or duties hereunder, including enforcement of this Section 6.07. The
Trustee shall notify the Company promptly of any claim asserted against the
Trustee for which it may seek indemnity. The obligations of the Company and the
Guarantors under this Section to compensate and indemnify the Trustee and each
predecessor Trustee and to pay or reimburse the Trustee and each predecessor
Trustee for expenses, disbursements and advances shall constitute an additional
obligation hereunder and shall survive the satisfaction and discharge of this
Indenture.
Section 6.08. Conflicting Interests.
---------------------
The Trustee shall be subject to and comply with the provisions of (S)
310(b) of the TIA.
Section 6.09. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA (S)(S) 310(a)(1) and 310(a)(5) and which
shall have a combined capital, surplus and undivided profits of at least
$100,000,000, and have an office or agency at which Notes may be presented for
transfer and redemption and at which demands may be made in The City of New
York. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of United States Federal, state,
territorial or District of Columbia supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section,
the Trustee shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 6.10. Resignation and Removal; Appointment of Successor
-------------------------------------------------
Trustee.
-------
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
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(b) The Trustee, or any trustee or trustees hereinafter appointed, may
at any time resign by giving written notice thereof to the Company and the
Guarantors at least 30 Business Days prior to the date of such proposed
resignation. Upon receiving such notice of resignation, the Company and the
Guarantors shall promptly appoint a successor trustee by written instrument, a
copy of which shall be delivered to the resigning Trustee and a copy to the
successor trustee. If an instrument of acceptance by a successor Trustee shall
not have been delivered to the Trustee within 30 Business Days after the giving
of such notice of resignation, the resigning Trustee may, or any Holder who has
been a bona fide Holder of a Note for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee. Such court may
thereupon, after such notice, if any, as it may deem proper, appoint a successor
trustee.
(c) The Trustee may be removed at any time with 60 days written notice
by an Act of the Holders of a majority in principal amount of the Outstanding
Notes, delivered to the Trustee, the Company and the Guarantors.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of (S) 310(b)
of the TIA in accordance with Section 6.08 hereof after written request
therefor by the Company, the Guarantors or by any Holder who has been a
bona fide Holder of a Note for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.09 hereof
and shall fail to resign after written request therefor by the Company, the
Guarantors or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent, or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose or
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company or the Guarantors may remove the
Trustee, or (ii) subject to Section 5.14, the Holder of any Note who has been a
bona fide Holder of a Note for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee. Such
court may thereupon, after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company or the Guarantors shall promptly appoint a successor Trustee. If,
within 60 days after such resignation, removal or incapability, or the
occurrence of such vacancy, and the Company or the Guarantors have not appointed
a successor Trustee, a successor Trustee shall be appointed by act of the
Holders of a majority in principal amount of the Outstanding Notes delivered to
the Company, the Guarantors and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee and supersede the successor Trustee appointed by the Company
and the Guarantors. If no successor Trustee shall have been so appointed by the
Company or the Holders of the Notes and accepted appointment in the manner
hereinafter provided, the Holder of any Note who has been a bona fide Holder for
at least six months may, subject to Section 5.14, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
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(f) The Company and the Guarantors shall give notice of each
resignation and each removal of the Trustee and each appointment of a successor
Trustee by mailing written notice of such event by first-class mail, postage
prepaid, to the Holders of Notes as their names and addresses appear in the Note
Register. Each notice shall include the name of the successor Trustee and the
address of its Corporate Trust Office.
Section 6.11. Acceptance of Appointment by Successor.
--------------------------------------
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company, the Guarantors and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee as if originally named
as Trustee hereunder; but, nevertheless, on the written request of the Company,
the Guarantors or the successor Trustee, upon payment of amounts due it pursuant
to Section 6.07, such retiring Trustee shall duly assign, transfer and deliver
to the successor Trustee all moneys and property at the time held by it
hereunder and shall execute and deliver an instrument transferring to such
successor Trustee all the rights, powers, duties and obligations of the retiring
Trustee. Upon request of any such successor Trustee, the Company and the
Guarantors shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights and powers.
No successor Trustee with respect to the Notes shall accept
appointment as provided in this Section 6.11 unless at the time of such
acceptance such successor Trustee shall be eligible to act as Trustee under this
Article.
Upon acceptance of appointment by any successor Trustee as provided in
this Section 6.11, the Company and the Guarantors shall give notice thereof to
the Holders of the Notes, by mailing such notice to such Holders at their
addresses as they shall appear on the Note Register. If the acceptance of
appointment is substantially contemporaneous with the resignation, then the
notice called for by the preceding sentence may be combined with the notice
called for by Section 6.10(f). If the Company or the Guarantors fail to give
such notice within 10 days after acceptance of appointment by the successor
Trustee, the successor Trustee shall cause such notice to be given at the
expense of the Company.
Section 6.12. Successor Trustee by Merger, etc.
--------------------------------
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion, or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, provided such corporation shall be eligible under this
Article to serve as Trustee hereunder.
In case at the time such successor to the Trustee under this Section
6.12 shall succeed to the trusts created by this Indenture any of the Notes
shall have been authenticated but not delivered, any such successor to the
Trustee may adopt the certificate of authentication of any predecessor Trustee
and deliver such Notes so authenticated; and, in case at that time any of the
Notes shall not have been authenticated, any successor to the Trustee under this
Section 6.12 may authenticate such Notes either in the name of any predecessor
hereunder or in the name of the successor Trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the Notes or in
this Indenture provided that the certificate of the Trustee shall have been
authenticated.
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Section 6.13. Preferential Collection of Claims Against Issuers.
-------------------------------------------------
The Trustee shall comply with Section 311(a) of the TIA, excluding any
creditor relationship listed in (S) 311(b) of the TIA. If the present or any
future Trustee shall resign or be removed, it shall be subject to (S) 311(a) of
the TIA to the extent provided therein.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01. Preservation of Information; Company To Furnish Trustee
-------------------------------------------------------
Names and Addresses of Holders.
------------------------------
(a) The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders; provided, however, that if and for so long as the Trustee shall be
the Note Registrar, the Note Register shall satisfy the requirements relating to
such list. Neither the Company, the Guarantors or the Trustee shall be under
any responsibility with regard to the accuracy of such list.
(b) The Company will furnish or cause to be furnished to the Trustee
(i) semiannually, not more than 10 days after each Regular Record
Date, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of such Regular Record Date; and
(ii) at such other times as the Trustee may request in writing,
within 30 days after receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
provided, however, that if and so long as the Trustee shall be the Note
-------- -------
Registrar, no such list need be furnished pursuant to this Section 7.01(b)
Section 7.02. Communications of Holders.
-------------------------
Holders may communicate with other Holders with respect to their
rights under this Indenture or under the Notes pursuant to (S) 312(b) of the
TIA. The Trustee shall comply with (S) 312(b) of the TIA. The Company, the
Guarantors and the Trustee and any and all other Persons benefited by this
Indenture shall have the protection afforded by (S) 312(c) of the TIA.
Section 7.03. Reports by Trustee.
------------------
Within 60 days after April 1 of each year commencing with the first
April 1 following the date of this Indenture, the Trustee shall mail to all
Holders, as their names and addresses appear in the Note Register, a brief
report dated as of such April 1 that complies with (S) 313(a) of the TIA;
provided, however, that if no such event as described in (S) 313(a) of the TIA
has occurred within such period then no such report need be transmitted. The
Trustee shall also comply with (S)(S) 313(b), 313(c) and 313(d) of the TIA. At
the
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time of its mailing to Holders, a copy of each report shall be filed with the
Company, the Guarantors, the Commission and with each national securities
exchange on which the Notes are listed. The Company shall notify the Trustee
when the Notes are listed on any stock exchange or any delisting thereof.
Section 7.04. Reports by Company.
------------------
The Company shall file with the Trustee copies of the reports and of
the information and documents which the Company is required to provide to any
Person under Section 10.09, 10.10 and 10.15.
ARTICLE EIGHT
SUCCESSOR CORPORATION
Section 8.01. When Company May Merge, etc.
---------------------------
The Company shall not, in any transaction or series of related
transactions, merge or consolidate with or into, or sell, assign, convey,
transfer, lease or otherwise dispose of all or substantially all of its
properties and assets as an entirety to, any Person or Persons, and the Company
shall not permit any of the Restricted Subsidiaries to enter into any such
transaction or series of related transactions if such transaction or series of
related transactions, in the aggregate, would result in a sale, assignment,
conveyance, transfer, lease or other disposition of all or substantially all of
the properties and assets of the Company and the Restricted Subsidiaries
(determined on a consolidated basis for the Company and the Restricted
Subsidiary), to any Person or Persons, unless at the time and after giving
effect thereto (i) either (A)(1) if the transaction or transactions is a merger
or consolidation involving the Company, the Company shall be the Surviving
Person of such merger or consolidation or (2) if the transaction or transactions
is a merger or consolidation involving a Restricted Subsidiary, such Restricted
Subsidiary shall be the Surviving Person of such merger or consolidation, or
(B)(1) the Surviving Person shall be a corporation organized and existing under
the laws of the United States of America, any State thereof or the District of
Columbia and (2)(x) in the case of a transaction involving the Company, the
Surviving Person shall expressly assume by a supplemental indenture executed and
delivered to the Trustee, in form satisfactory to the Trustee, all the
obligations of the Company under the Notes and this Indenture and the
Registration Rights Agreement, and in each case, this Indenture and the
Registration Rights Agreement shall remain in full force and effect, or (y) in
the case of a transaction involving a Restricted Subsidiary that is a Guarantor,
the Surviving Person shall expressly assume by a supplemental indenture executed
and delivered to the Trustee, in form satisfactory to the Trustee, all the
obligations of such Restricted Subsidiary under its Note Guarantee and this
Indenture and the Registration Rights Agreement, and in each case, such
Indenture and the Registration Rights Agreement shall remain in full force and
effect; (ii) immediately after giving effect to such transaction or series of
related transactions on a pro forma basis, no Default shall have occurred and be
continuing; and (iii) the Company, or the Surviving Person, as the case may be,
immediately after giving effect to such transaction or series of transactions on
a pro forma basis (including, without limitation, any Indebtedness incurred or
anticipated to be incurred in connection with or in respect of such transaction
or series of transactions), could incur $1.00 of additional Indebtedness (other
than Permitted Indebtedness) under Section 10.11, provided, that the foregoing
shall not be applicable to the DMC Acquisition if it is effected as a merger.
In connection with any consolidation, merger, transfer, lease or other
disposition contemplated hereby (other than the DMC Acquisition, if effected as
a merger), the Company shall deliver, or cause
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to be delivered, to the Trustee, in form and substance reasonably satisfactory
to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, transfer, lease or other disposition and the
supplemental indenture in respect thereof comply with the requirements under
this Indenture. In addition, each Guarantor, in the case of a transaction
described in the first paragraph under this Section 8.01, unless it is the other
party to the transaction or unless its Note Guarantee will be released and
discharged in accordance with its terms as a result of the transaction, will be
required to confirm, by supplemental indenture, that its Note Guarantee will
continue to apply to the obligations of the Company or the Surviving Person
under this Indenture.
Section 8.02. Successor Substituted.
---------------------
Upon any consolidation or merger of the Company or any Guarantor or
any transfer of all or substantially all of the assets of the Company in
accordance with the foregoing, in which the Company or a Guarantor is not the
Surviving Person, the Surviving Person shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Indenture and
the Notes and the Registration Rights Agreement or such Guarantor under this
Indenture, the Note Guarantee of such Guarantor and the Registration Rights
Agreement, as the case may be, with the same effect as if such successor
corporation had been named as the Company or Guarantor, as the case may be,
therein; and thereafter, except in the case of (a) a lease or (b) any sale,
assignment, conveyance, transfer, lease or other disposition to a Restricted
Subsidiary of the Company or such Guarantor, the Company shall be discharged
from all obligations and covenants under this Indenture and the Notes and such
Guarantor shall be discharged from all obligations and covenants under this
Indenture and the Note Guarantee of such Guarantor, as the case may be.
For all purposes of this Indenture and the Notes (including the
provisions of this Article Eight and Sections 10.11 and 10.12 and 10.16),
Subsidiaries of any Surviving Person shall, upon such transaction or series of
related transactions, become Restricted Subsidiaries unless and until designated
as Unrestricted Subsidiaries pursuant to and in accordance with Section 10.19
and all Indebtedness, and all Liens on property or assets, of the Company and
the Restricted Subsidiaries in existence immediately prior to such transaction
or series of related transactions will be deemed to have been incurred upon
consummation of such transaction or series of related transactions.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01. Without Consent of Holders.
--------------------------
The Company, the Guarantors, if any, when authorized by their board of
directors, and the Trustee may, without the consent of the Holders of any
Outstanding Notes, amend, waive or supplement this Indenture or the Notes:
(a) to cure any ambiguity, defect or inconsistency;
(b) to comply with Article Eight;
(c) to provide for uncertificated Notes in addition to certificated
Notes;
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(d) to comply with any requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the TIA;
(e) to provide for additional Guarantors of the Notes;
(f) to evidence the release of any Guarantor in accordance with
Article Thirteen hereof;
(g) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Notes;
(h) to amend this Indenture to delete Section 13.07(a) in its
entirety; or
(i) to make any change that would provide any additional benefit or
rights to the Holders or that does not adversely affect the rights of any
Holder;
provided, however, that the Company has delivered to the Trustee an
Opinion of Counsel stating that such change does not materially adversely
affect the legal rights of any Holder.
Section 9.02. With Consent of Holders.
-----------------------
Except as provided in Section 9.01, other amendments and modifications
of this Indenture or the Notes may be made by the Company, the Guarantors, if
any, and the Trustee with the consent of the Holders of not less than a majority
of the aggregate principal amount of the outstanding Notes; provided, however,
that no such modification or amendment may, without the consent of the Holder of
each outstanding Note affected thereby,
(i) change the maturity of the principal of or any installment of
interest on any such Note or alter the optional redemption or repurchase
provisions of any such Note or this Indenture in a manner adverse to the
Holders;
(ii) reduce the principal amount (or the premium) of any such Note;
(iii) reduce the rate of or extend the time for payment of interest on
any such Note;
(iv) change the place or currency of payment of principal of (or
premium) or interest on any such Note;
(v) modify any provisions of this Indenture relating to the waiver of
past defaults (other than to add sections of this Indenture or the Notes
subject thereto) or the right of the Holders to institute suit for the
enforcement of any payment on or with respect to any such Note or any Note
Guarantee in respect thereof or the modification and amendment provisions
of this Indenture and the Notes (other than to add sections of this
Indenture or the Notes which may not be amended, supplemented or waived
without the consent of each Holder therein affected);
(vi) reduce the percentage of the principal amount of outstanding Notes
necessary for amendment to or waiver of compliance with any provision of
this Indenture or the Notes or for waiver of any Default in respect
thereof;
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(vii) waive a default in the payment of principal of, interest on, or
redemption payment with respect to, the Notes (except a rescission of
acceleration of the Notes by the Holders thereof as provided in this
Indenture and a waiver of the payment default that resulted from such
acceleration);
(viii) modify the ranking or priority of any Note or the Note Guarantee
in respect thereof of any Guarantor or modify the definition of Senior
Indebtedness or Guarantor Senior Indebtedness or amend or modify the
subordination provisions of this Indenture in any manner adverse to the
Holders of the Notes; or
(ix) release any Guarantor from any of its obligations under its Note
Guarantee or this Indenture otherwise than in accordance with this
Indenture.
The Holders of a majority in aggregate principal amount of the
outstanding Notes, on behalf of all Holders of Notes, may waive compliance by
the Company and the Guarantors with certain restrictive provisions of this
Indenture. Subject to certain rights of the Trustee, as provided in this
Indenture, the Holders of a majority in aggregate principal amount of the Notes,
on behalf of all Holders of the Notes, may waive any past default under this
Indenture (including any such waiver obtained in connection with a tender offer
or exchange offer for the Notes), except a default in the payment of principal,
premium or interest or a default arising from failure to purchase any Notes
tendered pursuant to an optional redemption or repurchase, or a default in
respect of a provision hereunder that cannot be modified or amended without the
consent of the Holder of each Note that is affected.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
Section 9.03. Compliance with Trust Indenture Act.
-----------------------------------
Every amendment of or supplement to this Indenture or the Notes shall
comply with the TIA as then in effect if this Indenture shall then be qualified
under the TIA.
Section 9.04. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article
Nine, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 9.05. Revocation and Effect of Consents.
---------------------------------
Until an amendment or waiver becomes effective, a consent to it by a
Holder is a continuing consent by the Holder and every subsequent Holder of that
Note or portion of that Note that evidences the same debt as the consenting
Holder's Note, even if notation of the consent is not made on any note. Subject
to the following paragraph, any such Holder or subsequent Holder may revoke the
consent as to such Holder's Note or portion of such Note by notice to the
Trustee or the Company received before the date on which the Trustee receives an
Officers' Certificate certifying that the Holders of the requisite principal
amount of Notes have consented (and not theretofor revoked such consent) to the
amendment, supplement or waiver.
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The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then, notwithstanding the last
sentence of the immediately preceding paragraph, those Persons who were Holders
at such record date (or their duly designated proxies), and only those Persons,
shall be entitled to consent to such amendment, supplement or waiver or to
revoke any consent previously given, whether or not such Persons continue to be
Holders after such record date. No such consent shall be valid or effective for
more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Holder of Notes, unless it makes a change described in any of clauses
(i) through (ix) of Section 9.02. In that case, the amendment, supplement or
waiver shall bind 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
Section 9.06. Notation on or Exchange of Notes.
--------------------------------
If an amendment, supplement or waiver changes the terms of a Note, the
Trustee shall (in accordance with the specific direction of the Company) request
the Holder of the Note to deliver it to the Trustee. The Trustee shall (in
accordance with the specific direction of the Company) 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. Failure to make the appropriate notation or
issue a new Note shall not affect the validity and effect of such amendment,
supplement or waiver.
Section 9.07. Trustee May Sign Amendments, etc.
--------------------------------
The Trustee shall sign any amendment, supplement or waiver authorized
pursuant to this Article Nine if the amendment, supplement or waiver does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If such amendment, supplement or waiver does affect the rights, duties,
liabilities or immunities of the Trustee, the Trustee may, but need not, sign
it. In signing or refusing to sign such amendment, supplement or waiver, the
Trustee shall be entitled to receive, and shall be fully protected in relying
upon, an Officers' Certificate and an Opinion of Counsel stating that the
execution of any amendment, supplement or waiver is authorized or permitted by
this Indenture, that it is not inconsistent herewith and that it will be valid
and binding upon the Company in accordance with its terms.
