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EXHIBIT 4.3
BUCKEYE TECHNOLOGIES INC., as Issuer
and
UNION PLANTERS BANK, N.A., as Trustee
_________
INDENTURE
Dated as of June 11, 1998
_________
$150,000,000
8% Senior Subordinated Notes due 2010
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Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of June 11, 1998
Trust Indenture Indenture
Act Section Section
--------------- ---------
Section 310 (a)(1) .................................................... 609
(a)(2) .................................................... 609
(b) ................................................... 607,610
Xxxxxxx 000 (x) ....................................................... 000
Xxxxxxx 000 (x) ....................................................... 701
(c) ....................................................... 702
Section 313 (a) ....................................................... 703
(c) ................................................... 703,704
Section 314 (a) ....................................................... 704
(a)(4) ................................................... 1020
(c)(1) .................................................... 103
(c)(2) .................................................... 103
(e) ....................................................... 103
Section 315 (a) .................................................... 601(b)
(b) ....................................................... 602
(c) .................................................... 601(a)
(d) ............................................... 601(c), 603
(e) ....................................................... 514
Section 316 (a) (last sentence) ....................... 101 ("Outstanding")
(a)(1)(A) ............................................. 502,512
(a)(1)(B) ................................................. 513
(b) ....................................................... 508
(c) ....................................................... 105
Section 317 (a)(1) .................................................... 503
(a)(2) .................................................... 504
(b) ...................................................... 1003
Section 318 (a) ....................................................... 108
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of this Indenture.
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TABLE OF CONTENTS
PAGE
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PARTIES ................................................................ 1
RECITALS ............................................................... 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions .......................................... 1
Acquired Indebtedness ................................ 2
Affiliate ............................................ 2
Asset Sale ........................................... 2
Average Life to Stated Maturity ...................... 3
Bank Credit Facility ................................. 3
Bankruptcy Law ....................................... 3
Banks ................................................ 3
Board of Directors ................................... 3
Board Resolution ..................................... 3
Business Day ......................................... 3
Capital Lease Obligation ............................. 3
Capital Stock ........................................ 4
Cash Equivalents ..................................... 4
Certified Securities ................................. 4
Change in Control .................................... 4
Commission ........................................... 5
Commodity Price Protection Agreement ................. 5
Common Stock ......................................... 5
Company .............................................. 5
Company Request or Company Order ..................... 6
Consolidated Fixed Charge Coverage Ratio ............. 6
Consolidated Income Tax Expense ...................... 6
Consolidated Interest Expense ........................ 6
Consolidated Net Income (Loss) ....................... 6
---------------------
Note: This table of contents shall not, for any purpose, be deemed to be a
part of this Indenture.
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Consolidated Net Worth..................................................7
Consolidated Non-cash Charges...........................................7
Consolidated Tangible Assets............................................7
Consolidation...........................................................7
Corporate Trust Office..................................................7
Currency Hedging Arrangements...........................................8
Default.................................................................8
Depositary..............................................................8
Designated Senior Indebtedness..........................................8
Disinterested Director..................................................8
Event of Default........................................................8
Exchange Act............................................................8
Exchange Certificated Securities........................................8
Exchange Global Securities..............................................8
Exchange Offer Registration.............................................8
Exchange Securities.....................................................8
Existing Notes Indentures...............................................9
Existing Notes..........................................................9
Existing Senior Notes...................................................9
Existing Senior Subordinated Notes......................................9
Fair Market Value.......................................................9
Fenholloway River.......................................................9
Final Memorandum........................................................9
Generalll Accepted Accounting Priniples or GAAP.........................9
Global Securities.......................................................9
Guarantee...............................................................9
Guaranteed Debt.........................................................9
Guarantor..............................................................10
Holder.................................................................10
Indebtedness...........................................................10
Indenture..............................................................11
Indenture Obligations..................................................11
Initial Certificated Securities........................................11
Initial Global Security................................................11
Initial Securities.....................................................11
Initial Placement......................................................11
Inerest Payment Date...................................................11
Interest Rate Agreements...............................................11
Investment.............................................................11
Lien...................................................................12
Maturity...............................................................11
Moody's................................................................12
Net Cash Proceeds......................................................12
Officers' Certificate..................................................13
Opinion of Counsel.....................................................13
Opinion of Independent Counsel.........................................13
Outstanding............................................................13
Pari Passu Indebtedness................................................14
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Paying Agent .................................................................. 14
Permitted Holders ............................................................. 14
Permitted Indebtedness ........................................................ 14
Permitted Investment .......................................................... 16
Permitted Lien ................................................................ 16
Permitted Subsidiary Indebtedness ............................................. 17
Person ........................................................................ 17
Placement Agents .............................................................. 17
Placement Agreement ........................................................... 17
Predecessor Security .......................................................... 17
Preferred Stock ............................................................... 17
Private Placement Legends ..................................................... 17
Public Equity Offering ........................................................ 17
Purchase Money Obligation ..................................................... 17
Qualified Capital Stock ....................................................... 18
Redeemable Capital Stock ...................................................... 18
Redemption Date ............................................................... 18
Redemption Price .............................................................. 18
Registrar ..................................................................... 18
Registration Rights Agreement ................................................. 18
Regular Record Date ........................................................... 18
Responsible Officer ........................................................... 18
Rule 144 ...................................................................... 19
Rule 144A ..................................................................... 19
S&P ........................................................................... 19
Securities .................................................................... 19
Securities Act ................................................................ 19
Senior Indebtedness ........................................................... 19
Senior Note Indenture ......................................................... 20
Senior Representative ......................................................... 20
Senior Subordinated Notes due 2005 ............................................ 20
Senior Subordinated Notes due 2008 ............................................ 20
Senior Subordinated Notes due 2005 Indenture .................................. 20
Senior Subordinated Notes due 2008 Indenture .................................. 20
Shelf Registration Statement .................................................. 20
Special Record Date ........................................................... 20
Stated Maturity ............................................................... 20
Subordinated Indebtedness ..................................................... 20
Subsidiary .................................................................... 20
Trust Indenture Act ........................................................... 21
Trustee ....................................................................... 21
Unrestricted Subsidiary ....................................................... 21
Unrestricted Subsidariy Indebtedness .......................................... 21
Voting Stock .................................................................. 22
Wholly Owned Subsidiary ....................................................... 22
Section 102. Other definitions ............................................................. 22
Section 103. Compliance Certificates and Opinions .......................................... 23
Section 104. Form of Documents Delivered to Trustee ........................................ 24
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Section 105 Acts of Holders ....................................... 24
Section 106 Notices, etc., to the Trustee and the Company ......... 26
Section 107 Notice to Holders; Waiver ............................. 26
Section 108 Conflict with Trust Indenture Act ..................... 27
Section 109 Effect of Headings and Table of Contents .............. 27
Section 110 Successors and Assigns ................................ 27
Section 111 Separability Clause ................................... 27
Section 112 Benefits of Indenture ................................. 27
Section 113 GOVERNING LAW ......................................... 27
Section 114 Legal Holidays ........................................ 28
Section 115 Independence of Covenants ............................. 28
Section 116 Schedules and Exhibits ................................ 28
Section 117 Counterparts .......................................... 28
ARTICLE TWO
SECURITY FORMS
Section 201 Forms Generally ....................................... 28
Section 202 Form of Face of Security .............................. 31
Section 203 Form of Reverse of Securities ......................... 31
ARTICLE THREE
THE SECURITIES
Section 301 Title and Terms ....................................... 32
Section 302 Denominations ......................................... 33
Section 303 Execution, Authentication, Delivery and Dating ........ 33
Section 304 Temporary Securities .................................. 34
Section 305 Registration, Registration of Transfer and Exchange ... 35
Section 306 Mutilated, Destroyed, Lost and Stolen Securities ...... 39
Section 307 Payment of Interest; Interest Rights Preserved ........ 39
Section 308 Persons Deemed Owners ................................. 41
Section 309 Cancellation .......................................... 41
Section 310 Computation of Interest ............................... 41
Section 311 CUSIP Numbers ......................................... 41
ARTICLE FOUR
DEFEASANCE AND COVENANT DEFEASANCE
Section 401 Company's Option to Effect Defeasance or Covenant
Defeasance ............................................ 42
Section 402 Defeasance and Discharge .............................. 42
Section 403 Covenant Defeasance ................................... 42
Section 404 Conditions to Defeasance or Covenant Defeasance ....... 43
Section 405 Deposited Money and U.S. Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions ......... 45
Section 406 Reinstatement ......................................... 46
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ARTICLE FIVE
REMEDIES
Section 501 Events of Default ..................................... 47
Section 502 Acceleration of Maturity; Recession and Annulment ..... 49
Section 503 Collection of Indebtedness and Suits for Enforcement
by Trustee ........................................... 50
Section 504 Trustee May File Proofs of Claim ...................... 51
Section 505 Trustee May Enforce Claims without Possession of
Securities ............................................ 51
Section 506 Application of Money Collected ........................ 51
Section 507 Limitation on Suits ................................... 52
Section 508 Unconditional Right of Holders to Receive Principal,
Premium and Interest .................................. 53
Section 509 Restoration or Rights and Remedies .................... 53
Section 510 Rights and Remedies Cumulative ........................ 53
Section 511 Delay or Omission Not Waiver .......................... 53
Section 512 Control by Holders .................................... 54
Section 513 Waiver of Past Defaults ............................... 54
Section 514 Undertaking for Costs ................................. 54
Section 515 Waiver of Stay, Extension or Usury Laws ............... 55
Section 516 Remedies Subject to Applicable Law .................... 55
ARTICLE SIX
THE TRUSTEE
Section 601 Duties of Trustee ..................................... 55
Section 602 Notice of Defaults .................................... 57
Section 603 Certain Rights of Trustee ............................. 57
Section 604 Trustee Not Responsible for Recitals, Dispositions
of Securities or Application of Proceeds Thereof ...... 58
Section 605 Trustee and Agents May Hold Securities; Collections;
etc. .................................................. 59
Section 606 Money Held in Trust ................................... 59
Section 607 Compensation and Indemnification of Trustee
and Its Prior Claim ................................... 59
Section 608 Conflicting Interests ................................. 60
Section 609 Corporate Trustee Required; Eligibility ............... 60
Section 610 Resignation and Removal; Appointment of
Successor Trustee ..................................... 61
Section 611 Acceptance of Appointment by Successor ................ 62
Section 612 Merger, Conversion, Consolidation or Succession
to Business ........................................... 63
Section 613 Preferential Collection of Claims Against Company ..... 63
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701 Company to Furnish Trustee Names and Addresses
of Holders ............................................ 64
Section 702 Disclosure of Names and Addresses of Holders .......... 64
Section 703 Reports by Trustee .................................... 65
Section 704 Reports by Company .................................... 65
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company May Consolidate, etc., Only on Certain Terms ........................... 66
Section 802. Successor Substituted .......................................................... 67
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures and Agreements without
Consent of Holders ............................................................. 68
Section 902. Supplemental Indentures and Agreements with Consent
of Holders ..................................................................... 69
Section 903. Execution of Supplemental Indentures ........................................... 70
Section 904. Effect of Supplemental Indentures .............................................. 70
Section 905. Conformity with Trust Indenture Act ............................................ 70
Section 906. Reference in Securities to Supplemental Indentures ............................. 70
Section 907. Notice of Supplemental Indentures .............................................. 71
Section 908. Revocation and Effect of Consents .............................................. 71
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest ..................................... 71
Section 1002. Maintenance of Office or Agency ................................................ 71
Section 1003. Money for Security Payments to Be Held in Trust ................................ 72
Section 1004. Corporate Existence ............................................................ 73
Section 1005. Payment of Taxes and Other Claims .............................................. 74
Section 1006. Maintenance of Properties ...................................................... 74
Section 1007. Insurance ...................................................................... 74
Section 1008. Limitation on Indebtedness ..................................................... 75
Section 1009. Limitation on Restricted Payments .............................................. 75
Section 1010. Limitation on Transactions with Affiliates ..................................... 79
Section 1011. Limitation on Liens ............................................................ 79
Section 1012. Limitation on Sale of Assets ................................................... 80
Section 1013. Limitation on Senior Subordinated Indebtedness ................................. 85
Section 1014. Limitation on Issuance of Guarantees of Subordinated and Pari Passu
Indebtedness ................................................................... 85
Section 1015. Restriction on Transfer of Assets .............................................. 85
Section 1016. Purchase of Securities upon a Change in Control ................................ 86
Section 1017. Limitation on Subsidiary Capital Stock ......................................... 90
Section 1018. Limitation on Dividends and Other Payment Restrictions
Affecting Subsidiaries ......................................................... 90
Section 1019. Limitation on Unrestricted Subsidiaries ........................................ 91
Section 1020. Provision of Financial Statements .............................................. 91
Section 1021. Statement by Officers as to Default ............................................ 91
Section 1022. Waiver of Certain Covenants .................................................... 92
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Rights of Redemption ................................................. 92
Section 1102. Applicability of Article ............................................. 93
Section 1103. Election to Redeem; Notice to Trustee ................................ 93
Section 1104. Selection by Trustee of Securities to Be Redeemed .................... 93
Section 1105. Notice of Redemption ................................................. 93
Section 1106. Deposit of Redemption Price .......................................... 95
Section 1107. Securities Payable on Redemption Date ................................ 95
Section 1108. Securities Redeemed or Purchased in Part ............................. 95
ARTICLE TWELVE
SUBORDINATION OF SECURITIES
Section 1201. Securities Subordinate to Senior Indebtedness ........................ 96
Section 1202. Payment Over of Proceeds Upon Dissolution, Etc. ...................... 96
Section 1203. Suspension of Payment When Senior Indebtedness
in Default ........................................................... 98
Section 1204. Payment Permitted if No Default ...................................... 99
Section 1205. Subrogation to Rights of Holders of Senior Indebtedness .............. 99
Section 1206. Provisions Solely to Define Relative Rights .......................... 99
Section 1207. Trustee to Effectuate Subordination .................................. 100
Section 1208. No Waiver of Subordination Provisions ................................ 100
Section 1209. Notice to Trustee .................................................... 101
Section 1210. Reliance on Judicial Orders or Certificates .......................... 102
Section 1211. Rights of Trustee as a Holder of Senior Indebtedness
Preservation of Trustee's Rights ..................................... 102
Section 1212. Article Applicable to Paying Agents .................................. 103
Section 1213. No Suspension of Remedies ............................................ 103
Section 1214. Trustee's Relation to Senior Indebtedness ............................ 103
ARTICLE THIRTEEN
SATISFACTION AND DISCHARGE
Section 1301. Satisfaction and Discharge of Indenture .............................. 103
Section 1302. Application of Trust Money ........................................... 104
TESTIMONIUM
SIGNATURE AND SEALS
ACKNOWLEDGEMENTS
SCHEDULE I Permitted Holders
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SCHEDULE II Existing Indebtedness
SCHEDULE III Existing Dividend Restrictions
EXHIBIT A Form of Initial Global Security
EXHIBIT B Form of Initial Certificated Security
EXHIBIT C Form of Exchange Global Security
EXHIBIT D Form of Exchange Certificated Security
EXHIBIT E Registration Rights Agreement
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INDENTURE, dated as of June 11, 1998, between Buckeye Technologies
Inc., a Delaware corporation (the "Company"), and Union Planters Bank, N.A., a
national banking association organized under the statutes of the United States,
as trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of 8% Senior
Subordinated Notes due 2010 (the "Initial Securities"), of substantially the
tenor and amount hereinafter set forth, and to provide therefor and for, if and
when issued in exchange for the Initial Securities pursuant to the Indenture and
the Registration Rights Agreement, the Company's 8% Senior Subordinated Notes
due 2010 (the "Exchange Securities," and together with the Initial Securities,
the "Securities") the Company has duly authorized the execution and delivery of
this Indenture and the Securities;
All acts and things necessary have been done to make the Securities,
when duly issued and executed by the Company and authenticated and delivered
hereunder, the valid obligations of the Company and this Indenture a valid
agreement of the Company in accordance with the terms of this Indenture;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Initial Securities by the Holders (as defined therein) thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all Holders of
the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions. 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;
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(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 $, US$, dollars or United States
dollars shall refer to the lawful currency of the United States of America; and
(f) all references herein to particular Sections or
Articles refer to this Indenture unless otherwise so indicated.
Certain terms used principally in Article Four are defined in
Article Four.
The following terms shall have the following meanings:
"Acquired Indebtedness" means Indebtedness of a Person (i)
existing at the time such Person becomes a Subsidiary of the Company or (ii)
assumed in connection with the acquisition of assets from such Person, in each
case, other than Indebtedness incurred in connection with, or in contemplation
of, such Person becoming a Subsidiary of the Company or such acquisition, as the
case may be. Acquired Indebtedness shall be deemed to be incurred on the date of
the related acquisition of assets from any Person or the date the acquired
Person becomes a Subsidiary of the Company, as the case may be.
"Affiliate" means, with respect to any specified Person: (i)
any other 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, 5% or more of such specified Person's
Capital Stock or any officer or director of any such specified Person or other
Person or, with respect to any natural Person, any person having a relationship
with such Person by blood, marriage or adoption not more remote than first
cousin; or (iii) any other Person 5% or more of the Voting Stock of which is
beneficially owned or held directly or indirectly by such specified Person. 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, directly or indirectly, whether through ownership of voting securities,
by contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Asset Sale" means any sale, issuance, conveyance, transfer,
lease or other disposition (including, without limitation, by way of merger,
consolidation or sale and leaseback transaction) (collectively, a "transfer"),
directly or indirectly, in one or a series of related transactions, of: (i) any
Capital Stock of any Subsidiary of the Company; (ii) all or substantially all of
the properties and assets of any division or line of business of the Company or
any of its Subsidiaries; or (iii) any other properties or assets of the Company
or any Subsidiary of the Company other than in the ordinary course of business.
For the purposes of this definition, the term "Asset Sale" shall not include any
transfer of properties and assets (A) that is governed by Article Eight, (B)
that is by any Subsidiary of the Company to the Company or any Wholly
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Owned Subsidiary in accordance with the terms of this Indenture, (C) that is of
inventory in the ordinary course of business, (D) that is of obsolete equipment
in the ordinary course of business or (E) the Fair Market Value of which in the
aggregate during any 12 month period, for all such transfers, does not exceed
$10 million.
"Average Life to Stated Maturity" means, as of the date of
determination with respect to any Indebtedness, the quotient obtained by
dividing (i) the sum of the products of (a) the number of years from the date of
determination to the date or dates of each successive scheduled principal
payment of such Indebtedness multiplied by (b) the amount of each such principal
payment by (ii) the sum of all such principal payments.
"Bank Credit Facility" means the Bank Credit Agreement, dated
as of May 28, 1997, among the Company, the Banks, and Fleet Bank of
Massachusetts, N.A., as such agreement, in whole or in part, may be amended,
renewed, extended, substituted, refinanced, restructured, replaced, supplemented
or otherwise modified from time to time (including, without limitation, any
successive renewals, extensions, substitutions, refinancings, restructurings,
replacements, supplementations or other modifications of the foregoing
regardless of the amount of borrowings permitted thereunder, which borrowings
were incurred in accordance with this Indenture).
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Bankruptcy Code
of 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.
"Banks" means the lenders under the Bank Credit Facility.
"Board of Directors" means the board of directors of the
Company or any duly authorized committee of such board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions or trust companies
in The City of New York, Memphis, Tennessee or the city in which the Corporate
Trust Office of the Trustee is located are authorized or obligated by law,
regulation or executive order to close.