ARTICLE TEN
COVENANTS
Section 10.01. Payment of Principal, Premium and Interest.
------------------------------------------
The Company will duly and punctually pay the principal of, premium, if
any, and interest on the Notes in accordance with the terms of the Notes and
this Indenture.
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Section 10.02. Maintenance of Office or Agency.
-------------------------------
The Company will maintain in The City of New York, an office or agency
where Notes may be presented or surrendered for payment, where Notes and the
Guarantees may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company or any Guarantor in respect of the
Notes, the Guarantees and this Indenture may be served. The office of the
Trustee shall be such office or agency of the Company, unless the Company shall
designate and maintain some other office or agency for one or more of such
purposes. The Company will give prompt written notice to the Trustee of any
change in the location of any such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies (in or outside of The City of New York) where the Notes and
the Guarantees may be presented or surrendered for any or all such purposes, and
may from time to time rescind such designation; provided, however, that no such
-------- -------
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in the Borough of Manhattan in The
City of New York for such purposes. The Company will give prompt written notice
to the Trustee of any such designation or rescission and any change in the
location of any such other office or agency.
Section 10.03. Money for Note Payments To Be Held in Trust.
-------------------------------------------
If the Company shall at any time act as its own Paying Agent, the
Company will, on or before each due date of the principal of, premium, if any,
or interest on any of the Notes, segregate and hold in trust for the benefit of
the Holders entitled thereto a sum sufficient to pay the principal, premium, if
any, or interest so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided, and will promptly notify the
Trustee of its action or failure so to act.
If the Company is not acting as Paying Agent, the Company will, on or
before each due date of the principal of, premium, if any, or interest on any
Notes, deposit with a Paying Agent a sum in same day funds sufficient to pay the
principal, premium, if any, or interest so becoming due, such sum to be held in
trust for the benefit of the Holders entitled to such principal, premium or
interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of such action or any failure so to act.
If the Company is not acting as Paying Agent, the Company will cause
each Paying Agent other than the Trustee to execute and deliver to the Trustee
an instrument in which such Paying Agent shall agree with the Trustee, subject
to the provisions of this Section 10.03, that such Paying Agent will:
(a) hold all sums held by it for the payment of the principal of,
premium, if any, or interest on Notes in trust for the benefit of the
Holders entitled thereto until such sums shall be paid to such Holders or
otherwise disposed of as herein provided;
(b) give the Trustee notice of any Default by the Company (or any
other obligor upon the Notes) in the making of any payment of principal of,
premium, if any, or interest on the Notes;
(c) at any time during the continuance of any such Default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent; and
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(d) acknowledge, accept and agree to comply in all respects with the
provisions of this Indenture relating to the duties, rights and liabilities
of such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
direct any Paying Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, premium, if any,
or interest on any Note and remaining unclaimed for two years after such
principal, premium, if any, or interest has become due and payable shall be paid
to the Company upon receipt of a Company Request therefor, or (if then held by
the Company) shall be discharged from such trust; and the Holder of such Note
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, shall 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 10.04. Existence.
---------
Subject to Article Eight, each of the Company and each Guarantor will
do or cause to be done all things necessary to and will cause each of its
Restricted Subsidiaries to preserve and keep in full force and effect its
corporate existence and the corporate existence of each of the Restricted
Subsidiaries, and the rights (charter and statutory), licenses and franchises of
the Company and each of the Restricted Subsidiaries; provided, however, that the
Company shall not be required to preserve any such right, license or franchise
if the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company, the Guarantors
and their respective Restricted Subsidiaries as a whole and that the loss
thereof is not disadvantageous in any material respect to the Holders; provided,
further, however, that the foregoing shall not prohibit a sale, transfer or
conveyance of a Subsidiary of the Company or any of its assets or Capital Stock
in compliance with the terms of this Indenture.
Section 10.05. Payment of Taxes and Other Claims.
---------------------------------
The Company and each Guarantor shall pay or discharge or cause to be
paid or discharged, before the same shall become delinquent, (a) all taxes,
assessments and governmental charges levied or imposed (i) upon the Company or
any of its Restricted Subsidiaries or (ii) upon the income, profits or property
of the Company or any of its Restricted Subsidiaries and (b) all material lawful
claims for labor, materials and supplies, which, if unpaid, might by law become
a Lien upon the property of the Company or any of its Restricted Subsidiaries;
provided, however, that the Company shall not be required to pay or discharge or
cause to be paid or discharged any such tax, assessment, charge or claim whose
amount, applicability or validity is being contested in good faith by
appropriate proceedings properly instituted and diligently conducted.
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Section 10.06. Maintenance of Properties.
-------------------------
The Company and each Guarantor shall, and shall cause each of their
respective Restricted Subsidiaries to, cause all material properties owned by
the Company or the Restricted Subsidiaries or used or held for use in the
conduct of its business or the business of the Restricted 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 will cause to
be made all repairs, renewals, replacements, betterments and improvements
thereof, all as shall be reasonably necessary so that the business carried on in
connection therewith may be conducted at all times in the ordinary course;
provided, however, that nothing in this Section 10.06 shall prevent the Company,
any Guarantor or any of their respective Subsidiaries from discontinuing the
operation and maintenance of any of such properties if (x) such discontinuance
is, in the judgment of the Company, the Guarantor, or the Restricted Subsidiary,
desirable in the conduct of its businesses or (y) if such discontinuance or
disposal is not materially adverse to either the Company, the Guarantors and
their respective Restricted Subsidiaries taken as a whole or the ability of the
Company and the Guarantors taken as a whole to otherwise satisfy its obligations
hereunder.
Section 10.07. Insurance.
---------
The Company will at all times keep all of its and the Restricted
Subsidiaries' properties which are of an insurable nature insured with insurers,
believed by the Company in good faith to be financially sound and responsible,
against loss or damage to the extent that property of similar character is
usually so insured by corporations similarly situated and owning like properties
(which may include self-insurance, if reasonable and in comparable form to that
maintained by companies similarly situated) except where the failure to do so
could not reasonably be expected to have a material adverse effect on the
condition (financial or otherwise), earnings, business affairs or prospects of
the Company and the Restricted Subsidiaries, taken as a whole.
Section 10.08. Compliance Certificate.
----------------------
(a) The Company will deliver to the Trustee within 120 days after the
end of each of the Company's fiscal years a certificate to the Trustee at least
annually from the chief financial officer (or if the Company does not have a
chief financial officer, the Company's principal executive, financial or
accounting officer) of the Company as to his or her knowledge of the compliance
of the Company, the Guarantors and the Restricted Subsidiaries with all
conditions and covenants under this Indenture and any related documents and
whether any Default or Event of Default has occurred, such compliance to be
determined without regard to any period of grace or requirement of notice
provided herein.
(b) The Company will deliver to the Trustee as soon as possible, and
in any event within 10 days after the Company becomes aware of the occurrence of
any Default or Event of Default, an Officers' Certificate specifying such
Default or Event of Default and what action the Company or the applicable
Guarantor, as the case may be, is taking or proposes to take with respect
thereto.
Section 10.09. Reporting Requirements.
----------------------
So long as any of the Notes are outstanding, the Company will file
with the Commission, to the extent then permitted by the Commission, the annual
reports, quarterly reports and other documents that the Company would have been
required to file with the Commission pursuant to Sections 13(a) and 15(d) of the
Exchange Act if the Company was subject to such Sections, and the Company will
promptly provide to the
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Trustee copies of such reports and documents; provided, however, that if the
Company is for any reason unable to make such filings it will make available,
upon request, to any Holder of Notes or prospective purchaser of Notes the
information specified in Rule 144A(d)(4) of the Securities Act.
Section 10.10. Limitation on Guarantees by Restricted Subsidiaries.
---------------------------------------------------
The Company shall not cause or permit any of the Domestic
Subsidiaries, directly or indirectly, to guarantee the payment of any
Indebtedness of the Company or any Restricted Subsidiary unless such Domestic
Subsidiary (A) is a Guarantor or (B) simultaneously executes and delivers a
supplemental indenture to this Indenture pursuant to which it will become a
Guarantor on the basis provided for in Article Thirteen of this Indenture.
Notwithstanding the foregoing, any Note Guarantee by a Restricted Subsidiary
shall be automatically and unconditionally released and discharged upon any
sale, exchange or transfer, to any Person not an Affiliate of the Company, of
all of the Capital Stock of such Restricted Subsidiary, or all or substantially
all the assets of such Restricted Subsidiary, pursuant to a transaction which is
in compliance with this Indenture. The Company may, at any time, cause a
Restricted Subsidiary to become a Guarantor by executing and delivering a
supplemental indenture providing for the guarantee of payment of the Notes by
such Restricted Subsidiary on the basis provided in this Indenture.
Section 10.11. Limitation on Indebtedness.
--------------------------
(a) The Company shall not, and shall not cause or permit any of the
Restricted Subsidiaries to, directly or indirectly, create, incur, assume,
issue, guarantee or in any manner become liable for or with respect to,
contingently or otherwise (in each case, to "incur"), the payment of any
Indebtedness (including any Acquired Indebtedness); provided, however, that (i)
the Company and any Guarantor may incur Indebtedness (including Acquired
Indebtedness) and (ii) a Restricted Subsidiary may incur Acquired Indebtedness,
in each case if immediately after giving pro forma effect thereto, the
Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted
Subsidiaries is at least equal to 2.0:1.0.
(b) Notwithstanding the foregoing, the Company and, to the extent
specifically set forth below, the Restricted Subsidiaries may incur each and all
of the following (collectively, "Permitted Indebtedness"):
(i) Indebtedness of the Company or any Guarantor under the New
Credit Agreement in an aggregate principal amount at any time outstanding
not to exceed the greater of (x) $50 million and (y) the sum of 85% of the
consolidated book value of the net accounts receivable and 65% of the
consolidated book value of the inventory of the Company and its Restricted
Subsidiaries, in each case determined in accordance with GAAP;
(ii) Indebtedness under this Indenture, the Notes and the Note
Guarantees;
(iii) Indebtedness of the Company or any Restricted Subsidiary not
otherwise referred to in this paragraph that is outstanding on the Issue
Date, except Indebtedness repaid with the proceeds of the issuance of the
Notes as described under "Use of Proceeds" in the Offering Memorandum
(which is permitted hereunder);
(iv) Indebtedness of the Company or any Restricted Subsidiary in
respect of bid, payment or performance bonds, bankers' acceptances, letters
of credit of the Company or any Restricted
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Subsidiary and surety bonds provided by the Company or any Restricted
Subsidiary in the ordinary course of business;
(v) Indebtedness of any Restricted Subsidiary owed to and held by
the Company or any Restricted Subsidiary, and Indebtedness of the Company
owed to and held by any other Restricted Subsidiary which is unsecured and
subordinated in right of payment to the payment and performance of the
Company's obligations under this Indenture and the Notes;
(vi) any guarantees of Indebtedness by a Restricted Subsidiary
incurred in compliance with Section 10.10;
(vii) Interest Rate Protection Obligations of the Company or any
Restricted Subsidiary covering Indebtedness of the Company or any
Restricted Subsidiary (which Indebtedness (a) bears interest at fluctuating
interest rates and (b) is otherwise permitted to be incurred under this
Section 10.11) to the extent the notional principal amount of such Interest
Rate Protection Obligations does not exceed the principal amount of the
Indebtedness to which such Interest Rate Protection Obligations relate;
(viii) Indebtedness of the Company in respect of Purchase Money
Indebtedness in an amount not exceeding $2.0 million incurred in any one
fiscal year;
(ix) Indebtedness of the Company or any Restricted Subsidiary under
Currency Agreements relating to (a) Indebtedness of the Company or any
Restricted Subsidiary and/or (b) obligations to purchase or sell assets or
properties, in each case, incurred in the ordinary course of business of
the Company or any Restricted Subsidiary; provided, however, that such
Currency Agreements do not increase the Indebtedness or other obligations
of the Company and its Restricted Subsidiaries outstanding other than as a
result of fluctuations in foreign currency exchange rates or by reason of
fees, indemnities and compensation payable thereunder;
(x) (a) Indebtedness of the Company or any Guarantor to the extent
the proceeds thereof are used to Refinance Indebtedness of the Company or
any Guarantor or any Restricted Subsidiary and (b) Indebtedness of any
Restricted Subsidiary that is not a Guarantor to the extent the proceeds
thereof are used to Refinance Indebtedness of any Restricted Subsidiary
that is not a Guarantor, in each case other than the Indebtedness to be
Refinanced as described under "Use of Proceeds" in the Offering Memorandum
and Indebtedness incurred under clause (i) or (v) above; provided, however,
that, in the case of either clause (a) or (b), (1) the principal amount of
Indebtedness incurred pursuant to this clause (x) (or, if such Indebtedness
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof, the
original issue price of such Indebtedness) shall not exceed the sum of (A)
the principal amount of Indebtedness so Refinanced (or, if such
Indebtedness provides for an amount less than the principal amount thereof
to be due and payable upon a declaration of acceleration of the maturity
thereof, the original issue price of such Indebtedness, plus any accreted
value attributable thereto since the original issuance of such
Indebtedness, plus any accreted value attributable thereto since the
issuance date of such Indebtedness), plus (B) the amount of any premium
required to be paid in connection with such Refinancing pursuant to the
terms of such Indebtedness or the amount of any premium reasonably
determined by the Company or a Restricted Subsidiary, as applicable, as
necessary to accomplish such Refinancing by means of a tender offer or
privately negotiated purchase, plus (C) the amount of expenses in
connection with such Refinancing; and (2) except in the case of Refinancing
or replacement of Senior In-
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debtedness or Guarantor Senior Indebtedness or of any Indebtedness of any
Restricted Subsidiary that is not a Guarantor, Indebtedness incurred
pursuant to this clause (x) shall not reduce the Average Life to Stated
Maturity of Indebtedness so Refinanced;
(xi) Indebtedness arising from agreements providing for
indemnification, adjustment of purchase price or similar obligations, or
from guarantees of letters of credit, surety bonds or payment or
performance bonds securing any obligations of the Company pursuant to such
agreements, incurred or assumed in connection with the disposition of any
business, assets or Subsidiary of the Company, other than guarantees or
similar credit support by the Company of Indebtedness incurred by any
Person acquiring all or any portion of such business, assets or Subsidiary
for the purpose of financing such acquisition; and
(xii) in addition to the items referred to in clauses (i) through (xi)
above, additional Indebtedness of the Company or any Restricted Subsidiary
not to exceed an aggregate principal amount at any time outstanding of
$25.0 million.
Section 10.12. Limitation on Restricted Payments.
---------------------------------
(a) The Company shall not, and shall not cause or permit any of the
Restricted Subsidiaries, directly or indirectly, to:
(i) declare or pay any dividend or make any other distribution or
payment on or in respect of Capital Stock of the Company or any Restricted
Subsidiary or any payment made to the direct or indirect Holders (in their
capacities as such) of Capital Stock of the Company or any Restricted
Subsidiary (other than dividends or distributions made to the Company or a
Restricted Subsidiary and dividends and distributions payable solely in
Capital Stock of the Company (other than Redeemable Capital Stock) or in
rights to purchase Capital Stock of the Company (other than Redeemable
Capital Stock)); or
(ii) purchase, redeem, defease or otherwise acquire or retire for
value any Capital Stock of the Company or any Restricted Subsidiary (other
than any such Capital Stock owned by the Company or a Restricted
Subsidiary); or
(iii) make any principal payment on, or purchase, defease, repurchase,
redeem or otherwise acquire or retire for value, prior to any scheduled
maturity, scheduled repayment, scheduled sinking fund payment or other
Stated Maturity, any Subordinated Indebtedness (other than any Subordinated
Indebtedness owed to and held by a Restricted Subsidiary); or
(iv) make any Investment (other than a Permitted Investment) in any
Person (such payments or Investments described in clauses (i), (ii), (iii)
and (iv) are collectively referred to as "Restricted Payments"), unless, at
the time of and after giving effect to the proposed Restricted Payment (the
amount of any such Restricted Payment, if other than in cash, being the
Fair Market Value of the asset(s) proposed to be transferred by the Company
or such Restricted Subsidiary, as the case may be, pursuant to such
Restricted Payment):
(A) no Default shall have occurred and be continuing;
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(B) the Company could incur $1.00 of additional Indebtedness by
virtue of the Consolidated Fixed Charge Coverage Ratio set forth in
Section 10.11(a); and
(C) the aggregate amount of all Restricted Payments declared or
made (and not repaid or reimbursed) from and after the Issue Date
would not exceed the sum of (1) 50% of cumulative Consolidated Net
Income of the Company during the period (treated as one accounting
period) beginning on the first day of the fiscal quarter that includes
the Issue Date and ending on the last day of the fiscal quarter of the
Company immediately preceding the date of such proposed Restricted
Payment for which consolidated financial information of the Company is
internally available (or, if such cumulative Consolidated Net Income
of the Company for such period shall be a deficit, minus 100% of such
deficit), plus (2) the aggregate net cash proceeds received by the
Company either (x) as capital contributions in the form of common
equity to the Company after the Issue Date or (y) from the issuance or
sale of Capital Stock (excluding Redeemable Capital Stock and Capital
Stock to the extent the proceeds from the sale thereof are used to
redeem Notes but including Capital Stock issued upon the conversion of
convertible Indebtedness, in exchange for outstanding Indebtedness or
from the exercise of options, warrants or rights to purchase Capital
Stock (other than Redeemable Capital Stock)) of the Company to any
Person (other than to a Restricted Subsidiary of the Company) after
the Issue Date (excluding the net cash proceeds from any issuance and
sale of Capital Stock financed using funds borrowed from the Company
or any Restricted Subsidiary until and to the extent such borrowing is
repaid), plus (3) in the case of the disposition or repayment of any
Investment constituting a Restricted Payment made after the Issue
Date, an amount equal to the lesser of the return of capital with
respect to such Investment and the initial amount of such Investment
which was treated as a Restricted Payment, in either case, less the
cost of the disposition of such Investment.
For purposes of the preceding clause (C)(2), upon the issuance of
Capital Stock either from the conversion of convertible Indebtedness or exchange
for outstanding Indebtedness or upon the exercise of options, warrants or
rights, the amount counted as net cash proceeds received will be the cash amount
received by the Company at the original issuance of the Indebtedness that is so
converted or exchanged or from the issuance of options, warrants or rights, as
the case may be, plus the incremental amount of cash received by the Company, if
any, upon the conversion, exchange or exercise thereof.