"Capital Lease Obligation" of any Person means any obligation
of such Person and its Subsidiaries on a Consolidated basis under any capital
lease of real or personal property which, in accordance with GAAP, has been
recorded as a capitalized lease obligation.
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"Capital Stock" of any Person means any and all shares,
interests, participations or other equivalents (however designated) of such
Person's capital stock or other equity interests, and any rights (other than
debt securities convertible into capital stock), warrants or options
exchangeable for or convertible into such capital stock, whether now outstanding
or issued after the date of this Indenture.
"Cash Equivalents" means (i) any evidence of Indebtedness,
maturing not more than one year after the date of acquisition, issued by the
United States of America, or an instrumentality or agency thereof, and
guaranteed fully as to principal, premium, if any, and interest by the United
States of America, (ii) any money market deposit account, demand deposit
account, time deposit or certificate of deposit, maturing not more than one year
after the date of acquisition, of a commercial banking institution organized
under the laws of the United States of America, any State thereof, the District
of Columbia, or any foreign country recognized by the United States of America
and which institution has combined capital and surplus and undivided profits of
not less than $200 million, (iii) any time deposit or certificate of deposit,
maturing more than one year after the date of acquisition, of a commercial
banking institution organized under the laws of the United States of America,
any State thereof, the District of Columbia, or any foreign country recognized
by the United States of America and which institution has combined capital and
surplus and undivided profits of not less than $200 million and whose debt has a
rating, at the time as of which any investment therein is made, of "P- 1" (or
higher) according to Moody's or "A-1 " (or higher) according to S&P or any
successor rating agency, (iv) commercial paper, maturing not more than one year
after the date of acquisition, issued by a corporation (other than an Affiliate
or Subsidiary of the Company) organized and existing under the laws of the
United States of America with a rating, at the time as of which any investment
therein is made, of "P-1" (or higher) according to Moody's or "A-1" (or higher)
according to S&P and (v) any money market deposit account, demand deposit
account, time deposit or certificate of deposit of Union Planters Bank, N.A.;
provided that Union Planters Bank, N.A. has combined capital and surplus and
undivided profits of not less than $100 million.
"Certificated Securities" means the Securities issued in
definitive, fully registered and certificated form.
"Change in Control" means the occurrence of any of the
following 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
(including any Permitted Holders that are part of a "group"), is or becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act,
except that a Person shall be deemed to have beneficial ownership of all shares
that such Person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly
(including, without limitation, through direct or indirect purchase or
beneficial ownership of Capital Stock of an entity referred to in clause (ii) of
the definition of "Permitted Holders"), of more than 50% of the total voting
power of all outstanding Voting Stock of the Company; (ii) during any period of
two consecutive years, individuals who at the beginning of such period
constituted the board of directors of the Company (together with any
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new directors whose election to such board 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 such board of
directors then in office; (iii) the Company consolidates with or merges with or
into any Person or conveys, transfers or leases all or substantially all of its
assets to any Person, or any corporation consolidates with or merges into or
with the Company in any such event pursuant to a transaction in which the
outstanding Voting Stock of the Company is changed into or exchanged for cash,
securities or other property, other than any such transaction where the
outstanding Voting Stock of the Company is not affected or is not changed or
exchanged at all (except to the extent necessary to reflect a change in the
jurisdiction of incorporation of the Company or the formation of a holding
company for the Company as described in clause (ii) of the definition of
"Permitted Holders" or where (A) the outstanding Voting Stock of the Company is
changed into or exchanged for (x) Voting Stock of the surviving corporation
which is not Redeemable Capital Stock or (y) cash, securities and other property
(other than Capital Stock of the surviving corporation) in an amount which could
be paid by the Company as a Restricted Payment in accordance with Section 1009
(and such amount shall be treated as a Restricted Payment subject to the
provisions described under Section 1009), and (B) no "person" or "group", other
than Permitted Holders (including any Permitted Holders as part of a "group"),
"beneficially owns" immediately after such transaction, directly or indirectly
(including, without limitation, through direct or indirect purchase or
beneficial ownership of Capital Stock of an entity referred to in clause (ii) of
the definition of "Permitted Holders"), more than 50% of the total voting power
of all outstanding Voting Stock of the surviving corporation); or (iv) the
Company is liquidated or dissolved or adopts a plan of liquidation or
dissolution other than in a transaction which complies with the provisions
described under Article Eight.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act then the
body performing such duties at such time.
"Commodity Price Protection Agreement" means any forward
contract, commodity swap, commodity option or other similar financial agreement
or arrangement relating to, or the value of which is dependent upon,
fluctuations in commodity prices.
"Common Stock" means the common stock, par value $0.01 per
share, of the Company.
"Company" means Buckeye Technologies Inc. (formerly known as
Buckeye Cellulose Corporation), a corporation incorporated under the laws of
Delaware, until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
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"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by any one of its Chairman of the
Board, its Vice-Chairman, its President, its Chief Executive Officer, its Chief
Operating Officer or a Senior Vice President (regardless of Senior Vice
Presidential designation), and by any one of its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered to the
Trustee.
"Consolidated Fixed Charge Coverage Ratio" of any Person
means, for any period, the ratio of (a) the sum of Consolidated Net Income
(Loss), Consolidated Interest Expense, Consolidated Income Tax Expense and
Consolidated Non-cash Charges deducted in computing Consolidated Net Income
(Loss) in each case, for such period, of such Person and its Subsidiaries on a
Consolidated basis, all determined in accordance with GAAP to (b) the
Consolidated Interest Expense for such period; provided that (i) in making such
computation, the Consolidated Interest Expense attributable to interest on any
Indebtedness computed on a pro forma basis and (A) bearing a floating interest
rate shall be computed as if the rate in effect on the date of computation had
been the applicable rate for the entire period and (B) which was not outstanding
during the period for which the computation is being made but which bears, at
the option of such Person, a fixed or floating rate of interest, shall be
computed by applying at the option of such Person either the fixed or floating
rate and (ii) in making such computation, the Consolidated Interest Expense of
such Person attributable to interest on any Indebtedness under a revolving
credit facility computed on a pro forma basis shall be computed based upon the
average daily balance of such Indebtedness during the applicable period.
"Consolidated Income Tax Expense" of any Person means, for any
period, the provision for federal, state, local and foreign income taxes of such
Person and its Consolidated Subsidiaries for such period as determined in
accordance with GAAP.
"Consolidated Interest Expense" of any Person means, without
duplication, for any period, the sum of (a) the interest expense of such Person
and its Subsidiaries for such period, on a Consolidated basis, including,
without limitation, (i) amortization of debt discount, (ii) the net costs
associated with Interest Rate Agreements, Currency Hedging Agreements and
Commodity Price Protection Agreements (including amortization of discounts),
(iii) the interest portion of any deferred payment obligation and (iv) accrued
interest, plus (b) (i) the interest component of the Capital Lease Obligations
paid, accrued and/or scheduled to be paid or accrued by such Person and its
Subsidiaries during such period and (ii) all capitalized interest of such Person
and its Subsidiaries plus (c) the interest expense under any Guaranteed Debt of
such Person and its Subsidiaries to the extent not included under clause (a)(iv)
above, plus (d) the aggregate amount during such period of cash or non-cash
dividends paid on any Redeemable Capital Stock or Preferred Stock of the Company
and its Subsidiaries, in each case as determined on a Consolidated basis in
accordance with GAAP.
"Consolidated Net Income (Loss)" of any Person means, for any
period, the Consolidated net income (or loss) of such Person and its
Subsidiaries for such period on a Consolidated basis as determined in accordance
with GAAP, adjusted, to the extent included in
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calculating such net income (or loss), by excluding, without duplication, (i)
all extraordinary gains or losses (less all fees and expenses relating thereto),
(ii) the portion of net income (or loss) of such Person and its Subsidiaries on
a Consolidated basis allocable to minority interests in unconsolidated Persons
to the extent that cash dividends or distributions have not actually been
received by such Person or one of its Consolidated Subsidiaries, (iii) net
income (or loss) of any Person combined with such Person or any of its
Subsidiaries on 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) net gains (or losses)
(less all fees and expenses relating thereto) in respect of dispositions of
assets other than in the ordinary course of business, (vi) the net income of any
Subsidiary of such Person to the extent that the declaration of dividends or
similar distributions by that 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 regulation applicable to that Subsidiary or its stockholders, (vii)
any restoration to income of any contingency reserve, except to the extent
provision for such reserve was made out of income accrued at any time following
the date of this Indenture, or (viii) any gain arising from the acquisition of
any securities, or the extinguishment, under GAAP, of any Indebtedness of such
Person.
"Consolidated Net Worth" of any Person, as of a date, means
the Consolidated stockholders' equity (excluding Redeemable Capital Stock and
treasury stock) of such Person and its Subsidiaries, as of such date, as
determined in accordance with GAAP.
"Consolidated Non-cash Charges" of any Person means, for any
period, the aggregate depreciation, amortization and other non-cash charges of
such Person and its Subsidiaries on a Consolidated basis for such period, as
determined in accordance with GAAP (excluding any non-cash charge which requires
an accrual or reserve for cash charges for any future period).
"Consolidated Tangible Assets" of any Person means (a) all
amounts that would be shown as assets on a consolidated balance sheet of such
Person and its Subsidiaries prepared in accordance with GAAP less (b) the amount
thereof constituting goodwill and other intangible assets as calculated in
accordance with GAAP.
"Consolidation" means, with respect to any Person, the
consolidation of the accounts of such Person and each of its Subsidiaries (other
than Unrestricted Subsidiaries) if and to the extent the accounts of such Person
and each of its Subsidiaries (other than Unrestricted Subsidiaries) would
normally be consolidated with those of such Person, all in accordance with GAAP.
The term "Consolidated" shall have a similar meaning.
"Corporate Trust Office" means the office of the Trustee or an
affiliate or agent thereof at which at any particular time the corporate trust
business for the purposes of this
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Indenture shall be administered, as designated by the Trustee, which office at
the date of execution of this Indenture is located at 0000 Xxxxxx Xxxxxx,
Xxxxxxx, XX 00000.
"Currency Hedging Arrangements" means one or more of the
following agreements which shall be entered into by one or more financial
institutions: foreign exchange contracts, currency swap agreements or other
similar agreements or arrangements designed to protect against the fluctuations
in currency values.
"Default" means any event which is, or after notice or passage
of any time or both would be, an Event of Default.
"Depositary" means the Depository Trust Company, its nominees
and their respective successors.
"Designated Senior Indebtedness" means (i) all Senior
Indebtedness under the Bank Credit Facility and (ii) any other Senior
Indebtedness which is incurred pursuant to an agreement (or series of related
agreements) providing for Indebtedness of at least $25 million and is
specifically designated in the instrument evidencing such Senior Indebtedness or
the agreement under which such Senior Indebtedness arises as "Designated Senior
Indebtedness" by the Company.
"Disinterested Director" means, with respect to any
transaction or series of related transactions, a member of the board of
directors of the Company who does not have any material direct or indirect
financial interest (other than solely as a result of equity ownership in the
Company) in or with respect to such transaction or series of related
transactions.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor statute.
"Exchange Certificated Securities" means Securities issued in
definitive, fully registered form to beneficial owners of interests in the
Exchange Global Securities pursuant to Section 305 hereof.
"Exchange Global Securities" has the meaning set forth in
Article II hereof.
"Exchange Offer Registration" has the meaning set forth in the
Registration Rights Agreement.
"Exchange Securities" has the meaning set forth in the
Recitals of the Company and more particularly means any of the Securities
authenticated and delivered under this Indenture pursuant to the Registered
Exchange Offer.
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"Existing Notes Indentures" means the Indentures related to
the Existing Senior Notes and the Existing Senior Subordinated Notes.
"Existing Notes" means the Existing Senior Notes and the
Existing Senior Subordinated Notes.
"Existing Senior Notes" means the 10 1/4% Senior Notes Due
2001 of the Company.
"Existing Senior Subordinated Notes" means the 9 1/4% Senior
Subordinated Notes due 2008 of the Company and the 8 1/2% Senior Subordinated
Notes due 2005 of the Company.
"Fair Market Value" means, with respect to any asset or
property, the sale value that would be obtained in an arm's-length transaction
between an informed and willing seller under no compulsion to sell and an
informed and willing buyer under no compulsion to buy.
"Fenholloway River" means the river in Florida into which the
Company's Xxxxx Plant discharges treated waste water.
"Final Memorandum" means the final Offering Memorandum, dated
June 8, 1998, used in connection with the Initial Placement.
"Generally Accepted Accounting Principles" or "GAAP" means
generally accepted accounting principles in the United States, consistently
applied, which are in effect on the date of this Indenture.
"Global Securities" means the Initial Global Securities and
the Exchange Global Security.
"Guarantee" means the guarantee by any Guarantor of the
Company's Indenture Obligations.
"Guaranteed Debt" of any Person means, without duplication,
all Indebtedness of any other Person referred to in the definition of
Indebtedness below guaranteed directly or indirectly in any manner by such
Person, or in effect guaranteed directly or indirectly by such Person through an
agreement (i) to pay or purchase such Indebtedness or to advance or supply funds
for the payment or purchase of such Indebtedness, (ii) to purchase, sell or
lease (as lessee or lessor) property, or to purchase or sell services, primarily
for the purpose of enabling the debtor to make payment of such Indebtedness or
to assure the holder of such Indebtedness against loss, (iii) to supply funds
to, or in any other manner invest in, the debtor (including any agreement to pay
for property or services without requiring that such property be received or
such services be rendered), (iv) to maintain working capital or equity capital
of the debtor, or otherwise to maintain the net worth, solvency or other
financial condition of the debtor or (v)
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otherwise to assure a creditor against loss; provided that the term "guarantee"
shall not include endorsements for collection or deposit in either case, in the
ordinary course of business.
"Guarantor" means any Subsidiary of the Company which becomes
a guarantor of the Securities pursuant to Section 1014 or Section 1015 of this
Indenture until a successor replaces such party pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor.
"Holder" means (i) in the case of any Certificated Security,
the Person in whose name such Certificated Security is registered in the
Security Register, and (ii) in the case of any Global Security, the Depositary.
"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 payables
and other accrued current liabilities arising 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 issued under
letter of credit facilities, acceptance facilities or other similar facilities
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,
(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 payables arising in the ordinary course
of business, (iv) all obligations under Interest Rate Agreements, Currency
Hedging Agreements or Commodity Price Protection Agreements of such Person, (v)
all Capital Lease Obligations of such Person, (vi) all Indebtedness referred to
in clauses (i) through (v) above 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 or with respect to 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, (vii) all
Guaranteed Debt of such Person, (viii) all Redeemable Capital Stock issued by
such Person valued at the greater of its voluntary or involuntary maximum fixed
repurchase price plus accrued and unpaid dividends, and (ix) any amendment,
supplement, modification, deferral, renewal, extension, refunding or refinancing
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 shall 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 shall
be required to be determined pursuant to this Indenture, and if such price is
based upon, or measured by, the Fair Market Value of such Redeemable Capital
Stock, such Fair Market Value to be
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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.
"Indenture Obligations" means the obligations of the Company,
any Guarantor and any other obligor under this Indenture or under the Securities
to pay principal of, premium, if any, and interest when due and payable, and all
other amounts due or to become due under or in connection with this Indenture,
the Securities and the performance of all other obligations to the Trustee and
the holders under this Indenture and the Securities, according to the respective
terms thereof.
"Initial Certificated Securities" means Securities issued in
definitive, fully registered form to beneficial owners of interest in the
Initial Global Security pursuant to Section 305 hereof.
"Initial Global Security" has the meaning set forth in Article
II hereof.
"Initial Securities" has the meaning set forth in the Recitals
of the Company and, more particularly, means any of the Securities authenticated
and delivered under this Indenture other than pursuant to the Registered
Exchange Offer.
"Initial Placement" means the initial sales of the Securities
by the Placement Agents.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Securities.
"Interest Rate Agreements" means one or more of the following
agreements which shall be entered into by one or more financial institutions:
interest rate protection agreements (including, without limitation, interest
rate swaps, caps, floors, collars and similar agreements) and/or other types of
interest rate hedging agreements from time to time.
"Investment" means, with respect to any Person, directly or
indirectly, any advance, loan (including guarantees), or other extension of
credit or capital contribution to (by means of any transfer of cash or other
property to others or any payment for property or services for the account or
use of others), or any purchase, acquisition or ownership by such Person of any
Capital Stock, bonds, notes, debentures or other securities issued or owned by
any other Person and all other items that would be classified as investments on
a balance sheet prepared in accordance with GAAP.
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"Lien" means any mortgage or deed of trust, charge, pledge,
lien (statutory or otherwise), security interest, assignment, deposit,
arrangement, easement, hypothecation, claim, preference, priority or other
encumbrance upon or with respect to any property of any kind (including any
conditional sale, capital lease or other title retention agreement, any leases
in the nature thereof, and any agreement to give any security interest), real or
personal, movable or immovable, now owned or hereafter acquired.
"Maturity" means, when used with respect to the Securities,
the date on which the principal of the Securities becomes due and payable as
therein provided or as provided in this Indenture, whether at Stated Maturity,
the Offer Date or the redemption date and whether by declaration of
acceleration, Offer in respect of Excess Proceeds, Change in Control Offer in
respect of a Change in Control, call for redemption or otherwise.
"Moody's" means Xxxxx'x Investors Service, Inc. or any
successor rating agency.
"Net Cash Proceeds" means (a) with respect to any Asset Sale
by any Person, the proceeds thereof (without duplication in respect of all Asset
Sales) in the form of cash including payments in respect of deferred payment
obligations when received in the form of, or stock or other assets when disposed
of for, cash (except to the extent that such obligations are financed or sold
with recourse to the Company or any of its Subsidiaries) net of (i) brokerage
commissions and other reasonable fees and expenses (including fees and expenses
of counsel and investment bankers) related to such Asset Sale, (ii) provisions
for all taxes payable as a result of such Asset Sale, (iii) payments made to
retire Indebtedness where payment of such Indebtedness is secured by the assets
or properties the subject of such Asset Sale, (iv) amounts required to be paid
to any Person (other than the Company or any Subsidiary of the Company) owning a
beneficial interest in the assets subject to the Asset Sale, (v) appropriate
amounts to be provided by the Company or any Subsidiary of the Company, as the
case may be, as a reserve, in accordance with GAAP, against any liabilities
associated with such Asset Sale and retained by the Company or any Subsidiary of
the Company, 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, all as reflected in an officers'
certificate delivered to the Trustee and (vi) any amounts required to be placed
by the Company or any Subsidiary of the Company in a restricted escrow or
reserve account by the terms of the agreements pursuant to which the Asset Sale
is made, provided that any such amounts shall be deemed to be Net Cash Proceeds
of an Asset Sale upon the release of such amounts to the Company or any of its
Subsidiaries and (b) with respect to any issuance or sale of Capital Stock or
options, warrants or rights to purchase Capital Stock, or debt securities or
Capital Stock that have been converted into or exchanged for Capital Stock as
referred to in Section 1009, the proceeds of such issuance or sale in
the form of cash including payments in respect of deferred payment obligations
when received in the form of, or stock or other assets when disposed of for,
cash (except to the extent that such obligations are financed or sold with
recourse to the Company or any of its Subsidiaries), net of attorney's fees,
accountant's
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23
fees and brokerage, consultation, underwriting and other fees and expenses
actually incurred in connection with such issuance or sale and net of taxes paid
or payable as a result thereof.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, Vice Chairman, the President, the Chief Executive
Officer, the Chief Operating Officer or a Senior Vice President (regardless of
Senior Vice Presidential designation), and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company and delivered
to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company or the Trustee, unless an Opinion of Independent
Counsel is required pursuant to the terms of this Indenture, and who shall be
reasonably acceptable to the Trustee.