(b) None of the provisions of Section 10.12(a) will prohibit:
(i) the payment of any dividend within 60 days after the date of its
declaration, if at the date of declaration such payment would be permitted
by the provisions of this Indenture;
(ii) so long as no Default shall have occurred and be continuing or
would occur upon the consummation thereof, the redemption, repurchase or
other acquisition or retirement of any shares of any class of Capital Stock
of the Company in exchange for, or out of the net cash proceeds of, a
substantially concurrent issue and sale of other shares of Capital Stock
(other than Redeemable Capital Stock) of the Company to any Person (other
than to a Restricted Subsidiary); provided, however, that any such net
proceeds and the value of any Capital Stock issued in exchange for such
retired Capital Stock are excluded from clause (C)(2) of the preceding
paragraph;
(iii) so long as no Default shall have occurred and be continuing or
would occur upon the consummation thereof, any redemption, repurchase or
other acquisition or retirement of Subordi-
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nated Indebtedness made by exchange for, or out of the net cash proceeds
of, a substantially concurrent issue and sale of (A) Capital Stock (other
than Redeemable Capital Stock) of the Company to any Person (other than to
a Restricted Subsidiary); provided, however, that any such net cash
proceeds and the value of any Capital Stock issued in exchange for
Subordinated Indebtedness are excluded from clause (C)(2) of the preceding
paragraph; or (B) Indebtedness of the Company or any Restricted Subsidiary
so long as such Indebtedness (1) is subordinated to Senior Indebtedness and
the Notes or Guarantor Senior Indebtedness and the Note Guarantees of such
Guarantor, as the case may be, at least to the same extent as the
Subordinated Indebtedness so purchased, exchanged, redeemed, repurchased,
acquired or retired, and (2) has no Stated Maturity earlier than the Stated
Maturity for the final scheduled principal payment of the Notes;
(iv) Investments constituting Restricted Payments made as a result of
the receipt of non-cash consideration from any Asset Sale made pursuant to
and in compliance with Section 10.14;
(v) the application of the net proceeds of the Offering on the Issue
Date, as described under "Use of Proceeds" in the Offering Memorandum;
(vi) so long as no Default shall have occurred and be continuing or
would occur upon the consummation thereof, the purchase, redemption or
other acquisition, cancellation or retirement for value of Capital Stock,
or options, warrants, equity appreciation rights or other rights to
purchase or acquire Capital Stock, of the Company or any Restricted
Subsidiary, or similar securities, held by officers or employees or former
officers or employees of the Company or any Restricted Subsidiary (or their
estates or beneficiaries under their estates), upon death, disability,
retirement or termination of employment (collectively "Repurchase
Payments"), in an amount not to exceed $2.0 million in any single fiscal
year, provided that to the extent such $2.0 million amount is not utilized
in any single fiscal year (beginning in the fiscal year containing the
Issue Date) such amount may be utilized in any future fiscal year;
(vii) so long as no Default shall have occurred and be continuing or
would occur upon the consummation thereof, in addition to Repurchase
Payments permitted under clause (vi), Repurchase Payments in an amount not
to exceed 50% of the sum of (A) Consolidated Net Income plus (B)
Consolidated Non-cash Charges minus (C) capital expenditures made by the
Company minus (D) other Repurchase Payments previously made pursuant to
this clause (vii), in each case determined with respect to the Company and
its Restricted Subsidiaries on a consolidated basis in accordance with GAAP
for the four full fiscal quarters immediately preceding the date of any
such proposed Repurchase Payment for which consolidated financial
information of the Company is internally available; provided, however, that
prior to making any such Repurchase Payment under this clause (vii) the
Company shall have first made an offer to purchase (which offer will be
required to be kept open for a period of at least 20 business days after
commencement thereof) to all Holders of outstanding Notes up to a maximum
principal amount (expressed as a multiple of $1,000) of Notes equal to such
proposed Repurchase Payment (which, if consummated, shall be effected pro
rata based upon the aggregate principal amount of such Notes tendered by
each Holder), at a purchase price equal to 101% of the principal amount
thereof, plus accrued and unpaid interest thereon, if any, to the date of
such purchase; and to the extent the amount of such proposed Repurchase
Payment exceeds the aggregate amount of Notes tendered by the Holders of
the Notes pursuant to such offer, the Company may make such Repurchase
Payment;
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(viii) loans or advances to officers, directors and employees of the
Company or any Restricted Subsidiary in an aggregate amount not in excess
of $2.5 million at any one time outstanding;
(ix) so long as no Default shall have occurred and be continuing
or would occur upon the consummation thereof, dividends or distributions to
Permitted Holders who are also officers or directors of the Company, in an
aggregate amount not to exceed $2.0 million in respect of any single fiscal
year of the Company;
(x) payments by the Company in satisfaction of its obligations
under the Stockholder Agreements from the proceeds of life insurance
policies received by the Company or any Restricted Subsidiary; or
(xi) so long as the Company remains a Subchapter S corporation
under the Internal Revenue Code, the payment of dividends or the making of
loans or advances to the Holders of the Company's Capital Stock in an
amount equal to the Tax Amount (the "Permitted Tax Payments").
In computing the amount of Restricted Payments previously made for
purposes of clause (C) of the preceding paragraph, amounts described under the
immediately preceding clauses (i), (vi) and (vii) shall be included.
Section 10.13. Limitation on Transactions with Affiliates.
------------------------------------------
The Company shall not, and shall not cause or permit any of the
Restricted Subsidiaries, directly or indirectly, to, conduct any business or
enter into or suffer to exist any transaction or series of related transactions
with, or for the benefit of, any of their respective Affiliates (other than a
Restricted Subsidiary so long as no Affiliate of the Company or any beneficial
holder of 5% or more of any class or series of Capital Stock of the Company
shall beneficially own any Capital Stock in such Restricted Subsidiary) or any
beneficial holder of 10% or more of any class of Capital Stock of the Company or
any officer or director of the Company or any Restricted Subsidiary (each, an
"Affiliate Transaction"), unless (i) such Affiliate Transaction is on terms that
are no less favorable to the Company or the Restricted Subsidiary, as the case
may be, than those which could have been obtained in a comparable transaction at
such time from Persons who do not have such a relationship, (ii) with respect to
any Affiliate Transaction or series of Affiliate Transactions involving
aggregate payments or value equal to or greater than $2.0 million, the Company
shall have delivered an officers' certificate to the Trustee certifying that
such Affiliate Transaction or series of Affiliate Transactions has been approved
by a majority of the Board of Directors of the Company, including a majority of
the disinterested directors, if any, of the Board of Directors of the Company,
and (iii) with respect to any Affiliate Transaction or series of Affiliate
Transactions involving aggregate payments or value equal to or greater than $5.0
million (or greater than $2.0 million in the event there are no disinterested
directors), the Company shall have obtained a written opinion from an
Independent Financial Advisor stating that the terms of such Affiliate
Transaction or series of Affiliate Transactions are fair, from a financial point
of view, to the Company or the Restricted Subsidiary involved, as the case may
be.
Notwithstanding the foregoing, the restrictions set forth in this
Section 10.13 shall not apply to (i) transactions with or among the Company and
the Restricted Subsidiaries; (ii) directors' fees, indemnification and similar
arrangements, consulting fees, employee salaries, bonuses or employment
agreements, compensation or employee benefit arrangements and incentive
arrangements with any officer, director or employee of the Company or any
Restricted Subsidiary entered into in the ordinary course of business (including
customary benefits thereunder) and payments under any indemnification
arrangements permitted by applicable
-62-
law; (iii) the issue and sale by the Company to its stockholders of Capital
Stock (other than Redeemable Capital Stock); (iv) any dividends made in
compliance with the provisions described in Section 10.12; (v) loans and
advances to officers, directors and employees of the Company or any Restricted
Subsidiary for travel, entertainment, moving and other relocation expenses, in
each case made in the ordinary course of business, and other loans or advances
to officers, directors and employees of the Company or any Restricted Subsidiary
in an aggregate amount not in excess of $2.5 million in any fiscal year; and
(vi) the incurrence of intercompany Indebtedness permitted pursuant to clause
(v) of Section 10.11(b).
Section 10.14. Disposition of Proceeds of Asset Sales.
--------------------------------------
The Company shall not, and shall not cause or permit any Restricted
Subsidiary, directly or indirectly, to, make any Asset Sale, unless (i) the
Company or such Restricted Subsidiary, as the case may be, receives
consideration at the time of such Asset Sale at least equal to the Fair Market
Value of the assets sold or otherwise disposed of and (ii) at least 75% of such
consideration consists of (A) cash or Cash Equivalents, (B) properties and
capital assets to be used in the same line of business being conducted by the
Company or any Restricted Subsidiary at such time or (C) Capital Stock in any
Person which thereby becomes a Restricted Subsidiary whose assets consist
primarily of properties and capital assets used in the same line of business
being conducted by the Company or any Restricted Subsidiary at such time. The
amount of any (i) Indebtedness (other than any Subordinated Indebtedness) of the
Company or any Restricted Subsidiary actually assumed by the transferee in such
Asset Sale and from which the Company and the Restricted Subsidiaries are fully
released and (ii) notes or other similar obligations received by the Company or
the Restricted Subsidiaries from such transferee that are immediately converted,
sold or exchanged (or are converted, sold or exchanged within thirty days of the
related Asset Sale) by the Company or the Restricted Subsidiaries into cash, in
an amount equal to the net cash proceeds realized upon such conversion, sale or
exchange, shall be deemed to be cash for purposes of determining the percentage
of cash or Cash Equivalent consideration received by the Company or the
Restricted Subsidiaries.
The Company or such Restricted Subsidiary, as the case may be,
may (i) apply the Net Cash Proceeds of any Asset Sale within 365 days of receipt
thereof to permanently repay Senior Indebtedness or Indebtedness (for purposes
of this clause, a repayment of any amount owing under a revolving credit
facility shall be deemed a permanent repayment to the extent the amount
represented by such repayment is not drawn upon by the Company for a period of
six months after such repayment) of any Restricted Subsidiary that is not
subordinated in right of payment to any Indebtedness of such Restricted
Subsidiary, provided no such repayment shall affect the amount permitted under
clause (i) of Section 10.11(b) or (ii) commit in writing within 365 days after
the receipt thereof to acquire, construct or improve properties and capital
assets to be used in the same line of business as being conducted by the Company
or any Restricted Subsidiary at such time and so apply such Net Cash Proceeds
within 365 days after the receipt thereof.
To the extent all or part of the Net Cash Proceeds of any Asset
Sale are not applied (or, in the case of clause (ii) of the immediately
preceding paragraph, committed to be so applied in writing) within 365 days of
such Asset Sale as described in clause (i) or (ii) of the immediately preceding
paragraph (such Net Cash Proceeds, the "Unutilized Net Cash Proceeds"), the
Company shall, within 20 business days after such 365th day, make an offer to
purchase (the "Asset Sale Offer") to all Holders of outstanding Notes up to a
maximum principal amount (expressed as a multiple of $1,000) of Notes equal to
such Unutilized Net Cash Proceeds, at a purchase price in cash equal to 100% of
the principal amount thereof, plus accrued and unpaid interest thereon, if any,
to the date of such purchase; provided, however, that the Asset Sale Offer shall
not be required to be made until there are aggregate Unutilized Net Cash
Proceeds equal to or in excess of $7.5 million, at which time the entire amount
of such Unutilized Net Cash Proceds, and not just the amount in excess
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of $7.5 million, shall be applied as required pursuant to this paragraph. An
Asset Sale Offer will be required to be kept open for a period of at least 20
business days after commencement thereof.
Notice of an Asset Sale Offer shall be prepared and mailed by the
Company with a copy to the Trustee not later than the 20th business day after
the Company is obligated to make an Asset Sale Offer (in accordance with the
immediately preceding paragraph) to each Holder at such Holder's registered
address, stating:
(i) that the Company is offering to purchase the maximum principal
amount of Notes that may be purchased out of the Unutilized Net Cash
Proceeds to the extent to be applied to an offer to purchase Notes (as
provided in the immediately preceding paragraph), at an offer price in cash
in an amount equal to 100% of the principal amount thereof, plus accrued
and unpaid interest, if any, to the date of the purchase (the "Asset Sale
Offer Purchase Date"), which shall be a Business Day, specified in such
notice, that is not earlier than 20 days or later than 60 days from the
date such notice is mailed;
(ii) the amount of accrued and unpaid interest, if any, as of
the Asset Sale Offer Purchase Date;
(iii) that any Note not tendered will continue to accrue interest in
accordance with the terms thereof;
(iv) that, unless the Company defaults in the payment of the
purchase price for the Notes payable pursuant to the Asset Sale Offer, any
Notes accepted for payment pursuant to the Asset Sale Offer shall cease to
accrue interest after the Asset Sale Offer Purchase Date;
(v) that Holders electing to have Notes purchased pursuant to
an Asset Sale Offer will be required to surrender their Notes to the Paying
Agent at the address specified in the notice prior to 5:00 p.m., New York
City time, on the third Business Day prior to the Asset Sale Purchase Date
with the "Option of Holder to Elect Purchase" on the reverse thereof
completed and must complete any form letter of transmittal proposed by the
Company (which letter must be completed correctly by such Holder) and which
is acceptable to the Trustee and the Paying Agent;
(vi) that Holders of Notes will be entitled to withdraw their
election if the Paying Agent receives, not later than 5:00 p.m., New York
City time, on the third Business Day prior to the Asset Sale Offer Purchase
Date, a telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of Notes the Holder delivered for
purchase, the Note certificate number (if any) and a statement that such
Holder is withdrawing its election to have such Notes purchased;
(vii) that Holders whose Notes are purchased only in part will be
issued Notes equal in principal amount to the unpurchased portion of the
Notes surrendered;
(viii) the instructions that Holders must follow in order to tender
their Notes; and
(ix) information concerning the business of the Company, the most
recent annual and quarterly reports of the Company filed with the SEC
pursuant to the Exchange Act (or, if the Company is not then required to
file any such reports with the SEC, the comparable reports prepared
pur-
-64-
suant to Section 10.09), a description of material developments in the
Company's business, information with respect to pro forma historical
financial information after giving effect to such Asset Sale and such other
information concerning the circumstances and relevant facts regarding such
Asset Sale and Asset Sale Offer as would be material to a Holder of Notes
in connection with the decision of such Holder as to whether or not it
should tender Notes pursuant to the Asset Sale Offer.
With respect to any Asset Sale Offer effected pursuant to this Section
10.14, to the extent the aggregate principal amount of Notes tendered pursuant
to such Asset Sale Offer exceeds the Unutilized Net Cash Proceeds to be applied
to the repurchase thereof, such Notes shall be purchased pro rata based on the
aggregate principal amount of such Notes tendered by each Holder. To the extent
the Unutilized Net Cash Proceeds exceed the aggregate amount of Notes tendered
by the Holders pursuant to such Asset Sale Offer, the Company may retain and
utilize any portion of the Unutilized Net Cash Proceeds not applied to
repurchase the Notes for any purpose consistent with the other terms of this
Indenture.
The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act, and any other applicable
securities laws or regulations and any applicable requirements of any securities
exchange on which the Notes are listed, and any violation of the provisions of
this Indenture relating to such Asset Sale Offer occurring as a result of such
compliance shall not be deemed a Default.
Section 10.15. Change of Control.
-----------------
Following the occurrence of a Change of Control (the date of such
occurrence being the "Change of Control Date"), the Company shall be
obligated, not more than 40 or less than 20 business days after the Change of
Control Date, to make an offer to purchase (a "Change of Control Offer") all
of the then Outstanding Notes at a purchase price (the "Change of Control
Purchase Price") in cash equal to 101% of the principal amount thereof, plus
accrued and unpaid interest thereon, if any, to the purchase date. The Company
will be required to purchase all Notes properly tendered into the Change of
Control Offer and not withdrawn.
In order to effect such Change of Control Offer, the Company shall,
not later than the 40th business day after the Change of Control Date, be
obligated to mail to each Holder of Notes notice of the Change of Control Offer,
which notice will govern the terms of the Change of Control Offer. The Change
of Control Offer will be required to be kept open for a period of at least 20
business days. The notice of the Change of Control Offer shall state:
(a) that the Change of Control has occurred and that such Holder has
the right to require the Company to purchase all or a portion (equal to
$1,000 or an integral multiple thereof) of such Holder's Notes at a
purchase price in cash equal to 101% of the aggregate principal amount
thereof, plus accrued and unpaid interest, if any, to the date of purchase,
which shall be a Business Day, specified in such notice, that is not more
than 40 or less than 20 business days after the Change of Control Date (the
"Change of Control Purchase Date");
(b) the amount of accrued and unpaid interest, if any, as of the
Change Control Purchase Date;
(c) that any Note not tendered for payment will continue to accrue
interest in accordance with the terms thereof;
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(d) that, unless the Company defaults in the payment of the purchase
price for the Notes payable pursuant to the Change of Control Offer, any
Notes 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 Notes purchased pursuant to a
Change of Control Offer will be required to surrender their Notes to the
Paying Agent at the address specified in the notice prior to 5:00 p.m., New
York City time, on the third Business Day prior to the Change of Control
Purchase Date with the "Option of Holder to Elect Purchase" on the reverse
thereof completed and must complete any form letter of transmittal proposed
by the Company and be completed correctly by such Holder and be acceptable
to the Trustee and the Paying Agent;
(f) that Holders of Notes will be entitled to withdraw their election
if the Paying Agent receives, not later than 5:00 p.m., New York City time,
on the third Business Day prior to the Change of Control Purchase Date, a
telegram, telex, facsimile transmission or letter setting forth the name of
the Holder, the principal amount of Notes the Holder delivered for
purchase, the Note certificate number (if any) and a statement that such
Holder is withdrawing its election to have such Notes purchased;
(g) that Holders whose Notes are purchased only in part will be
issued Notes equal in principal amount to the unpurchased portion of the
Notes surrendered; and
(h) the instructions that Holders must follow in order to tender
their Notes.