"Opinion of Independent Counsel" means a written opinion of
counsel issued by someone who is not an employee or consultant (other than
non-employee legal counsel) of the Company but who may be regular outside
counsel to the Company and who shall be reasonably acceptable to the Trustee.
"Outstanding" when used with respect to Securities means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(a) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own Paying
Agent) for the Holders of such Securities; provided that if such Securities are
to be redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor reasonably satisfactory to the Trustee has been
made;
(c) Securities, except to the extent provided in Sections
402 and 403, with respect to which the Company has effected defeasance or
covenant defeasance as provided in Article Four; and
(d) Securities paid in lieu of replacement pursuant to
Section 306 and Securities in exchange for or in lieu of which other Securities
have been authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to the
Trustee and the Company proof reasonably satisfactory to each of them that such
Securities are held by a bona fide purchaser in whose hands the Securities are
valid obligations of the Company;
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provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company, any other obligor upon the Securities 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 Securities which the Trustee actually knows to be so
owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
reasonable satisfaction of the Trustee the pledgee's right so to act with
respect to such Securities and that the pledgee is not the Company or any other
obligor upon the Securities or any Affiliate of the Company or such other
obligor.
"Pari Passu Indebtedness" means any Indebtedness of the
Company that is pari passu in right of payment to the Securities.
"Paying Agent" means any Person (including the Company)
authorized by the Company to pay the principal of, premium, if any, or interest
on any Securities on behalf of the Company.
"Permitted Holders" means (i) the individuals and related
entities listed on Schedule I hereto and (ii) any corporation (or other entity)
which owns all of the outstanding capital stock of the Company if such entity
acquires such ownership in a transaction in which the former owners of all the
Capital Stock of the Company acquire proportionate ownership of all of the
Capital Stock (or similar equity ownership interest) of such entity (or any
parent organization which owns all of the outstanding Capital Stock (or similar
equity ownership interest) of such entity).
"Permitted Indebtedness" means:
(i) Indebtedness of the Company under the Bank Credit Facility in
an aggregate principal amount at any one time outstanding not to exceed the
greater of (a) $225 million and (b) 85% of accounts receivable and 50% of
inventory of the Company and its Subsidiaries under a borrowing-based facility
based on accounts receivable and inventory (each as determined in accordance
with GAAP);
(ii) Indebtedness of the Company pursuant to the Securities;
(iii) guarantees of any of the Company's Subsidiaries of
Indebtedness of the Company; provided such Indebtedness and guarantees are
incurred in accordance with the terms of this Indenture;
(iv) Indebtedness of the Company or any of its Subsidiaries
outstanding on the date of this Indenture and listed on Schedule II hereto;
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(v) Indebtedness of the Company owing to any of its Subsidiaries;
provided that any Indebtedness of the Company owing to a Subsidiary of the
Company is made pursuant to an intercompany note in the form attached to this
Indenture and is subordinated in right of payment from and after such time as
the Securities shall become due and payable (whether at Stated Maturity,
acceleration or otherwise) to the payment and performance of the Company's
obligations under the Securities; provided, further, that any disposition,
pledge or transfer of any such Indebtedness to a Person (other than a
disposition, pledge or transfer to a Subsidiary of the Company) shall be deemed
to be an incurrence of such Indebtedness by the Company not permitted by this
clause (v);
(vi) Indebtedness of a Wholly Owned Subsidiary owing to the Company
or another Wholly Owned Subsidiary; provided that any such Indebtedness is made
pursuant to an intercompany note in the form attached to this Indenture;
provided, further, that (a) any disposition, pledge or transfer of any such
Indebtedness to a Person (other than the Company or a Wholly Owned Subsidiary)
shall be deemed to be an incurrence of such Indebtedness by the obligor not
permitted by this clause (vi), and (b) any transaction pursuant to which any
Wholly Owned Subsidiary, which has Indebtedness owing to the Company or any
other Wholly Owned Subsidiary, ceases to be a Wholly Owned Subsidiary shall be
deemed to be the incurrence of Indebtedness by such Wholly Owned Subsidiary that
is not permitted by this clause (vi);
(vii) obligations of the Company entered into in the ordinary course
of business (a) pursuant to Interest Rate Agreements designed to protect the
Company or any of its Subsidiaries against fluctuations in interest rates in
respect of Indebtedness of the Company or any of its Subsidiaries as long as
such obligations do not exceed the aggregate principal amount of such
Indebtedness then outstanding, (b) under any Currency Hedging Arrangements,
which if related to Indebtedness do not increase the amount of such Indebtedness
other than as a result of foreign exchange fluctuations, or (c) under any
Commodity Price Protection Agreements, which if related to Indebtedness do not
increase the amount of such Indebtedness other than as a result of foreign
exchange fluctuations;
(viii) Indebtedness of the Company or any of its Subsidiaries
incurred to finance environmental expenditures related to the Fenholloway River,
not to exceed $40 million outstanding at any one time in the aggregate;
(ix) Indebtedness of the Company or any of its Subsidiaries
evidenced by Purchase Money Obligations and Capital Lease Obligations not to
exceed $10 million outstanding at any one time in the aggregate;
(x) Indebtedness of the Company or any of its Subsidiaries
incurred after the date of this Indenture relating to letters of credit
supporting workers compensation obligations not to exceed $6 million outstanding
at any one time in the aggregate;
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(xi) any renewals, extensions, substitutions, refundings,
refinancings or replacements (collectively, a "refinancing") of any Indebtedness
described in clauses (ii) and (iv) of this definition of "Permitted
Indebtedness," including any successive refinancings so long as the aggregate
principal amount of Indebtedness represented thereby is not increased by such
refinancing plus the lesser of (I) the stated amount of any premium or other
payment required to be paid in connection with such a refinancing pursuant to
the terms of the Indebtedness being refinanced or (II) the amount of premium or
other payment actually paid at such time to refinance the Indebtedness, plus, in
either case, the amount of expenses of the Company incurred in connection with
such refinancing and (A) in the case of any refinancing of Indebtedness that is
Subordinated Indebtedness, such new Indebtedness is made subordinated to the
Securities at least to the same extent as the Indebtedness being refinanced and
(B) in the case of Pari Passu Indebtedness or Subordinated Indebtedness, as the
case may be, such refinancing does not reduce the Average Life to Stated
Maturity or the Stated Maturity of such Indebtedness; and
(xii) Indebtedness of the Company in addition to that described in
clauses (i) through (xi) above, and any renewals, extensions, substitutions,
refinancings or replacements of such Indebtedness, so long as the aggregate
principal amount of all such Indebtedness shall not exceed $50 million
outstanding at any one time in the aggregate.
"Permitted Investment" means (i) Investments in any Wholly
Owned Subsidiary or any Person which, as a result of such Investment, (a)
becomes a Wholly Owned Subsidiary or (b) is merged or consolidated with or into,
or transfers or conveys substantially all of its assets to, or is liquidated
into, the Company or any Wholly Owned Subsidiary; (ii) Indebtedness of the
Company or a Subsidiary of the Company described under clauses (v), (vi) and
(vii) of the definition of "Permitted Indebtedness"; (iii) Cash Equivalents;
(iv) Investments acquired by the Company or any Subsidiary of the Company in
connection with an Asset Sale permitted under Section 1012 to the extent such
Investments are non-cash proceeds as permitted under such Section; (v)
Investments in existence on the date of this Indenture; (vi) loans or advances
to employees made in the ordinary course of business and consistent with past
practices of the Company and its Subsidiaries not to exceed $5 million
outstanding at any one time in the aggregate; (vii) loans made to employees
(including guarantees of loans by third parties to employees) from time to time
in an aggregate principal amount at any one time outstanding not to exceed $1
million, the proceeds of which are used to purchase Capital Stock of the
Company; (viii) sales of goods on trade credit terms, consistent with the past
practices of the Company or any Subsidiary of the Company or as otherwise
consistent with trade credit terms in common use in the industry; and (ix) in
addition to Investments described in clauses (i) through (viii) of this
definition of "Permitted Investments," Investments valued at Fair Market Value
at the time made not to exceed $30 million outstanding at any one time in the
aggregate.
"Permitted Lien" means any Lien arising by reason of taxes not
yet delinquent or which are being contested in good faith.
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"Permitted Subsidiary Indebtedness" means (i) Acquired
Indebtedness of any Subsidiary of the Company and (ii) Indebtedness of any
Subsidiary of the Company, provided that the aggregate outstanding principal
amount of Indebtedness of all of the Company's Subsidiaries incurred pursuant to
this clause (ii) shall not at any given time exceed 10% of the Company's
Consolidated Tangible Assets as of the date of determination.
"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.
"Placement Agents" means the Placement Agents, as such item is
defined in the Placement Agreement.
"Placement Agreement" means the Placement Agreement relating
to the Securities, dated June 8, 1998, among the Company and the Placement
Agents.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for a
mutilated Security or in lieu of a lost, destroyed or stolen Security shall be
deemed to evidence the same debt as the mutilated, lost, destroyed or stolen
Security.
"Preferred Stock" means, with respect to any Person, any
Capital Stock of any class or classes (however designated) which is preferred as
to the payment of dividends or distributions, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
Person, over the Capital Stock of any other class in such Person.
"Private Placement Legends" means the legends in the form set
forth in Article II hereof.