On the Change of Control Purchase Date, the Company will (i) accept
for payment all Notes or portions thereof tendered pursuant to the Change of
Control Offer, (ii) deposit with the Paying Agent an amount in cash equal to the
aggregate purchase price of all Notes or portions thereof accepted for payment,
plus any accrued and unpaid interest on such Notes as of the Change of Control
Purchase Date, and (iii) deliver or cause to be delivered to the Trustee all
Notes tendered pursuant to the Change of Control Offer. The Paying Agent shall
as promptly as practicable after the Change of Control Purchase Date mail to
each Holder of Notes or portions thereof accepted for payment an amount in cash
equal to the purchase price for such Notes, plus any accrued and unpaid interest
thereon, and the Trustee shall promptly authenticate and mail to such Holders of
Notes accepted for payment in part a new Note equal in principal amount to any
unpurchased portion of the Note surrendered. Any Notes not so accepted in whole
or in part shall be promptly returned to the Holder thereof.
On and after a Change of Control Purchase Date, interest will cease to
accrue on the Notes or portions thereof accepted for payment unless the Company
defaults in the payment of the purchase price therefor. The Company will
publicly announce the results of the Change of Control Offer as soon as
practicable after the Change of Control Purchase Date.
The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act, and any other applicable
securities laws or regulations and any applicable requirements of any securities
exchange on which the Notes are listed, in connection with the repurchase of
Notes pursuant to a Change of Control Offer, and any violation of the provisions
of this Indenture relating to such Change of Control Offer occurring as a result
of such compliance shall not be deemed a Default.
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Section 10.16. Limitation on Liens.
-------------------
The Company shall not, and shall not cause or permit any Restricted
Subsidiary to, create, incur, assume or suffer to exist any Lien of any kind,
upon any of its property or assets, whether now owned or acquired after the
Issue Date, or any proceeds therefrom, which secure either (i) Subordinated
Indebtedness unless the Notes, in the case of the Company, and the Note
Guarantees, if any, are secured by a Lien on such property, assets or proceeds
senior in priority to the Liens securing such Subordinated Indebtedness or (ii)
Pari Passu Indebtedness unless the Notes, in the case of the Company, and the
Note Guarantees, are equally and ratably secured with the Liens securing such
Pari Passu Indebtedness.
Section 10.17. Limitation on Dividends and Other Payment
-----------------------------------------
Restrictions Affecting Restricted Subsidiaries.
----------------------------------------------
The Company shall not, and shall not cause or permit any Restricted
Subsidiary, directly or indirectly, to create or otherwise cause or suffer to
exist, or enter into any agreement with any Person that would cause to become
effective, any consensual encumbrance or restriction of any kind, on the ability
of any Restricted Subsidiary to (a) pay dividends, in cash or otherwise, or make
any other distribution on or in respect of its Capital Stock or any other
interest or participation in, or measured by, its profits, to the Company or any
other Restricted Subsidiary, (b) pay any Indebtedness owed to the Company or any
other Restricted Subsidiary, (c) make loans or advances to, or guarantee any
Indebtedness or other obligations of, the Company or any other Restricted
Subsidiary or (d) transfer any of its property or assets to the Company or any
other Restricted Subsidiary, except (i) any encumbrance or restriction existing
under the security documentation for the New Credit Agreement as in effect on
the Issue Date relating to assets subject to a Lien created thereby, and with
respect to a Restricted Subsidiary that is not a Restricted Subsidiary on the
Issue Date, existing at the time such Person becomes a Restricted Subsidiary
(but not created in contemplation thereof); provided, however, that such
encumbrances and restrictions are not applicable to the Company or any
Restricted Subsidiary, or the properties or assets of the Company or any
Restricted Subsidiary; (ii) customary non-assignment provisions in leases
entered into in the ordinary course of business and consistent with past
practices; (iii) Purchase Money Indebtedness for property acquired in the
ordinary course of business that only imposes encumbrances and restrictions on
the property so acquired; (iv) any agreement for the sale or disposition of the
Capital Stock or assets of any Restricted Subsidiary; provided, however, that
such encumbrances and restrictions described in this clause (iv) are only
applicable to such Restricted Subsidiary or assets, as applicable, and any such
sale or disposition is made in compliance with Section 10.14 to the extent
applicable thereto; and (v) any encumbrance or restriction existing under any
agreement that refinances or replaces the agreements containing the encumbrance
or restrictions in the foregoing clauses (i) through (iv); provided, however,
that the terms and conditions of any such restrictions permitted under this
clause (v) are not materially less favorable to the Holders of the Notes than
those under or pursuant to the agreement evidencing the Indebtedness refinanced.
Section 10.18. Restrictions on Preferred Stock of Restricted
---------------------------------------------
Subsidiaries.
------------
The Company shall not sell, and shall not cause or permit any of the
Restricted Subsidiaries to issue, any Preferred Stock of any Restricted
Subsidiary (other than to the Company or to a Wholly-Owned Restricted
Subsidiary) or permit any Person (other than the Company or a Wholly-Owned
Restricted Subsidiary) to own any Preferred Stock of any Restricted Subsidiary.
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Section 10.19. Limitation on Designations of Unrestricted
------------------------------------------
Subsidiaries.
------------
The Company may designate after the Issue Date any Subsidiary (other
than a Guarantor) as an "Unrestricted Subsidiary" under this Indenture (a
"Designation") only if:
(i) no Default shall have occurred and be continuing at the time
of or after giving effect to such Designation;
(ii) the Company would be permitted to make an Investment at the
time of Designation (assuming the effectiveness of such Designation) in an
amount (the "Designation Amount") equal to the Fair Market Value of the
Company's interest in such Subsidiary on such date; and
(iii) the Company would be permitted under this Indenture to incur
$1.00 of additional Indebtedness (other than Permitted Indebtedness)
pursuant to Section 10.11 at the time of such Designation (assuming the
effectiveness of such Designation).
In the event of any such Designation, the Company shall be deemed to
have made an Investment constituting a Restricted Payment pursuant to Section
10.12 for all purposes of this Indenture in the Designation Amount.
The Company may revoke any Designation of a Subsidiary as an
Unrestricted Subsidiary (a "Revocation") if:
(i) no Default shall have occurred and be continuing at the time
of and after giving effect to such Revocation; and
(ii) all Liens and Indebtedness of such Unrestricted Subsidiary
outstanding immediately following such Revocation would, if incurred at
such time, have been permitted to be incurred for all purposes of this
Indenture.
All Designations and Revocations must be evidenced by Board
Resolutions of the Company delivered to the Trustee certifying compliance with
the foregoing provisions.
Section 10.20. Limitation on Other Senior Subordinated Indebtedness.
----------------------------------------------------
Neither the Company nor any Guarantor shall create, incur, assume,
guarantee or in any other manner become liable with respect to any Indebtedness
(other than the Notes and the Note Guarantees) subordinate in right of payment
to any Indebtedness of the Company or of such Guarantor, as the case may be,
unless such Indebtedness is either (i) pari passu in right of payment with the
Notes or such Note Guarantee, as the case may be, or (ii) subordinate in right
of payment to the Notes or such Note Guarantee, as the case may be, in the same
manner and at least to the same extent as the Notes are subordinated to Senior
Indebtedness or as such Note Guarantee is subordinated to Guarantor Senior
Indebtedness, as the case may be.
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ARTICLE ELEVEN
REDEMPTION OF NOTES
Section 11.01. Optional and Special Redemption.
-------------------------------
Optional Redemption. The Notes will be redeemable at the option of
-------------------
the Company, in whole or in part, at any time on or after November 1, 2002, at
the redemption prices (expressed as percentages of principal amount) set forth
below, plus accrued and unpaid interest thereon, if any, to the date of
redemption, if redeemed during the 12-month period beginning on November 1 of
the years indicated below:
Redemption
Year Price
---- ----------
2002..................................... 105.188%
2003..................................... 103.458%
2004..................................... 101.729%
2005 and thereafter...................... 100.000%
Optional Redemption upon Equity Offering. On or prior to November 1,
----------------------------------------
2000, the Company may, at its option, use the net proceeds of an Equity Offering
to redeem up to 35% of the originally issued aggregate principal amount of the
Notes, at a redemption price in cash equal to 110 1/4% of the principal amount
thereof, plus accrued and unpaid interest thereon, if any, to the date of
redemption; provided, however, that not less than $65.0 million in aggregate
principal amount of Notes is outstanding following such redemption. Notice of
any such redemption must be given not later than 60 days after the consummation
of the Equity Offering.
As used in the preceding paragraph, an "Equity Offering" means any
public or private sale of equity securities (other than Redeemable Capital
Stock) of the Company; provided, however, that the proceeds (net of any
underwriting discounts or commissions) to the Company from any such private sale
of equity securities shall be at least $20.0 million.
Section 11.02. Applicability of Article.
------------------------
Redemption of Notes at the election of the Company as permitted or
required by any provision of this Indenture, shall be made in accordance with
such provision and this Article.
Section 11.03. Election To Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Notes pursuant to Section
11.01(a) shall be evidenced by a Board Resolution of the Company and an
Officers' Certificate. In case of any redemption at the election of the
Company, the Company shall, at least 60 days prior to the Redemption Date fixed
by the Company (unless a shorter notice period shall be satisfactory to the
Trustee), notify the Trustee in writing of such Redemption Date and of the
principal amount of Notes to be redeemed.
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Section 11.04. Selection of Notes To Be Redeemed.
---------------------------------
In the event that less than all of the Notes are to be redeemed at any
time, selection of Notes for redemption shall be made by the Trustee in
compliance with the requirements of the principal national securities exchange,
if any, on which the Notes are listed or, if the Notes are not listed on a
national securities exchange, on a pro rata basis, by lot or by such other
method as the Trustee deems fair and appropriate; provided, however, that no
Notes of a principal amount of $1,000 or less shall be redeemed in part;
provided, further, however, that any such redemption made with the net proceeds
of an Equity Offering shall be made on a pro rata basis or on as nearly a pro
rata basis as practicable (subject to the procedures of the Depositary). Notice
of redemption will be mailed by first class mail at least 30 but not more than
60 days before the redemption date to each holder of Notes to be redeemed at its
registered address. If any Note is to be redeemed in part only, the notice of
redemption that relates to such Note will state the portion of the principal
amount thereof to be redeemed. A new Note in a principal amount equal to the
unredeemed portion thereof will be issued in the name of the holder thereof upon
cancellation of the original Note. On and after the redemption date, interest
will cease to accrue on Notes or portions thereof called for redemption so long
as the Company has deposited with the paying agent for the Notes funds in
satisfaction of the applicable redemption price pursuant to this Indenture.
Section 11.05. Notice of Redemption.
--------------------
Notice of any optional or mandatory redemption shall be mailed by
first-class mail, postage prepaid, mailed at least 30 but not more than 60 days
before the Redemption Date, to each Holder of Notes to be redeemed at its
registered address.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if fewer than all outstanding Notes are to be redeemed, the
identification of the particular Notes to be redeemed;
(d) in the case of a Note to be redeemed in part, the principal
amount of such Note to be redeemed and that after the Redemption Date upon
surrender of such Note, a new Note or Notes in the aggregate principal
amount equal to the unredeemed portion thereof will be issued;
(e) that Notes called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price;
(f) that on the Redemption Date the Redemption Price will become due
and payable upon each such Note or portion thereof, and that (unless the
Company shall default in payment of the Redemption Price) interest thereon
shall cease to accrue on and after said date;
(g) the place or places where such Notes are to be surrendered for
payment of the Redemption Price;
(h) the CUSIP number, if any, relating to such Notes; and
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(i) the paragraph of the Notes pursuant to which the Notes are being
redeemed.
Notice of redemption of Notes to be redeemed shall be given by the
Company or, at the Company's written request, by the Trustee in the name and at
the expense of the Company.
The notice if mailed in the manner herein provided shall be
conclusively presumed to have been given, whether or not the Holder receives
such notice. In any case, failure to give such notice by mail or any defect in
the notice to the Holder of any Note designated for redemption as a whole or in
part shall not affect the validity of the proceedings for the redemption of any
other Note.
Section 11.06. Deposit of Redemption Price.
---------------------------
On or prior to 10:00 a.m., New York City time, on each Redemption
Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if
the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.03) an amount of money in same day funds sufficient to
pay the Redemption Price of, and accrued interest on, all the Notes or portions
thereof which are to be redeemed on that date.
Section 11.07. Notes Payable on Redemption Date.
--------------------------------
Notice of redemption having been given as aforesaid, the Notes so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified and from and after such date (unless the
Company shall default in the payment of the Redemption Price) such Notes shall
cease to bear interest. Upon surrender of any such Note for redemption in
accordance with said notice, such Note shall be paid by the Company at the
Redemption Price; provided, however, that installments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Notes, or one or more predecessor Notes, registered as such on the
relevant Regular Record Dates according to the terms and the provisions of
Section 3.06.
On and after any Redemption Date, if money sufficient to pay the
Redemption Price of and accrued interest on Notes called for redemption shall
have been made available in accordance with Section 11.06, the Notes called for
redemption will cease to accrue interest and the only right of the Holders of
such Notes will be to receive payment of the Redemption Price of and subject to
the provision in the preceding paragraph, accrued and unpaid interest on such
Notes to the Redemption Date. If any Note called for redemption shall not be so
paid upon surrender thereof for redemption, the principal and premium, if any,
shall, until paid, bear interest from the Redemption Date at the rate then borne
by such Note.
Section 11.08. Notes Redeemed or Purchased in Part.
-----------------------------------
Any Note which is to be redeemed or purchased only in part shall be
surrendered to the Paying Agent at the office or agency maintained for such
purpose pursuant to Section 10.02 (with, if the Company, the Note Registrar or
the Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to, the Company, the Note Registrar or the Trustee duly
executed by the Holder thereof or such Holder's attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Note without service charge, a new Note or Notes,
of any authorized denomination as requested by such Holder in aggregate
principal amount equal to, and in exchange for, the portion of the principal of
the Note so surrendered that is not redeemed or purchased.
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ARTICLE TWELVE
SATISFACTION AND DISCHARGE
Section 12.01. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall be discharged and cease to be of further effect
(except as to surviving rights or registration of transfer or exchange of Notes
herein expressly provided for) as to all outstanding Notes, and the Trustee, on
written demand of and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when
(a) either
(i) all the Notes theretofor authenticated and delivered
(except lost, stolen or destroyed Notes which have been replaced or
paid and Notes for whose payment money has theretofor been deposited
in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust) have been
delivered to the Trustee for cancellation or
(ii) all Notes not theretofor delivered to the Trustee for
cancellation have become due and payable and the Company or any
Guarantor has irrevocably deposited or caused to be deposited with the
Trustee funds in an amount sufficient to pay and discharge the entire
Indebtedness on the Notes not theretofor delivered to the Trustee for
cancellation, for principal of, premium, if any, and interest on the
Notes to the date of deposit together with irrevocable instructions
from the Company directing the Trustee to apply such funds to the
payment thereof at maturity or redemption, as the case may be;
(b) the Company or any Guarantor has paid all other sums payable
under this Indenture by the Company and the Guarantors; and
(c) the Company and each of the Guarantors have delivered to the
Trustee an officers' certificate and an opinion of counsel each stating
that all conditions precedent under this Indenture relating to the
satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.07 and, if money shall
have been deposited with the Trustee pursuant to subclause (a)(ii) of this
Section 12.01 the obligations of the Trustee under Section 12.02, shall survive.
Section 12.02. Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 10.03, all
money deposited with the Trustee pursuant to Section 12.01 shall be held in
trust and applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal of, premium, if
any, and interest on the Notes for whose payment such money has been deposited
with the Trustee.
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ARTICLE THIRTEEN
GUARANTEE OF NOTES
Section 13.01. Guarantee.
---------
Subject to the provisions of this Article Thirteen, each Guarantor, if
any, hereby jointly and severally and fully and unconditionally guarantees to
each Holder of a Note authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, irrespective of (i) the validity and
enforceability of this Indenture, the Notes or the obligations of the Company or
any other Guarantors to the Holders or the Trustee hereunder or thereunder or
(ii) the absence of any action to enforce the same or any other circumstances
which might otherwise constitute a legal or equitable discharge or default of a
Guarantor, that: (a) the principal of, premium, if any, and interest on the
Notes will be duly and punctually paid in full when due, whether at maturity, by
acceleration or otherwise, and interest on the overdue principal and (to the
extent permitted by law) interest, if any, on the Notes and all other
obligations of the Company or the Guarantors to the Holders or the Trustee
hereunder or thereunder (including fees, expenses or other) and all other
Obligations on the Notes will be promptly paid in full or performed, all in
accordance with the terms hereof and thereof; and (b) in case of any extension
of time of payment or renewal of any Notes or any of such other Obligations with
respect to the Notes, the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
Stated Maturity, by acceleration or otherwise. Failing payment when due of any
amount so guaranteed, or failing performance of any other obligation of the
Company to the Holders, for whatever reason, each Guarantor will be obligated to
pay, or to perform or cause the performance of, the same immediately. An Event
of Default under this Indenture or the Notes shall constitute an event of
default under this Guarantee, and shall entitle the Holders to accelerate the
obligations of the Guarantors hereunder in the same manner and to the same
extent as the obligations of the Company.
Each of the Guarantors, if any, hereby agrees that its obligations
hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Notes with respect
to any provisions hereof or thereof, any release of any other Guarantor, the
recovery of any judgment against the Company, any action to enforce the same,
whether or not a Guarantee is affixed to any particular Note, or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a guarantor. Each of the Guarantors hereby waives the benefit of
diligence, presentment, demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands whatsoever
and covenants that its Guarantee will not be discharged except by complete
performance of the obligations contained in the Notes, this Indenture and this
Guarantee. If any Holder or the Trustee is required by any court or otherwise
to return to the Company or to any Guarantor, or any custodian, trustee,
liquidator or other similar official acting in relation to the Company or such
Guarantor, any amount paid by the Company or such Guarantor to the Trustee or
such Holder, this Guarantee, to the extent theretofor discharged, shall be
reinstated in full force and effect. Each Guarantor further agrees that, as
between it, on the one hand, and the Holders of Notes and the Trustee, on the
other hand, (a) subject to this Article Thirteen, the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article Five
hereof for the purposes of this Guarantee, notwithstanding any stay, injunction
or other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (b) in the event of any acceleration of such obligations
as provided in Article Five hereof, such obligations (whether or not due and
payable) shall forthwith become due and payable by the Guarantors for the
purpose of this Guarantee.
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This Guarantee shall remain in full force and effect and continue to
be effective should any petition be filed by or against the Company for
liquidation or reorganization, should the Company become insolvent or make an
assignment for the benefit of creditors or should a receiver or trustee be
appointed for all or any significant part of the Company's assets, and shall, to
the fullest extent permitted by law, continue to be effective or be reinstated,
as the case may be, if at any time payment and performance of the Notes are,
pursuant to applicable law, rescinded or reduced in amount, or must otherwise be
restored or returned by any obligee on the Notes, whether as a "voidable
preference," "fraudulent transfer" or otherwise, all as though such payment or
performance had not been made. In the event that any payment, or any part
thereof, is rescinded, reduced, restored or returned, the Notes shall, to the
fullest extent permitted by law, be reinstated and deemed reduced only by such
amount paid and not so rescinded, reduced, restored or returned.