"Public Equity Offering" means an underwritten offer and sale
of Common Stock by the Company to the public pursuant to a registration
statement (other than Form S-8 or any successor form or forms or a registration
statement relating to securities issuable by or in connection with any benefit
plan of such Person) that has been declared effective by the Commission pursuant
to the Securities Act.
"Purchase Money Obligation" means any Indebtedness secured by
a Lien on assets related to the business of the Company or any of its
Subsidiaries and any additions and accession thereto, which are purchased by the
Company or any of its Subsidiaries at any time after the Securities are issued;
provided that (i) the security agreement or conditional sales or other title
retention contract pursuant to which the Lien on such assets is created
(collectively, a "Purchase Money Security Agreement") shall be entered into
within 90 days after the purchase, acquisition or substantial completion of the
construction of such assets and shall at all times be confined
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solely to the assets so purchased, acquired or constructed, any additions and
accessions thereto and any proceeds therefrom, (ii) at no time shall the
aggregate principal amount of the outstanding Indebtedness secured thereby be
increased, except in connection with the purchase of additions and accessions
thereto and except in respect of fees and other obligations in respect of such
Indebtedness and (iii) (A) the aggregate outstanding principal amount of
Indebtedness secured thereby (determined on a per asset basis in the case of any
additions and accessions) shall not at the time such Purchase Money Security
Agreement is entered into exceed 100% of the purchase price to the Company or
its Subsidiaries of the assets subject thereto or (B) the Indebtedness secured
thereby shall be with recourse solely to the assets so purchased or acquired,
any additions and accessions thereto and any proceeds therefrom.
"Qualified Capital Stock" of any Person means any and all
Capital Stock of such Person other than Redeemable Capital Stock.
"Redeemable Capital Stock" means any Capital Stock that,
either by its terms or by the terms of any security into which it is convertible
or exchangeable or otherwise, is or upon the happening of an event or passage of
time would be, required to be redeemed prior to any Stated Maturity of the
principal of the Securities or is redeemable at the option of the holder thereof
at any time prior to any such Stated Maturity, or is convertible into or
exchangeable for debt securities at any time prior to any such Stated Maturity
at the option of the holder thereof.
"Redemption Date" when used with respect to any Security to be
redeemed pursuant to any provision in this Indenture means the date fixed for
such redemption by or pursuant to this Indenture.
"Redemption Price" when used with respect to any Security to
be redeemed pursuant to any provision in this Indenture means the price at which
it is to be redeemed pursuant to this Indenture.
"Registrar" means any Person (including the Company)
authorized by the Company to maintain the Security Register.
"Registration Rights Agreement" means the Registration Rights
Agreement relating to the Securities, dated June 8, 1998 among the Company and
the Placement Agents, and attached hereto as Exhibit E.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the April 1 or October 1 (whether or not a Business Day) next
preceding such Interest Payment Date.
"Responsible Officer" when used with respect to the Trustee
means any officer assigned to the Corporate Trust Office or the agent of the
Trustee appointed hereunder, including any vice president, assistant vice
president, assistant secretary, or any other officer or assistant
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officer of the Trustee or the agent of the Trustee appointed hereunder to whom
any corporate trust matter is referred because of his or her knowledge of and
familiarity with the particular subject.
"Rule 144" means Rule 144 under the Securities Act (including
any successor regulation thereto), as it may be amended from time to time.
"Rule 144A" means Rule 144A under the Securities Act
(including any successor regulation thereto), as it may be amended from time to
time.
"S&P" means Standard & Poor's Corporation or any successor
rating agency.
"Securities" has the meaning specified in the first recital of
this Indenture.
"Securities Act" means the Securities Act of 1933, as amended,
or any successor statute.
"Senior Indebtedness" means the principal of, premium, if any,
and interest (including interest accruing after the filing of a petition
initiating any proceeding under any state, federal or foreign bankruptcy law
whether or not allowable as a claim in such proceeding) on any Indebtedness of
the Company (other than as otherwise provided in this definition), whether
outstanding on the date of this Indenture or thereafter created, incurred or
assumed, and whether at any time owing, actually or contingent, unless, in the
case of any particular Indebtedness, the instrument creating or evidencing the
same or pursuant to which the same is outstanding expressly provides that such
Indebtedness shall not be senior in right of payment to the Securities. Without
limiting the generality of the foregoing, "Senior Indebtedness" shall include
the principal of, premium, if any, and interest (including interest accruing
after the filing of a petition initiating any proceeding under any state,
federal or foreign bankruptcy laws whether or not allowable as a claim in such
proceeding) on all monetary obligations of every kind and nature of the Company
from time to time owed to the lenders under the Bank Credit Facility; provided,
however, that any Indebtedness under any refinancing, refunding, or replacement
of the Bank Credit Facility shall not constitute Senior Indebtedness to the
extent that the Indebtedness thereunder is by its express terms stated to be
subordinate in right of payment to any other Indebtedness of the Company.
Notwithstanding the foregoing, "Senior Indebtedness" shall not include (i)
Indebtedness evidenced by the Securities, (ii) Indebtedness evidenced by the
Existing Senior Subordinated Notes, (iii) Indebtedness that is by its terms
subordinate or junior in right of payment to any Indebtedness of the Company,
(iv) 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, (v) Indebtedness which is represented by Redeemable Capital Stock, (vi)
any liability for foreign, federal, state, local or other taxes owed or owing by
the Company to the extent such liability constitutes Indebtedness, (vii)
Indebtedness of the Company to a Subsidiary of the Company or any other
Affiliate of the Company or any of such Affiliate's
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Subsidiaries and (viii) that portion of any Indebtedness which at the time of
issuance is issued in violation of this Indenture.
"Senior Note Indenture" means the indenture dated as of May
27, 1993 between the Company and Bankers Trust Company, as trustee, relating to
the Existing Senior Notes.
"Senior Representative" means a representative of one or more
holders of Designated Senior Indebtedness.
"Senior Subordinated Notes due 2005" means the Company's 8
1/2% Senior Subordinated Notes due 2005.
"Senior Subordinated Notes due 2008" means the Company's 9
1/4% Senior Subordinated Notes due 2008.
"Senior Subordinated Notes due 0000 Xxxxxxxxx" means the
Indenture dated November 25, 1995 between the Company and Union Planters
National Bank, as trustee, relating to the Senior Subordinated Notes due 2005.
"Senior Subordinated Notes due 0000 Xxxxxxxxx" means the
Indenture dated July 2, 1996 between the Company and Union Planters National
Bank, as trustee, relating to the Senior Subordinated Notes due 2008.
"Shelf Registration Statement" has the meaning set forth in
the Registration Rights Agreement.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity" means, when used with respect to any
Indebtedness or any installment of interest thereon, the dates specified in such
Indebtedness as the fixed date on which the principal of such Indebtedness or
such installment of interest, as the case may be, is due and payable.
"Subordinated Indebtedness" means Indebtedness of the Company
subordinated in right of payment to the Securities.
"Subsidiary" means any Person, a majority of the equity
ownership or the Voting Stock of which is at the time owned, directly or
indirectly, by another Person or by one or more of such other Person's other
Subsidiaries, or by such other Person and one or more of such other Person's
other Subsidiaries; provided that any Unrestricted Subsidiary of the Company
shall not be deemed a Subsidiary of the Company under the Securities.
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"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended, or any successor statute.
"Trustee" means, except as set forth in Section 405 hereof,
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.
"Unrestricted Subsidiary" means (i) any Subsidiary of the
Company that at the time of determination shall be an Unrestricted Subsidiary
(as designated by the Board of Directors of the Company, as provided below) and
(ii) any Subsidiary of an Unrestricted Subsidiary. The Board of Directors of the
Company may designate any Subsidiary of the Company (including any newly
acquired or newly formed Subsidiary of the Company) to be an Unrestricted
Subsidiary if all of the following conditions apply: (a) neither the Company nor
any of its Subsidiaries provides credit support for Indebtedness of such
Unrestricted Subsidiary (including any undertaking, agreement or instrument
evidencing such Indebtedness), (b) such Unrestricted Subsidiary is not liable,
directly or indirectly, with respect to any Indebtedness other than Unrestricted
Subsidiary Indebtedness, (c) any Investment in such Unrestricted Subsidiary made
as a result of designating such Subsidiary an Unrestricted Subsidiary shall not
violate the provisions of Section 1019 and such Unrestricted Subsidiary is not
party to any agreement, contract, arrangement or understanding at such time with
the Company or any other Subsidiary of the Company unless the terms of any such
agreement, contract, arrangement or understanding are no less favorable to the
Company or such other Subsidiary than those that might be obtained at the time
from Persons who are not Affiliates of the Company or, in the event such
condition is not satisfied, the value of such agreement, contract, arrangement
or understanding to such Unrestricted Subsidiary shall be deemed a Restricted
Payment; and (d) such Unrestricted Subsidiary does not own any Capital Stock in
any Subsidiary of the Company which is not simultaneously being designated an
Unrestricted Subsidiary. Any such designation by the Board of Directors of the
Company shall be evidenced to the Trustee by filing with the Trustee a Board
Resolution giving effect to such designation and an Officers' Certificate
certifying that such designation complies with the foregoing conditions and
shall be deemed a Restricted Payment on the date of designation in an amount
equal to the greater of (1) the net book value of such Investment or (2) the
Fair Market Value of such Investment as determined in good faith by the Board of
Directors. The Board of Directors may designate any Unrestricted Subsidiary as a
Subsidiary of the Company; provided that either (x) the Unrestricted Subsidiary
to be designated a Subsidiary of the Company has total assets of $1,000 or less
at the time of its designation or (y) (i) immediately after giving effect to
such designation, the Company could incur $1.00 of additional Indebtedness
(other than Permitted Indebtedness) pursuant to the restrictions under Section
1008 and (ii) all Indebtedness of such Unrestricted Subsidiary shall be deemed
to be incurred on the date such Unrestricted Subsidiary is designated a
Subsidiary of the Company.
"Unrestricted Subsidiary Indebtedness" of any Unrestricted
Subsidiary means Indebtedness of such Unrestricted Subsidiary (i) as to which
neither the Company nor any of its
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Subsidiaries is directly or indirectly liable (by virtue of the Company or any
such Subsidiary being the primary obligor on, guarantor of, or otherwise liable
in any respect to, such Indebtedness), except Guaranteed Debt of the Company or
any of its Subsidiaries to any Affiliate, in which case (unless the incurrence
of such Guaranteed Debt resulted in a Restricted Payment at the time of
incurrence) the Company shall be deemed to have made a Restricted Payment equal
to the principal amount of any such Indebtedness to the extent guaranteed at the
time such Affiliate is designated an Unrestricted Subsidiary and (ii) which,
upon the occurrence of a default with respect thereto, does not result in, or
permit any holder of any Indebtedness of the Company or any of its Subsidiaries
to declare, a default on such Indebtedness of the Company or any of its
Subsidiaries or cause the payment thereof to be accelerated or payable prior to
its Stated Maturity.
"Voting Stock" means Capital Stock of the class or classes
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 a corporation (irrespective of whether or not at the
time Capital Stock of any other class or classes shall have or might have voting
power by reason of the happening of any contingency).
"Wholly Owned Subsidiary" means a Subsidiary of the Company
all the Capital Stock of which is owned by the Company or another Wholly Owned
Subsidiary. For purposes of this definition any directors' qualifying shares or
investments by foreign nationals mandated by applicable law shall be disregarded
in determining the ownership of a Subsidiary of the Company.
Section 102. Other Definitions.
Term Defined in Section
---- ------------------
"Act" 105
"Change in Control Offer" 1016
"Change in Control Purchase Date" 1016
"Change in Control Purchase Notice" 1016
"Change in Control Purchase Price" 1016
"covenant defeasance" 403
"Defaulted Interest" 307
"defeasance" 402
"Defeasance Redemption Date" 404
"Defeased Securities" 401
"Deficiency" 1012
"Excess Proceeds" 1012
"incur" 1008
"Offer" 1012
"Offer Date" 1012
"Offered Price" 1012
"Pari Passu Debt Xxxxxx" 0000
"Pari Passu Offer" 1012
"Permitted Payments" 1209
"Required Filing Date" 1020
"Restricted Payments" 1009
"Security Xxxxxx" 0000
"Security Register" 305
"Security Registrar" 305
"Special Payment Date" 307
"Surviving Entity" 801
"U.S. Government Obligations" 000
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Xxxxxxx 000. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the Company and any
other obligor on the Securities (if applicable) shall furnish to the Trustee an
Officers' Certificate in a form and substance reasonably acceptable to the
Trustee stating that all conditions precedent, if any, provided for in this
Indenture (including any covenant compliance with which constitutes a condition
precedent) relating to the proposed action have been complied with, and an
Opinion of Counsel in a form and substance reasonably acceptable to the Trustee
stating that in the opinion of such counsel all such conditions precedent, if
any, have been complied with, except that, in the case of any such application
or request as to which the furnishing of such certificates or opinions is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or Opinion of Counsel with respect to
compliance with a condition or covenant provided for in this Indenture shall
include:
(a) a statement that each individual signing such
certificate or individual or firm signing such opinion has read such covenant or
condition and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(c) a statement that, in the opinion of each such
individual or such firm, he or it has made such examination or investigation as
is necessary to enable him or it to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
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(d) a statement as to whether, in the opinion of each
such individual or such firm, such condition or covenant has been complied with.
Section 104. Form of Documents Delivered to Trustee.
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.
Any certificate or opinion of an officer of the Company or
other obligor on the Securities 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 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 or other obligor on the Securities stating that the information
with respect to such factual matters is in the possession of the Company or
other obligor on the Securities, unless such officer or 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 or 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 or opinion of an officer of the Company or
other obligor on the Securities 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 the 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
and form one instrument.
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Section 105. 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 of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section 105.
(b) The ownership of Securities shall be proved by the
Security Register.
(c) Any request, demand, authorization, direction,
notice, consent, waiver or other Act by the Holder of any Security shall bind
every future Holder of the same Security or the Holder of every Security issued
upon the transfer thereof or in exchange therefor or in lieu thereof, in 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 Security.
(d) The fact and date of the execution by any Person of
any such instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the execution
thereof. Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate of affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the Person executing the same,
may also be proved in any other manner which the Trustee deems sufficient.
(e) If the Company shall solicit from the Holders any
request, demand, authorization, direction, notice, consent, waiver or other Act,
the Company may, at its option, by or pursuant to a Board Resolution, fix in
advance a record date for the determination of such Holders entitled to give
such request, demand, authorization, direction, notice, consent, waiver or other
Act, but the Company shall have no obligation to do so. Notwithstanding Trust
Indenture Act Section 316(c), any such record date shall be the record date
specified in or pursuant to such Board Resolution, which shall be a date not
more than 30 days prior to the first solicitation of Holders generally in
connection therewith and no later than the date such solicitation is completed.
If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for
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purposes of determining whether Holders of the requisite proportion of
Securities then Outstanding have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or other Act,
and for this purpose the Securities then Outstanding shall be computed as of
such record date; provided that no such request, demand, authorization,
direction, notice, consent, waiver or other Act by the Holders on such record
date shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the record date.
Section 106. 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 or any
other obligor on the Securities shall be sufficient for every purpose (except as
provided in Section 501(c)) hereunder if in writing and mailed, first-class
postage prepaid, or delivered by recognized overnight courier, to or with the
Trustee at its Corporate Trust Office, Attention: Corporate Trust Trustee
Administration, or at any other address previously furnished in writing to the
Holders, the Company or any other obligor on the Securities by the Trustee; or
(b) the Company by the Trustee or any Holder shall be
sufficient for every purpose (except as provided in Section 501(c)) hereunder if
in writing and mailed, first-class postage prepaid, or delivered by recognized
overnight courier, to the Company addressed to it at 0000 Xxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxx 00000, Attention: Xxxxxx Xxxxxx Xxxxxxxxxx, or at any other
address previously furnished in writing to the Trustee by the Company.
Section 107. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, or
delivered by recognized overnight courier, to each Holder affected by such
event, at his address as it appears in the Security 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.
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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 reasonably satisfactory to the Trustee shall be deemed
to be a sufficient giving of such notice.
Section 108. 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, the provision or requirement of the Trust Indenture Act shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.
Section 109. 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 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind successors and assigns, whether so expressed or not.
Section 111. Separability Clause.
In case any provision in this Indenture or in the Securities
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 112. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person (other than the parties hereto and their
successors hereunder, any Paying Agent, the Holders and the holders of Senior
Indebtedness) any benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 113. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING
EFFECT TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF).
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Section 114. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date,
Maturity or Stated Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of interest or principal or premium, if any, 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 or Redemption Date, or at the
Maturity or Stated Maturity and no interest shall accrue with respect to such
payment for the period from and after such Interest Payment Date, Redemption
Date, Maturity or Stated Maturity, as the case may be, to the next succeeding
Business Day.
Section 115. 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 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 or an Event of Default if such action is taken or
condition exists.
Section 116. Schedules and Exhibits.
All schedules and exhibits attached hereto are by this
reference made a part hereof with the same effect as if herein set forth in
full.
Section 117. 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.
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally.
(a) The Initial Securities and the Trustee's certificate
of authentication thereon shall be in substantially the forms set forth in
Exhibit A or Exhibit B hereto, as applicable, which are hereby incorporated in
and expressly made a part of this Indenture. The Exchange Securities and the
certificate of authentication of the Trustee thereon shall be substantially in
the form of Exhibit C or Exhibit D hereto, as applicable, which are hereby
incorporated in and expressly
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made a part of this Indenture. The Securities may have such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange, any organizational
document or governing instrument or applicable law or as may, consistently
herewith, be determined by the officers executing such Securities, as evidenced
by their execution of the Securities. Any portion of the text of any Security
may be set forth on the reverse thereof, with an appropriate reference thereto
on the face of the Security.
(b) Initial Securities shall be issued initially in the form of a
permanent, global note in definitive, fully registered form, without coupons,
substantially in the form of Exhibit A hereto (the "Initial Global Security").
Upon issuance, such Initial Global Security shall be duly executed by the
Company and authenticated by the Trustee as hereinafter provided and deposited
with the Trustee as custodian for the Depositary. Any Initial Certificated
Security that may be issued pursuant to Section 305 hereof, shall be issued in
the form of a note in definitive, fully registered form, without coupons,
substantially in the form set forth in Exhibit B hereto. Upon issuance, any such
Initial Certificated Security shall be duly executed by the Company and
authenticated by the Trustee as hereinafter provided.
(c) In the event Exchange Securities are issued pursuant to an
Exchange Offer Registration in exchange for Initial Securities held in the form
of the Initial Global Security, such Exchange Securities shall be issued
initially in the form of a permanent global note in definitive, fully registered
form, without coupons, substantially in the form set forth in Exhibit C hereto
(the "Exchange Global Security"). Upon issuance, such Exchange Global Security
shall be duly executed by the Company and authenticated by the Trustee as
hereinafter provided and deposited with the Trustee as custodian for the
Depositary. Any Exchange Certificated Security that may be issued pursuant to
Section 305 hereof or in exchange for Initial Certificated Securities pursuant
to a Registered Exchange Offer, shall be issued in the form of a note in
definitive, fully registered form, without coupons, substantially in the form
set forth in Exhibit D hereto. Upon issuance, any such Exchange Certificate
Securities shall be duly executed by the Company and authenticated by the
Trustee as hereinafter provided.