No stockholder, officer, director, employer or incorporator, past,
present or future, or any Guarantor, as such, shall have any personal liability
under this Guarantee by reason of his, her or its status as such stockholder,
officer, director, employer or incorporator.
The Guarantors shall have the right to seek contribution from any non-
paying Guarantor so long as the exercise of such right does not impair the
rights of the Holders under this Guarantee.
Notwithstanding any of the foregoing, each Guarantor's liability under
this Section 13.01 shall be limited to the maximum amount that would not result
in such Guarantor's Guarantee under this Section 13.01 constituting a fraudulent
conveyance or fraudulent transfer under applicable law.
Section 13.02. Execution and Delivery of Guarantee.
-----------------------------------
To further evidence the Guarantee set forth in Section 13.01, each
Guarantor hereby agrees that a notation of such Guarantee, substantially in the
form included in Exhibit E hereto, shall be endorsed on each Note authenticated
and delivered by the Trustee after such Guarantee is executed and executed by
either manual or facsimile signature of an Officer of each Guarantor. The
validity and enforceability of any Guarantee shall not be affected by the fact
that it is not affixed to any particular Note.
Each of the Guarantors hereby agrees that its Guarantee set forth in
Section 13.01 shall remain in full force and effect notwithstanding any failure
to endorse on each Note a notation of such Guarantee.
If an Officer of a Guarantor whose signature is on this Indenture or a
Note no longer holds that office at the time the Trustee authenticates such Note
or at any time thereafter, such Guarantor's Guarantee of such Note shall be
valid nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of any Guarantee set forth in
this Indenture on behalf of the Guarantor.
Section 13.03. Additional Guarantors.
---------------------
Any person who was not a Guarantor at the time this Indenture was
executed may become a Guarantor by executing and delivering to the Trustee (a) a
supplemental indenture in form and substance satisfactory to the Trustee, which
subjects such person to the provisions of this Indenture as a Guarantor, and (b)
an Opinion of Counsel to the effect that such supplemental indenture has been
duly authorized and executed by such person and constitutes the legal, valid,
binding and enforceable obligation of such person (subject to
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such customary exceptions concerning fraudulent conveyance laws, creditors'
rights and equitable principles as may be acceptable to the Trustee in its
discretion).
Section 13.04. Guarantee Obligations Subordinated to Guarantor
-----------------------------------------------
Senior Indebtedness.
-------------------
Each Guarantor covenants and agrees, and each Holder of a Note, by its
acceptance thereof, likewise covenants and agrees, that all payments pursuant to
the Guarantee made by or on behalf of such Guarantor are hereby expressly made
subordinate and subject in right of payment as provided in this Article Thirteen
to the prior payment in full in cash of all amounts payable under all existing
and future Guarantor Senior Indebtedness of such Guarantor including such
Guarantor's guarantees of the Company's Obligations under the New Credit
Agreement.
This Section 13.04 and the following Sections 13.05 through 13.17 of
this Article Thirteen shall constitute a continuing offer to all persons who, in
reliance upon such provisions, become Holders of, or continue to hold Guarantor
Senior Indebtedness of any Guarantor and, to the extent set forth in Section
13.06(b), Holders of Designated Senior Indebtedness; and such provisions are
made for the benefit of the Holders of Guarantor Senior Indebtedness of each
Guarantor and, to the extent set forth in Section 13.06(b), Holders of
Designated Senior Indebtedness; and such Holders (to such extent) are made
obligees hereunder and they or each of them may enforce such provisions.
Section 13.05. Payment Over of Proceeds upon Dissolution, etc., of a
-----------------------------------------------------
Guarantor.
---------
In the event of (a) any insolvency or bankruptcy case or proceeding,
or any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to any Guarantor or to its
creditors, as such, or to its assets or (b) any liquidation, dissolution or
other winding-up of any Guarantor, whether voluntary or involuntary and whether
or not involving insolvency or bankruptcy, or (c) any assignment for the benefit
of creditors or any other marshalling of assets or liabilities of any Guarantor,
then and in any such event:
(1) the holders of all Guarantor Senior Indebtedness of such
Guarantor shall be entitled to receive payment in full in cash or, as
acceptable to the holders of such Guarantor Senior Indebtedness, in any
other manner of all amounts due on or in respect of all such Guarantor
Senior Indebtedness (including, in the case of Obligations under the New
Credit Agreement, and related Currency and Interest Rate Agreement
Obligations of such Guarantor, any interest accruing subsequent to the
filing of a petition for bankruptcy at the rate provided for in the
documentation governing such Obligations under the New Credit Agreement,
and Interest Rate Agreement Obligations of such Guarantor, as the case may
be, whether or not such interest is an allowed claim under applicable law),
or provision shall be made for such payment, before the Holders of the
Notes are entitled to receive, pursuant to this Guarantee, any payment or
distribution of any kind or character by or on behalf of such Guarantor on
account of the Guarantor's Obligations under the Notes; and
(2) any payment or distribution of assets of such Guarantor of any
kind or character, whether in cash, property or securities, by set-off or
otherwise, to which the Holders or the Trustee would be entitled but for
the subordination provisions of this Article Thirteen shall be paid by the
liquidating trustee or agent or other person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or liquidating
trustee or otherwise, directly to the Holders of Guarantor Senior
Indebtedness of such Guarantor or their representative or representatives
or to the trustee or trustees under any indenture under which any
instruments evidencing any of such Guarantor Senior Indebted-
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ness may have been issued, ratably according to the aggregate amounts
remaining unpaid on account of such Guarantor Senior Indebtedness held or
represented by each, to the extent necessary to make payment in full in
cash of all such Guarantor Senior Indebtedness remaining unpaid, after
giving effect to any concurrent payment or distribution to the Holders of
such Guarantor Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions of
this Section 13.05, the Trustee or the Holder of any Note shall have
received any payment or distribution of assets of such Guarantor of any
kind or character, whether in cash, property or securities, in respect of
any Obligations of such Guarantor under this Guarantee before all Guarantor
Senior Indebtedness of such Guarantor is paid in full in cash or payment
thereof provided for, then and in such event such payment or distribution
shall be paid over or delivered forthwith to the Senior Representative for
application to the payment of all such Guarantor Senior Indebtedness
remaining unpaid, to the extent necessary to pay all of such Guarantor
Senior Indebtedness in full in cash, after giving effect to any concurrent
payment or distribution to or for the Holders of such Guarantor Senior
Indebtedness. Any such payment or distribution of assets received by the
Trustee, which is required to be paid over to the Senior Representative,
will be held in trust by the Trustee for the benefit of the Holders of the
Guarantor Senior Indebtedness.
Section 13.06. Suspension of Guarantee Obligations When Guarantor
--------------------------------------------------
Senior Indebtedness in Default.
------------------------------
(a) Unless Section 13.05 shall be applicable, after the occurrence of
a Payment Default with respect to any Guarantor Senior Indebtedness no payment
or distribution of any assets of such Guarantor of any kind or character shall
be made by or on behalf of such Guarantor on account of the Guarantor's
Obligations pursuant to the Notes or on account of the purchase, redemption,
defeasance or other acquisition of the Obligations pursuant to the Notes or on
account of any other Obligations of such Guarantor under this Guarantee unless
and until such Payment Default shall have been cured or waived or shall have
ceased to exist or the Guarantor Senior Indebtedness as to which such Payment
Default relates shall have been discharged or paid in full in cash, after which,
subject to Section 13.05 (if applicable), such Guarantor shall resume making any
and all required payments in respect of its Obligations under this Guarantee.
(b) Unless Section 13.05 shall be applicable, during any Payment
Blockage Period with respect to any Guarantor Senior Indebtedness, no payment or
distribution of any assets of a Guarantor of any kind or character shall be made
by or on behalf of a Guarantor on account of the Guarantor's Obligations on the
Notes or on account of the purchase, redemption, defeasance or other acquisition
of the Guarantor's Obligations on the Notes or on account of any of the other
Obligations of such Guarantor under this Guarantee; provided that the foregoing
prohibition shall not apply unless such Payment Blockage Period has been
instituted under Section 14.03(b) by a Senior Representative acting for Holders
of Designated Senior Indebtedness which also constitutes Guarantor Senior
Indebtedness. Upon the termination of any Payment Blockage Period, subject to
Section 13.05 (if applicable), such Guarantor shall resume making any and all
required payments in respect of its Obligations under this Guarantee.
(c) In the event that, notwithstanding the foregoing, the Trustee or
the Holder of any Note shall have received any payment from a Guarantor
prohibited by the foregoing provisions of this Section 13.06, then and in such
event such payment shall be paid over and delivered forthwith to the Senior
Representative initiating the Payment Blockage Period, in trust for distribution
to the Holders of Guarantor Senior
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Indebtedness or, if no amounts are then due in respect of Guarantor Senior
Indebtedness, prompt return to the Guarantor, or as a court of competent
jurisdiction shall direct.
Section 13.07. Release of a Guarantor.
----------------------
(a) So long as no Event of Default shall have occurred and be
continuing upon the sale or disposition (whether by merger, stock purchase,
asset sale or otherwise) of a Guarantor (or all or substantially all of the
assets of any such Guarantor or 50% or more of the Capital Stock of any such
Guarantor) to an entity which is not a Subsidiary of the Company, which
transaction is otherwise in compliance with this Indenture, such Guarantor shall
be deemed released from all 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 Guarantor under all its Guarantees of, and under all of
its pledges of assets or other security interests which secure, any Indebtedness
of the Company shall also terminate upon such release, sale or transfer. Upon
the release of any Guarantor from its Guarantee pursuant to the provisions of
this Indenture, each other Guarantor not so released shall remain liable for the
full amount of principal of, and interest on, the Notes as and to the extent
provided in this Indenture.
(b) The Trustee shall deliver an appropriate instrument evidencing
the release of a Guarantor upon receipt of a request of the Company accompanied
by an Officers' Certificate certifying as to the compliance with this Section
13.07. Any Guarantor not so released or the entity surviving such Guarantor, as
applicable, will remain or be liable under its Guarantee as provided in this
Article Thirteen.
The Trustee shall execute any documents reasonably requested by the
Company or a Guarantor in order to evidence the release of such Guarantor from
its obligations under its Guarantee endorsed on the Notes and under this Article
Thirteen.
Except as set forth in Articles Eight and Ten and this Section 13.07,
nothing contained in this Indenture or in any of the Notes shall prevent any
consolidation or merger of a Guarantor with or into the Company or another
Guarantor or shall prevent any sale or conveyance of the property of a Guarantor
as an entirety or substantially as an entirety to the Company or another
Guarantor.
Section 13.08. Waiver of Subrogation.
---------------------
Each Guarantor hereby irrevocably waives any claim or other rights
which it may now or hereafter acquire against the Company that arise from the
existence, payment, performance or enforcement of such Guarantor's obligations
under this Guarantee and this Indenture, including, without limitation, any
right of subrogation, reimbursement, exoneration, indemnification, and any right
to participate in any claim or remedy of any Holder of Notes against the
Company, whether or not such claim, remedy or right arises in equity, or under
contract, statute or common law, including, without limitation, the right to
take or receive from the Company, directly or indirectly, in cash or other
property or by set-off or in any other manner, payment or security on account of
such claim or other rights. If any amount shall be paid to any Guarantor in
violation of the preceding sentence and the Notes shall not have been paid in
full, such amount shall have been deemed to have been paid to such Guarantor for
the benefit of, and held in trust for the benefit of, the Holders of the Notes,
and shall, subject to the subordination provisions of this Article Thirteen and
to Article Fourteen, forthwith be paid to the Trustee for the benefit of such
Holders to be credited and applied upon the Notes, whether matured or unmatured,
in accordance with the terms of this Indenture. Each Guarantor acknowledges that
it will receive direct and indirect benefits from the financing arrangements
contemplated by this Indenture and that the waiver set forth in this Section
13.08 is knowingly made in contemplation of such benefits.
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Section 13.09. Guarantee Subordination Provisions Solely To Define
---------------------------------------------------
Relative Rights.
---------------
The subordination provisions of this Article are and are intended
solely for the purpose of defining the relative rights of the Holders of the
Notes on the one hand and the Holders of Guarantor Senior Indebtedness of each
Guarantor and, to the extent set forth in Section 13.06, Holders of Designated
Senior Indebtedness on the other hand. Nothing contained in this Article
Thirteen (other than a release pursuant to Section 13.07) or elsewhere in this
Indenture or in the Notes is intended to or shall (a) impair, as among each
Guarantor, its creditors other than Holders of its Guarantor Senior Indebtedness
and the Holders of the Notes, the obligation of such Guarantor, which is
absolute and unconditional, to make payments to the Holders in respect of its
obligations under this Guarantee as and when the same shall become due and
payable in accordance with their terms; or (b) affect the relative rights
against such Guarantor of the Holders of the Notes and creditors of such
Guarantor other than the Holders of the Guarantor Senior Indebtedness of such
Guarantor; or (c) prevent the Trustee or the Holder of any Note from exercising
all remedies otherwise permitted by applicable law upon Default or an Event of
Default under this Indenture, subject to the rights, if any, under the
subordination provisions of this Article Thirteen of the Holders of Guarantor
Senior Indebtedness of the Guarantors hereunder and, to the extent set forth in
Section 13.06, Holders of Designated Senior Indebtedness (1) in any case,
proceeding, dissolution, liquidation or other winding-up, assignment for the
benefit of creditors or other marshaling of assets and liabilities of the
Guarantor referred to in Section 13.05, to receive, pursuant to and in
accordance with such Section, cash, property and securities otherwise payable or
deliverable to the Trustee or such Holder, or (2) under the conditions specified
in Section 13.06, to prevent any payment prohibited by such Section or enforce
their rights pursuant to Section 13.06(c).
The failure by any Guarantor to make a payment in respect of its
obligations under this Guarantee by reason of any provision of this Article
Thirteen shall not be construed as preventing the occurrence of a Default or an
Event of Default hereunder.
Section 13.10. Trustee To Effectuate Subordination of Guarantee
------------------------------------------------
Obligations.
-----------
Each Holder of a Note by his acceptance thereof authorizes and directs
the Trustee on his behalf to take such action as may be necessary or appropriate
to effectuate the subordination provided in this Article Thirteen and appoints
the Trustee his attorney-in-fact for any and all such purposes, including, in
the event of any dissolution, winding-up, liquidation or reorganization of any
Guarantor whether in bankruptcy, insolvency, receivership proceedings, or
otherwise, the timely filing of a claim for the unpaid balance of the
indebtedness of such Guarantor owing to such Holder in the form required in such
proceedings and the causing of such claim to be approved. If the Trustee does
not file such a claim prior to 30 days before the expiration of the time to file
such a claim, the Holders of Guarantor Senior Indebtedness, or any
representative, may file such a claim on behalf of Holders of the Notes.
Section 13.11. No Waiver of Guarantee Subordination Provisions.
-----------------------------------------------
(a) No right of any present or future Holder of any Guarantor Senior
Indebtedness of any Guarantor or Designated Senior Indebtedness to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or any
Guarantor or by any act or failure to act, in good faith, by any such Holder, or
by any non-compliance by the Company or any Guarantor with the terms, provisions
and covenants of this Indenture, regardless of any knowledge thereof any such
Holder may have or be otherwise charged with.
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(b) Without limiting the generality of subsection (a) of this Section
13.11, the Holders of Guarantor Senior Indebtedness of any Guarantor may, at any
time and from time to time, without the consent of or notice to the Trustee or
the Holders of the Notes, without incurring responsibility to the Holders of the
Notes and without impairing or releasing the subordination provided in this
Article Thirteen or the obligations hereunder of the Holders of the Notes to the
Holders of such Guarantor Senior Indebtedness, do any one or more of the
following: (1) change the manner, place or terms of payment or extend the time
of payment of, or renew or alter, such Guarantor Senior Indebtedness or any
Senior Indebtedness as to which such Guarantor Senior Indebtedness relates or
any instrument evidencing the same or any agreement under which such Guarantor
Senior Indebtedness or such Senior Indebtedness is outstanding; (2) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing such Guarantor Senior Indebtedness or any Senior Indebtedness
as to which such Guarantor Senior Indebtedness relates; (3) release any person
liable in any manner for the collection or payment of such Guarantor Senior
Indebtedness or any Senior Indebtedness as to which such Guarantor Senior
Indebtedness relates; and (4) exercise or refrain from exercising any rights
against such Guarantor and any other person; provided that in no event shall any
such actions limit the right of the Holders of the Notes to take any action to
accelerate the maturity of the Notes pursuant to Article Five hereof or to
pursue any rights or remedies hereunder or under applicable laws if the taking
of such action does not otherwise violate the terms of this Indenture.
Section 13.12. Guarantors To Give Notice to Trustee.
------------------------------------
(a) The Company and each Guarantor shall give prompt written notice
to the Trustee of any fact known to such Guarantor which would prohibit the
making of any payment to or by the Trustee in respect of the Notes.
Notwithstanding the subordination provisions of this Article or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts which would prohibit the making of any payment to or
by the Trustee in respect of the Notes, unless and until the Trustee shall have
received written notice thereof at its Corporate Trust Office from the Company,
such Guarantor or a Holder of its Guarantor Senior Indebtedness or from any
trustee, fiduciary or agent therefor; and, prior to the receipt of any such
written notice, the Trustee, subject to the provisions of this Section 13.12,
shall be entitled in all respects to assume that no such facts exist; provided
that if the Trustee shall not have received the notice provided for in this
Section 13.12 at least two Business Days prior to the date upon which by the
terms hereof any money may become payable for any purpose under this Indenture
(including, without limitation, the payment of the principal of or interest on
any Note), then, anything herein contained to the contrary notwithstanding but
without limiting the rights and remedies of the Holders of such Guarantor Senior
Indebtedness or any trustee, fiduciary or agent thereof, the Trustee shall have
full power and authority to receive such money and to apply the same to the
purpose for which such money was received and shall not be affected by any
notice to the contrary which may be received by it within two Business Days
prior to such date; nor shall the Trustee be charged with knowledge of the
curing of any such default or the elimination of the act or condition preventing
any such payment unless and until the Trustee shall have received an Officers'
Certificate from such Guarantor to such effect.
(b) Subject to the provisions of Section 6.01, the Trustee shall be
entitled to rely on the delivery to it of a written notice to the Trustee, by a
person representing himself to be a Holder of Guarantor Senior Indebtedness of
any Guarantor (or a trustee, fiduciary or agent therefor). In the event that
the Trustee determines in good faith that further evidence is required with
respect to the right of any person as a Holder of Guarantor Senior Indebtedness
of any Guarantor to participate in any payment or distribution pursuant to this
Article Thirteen, the Trustee may request such person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Guarantor Senior
Indebtedness of each Guarantor held by such person, the extent to which such
person is entitled to participate in such payment or distribution and any other
facts pertinent to
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the rights of such person under this Article Thirteen, and if such evidence is
not furnished, the Trustee may defer any payment to such person pending judicial
determination as to the right of such person to receive such payment.
Section 13.13. Reliance on Judicial Order or Certificate of
--------------------------------------------
Liquidating Agent Regarding Dissolution, etc., of Guarantors.
------------------------------------------------------------
Upon any payment or distribution of assets of any Guarantor referred
to in this Article Thirteen, the Trustee, subject to the provisions of Section
6.01, and the Holders shall be entitled to rely upon any order or decree entered
by any court of competent jurisdiction in which such insolvency, bankruptcy,
receivership, liquidation, reorganization, dissolution, winding-up or similar
case or proceeding is pending, or a certificate of the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee for the benefit of creditors,
agent or other person making such payment or distribution, delivered to the
Trustee or to the Holders, for the purpose of ascertaining the persons entitled
to participate in such payment or distribution, the Holders of Guarantor Senior
Indebtedness of such Guarantor and other Indebtedness of such Guarantor, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article Thirteen;
provided that the foregoing shall apply only if such court has been fully
apprised of the provisions of this Article Thirteen.
Section 13.14. Rights of Trustee as a Holder of Guarantor Senior
-------------------------------------------------
Indebtedness; Preservation of Trustee's Rights.
----------------------------------------------
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article Thirteen with respect to any Guarantor Senior
Indebtedness of any Guarantor which may at any time be held by the Trustee, to
the same extent as any other Holder of such Guarantor Senior Indebtedness, and
nothing in this Indenture shall deprive the Trustee of any of its rights as such
Holder. Nothing in this Article Thirteen shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 6.07.
Section 13.15. Article Thirteen Applicable to Paying Agents.
--------------------------------------------
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article Thirteen shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying Agent
were named in this Article Thirteen in addition to or in place of the Trustee;
provided that Section 13.14 shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
Section 13.16. No Suspension of Remedies Subject to Rights of
----------------------------------------------
Holders of Guarantor Senior Indebtedness.
----------------------------------------
Nothing contained in this Article Thirteen shall limit the right of
the Trustee or the Holders of Notes to take any action to accelerate the
maturity of the Notes pursuant to Article Five or to pursue any rights or
remedies hereunder or under applicable law, subject to the rights, if any, under
this Article Thirteen of the Holders, from time to time, of Guarantor Senior
Indebtedness of the Guarantors.
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Section 13.17. Trustee's Relation to Guarantor Senior Indebtedness.
---------------------------------------------------
With respect to the Holders of Guarantor Senior Indebtedness of any
Guarantor, the Trustee undertakes to perform or to observe only such of its
covenants and obligations as are specifically set forth in this Article Thirteen
(and in Article Fourteen with respect to Senior Indebtedness), and no implied
covenants or obligations with respect to the Holders of Guarantor Senior
Indebtedness of any Guarantor shall be read into this Indenture against the
Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
Holders of Guarantor Senior Indebtedness of any Guarantor and the Trustee shall
not be liable to any Holder of Guarantor Senior Indebtedness of any Guarantor if
it shall mistakenly pay over or deliver to Holders, the Company or any other
person moneys or assets to which any Holder of Guarantor Senior Indebtedness of
any Guarantor shall be entitled by virtue of this Article Thirteen or otherwise.
Section 13.18. Subrogation.
-----------
Upon the payment in full in cash of all amounts payable under or in
respect of Guarantor Senior Indebtedness of the Guarantors and of all Senior
Indebtedness of the Company, the Holders shall be subrogated to the rights of
the Holders of such Guarantor Senior Indebtedness of the Guarantors to receive
payments or distributions of assets of any Guarantor made on such Guarantor
Senior Indebtedness of the Guarantors until all amounts due under the Guarantee
shall be paid in full; and for the purposes of such subrogation, no payments or
distributions to Holders of such Guarantor Senior Indebtedness of the Guarantors
of any cash, property or securities to which Holders of the Notes would be
entitled except for the provisions of this Article Thirteen, and no payment
pursuant to the provisions of this Article Thirteen to Holders of such Guarantor
Senior Indebtedness of the Guarantors by the Holders, shall, as between each
Guarantor, its creditors other than Holders of such Guarantor Senior
Indebtedness of the Guarantors and the Holders, be deemed to be a payment by
such Guarantor to or on account of such Guarantor Senior Indebtedness of the
Guarantors, its being understood that the provisions of this Article Thirteen
are solely for the purpose of defining the relative rights of the Holders of
such Guarantor Senior Indebtedness of the Guarantors, on the one hand, and the
Holders, on the other hand.
If any payment or distribution to which the Holders would otherwise
have been entitled but for the provisions of this Article Thirteen shall have
been applied, pursuant to the provisions of this Article Thirteen, to the
payment of all amounts payable under the Guarantor Senior Indebtedness of the
Guarantors, then and in such case, the Holders shall be entitled to receive from
the Holders of such Guarantor Senior Indebtedness of the Guarantors at the time
outstanding any payments or distributions received by such Holders of Guarantor
Senior Indebtedness of the Guarantors in excess of the amount sufficient to pay
all amounts payable under or in respect of such Guarantor Senior Indebtedness of
the Guarantors in full.
ARTICLE FOURTEEN
SUBORDINATION OF NOTES
Section 14.01. Notes Subordinate to Senior Indebtedness.
----------------------------------------
The Company covenants and agrees, and each Holder of a Note, by his
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article Fourteen, the Indebtedness
represented by the Notes are hereby expressly made subordinate and subject in
right of
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payment as provided in this Article to the prior payment in full in cash or Cash
Equivalents of all Senior Indebtedness (including the indebtedness under the New
Credit Agreement).
This Article Fourteen shall constitute a continuing offer to all
persons who, in reliance upon such provisions, become Holders of, or continue to
hold Senior Indebtedness; and such provisions are made for the benefit of the
Holders of Senior Indebtedness; and such holders are made obligees hereunder and
they or each of them individually or through their representative may enforce
such provisions.
Section 14.02. Payment Over of Proceeds upon Dissolution, etc.
----------------------------------------------
In the event of (a) any insolvency or bankruptcy case or proceeding,
or any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relating to the Company, or (b) any
liquidation, dissolution or other winding-up of the Company, whether voluntary
or involuntary and whether or not involving insolvency or bankruptcy, then and
in any such event:
(1) the holders of all Senior Indebtedness shall be entitled to
receive payment in full in cash or Cash Equivalents of all Obligations due
in respect of such Senior Indebtedness before the Holders are entitled to
receive any payment or distribution of any kind or character on account of
the Notes; and
(2) any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, by set-off or
otherwise, to which the Holders or the Trustee would be entitled but for
the provisions of this Article shall be paid by the liquidating trustee or
agent or other person making such payment or distribution, whether a
trustee in bankruptcy, a receiver or liquidating trustee or otherwise,
directly to the Holders of Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any indenture under
which any instruments evidencing any of such Senior Indebtedness may have
been issued, ratably according to the aggregate amounts remaining unpaid on
account of the Senior Indebtedness held or represented by each, to the
extent necessary to make payment in full in cash or Cash Equivalents of all
Senior Indebtedness remaining unpaid, after giving effect to any concurrent
payment or distribution to the Holders of such Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions of
this Section 14.02, the Trustee or the Holder of any Note shall have
received any payment or distribution of properties or assets of the Company
of any kind or character, whether in cash, property or securities, by set
off or otherwise in respect of the Notes before all Senior Indebtedness is
paid or provided for in full in cash, then and in such event such payment
or distribution shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or
other person making payment or distribution of assets of the Company for
application to the payment of all Senior Indebtedness remaining unpaid, to
the extent necessary to pay all Senior Indebtedness in full in cash or Cash
Equivalents, after giving effect to any concurrent payment or distribution
to or for the holders of Senior Indebtedness.
The consolidation of the Company with, or the merger of the Company
with or into, another person or the liquidation or dissolution of the Company
following the conveyance, transfer or lease of its properties and assets
substantially as an entirety to another person upon the terms and conditions set
forth in Article Eight hereof shall not be deemed a dissolution, winding-up,
liquidation, reorganization, assignment for the benefit of creditors or
marshalling of assets and liabilities of the Company for the purposes of this
Article if
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the person formed by such consolidation or the surviving entity of such merger
or the person which acquires by conveyance, transfer or lease such properties
and assets substantially as an entirety, as the case may be, shall, as a part of
such consolidation, merger, conveyance, transfer or lease, comply with the
conditions set forth in such Article Eight.
Section 14.03. Suspension of Payment When Designated Senior
--------------------------------------------
Indebtedness is in Default.
--------------------------
(a) Unless Section 14.02 shall be applicable, during the continuance
of any default in the payment of any Designated Senior Indebtedness pursuant to
which the maturity thereof may immediately be accelerated beyond any applicable
grace period and after receipt by the Trustee from representatives of holders of
such Designated Senior Indebtedness of written notice of such default, no
payment or distribution of any assets of the Company of any kind or character
(excluding any payment or distribution of certain permitted equity or
subordinated securities) shall be made on account of the principal of, premium,
if any, or interest on, or the purchase, redemption or other acquisition of, the
Notes unless and until such default has been cured or waived or has ceased to
exist or such Designated Senior Indebtedness shall have been discharged or paid
in full.
(b) Unless Section 14.02 shall be applicable, upon (1) the occurrence
of a Non-payment Default and (2) receipt by the Trustee from the representatives
of any Holders of Designated Senior Indebtedness of written notice of such
occurrence (a "Payment Blockage Notice") stating that a Non-Payment Default has
occurred and is continuing pursuant to Section 14.03(b) of this Indenture, no
payment or distribution of any assets of the Company of any kind or character
(excluding any payment or distribution of certain permitted equity or
subordinated securities) shall be made by or on behalf of the Company on account
of the principal of, premium, if any, or interest on, or the purchase,
redemption or other acquisition of, the Notes for a period ("Payment Blockage
Period") commencing on the date of receipt by the Trustee of such notice and
will end on the earlier to occur of the following events (subject to any
blockage of payments that may then be in effect under Section 14.02 or
subsection (a) of this Section 14.03), (i) 179 days shall have elapsed since the
receipt of such notice of a Non-payment Default (provided that such Designated
Senior Indebtedness shall not theretofor have been accelerated), (ii) such
default is cured or waived or ceases to exist or such Designated Senior
Indebtedness is discharged or (iii) such Payment Blockage Period shall have been
terminated by written notice to the Company or the Trustee from the
representatives of holders of Designated Senior Indebtedness initiating such
Payment Blockage Period. After the end of any Payment Blockage Period the
Company shall promptly resume making any and all required payments in respect of
the Notes, including any missed payments. Notwithstanding anything in the
subordination provisions of this Indenture or the Notes to the contrary, (x) in
no event shall a Payment Blockage Period extend beyond 179 days from the date of
the receipt by the Trustee of the notice initiating such Payment Blockage
Period, (y) there shall be a period of at least 186 consecutive days in each
365-day period when no Payment Blockage Period is in effect and (z) not more
than one Payment Blockage Period with respect to the Notes may be commenced
within any period of 365 consecutive days. A Non-payment Default with respect
to Designated Senior Indebtedness that existed or was continuing on the date of
the commencement of any Payment Blockage Period with respect to the Designated
Senior Indebtedness initiating such Payment Blockage Period cannot be made the
basis for the commencement of a second Payment Blockage Period, whether or not
within a period of 365 consecutive days, unless such default has been cured or
waived for a period of not less than 90 consecutive days and subsequently
recurs.
(c) In the event that, notwithstanding the foregoing, the Trustee or
the Holder of any Note shall have received any payment or distribution
prohibited by the foregoing provisions of this Section 14.03, then and in such
event such payment or distribution shall be paid over and delivered forthwith to
representa-
-83-
tives of the Holders or as a court of competent jurisdiction shall direct for
application to the payment of any due and unpaid Senior Indebtedness, to the
extent necessary to pay all such due and unpaid Senior Indebtedness in cash,
after giving effect to any concurrent payment to or for the Holders of Senior
Indebtedness.
Section 14.04. Trustee's Relation to Senior Indebtedness.
-----------------------------------------
With respect to the Holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article Fourteen (and in Article Thirteen
with respect to any Guarantor Senior Indebtedness of the respective Guarantors),
and no implied covenants or obligations with respect to the Holders of Senior
Indebtedness shall be read into this Indenture against the Trustee. The Trustee
shall not be deemed to owe any fiduciary duty to the Holders of Senior
Indebtedness and the Trustee shall not be liable to any Holder of Senior
Indebtedness if it shall mistakenly pay over or deliver to Holders, the Company,
the Guarantors or any other person moneys or assets to which any Holder of
Senior Indebtedness shall be entitled by virtue of this Article Fourteen or
otherwise.
Section 14.05. Subrogation to Rights of Holders of Senior
------------------------------------------
Indebtedness.
------------
Upon the payment in full in cash of all Senior Indebtedness, the
Holders shall be subrogated to the rights of the holders of such Senior
Indebtedness to receive payments and distributions of cash, property and
securities applicable to the Senior Indebtedness until the principal of and
interest on the Notes shall be paid in full in cash or cash equivalents. For
purposes of such subrogation, no payments or distributions to the holders of
Senior Indebtedness of any cash, property or securities to which the Holders or
the Trustee would be entitled except for the provisions of this Article, and no
payments over pursuant to the provisions of this Article to the holders of
Senior Indebtedness by Holders or the Trustee shall, as among the Company, its
creditors other than holders of Senior Indebtedness, and the Holders, be deemed
to be a payment or distribution by the Company to or on account of the Senior
Indebtedness.
If any payment or distribution to which the Holders would otherwise
have been entitled but for the provisions of this Article Fourteen shall have
been applied, pursuant to the provisions of this Article Fourteen, to the
payment of all amounts payable under the Senior Indebtedness of the Company,
then and in such case the Holders shall be entitled to receive from the holders
of such Senior Indebtedness at the time outstanding any payments or
distributions received by such holders of such Senior Indebtedness in excess of
the amount sufficient to pay all amounts payable under or in respect of such
Senior Indebtedness in full in cash or cash equivalents.
Section 14.06. Provisions Solely To Define Relative Rights.
-------------------------------------------
The provisions of this Article Fourteen are and are intended solely
for the purpose of defining the relative rights of the Holders on the one hand
and the holders of Senior Indebtedness on the other hand. Nothing contained in
this Article Fourteen or elsewhere in this Indenture or in the Notes is intended
to or shall (a) impair, as among the Company, its creditors other than holders
of Senior Indebtedness and the Holders, the obligation of the Company, which is
absolute and unconditional, to pay to the Holders the principal of, premium, if
any, and interest on the Notes as and when the same shall become due and payable
in accordance with their terms; or (b) affect the relative rights against the
Company of the Holders and creditors of the Company other than the holders of
Senior Indebtedness; or (c) prevent the Trustee or the Holder of any Note from
exercising all remedies otherwise permitted by applicable law upon a Default or
an Event of Default under this Indenture, subject to the rights, if any, under
this Article Fourteen of the holders of Senior Indebtedness (1) in any case,
proceeding, dissolution, liquidation or other winding up, assignment for the
benefit of creditors or
-84-
other marshalling of assets and liabilities of the Company referred to in
Section 14.02, to receive, pursuant to and in accordance with such Section,
cash, property and securities otherwise payable or deliverable to the Trustee or
such Holder, or (2) under the conditions specified in Section 14.03, to prevent
any payment prohibited by such Section or enforce their rights pursuant to
Section 14.03(c).
The failure to make a payment on the Notes by reason of any provision
of this Article Fourteen shall not be construed as preventing the occurrence of
a Default or an Event of Default hereunder.
Section 14.07. Trustee To Effectuate Subordination.
-----------------------------------
Each Holder of a Note by his acceptance thereof authorizes and directs
the Trustee on his behalf to take such action as may be necessary or appropriate
to effectuate the subordination provided in this Article Fourteen and appoints
the Trustee his attorney-in-fact for any and all such purposes, including, in
the event of any dissolution, winding-up, liquidation or reorganization of the
Company whether in bankruptcy, insolvency, receivership proceedings, or
otherwise, the timely filing of a claim for the unpaid balance of the
Indebtedness of the Company owing to such Holder in the form required in such
proceedings and the causing of such claim to be approved. If the Trustee does
not file such a claim prior to 30 days before the expiration of the time to file
such a claim, the holders of Senior Indebtedness, or any Senior Representative,
may file such a claim on behalf of Holders of the Notes.
Section 14.08. No Waiver of Subordination Provisions.
-------------------------------------
(a) No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act, in good faith, by any such Holder,
or by any non-compliance by the Company with the terms, provisions and covenants
of this Indenture, regardless of any knowledge thereof any such Holder may have
or be otherwise charged with.
(b) Without limiting the generality of subsection (a) of this Section
14.08, the Holders of Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders, without
incurring responsibility to the Holders and without impairing or releasing the
subordination provided in this Article Fourteen or the obligations hereunder of
the Holders to the holders of Senior Indebtedness, do any one or more of the
following: (1) change the manner, place or terms of payment or extend the time
of payment of, or renew or alter, Senior Indebtedness or any instrument
evidencing the same or any agreement under which Senior Indebtedness is
outstanding; (2) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Indebtedness; (3) release any
person liable in any manner for the collection or payment of Senior
Indebtedness; and (4) exercise or refrain from exercising any rights against the
Company and any other person; provided, however, that in no event shall any such
actions limit the right of the Holders to take any action to accelerate the
maturity of the Notes pursuant to Article Five hereof or to pursue any rights or
remedies hereunder or under applicable laws if the taking of such action does
not otherwise violate the terms of this Indenture.
Section 14.09. Notice to Trustee.
-----------------
(a) The Company shall give prompt written notice to the Trustee of
any fact known to the Company which would prohibit the making of any payment to
or by the Trustee in respect of the Notes. Notwithstanding the provisions of
this Article Fourteen or any other provision of this Indenture, the Trustee
shall not be charged with knowledge of the existence of any facts which would
prohibit the making of any payment
-85-
to or by the Trustee in respect of the Notes, unless and until the Trustee shall
have received written notice thereof from the Company or a holder of Senior
Indebtedness or from any trustee, fiduciary or agent therefor; and, prior to the
receipt of any such written notice, the Trustee, subject to the provisions of
this Section 14.09, shall be entitled in all respects to assume that no such
facts exist; provided, however, that if the Trustee shall not have received the
notice provided for in this Section 14.09 at least two Business Days prior to
the date upon which by the terms hereof any money may become payable for any
purpose under this Indenture (including, without limitation, the payment of the
principal of or interest on any Note), then, anything herein contained to the
contrary notwithstanding but without limiting the rights and remedies of the
holders of Senior Indebtedness or any trustee, fiduciary or agent thereof, the
Trustee shall have full power and authority to receive such money and to apply
the same to the purpose for which such money was received and shall not be
affected by any notice to the contrary which may be received by it within two
Business Days prior to such date; nor shall the Trustee be charged with
knowledge of the curing of any such default or the elimination of the act or
condition preventing any such payment unless and until the Trustee shall have
received an Officers' Certificate to such effect.
(b) Subject to the provisions of Section 6.01, the Trustee shall be
entitled to rely on the delivery to it of a written notice to the Trustee by a
person representing himself to be a holder of Senior Indebtedness (or a trustee,
fiduciary or agent therefor) to establish that such notice has been given by a
holder of Senior Indebtedness (or a trustee, fiduciary or agent therefor). In
the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article Fourteen, the Trustee may request such person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such person, the extent to which such person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such person under this Article Fourteen, and if such evidence is not furnished,
the Trustee may defer any payment to such person pending judicial determination
as to the right of such person to receive such payment.
Section 14.10. Reliance on Judicial Order or Certificate of
--------------------------------------------
Liquidating Agent.
-----------------
Upon any payment or distribution of assets of the Company referred to
in this Article Fourteen, the Trustee, subject to the provisions of Section
6.01, and the Holders, shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding-up
or similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit
of creditors, agent or other person making such payment or distribution,
delivered to the Trustee or to the Holders, for the purpose of ascertaining the
persons entitled to participate in such payment or distribution, the Holders of
Senior Indebtedness and other Indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article; provided, however, that the
foregoing shall apply only if such court has been fully apprised of the
provisions of this Article Fourteen.
Section 14.11. Rights of Trustee as a Holder of Senior Indebtedness;
-----------------------------------------------------
Preservation of Trustee's Rights.
--------------------------------
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article Fourteen with respect to any Senior
Indebtedness which may at any time be held by it, to the same extent as any
other holder of Senior Indebtedness, and nothing in this Indenture shall deprive
the Trustee of any of its
-86-
rights as such holder. Nothing in this Article Fourteen shall apply to claims
of, or payments to, the Trustee under or pursuant to Section 6.07.
Section 14.12. Article Applicable to Paying Agents.
-----------------------------------
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article Fourteen in addition to or in place of the Trustee;
provided that Section 14.11 shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
Section 14.13. No Suspension of Remedies.
-------------------------
Nothing contained in this Article Fourteen shall limit the right of
the Trustee or the Holders to take any action to accelerate the maturity of the
Notes pursuant to Article Five or to pursue any rights or remedies hereunder or
under applicable law, subject to the rights, if any, under this Article Fourteen
of the Holders, from time to time, of Senior Indebtedness.
S-1
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the day and year first above written.
THE GSI GROUP, INC.
By: /s/ Xxxx X. Xxxx
----------------------------------------
Name: Xxxx X. Xxxx
Title: Executive V.P., CFO and Secretary
LASALLE NATIONAL BANK,
as Trustee
By: /s/ XXXXX XXXXXXX
------------------------------------------
Name: XXXXX XXXXXXX
Title: ASST VICE PRESIDENT
SENIOR SUBORDINATED GUARANTEE
-----------------------------
For value received, the undersigned hereby unconditionally guarantees
to the Holder of this Note the payments of principal of, premium, if any, and
interest on this Note in the amounts and at the time when due and interest on
the overdue principal, premium, if any, and interest, if any, of this Note, if
lawful, and the payment or performance of all other obligations of the Company
under the Indenture or the Notes, to the Holder of this Note and the Trustee,
all in accordance with and subject to the terms and limitations of this Note,
Article Thirteen of the Indenture and this Guarantee. This Guarantee will
become effective in accordance with Article Eleven if the Indenture and its
terms shall be evidenced therein. The validity and enforceability of any
Guarantee shall not be affected by the fact that it is not affixed to any
particular Note.
The obligations of the undersigned to the Holders of Notes and to the
Trustee pursuant to the Guarantee and the Indenture are expressly set forth in
Article Thirteen of the Indenture and reference is hereby made to the Indenture
for the precise terms of the Guarantee and all of the other provisions of the
Indenture to which this Guarantee relates. The Indebtedness evidenced by this
Guarantee is, to the extent and in the manner provided in the Indenture,
subordinate and subject in right of payment to the prior payment in full in cash
of all Guarantor Senior Indebtedness as defined in the Indenture, and this
Guarantee is issued subject to such provisions. Each Holder of a Note, by
accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee, on behalf of such Holder, to take such
action as may be necessary or appropriate to effectuate the subordination as
provided in the Indenture and (c) appoints the Trustee attorney-in-fact of such
Holder for such purpose; provided that such subordination provisions shall cease
to affect amounts deposited in accordance with the defeasance provisions of the
Indenture upon the terms and conditions set forth therein.
This Guarantee is subject to release upon the terms set forth in the
Indenture.
XXXXX MANUFACTURING CO.
By: /s/ Xxxx X. Xxxxx
------------------------------
Name: Xxxx X. Xxxxx
Title: Asst. Treasuer
EXHIBIT A
---------
THE GSI GROUP, INC.
______________
10 1/4% SENIOR SUBORDINATED NOTE DUE 2007
CUSIP No.
No. _________________ $
THE GSI GROUP, INC., a Delaware corporation (the "Company," which term
includes any successor under the Indenture hereinafter referred to), for value
received, promises to pay _______ to or registered assigns, the principal sum
of ______ United States Dollars on November 1, 2007, at the office or agency of
the Company referred to below, and to pay interest thereon on May 1 and November
1, in each year, commencing on May 1, 1998 (each an "Interest Payment Date"),
accruing from the Issue Date or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, at the rate of 10 1/4% per
annum, until the principal hereof is paid or duly provided for. Interest shall
be computed on the basis of a 360-day year of twelve 30-day months.
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in the Indenture referred to on the
reverse hereof, be paid in arrears to the Person in whose name this Note (or one
or more predecessor Notes) is registered at the close of business on the April
15 or October 15 (each a "Regular Record Date"), whether or not a Business Day,
as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid, or duly provided for, and interest on such
defaulted interest at the then applicable interest rate borne by the Notes, to
the extent lawful, shall forthwith cease to be payable to the Holder on such
Regular Record Date, and may be paid to the Person in whose name this Note (or
one or more predecessor Notes) is registered at the close of business on a
Special Record Date for the payment of such defaulted interest to be fixed by
the Trustee, notice of which shall be given to Holders of Notes not less than 10
days prior to such Special Record Date, or may be paid at any time 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, all as more fully provided in such Indenture.
Payment of the principal of, premium, if any, and interest on this
Note will be made at the Corporate Trust office or agency of the Trustee
maintained for that purpose in The City of New York, in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts; provided, however, that payment of interest
may be made at the option of the Company by check (which may be a check of the
Company) mailed to the address of the Person entitled thereto as such address
shall appear on the Note Register.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof.
Unless the certificate of authentication hereon has been duly executed
by the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Indenture, or be valid or
obligatory for any purpose.
A-1
TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Notes referred to in the within-mentioned Indenture.
Dated: LASALLE NATIONAL BANK,
as Trustee
By: ______________________________
Authorized Signatory
A-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
THE GSI GROUP, INC.
By: _______________________________________
Name:
Title:
By: _______________________________________
Name:
Title:
A-3
(REVERSE OF NOTE)
10 1/4% Senior Subordinated Note due 2007
1. Indenture. This Note is one of a duly authorized issue of Notes
---------
of the Company designated as its 10 1/4% Senior Subordinated Notes due 2007,
(the "Notes"), limited (except as otherwise provided in the Indenture referred
to below) in aggregate principal amount to $ , which may be issued
under an indenture (the "Indenture") dated as of November 1, 1997, by and among
the Company, as Issuer and LaSalle National Bank, as trustee (the "Trustee,"
which term includes any successor Trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties, obligations
and immunities thereunder of the Company, the Trustee and the Holders, and of
the terms upon which the Notes are, and are to be, authenticated and delivered.
All capitalized terms used in this Note which are defined in the
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Indenture.
No reference herein to the Indenture and no provisions of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of, premium, if any, and
interest on this Note at the times, place and rate, and in the coin or currency,
herein prescribed.
2. Guarantees. This Note is entitled to certain senior subordinated
----------
Guarantees, if any, made for the benefit of the Holders. Reference is hereby
made to Article Thirteen of the Indenture for terms relating to the Guarantees.
3. Subordination. The Indebtedness evidenced by the Notes is, to
-------------
the extent and in the manner provided in the Indenture, subordinate and subject
in right of payment to the prior payment in full in cash of all existing and
future Senior Indebtedness (including the Indebtedness under the New Credit
Agreement). Each Holder, by accepting the same, (a) agrees to and shall be
bound by such provisions, (b) authorizes and directs the Trustee, on behalf of
such Holder, to take such action as may be necessary or appropriate to
effectuate the subordination as provided in the Indenture and (c) appoints the
Trustee attorney-in-fact of such Holder for such purpose; provided, however,
that the Indebtedness evidenced by this Note shall cease to be so subordinate
and subject in right of payment upon any defeasance of this Note referred to in
Paragraph 7 below.
4. Redemption.
----------
(a) Optional Redemption. Subject to earlier redemption in the manner
-------------------
described in the next two succeeding paragraphs, the Notes will be redeemable at
the option of the Company, in whole or in part, at any time on or after November
1, 2002 at the redemption prices (expressed as percentages of principal amount)
set forth below, plus accrued and unpaid interest, if any, to the date of
redemption, if redeemed during the 12-month period beginning November 1 of the
years indicated below:
Year Redemption Price
---- ----------------
2002 105.188%
2003 103.458
2004 101.729
2005 and thereafter 100.000
A-4
On or prior to November 1, 2000, the Company may, at its option, use
the net proceeds of an Equity Offering to redeem up to 35% of the originally
issued aggregate principal amount of the Notes, at a redemption price in cash
equal to 110 1/4% of the principal amount thereof, plus accrued and unpaid
interest thereon, if any, to the date of redemption; provided, however, that not
less than $65.0 million in aggregate principal amount of Notes is outstanding
following such redemption. Notice of any such redemption must be given not later
than 60 days after the consummation of the Equity Offering.
As used in the preceding paragraph, an ''Equity Offering'' means any
public or private sale of equity securities (other than Redeemable Capital
Stock) of the Company; provided, however, that the proceeds (net of any
underwriting discounts or commissions) to the Company from any such private sale
of equity securities shall be at least $20.0 million.
(b) Redemption Upon Change of Control. Following the occurrence of a
---------------------------------
Change of Control (the date of such occurrence being the ''Change of Control
Date''), the Company will be obligated, not more than 40 or less than 20
business days after the Change of Control Date, to make an offer to purchase (a
''Change of Control Offer'') all of the then outstanding Notes at a purchase
price (the ''Change of Control Purchase Price'') in cash equal to 101% of the
principal amount thereof, plus accrued and unpaid interest thereon, if any, to
the purchase date. The Company will be required to purchase all Notes properly
tendered into the Change of Control Offer and not withdrawn.
In order to effect such Change of Control Offer, the Company will, not
later than the 40th business day after the Change of Control Date, be obligated
to mail to each holder of Notes notice of the Change of Control Offer, which
notice will govern the terms of the Change of Control Offer and will state,
among other things, the procedures that holders must follow to accept the Change
of Control Offer. The Change of Control Offer will be required to be kept open
for a period of at least 20 business days.
(c) Sinking Fund. The Company will not be required to make any
------------
mandatory sinking fund payments in respect of the Notes.
(d) Interest Payments. In the case of any redemption of the Notes,
-----------------
interest installments whose Stated Maturity is on or prior to the Redemption
Date will be payable to the Holders of such Notes, or one or more predecessor
Notes, of record at the close of business on the relevant Record Date referred
to on the face hereof. Notes (or portions thereof) for whose redemption and
payment provision is made in accordance with the Indenture shall cease to bear
interest from and after the Redemption Date.
(e) Partial Redemption. In the event of redemption of the Note in
------------------
part only, a new Note or Notes for the unredeemed portion hereof shall be issued
in the name of the Holder hereof upon the cancellation hereof.
5. Offers to Purchase. Sections 10.14 and 10.15 of the Indenture
------------------
provide that following certain Asset Sales (with respect to Section 10.14) and
upon the occurrence of a Change of Control (with respect to Section 10.15) and
subject to further limitations contained therein, the Company shall make an
offer to purchase certain amounts of the Notes in accordance with the procedures
set forth in the Indenture.
6. Defaults and Remedies. If an Event of Default shall occur and be
---------------------
continuing, the principal of all of the outstanding Notes, plus all accrued and
unpaid interest, if any, to the date the Notes become due and payable, may be
declared due and payable in the manner and with the effect provided in the
Indenture.
A-5
7. Defeasance. The Indenture contains provisions (which provisions
----------
apply to this Note) for defeasance at any time of (a) the entire indebtedness of
the Company on this Note and (b) certain restrictive covenants and related
Defaults and Events of Default, in each case upon compliance by the Company with
certain conditions set forth therein.
8. Amendments and Waivers. The Company and the Trustee (if a party
----------------------
thereto) may, without the consent of the Holders of any Outstanding Notes,
amend, waive or supplement the Indenture or the Notes for certain specified
purposes, including, among other things, curing ambiguities, defects or
inconsistencies, maintaining the qualification of the Indenture under the Trust
Indenture Act of 1939, as amended, and making any change that does not adversely
affect the rights of any Holder. Other amendments and modifications of the
Indenture or the Notes may be made by the Company and the Trustee with the
consent of the Holders of not less than a majority of the aggregate principal
amount of the Outstanding Notes, subject to certain exceptions requiring the
consent of the Holders of the particular Notes to be affected. Any such consent
or waiver by or on behalf of the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange herefor or
in lieu hereof whether or not notation of such consent or waiver is made upon
this Note.
9. Denominations, Transfer and Exchange. The Notes are issuable
------------------------------------
only in registered form without coupons in denominations of $1,000 and any
integral multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, the Notes are exchangeable for a like aggregate
principal amount of Notes of the authorized denomination, as requested by the
Holder surrendering the same.
The transfer of this Note is registrable on the Note Register of the
Company, upon surrender of this Note for registration of transfer at the office
or agency of the Company maintained for such purpose in the Borough of Manhattan
in The City of New York or at such other office or agency of the Company as may
be maintained for such purpose, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Note
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Notes, of authorized denominations and
for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
10. Persons Deemed Owners. Prior to and at the time of due
---------------------
presentment of this Note for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name
this Note is registered as the owner hereof for all purposes, whether or not
this Note shall be overdue, and neither the Company, the Trustee nor any agent
shall be affected by notice to the contrary.
11. Registration Rights. Pursuant to the Registration Rights
-------------------
Agreement among the Company, the Guarantors, if any, and the Initial Purchasers
for themselves and on behalf of the Holders of the Initial Notes, the Company
will be obligated to consummate an exchange offer pursuant to which the Holder
of this Note shall have the right to exchange this Note for the Company's 10
1/4% Senior Subordinated Notes due 2007, which will have been registered under
the Securities Act, in like principal amount and having terms identical in all
material respects as the Initial Notes. The Holders of the Initial Notes shall
be entitled to receive certain additional interest payments in the event such
exchange offer is not consummated and upon certain other conditions, all
pursuant to and in accordance with the terms of the Registration Rights
Agreement.
12. No Recourse Against Others. No director, officer, employee or
--------------------------
stockholder of the Company or any Guarantor, as such, shall have any liability
for any obligations of the Company or any Guarantor under the Notes, the
Guarantees or this Indenture. Each Holder by accepting a Note waives and
releases all such liability, and such waiver and release is part of the
consideration for the issuance of the Notes.
A-6
13. GOVERNING LAW. THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY,
-------------
AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK
(WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF). THE
TRUSTEE, THE COMPANY, ANY OTHER OBLIGOR IN RESPECT OF THE NOTES AND THE HOLDERS
AGREE TO SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL
OR STATE COURT LOCATED IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW YORK IN
ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE INDENTURE OR THIS
NOTE.
A-7
ASSIGNMENT FORM
If you, the Holder want to assign this Note, fill in the form below and have
your signature guaranteed:
I or we assign and transfer this Note to
________________________________________________________________________________
(Insert assignee's social security or tax ID number)____________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code) and irrevocably appoint
________________________________________________________________________________
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for such agent.
Date:_________________ Your signature: ____________________________
(Sign exactly as your name
appears on the other side of
this Note)
By: ________________________
NOTICE: To be executed
by an executive officer
NOTICE: Signature(s) must be guaranteed by an institution which is a
participant in the Securities Transfer Agent Medallion Program ("STAMP") or
similar program.
A-8
In connection with any transfer of this Note occurring prior to the
date which is the earlier of (i) the date of the declaration by the SEC of the
effectiveness of a registration statement under the Securities Act of 1933, as
amended (the "Securities Act"), covering resales of this Note (which
effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii) the second anniversary of the Issue Date, the undersigned
confirms that it has not utilized any general solicitation or general
advertising in connection with and that such transfer is:
[Check One]
---------
(1) __ to the Company or a subsidiary thereof; or
(2) __ pursuant to and in compliance with Rule 144A under the Securities
Act of 1933, as amended; or
(3) __ to an institutional "accredited investor" (as defined in Rule 501(a)
(1), (2), (3) or (7) under the Securities Act of 1933, as amended)
that has furnished to the Trustee a signed letter containing certain
representations and agreements (the form of which letter can be
obtained from the Trustee); or
(4) __ outside the United States to a "foreign person" in compliance with
Rule 904 of Regulation S under the Securities Act of 1933, as
amended; or
(5) __ pursuant to another available exemption from the registration
requirements of the Securities Act of 1933, as amended.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Notes evidenced by this certificate in the name of any person other than the
registered Holder thereof, provided, that if box (3), (4) or (5) is checked, the
--------
Company or the Trustee may require, prior to registering any such transfer of
the Notes, in its sole discretion, such written legal opinions, certifications
(including an investment letter in the case of box (3) or (4)), and other
information as the Trustee, Note Registrar or the Company has reasonably
requested to confirm that such transfer is being made pursuant to an exemption
from, or in a transaction not subject to, the registration requirements of the
Securities Act of 1933, as amended.
If none of the foregoing boxes are checked, the Trustee or Note
Registrar shall not be obligated to register this Note in the name of any person
other than the Holder hereof unless and until the conditions to any such
transfer of registration set forth herein and in Section 2.05 of the Indenture
shall have been satisfied.
Date:_________________ Your signature: _________________________________
(Sign exactly as your name
appears on the other side of
this Security)
Signature Guarantee: ____________
A-9
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Date: ___________________ _________________________________________________
NOTICE: To be executed by an executive officer
A-10
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company pursuant to
Section 10.14 or 10.15 of the Indenture, check the Box: [_]
If you wish to have a portion of this Note purchased by the Company
pursuant to Section 10.14 or 10.15 of the Indenture, state the amount:
$_____________
Date:_____________ Your signature: ________________________________
(Sign exactly as your name
appears on the other side
of this Note)
By: ___________________________
NOTICE: To be signed by an
executive officer
NOTICE: Signature(s) must be guaranteed by an institution which is a
participant in the Securities Transfer Agent Medallion Program ("STAMP") or
similar program.
A-11
EXHIBIT B
---------
THE GSI GROUP, INC.
______________
10 1/4% SENIOR SUBORDINATED NOTE DUE 2007
CUSIP No.
No. __________________ $
THE GSI GROUP, INC. a Delaware corporation (the "Company," which term
includes any successor under the Indenture hereinafter referred to), for value
received, promises to pay to _____________, or registered assigns, the principal
sum of _________ United States Dollars on November 1, 2007, at the office or
agency of the Company referred to below, and to pay interest thereon on May 1
and November 1 in each year, commencing on May 1, 1998 (each an "Interest
Payment Date"), accruing from the Issue Date or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, at the rate
of 10 1/4% per annum, until the principal hereof is paid or duly provided for.
Interest shall be computed on the basis of a 360-day year of twelve 30-day
months.
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in the Indenture referred to on the
reverse hereof, be paid in arrears to the Person in whose name this Note (or one
or more predecessor Notes) is registered at the close of business on the April
15 or October 15 (each a "Regular Record Date"), whether or not a Business Day,
as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid, or duly provided for, and interest on such
defaulted interest at the then applicable interest rate borne by the Notes, to
the extent lawful, shall forthwith cease to be payable to the Holder on such
Regular Record Date, and may be paid to the Person in whose name this Note (or
one or more predecessor Notes) is registered at the close of business on a
Special Record Date for the payment of such defaulted interest to be fixed by
the Trustee, notice of which shall be given to Holders of Notes not less than 10
days prior to such Special Record Date, or may be paid at any time 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, all as more fully provided in such Indenture.
Payment of the principal of, premium, if any, and interest on this
Note will be made at the corporate trust office or agency of the Trustee
maintained for that purpose in The City of New York, in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts: provided, however, that payment of interest
may be made at the option of the Company by check (which may be a check of the
Company) mailed to the address of the Person entitled thereto as such address
shall appear on the Note Register.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof.
Unless the certificate of authentication hereon has been duly executed
by the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Indenture, or be valid or
obligatory for any purpose.
B-1
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture.
Dated: LASALLE NATIONAL BANK,
as Trustee
By: _______________________________
Authorized Signatory
B-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
THE GSI GROUP, INC.
By: ________________________________________
Name:
Title:
By: ________________________________________
Name:
Title:
B-3
(REVERSE OF NOTE)
10 1/4% Senior Subordinated Note due 2007
1. Indenture. This Note is one of a duly authorized issue of Notes
---------
of the Company designated as its 10 1/4% Senior Subordinated Notes due 2007 (the
"Notes"), limited (except as otherwise provided in the Indenture referred to
below) in aggregate principal amount to $, which may be issued under an
indenture (the "Indenture") dated as of November 1, 1997, by and among the
Company, as Issuer and LaSalle National Bank, as trustee (the "Trustee," which
term includes any successor Trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties, obligations and immunities
thereunder of the Company, the Trustee and the Holders, and of the terms upon
which the Notes are, and are to be, authenticated and delivered.
All capitalized terms used in this Note which are defined in the
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Indenture.
No reference herein to the Indenture and no provisions of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of, premium, if any, and
interest on this Note at the times, place and rate, and in the coin or currency,
herein prescribed.
2. Guarantees. This Note is entitled to certain senior subordinated
----------
Guarantees, if any, made for the benefit of the Holders. Reference is hereby
made to Article Thirteen of the Indenture for terms relating to the Guarantees.
3. Subordination. The Indebtedness evidenced by the Notes is, to
-------------
the extent and in the manner provided in the Indenture, subordinate and subject
in right of payment to the prior payment in full in cash of all existing and
future Senior Indebtedness (including the Indebtedness under the New Credit
Agreement). Each Holder, by accepting the same, (a) agrees to and shall be
bound by such provisions, (b) authorizes and directs the Trustee, on behalf of
such Holder, to take such action as may be necessary or appropriate to
effectuate the subordination as provided in the Indenture and (c) appoints the
Trustee attorney-in-fact of such Holder for such purpose; provided, however,
that the Indebtedness evidenced by this Note shall cease to be so subordinate
and subject in right of payment upon any defeasance of this Note referred to in
Paragraph 7 below.
4. Redemption.
----------
(a) Optional Redemption. Subject to earlier redemption in the manner
-------------------
described in the next two succeeding paragraphs, the Notes will be redeemable at
the option of the Company, in whole or in part, at any time on or after November
1, 2002, at the redemption prices (expressed as percentages of principal amount)
set forth below, plus accrued and unpaid interest, if any, to the date of
redemption, if redeemed during the 12-month period beginning November 1 of the
years indicated below:
Year Redemption Price
---- ----------------
2002 105.188%
2003 103.458%
2004 101.729%
2005 and thereafter 100.000%
B-4
On or prior to November 1, 2000, the Company may, at its option, use
the net proceeds of an Equity Offering to redeem up to 35% of the originally
issued aggregate principal amount of the Notes, at a redemption price in cash
equal to 110 1/4% of the principal amount thereof, plus accrued and unpaid
interest thereon, if any, to the date of redemption; provided, however, that not
less than $65.0 million in aggregate principal amount of Notes is outstanding
following such redemption. Notice of any such redemption must be given not later
than 60 days after the consummation of the Equity Offering.
As used in the preceding paragraph, an ''Equity Offering'' means any
public or private sale of equity securities (other than Redeemable Capital
Stock) of the Company; provided, however, that the proceeds (net of any
underwriting discounts or commissions) to the Company from any such private sale
of equity securities shall be at least $20.0 million.
(b) Redemption Upon Change of Control. Following the occurrence of a
---------------------------------
Change of Control (the date of such occurrence being the ''Change of Control
Date''), the Company will be obligated, not more than 40 or less than 20
business days after the Change of Control Date, to make an offer to purchase (a
''Change of Control Offer'') all of the then outstanding Notes at a purchase
price (the ''Change of Control Purchase Price'') in cash equal to 101% of the
principal amount thereof, plus accrued and unpaid interest thereon, if any, to
the purchase date. The Company will be required to purchase all Notes properly
tendered into the Change of Control Offer and not withdrawn.
In order to effect such Change of Control Offer, the Company will, not
later than the 40th business day after the Change of Control Date, be obligated
to mail to each holder of Notes notice of the Change of Control Offer, which
notice will govern the terms of the Change of Control Offer and will state,
among other things, the procedures that holders must follow to accept the Change
of Control Offer. The Change of Control Offer will be required to be kept open
for a period of at least 20 business days.
(c) Sinking Fund. The Company will not be required to make any
------------
mandatory sinking fund payments in respect of the Notes.
(d) Interest Payments. In the case of any redemption of the Notes,
-----------------
interest installments whose Stated Maturity is on or prior to the Redemption
Date will be payable to the Holders of such Notes, or one or more predecessor
Notes, of record at the close of business on the relevant Record Date referred
to on the face hereof. Notes (or portions thereof) for whose redemption and
payment provision is made in accordance with the Indenture shall cease to bear
interest from and after the Redemption Date.
(e) Partial Redemption. In the event of redemption of the Note in
------------------
part only, a new Note or Notes for the unredeemed portion hereof shall be issued
in the name of the Holder hereof upon the cancellation hereof.
5. Offers to Purchase. Sections 10.14 and 10.15 of the Indenture
------------------
provide that following certain Asset Sales (with respect to Section 10.14) and
upon the occurrence of a Change of Control (with respect to Section 10.15) and
subject to further limitations contained therein, the Company shall make an
offer to purchase certain amounts of the Notes in accordance with the procedures
set forth in the Indenture.
6. Defaults and Remedies. If an Event of Default shall occur and be
---------------------
continuing, the principal of all of the outstanding Notes, plus all accrued and
unpaid interest, if any, to the date the Notes become due and payable, may be
declared due and payable in the manner and with the effect provided in the
Indenture.
7. Defeasance. The Indenture contains provisions (which provisions
----------
apply to this Note) for defeasance at any time of (a) the entire indebtedness of
the Company on this Note and (b) certain
B-5
restrictive covenants and related Defaults and Events of Default, in each case
upon compliance by the Company with certain conditions set forth therein.
8. Amendments and Waivers. The Company and the Trustee (if a party
----------------------
thereto) may, without the consent of the Holders of any Outstanding Notes,
amend, waive or supplement the Indenture or the Notes for certain specified
purposes, including, among other things, curing ambiguities, defects or
inconsistencies, maintaining the qualification of the Indenture under the Trust
Indenture Act of 1939, as amended, and making any change that does not adversely
affect the rights of any Holder. Other amendments and modifications of the
Indenture or the Notes may be made by the Company and the Trustee with the
consent of the Holders of not less than a majority of the aggregate principal
amount of the Outstanding Notes, subject to certain exceptions requiring the
consent of the Holders of the particular Notes to be affected. Any such consent
or waiver by or on behalf of the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange herefor or
in lieu hereof whether or not notation of such consent or waiver is made upon
this Note.
9. Denominations, Transfer and Exchange. The Notes are issuable
------------------------------------
only in registered form without coupons in denominations of $1,000 and any
integral multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, the Notes are exchangeable for a like aggregate
principal amount of Notes of the authorized denomination, as requested by the
Holder surrendering the same.
The transfer of this Note is registrable on the Note Register of the
Company, upon surrender of this Note for registration of transfer at the office
or agency of the Company maintained for such purpose in the Borough of Manhattan
in The City of New York or at such other office or agency of the Company as may
be maintained for such purpose, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Note
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Notes, of authorized denominations and
for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
10. Persons Deemed Owners. Prior to and at the time of due
---------------------
presentment of this Note for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name
this Note is registered as the owner hereof for all purposes, whether or not
this Note shall be overdue, and neither the Company, the Trustee nor any agent
shall be affected by notice to the contrary.
11. No Recourse Against Others. No director, officer or employee or
--------------------------
stockholder of the Company or any Guarantor, as such, shall have any liability
for any obligations of the Company or any Guarantor under the Notes, the
Guarantees or the Indenture. Each Holder of Notes by accepting a Note waives
and releases all such liability, and such waiver and release is part of the
consideration for the issuance of the Notes.
12. GOVERNING LAW. THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY,
-------------
AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK
(WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF). THE
TRUSTEE, THE COMPANY, ANY OTHER OBLIGOR IN RESPECT OF THE NOTES AND THE HOLDERS
AGREE TO SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL
OR STATE COURT LOCATED IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW YORK IN
ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE INDENTURE OR THIS
NOTE.
B-6
ASSIGNMENT FORM
If you, the Holder, want to assign this Note, fill in the form below and have
your signature guaranteed:
I or we assign and transfer this Note to
________________________________________________________________________________
(Insert assignee's social security or tax ID number) ___________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code) and irrevocably appoint
________________________________________________________________________________
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for such agent.
Date:________________ Your signature: ______________________________
(Sign exactly as your name
appears on the other side of
this Note)
By: __________________________
NOTICE: To be executed
by an executive officer
NOTICE: Signature(s) must be guaranteed by an institution which is a
participant in the Securities Transfer Agent Medallion Program ("STAMP") or
similar program.
B-7
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company pursuant to
Section 10.14 or 10.15 of the Indenture, check the Box: [_]
If you wish to have a portion of this Note purchased by the Company
pursuant to Section 10.14 or 10.15 of the Indenture, state the amount:
$_______________
Date: __________________ Your signature: ____________________________
(Sign exactly as your name
appears on the other side
of this Note)
By: ________________________
NOTICE: To be signed
by an executive officer
NOTICE: Signature(s) must be guaranteed by an institution which is a
participant in the Securities Transfer Agent Medallion Program ("STAMP") or
similar program.
B-8
EXHIBIT C
---------
Form of Certificate To Be
Delivered in Connection with Subsequent
Transfers to Non-QIB Accredited Investors
-----------------------------------------
_______________, ____
Re: The GSI Group, Inc. (the "Company")
10 1/4% Senior Subordinated Notes due 2007 (the "Notes")
--------------------------------------------------------
Ladies and Gentlemen:
In connection with our proposed purchase of $_______ aggregate
principal amount of the Notes, we confirm that:
1. We understand that any subsequent transfer of the Notes is
subject to certain restrictions and conditions set forth in the Indenture
dated as of November 1, 1997 relating to the Notes (the "Indenture") and
the undersigned agrees to be bound by, and not to resell, pledge or
otherwise transfer the Notes except in compliance with, such restrictions
and conditions and the Securities Act of 1933, as amended (the "Securities
Act").
2. We understand that the Notes have not been registered under the
Securities Act, and that the Notes may not be offered or sold except as
permitted in the following sentence. We agree, on our own behalf and on
behalf of any accounts for which we are acting as hereinafter stated, that
if we should sell any Notes within two years after the original issuance of
the Notes, we will do so only (A) to the Company or any subsidiary thereof,
(B) inside the United States in accordance with Rule 144A under the
Securities Act to a "qualified institutional buyer" (as defined therein),
(C) inside the United States to an "institutional accredited investor" (as
defined below) that, prior to such transfer, furnishes (or has furnished on
its behalf by a U.S. broker-dealer) to you a signed letter substantially in
the form of this letter, (D) outside the United States in accordance with
Rule 904 of RegulationS under the Securities Act, (E) pursuant to an
effective registration statement under the Securities Act, and we further
agree to provide to any person purchasing any of the Notes from us a notice
advising such purchaser that resales of the Notes are restricted as stated
herein, or (F) pursuant to another available exemption from the
registration requirements of the Securities Act.
3. We understand that, on any proposed resale of any Notes, we will
be required to furnish to you and the Company such certification, written
legal opinions and other information as you and the Company may reasonably
require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Notes purchased by us will
bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and
have such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of our investment in the
Notes, and we and any accounts for which we are acting are each able to
bear the economic risk of our or its investment, as the case may be.
C-1
5. We are acquiring the Notes purchased by us for our own account or
for one or more accounts (each of which is an institutional "accredited
investor") as to each of which we exercise sole investment discretion.
C-2
You the Company and counsel for the Company are entitled to rely upon
this letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceedings or
official inquiry with respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:______________________________________
Authorized Signature
C-3
EXHIBIT D
---------
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
------------------------
______________, ____
Attention:
Re: The GSI Group, Inc. (the "Company")
10 1/4% Senior Subordinated Notes due 2007 (the "Notes")
--------------------------------------------------------
Ladies and Gentlemen:
In connection with our proposed sale of $__________ aggregate
principal amount of the Notes, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the U.S. Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Notes was not made to a person in the United
States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United States, or
(b) the transaction was executed in, on or through the facilities of a
designated off-shore securities market and neither we nor any person acting on
our behalf knows that the transaction has been pre-arranged with a buyer in the
United States;
(3) no directed selling efforts have been made in the United States
in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation
S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) we have advised the transferee of the transfer restrictions
applicable to the Notes.
D-1
You, the Company and counsel for the Company are entitled to rely upon
this letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceedings or
official inquiry with respect to the matters covered hereby. Terms used in this
certificate have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferee]
By:______________________________
D-2
EXHIBIT E
SENIOR SUBORDINATED GUARANTEE
-----------------------------
For value received, the undersigned hereby unconditionally guarantees
to the Holder of this Note the payments of principal of, premium, if any, and
interest on this Note in the amounts and at the time when due and interest on
the overdue principal, premium, if any, and interest, if any, of this Note, if
lawful, and the payment or performance of all other obligations of the Company
under the Indenture or the Notes, to the Holder of this Note and the Trustee,
all in accordance with and subject to the terms and limitations of this Note,
Article Thirteen of the Indenture and this Guarantee. This Guarantee will
become effective in accordance with Article Eleven of the Indenture and its
terms shall be evidenced therein. The validity and enforceability of any
Guarantee shall not be affected by the fact that it is not affixed to any
particular Note.
The obligations of the undersigned to the Holders of Notes and to the
Trustee pursuant to the Guarantee and the Indenture are expressly set forth in
Article Thirteen of the Indenture and reference is hereby made to the Indenture
for the precise terms of the Guarantee and all of the other provisions of the
Indenture to which this Guarantee relates. The Indebtedness evidenced by this
Guarantee is, to the extent and in the manner provided in the Indenture,
subordinate and subject in right of payment to the prior payment in full in cash
of all Guarantor Senior Indebtedness as defined in the Indenture, and this
Guarantee is issued subject to such provisions. Each Holder of a Note, by
accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee, on behalf of such Holder, to take such
action as may be necessary or appropriate to effectuate the subordination as
provided in the Indenture and (c) appoints the Trustee attorney-in-fact of such
Holder for such purpose; provided that such subordination provisions shall cease
to affect amounts deposited in accordance with the defeasance provisions of the
Indenture upon the terms and conditions set forth therein.
This Guarantee is subject to release upon the terms set forth in the
Indenture.
[ ]
By: ________________________________________
Name:
Title:
E-1