(d) The following legends shall appear on each Global Security and
each Certificated Security as indicated below:
(i) Except as provided in Section 305 hereof, each
Initial Global Security and Initial Certificated Security shall bear
the following legend on the face thereof:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS
EXCEPT AS SET FORTH BELOW. BY
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ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT
IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) OR (B) IT IS AN "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3), OR (7)
UNDER THE SECURITIES ACT) (AN "ACCREDITED INVESTOR") OR (C) IT
IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (2) AGREES THAT IT WILL NOT WITHIN TWO YEARS
AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR
OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE ISSUER
THEREOF OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED
STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED
STATES TO AN ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER,
FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S.
BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM OF WHICH
LETTER CAN BE OBTAINED FROM THE TRUSTEE FOR THIS SECURITY),
(D) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (E)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE
144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR (F) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM
THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS
SECURITY, IF THE PROPOSED TRANSFEREE IS AN ACCREDITED
INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO
THE TRUSTEE AND THE ISSUER SUCH CERTIFICATIONS, LEGAL OPINIONS
OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE
TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND
"U.S. PERSON" HAVE THE MEANING GIVEN TO THEM BY REGULATION S
UNDER THE SECURITIES ACT.
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(ii) Each Global Security shall bear the following legend
on the face thereof:
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY TO BUCKEYE TECHNOLOGIES, INC.
OR THE REGISTRAR FOR REGISTRATION OF TRANSFER OR EXCHANGE AND
ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER ENTITY AS HAS BEEN REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY
AS HAS BEEN REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
TRANSFER OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN
WHOLE, AND NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST
COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE
AND TRANSFERS OF INTERESTS IN THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN SECTION 305 OF THE INDENTURE, DATED AS OF JUNE 8,
1998, BETWEEN BUCKEYE TECHNOLOGIES, INC. AND THE TRUSTEE NAMED
THEREIN, PURSUANT TO WHICH THIS NOTE WAS ISSUED.
(e) The definitive Securities shall be printed, lithographed
or engraved or produced by any combination of these methods or may be produced
in any other manner permitted by the rules of any securities exchange on which
the Securities may be listed, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
Section 202. Form of Face of Security.
See Exhibit A.
Section 203. Form of Reverse of Securities.
See Exhibit A.
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ARTICLE THREE
THE SECURITIES
Section 301. Title and Terms.
The Securities may be issued in two series, a series of
Initial Securities and a series of Exchange Securities. The aggregate principal
amount of Securities which may be authenticated and delivered under this
Indenture is limited to $150,000,000 in principal amount of Securities, except
for Securities authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities pursuant to Section 303, 304,
305, 306, 906, 1012, 1016 or 1108.
The Securities shall be known and designated as the "8% Senior
Subordinated Notes due 2010" of the Company. The Stated Maturity of the
Securities shall be October 15, 2010, and the Securities shall each bear
interest at the rate of 8% from June 11, 1998, or from the most recent Interest
Payment Date to which interest has been paid, as the case may be, payable
semiannually on April 15 and October 15, in each year, commencing October 15,
1998, until the principal thereof is paid or duly provided for. Interest on any
overdue principal, interest (to the extent lawful) or premium, if any, shall be
payable on demand.
The principal of, premium, if any, and interest on the
Securities shall be payable at the office or agency of the Company maintained
for such purpose in The City of New York, and at such other office or agency of
the Company as may be maintained for such purpose; provided, however, that
interest may be paid at the option of the Company by check mailed to addresses
of the Persons entitled thereto as such addresses shall appear on the Security
Register.
The Securities shall be subject to repurchase by the Company
pursuant to an Offer as provided in Section 1012.
Holders shall have the right to require the Company to
purchase their Securities, in whole or in part, in the event of a Change in
Control pursuant to Section 1016.
The Securities shall be redeemable as provided in Article
Eleven and in the Securities.
At the election of the Company, the entire Indebtedness on the
Securities or certain of the Company's obligations and covenants and certain
Events of Default thereunder may be defeased as provided in Article Four.
The Indebtedness evidenced by the Securities shall be
subordinated in right of payment to Senior Indebtedness as provided in Article
12.
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Section 302. Denominations.
The Securities shall be issuable only in fully registered form
without coupons, in denominations of $1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by
one of its Chairman of the Board, its President, its Chief Executive Officer,
its Chief Operating Officer or one of its Senior Vice Presidents under its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signatures of any of these officers on the Securities
may be manual or facsimile.
Upon compliance by the Company with the provisions of the previous
paragraph, the Trustee shall, upon receipt of a Company Order requesting such
action, authenticate (a) Initial Securities for original issuance in an
aggregate principal amount not to exceed $150,000,000 in the form of the Initial
Global Security or (b) Exchange Securities for issuance pursuant to an Exchange
Offer Registration for Initial Securities in a principal amount equal to the
principal amount of Initial Securities exchanged in such registered Exchange
Offer. Such Company Order shall specify the amount of Securities to be
authenticated and the date on which, in the case of clause (a) above, the
Initial Securities or, in the case of clause (b) above, the Exchange Securities
are to be authenticated and shall further provide instructions concerning
registration, amounts for each Holder and delivery.
Upon the occurrence of any event specified in Section 305 hereof and
compliance by the Company with the provisions of the paragraph preceding the
immediately preceding paragraph, the Company shall execute and the Trustee shall
authenticate and deliver to each beneficial owner identified by the Depositary,
in exchange for such beneficial owner's interest in the Initial Global Security
or Exchange Global Security, as the case may be, Initial Certificated Securities
or Exchange Certificated Securities, as the case may be, representing Securities
theretofore represented by the Initial Global Security or Exchange Global
Security, as the case may be.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities as
provided in this Indenture and not otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for
herein duly executed by the Trustee by manual signature of
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an authorized officer, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder and is entitled to the benefits of this
Indenture.
In case the Company, pursuant to Article Eight, shall be
consolidated or merged with or into any other Person or shall sell, assign,
convey, transfer, lease or otherwise dispose of substantially all of
its properties and assets to any Person, and the successor Person resulting from
such consolidation or surviving such merger, or into which the Company shall
have been consolidated or merged, or the successor Person which shall have
participated in the sale, assignment, conveyance, transfer, lease or other
disposition as aforesaid, shall have executed an indenture supplemental hereto
with the Trustee pursuant to Article Eight, any of the Securities authenticated
or delivered prior to such consolidation, merger, sale, assignment, conveyance,
transfer, lease or other disposition may, from time to time, at the request of
the successor Person, be exchanged for other Securities executed in the name of
the successor Person with such changes in phraseology and form as may be
appropriate, but otherwise in substance of like tenor as the Securities
surrendered for such exchange and of like principal amount; and the Trustee,
upon Company Request of the successor Person, shall authenticate and deliver
Securities as specified in such request for the purpose of such exchange. If
Securities shall at any time be authenticated and delivered in any new name of a
successor Person pursuant to this Section 303 in exchange or substitution for or
upon registration of transfer of any Securities, such successor Person, at the
option of the Holders but without expense to them, shall provide for the
exchange of all Securities at the time Outstanding for Securities authenticated
and delivered in such new name.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Securities on behalf of the Trustee. Unless limited
by the terms of such appointment, an authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as any Security Registrar or Paying
Agent to deal with the Company and its Affiliates.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities, the Company
may execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as conclusively evidenced by their
execution of such Securities.
If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the
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temporary Securities at the office or agency of the Company designated for such
purpose pursuant to Section 1002 (or in accordance with Section 303, in the case
of initial Securities), without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor alike
principal amount of definitive Securities of authorized denominations. Until so
exchanged the temporary Securities shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities.
Section 305. Registration, Registration of Transfer and Exchange.
(a) The following provisions of this paragraph (a) are applicable
only to Initial Securities:
(i) By its acceptance of any Initial Security represented
by a certificate bearing the Private Placement Legend, each Holder of,
and beneficial owner of an interest in, such Initial Security
acknowledges the restrictions on transfer of such Initial Security set
forth in the Private Placement Legend and under the heading "Transfer
Restrictions" in the Final Memorandum and agrees that it will transfer
such Initial Security only in accordance with the Private Placement
Legend and the restrictions set forth under the heading "Transfer
Restrictions" in the Final Memorandum.
(ii) In connection with any transfer of an Initial
Security bearing the Private Placement Legend other than to a Person
whom the Holder reasonably believes to be a "qualified institutional
buyer" under the Securities Act, such Holder shall deliver to the
Company such satisfactory evidence, which may include an opinion of
independent counsel licensed to practice law in the State of New York,
as reasonably may be requested by the Company to confirm that such
transfer is being made in accordance with the limitations set forth in
the Private Placement Legend. In the event the Company reasonably
determines that any such transfer is not in accordance with the Private
Placement Legend, the Company shall so inform the Registrar who shall
not register such transfer; provided that the Registrar shall not be
required to determine (but may rely on a determination made by the
Company with respect to) the sufficiency of any such evidence.
(iii) Upon the registration of transfer, exchange or
replacement of an Initial Security not bearing the Private Placement
Legend, the Trustee shall deliver an Initial Security or Initial
Securities that do not bear the Private Placement Legend. Upon the
transfer, exchange or replacement of an Initial Security bearing the
Private Placement Legend, the Trustee shall deliver an Initial Security
or Initial Securities bearing the Private Placement Legend, unless such
legend may be removed from such Security as provided in the next
sentence. The Private Placement Legend may be removed from an Initial
Security if there is delivered to the Company such satisfactory
evidence, which may include an opinion of independent counsel licensed
to practice law in the State of
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New York, as reasonably may be requested by the Company to confirm that
neither such legend nor the restrictions on transfer set forth therein
are required to ensure that transfers of such Initial Security will not
violate the registration and prospect us delivery requirements of the
Securities Act; provided that the Trustee shall not be required to
determine (but may rely on a determination made by the Company with
respect to) the sufficiency of any such evidence. Upon provision of
such evidence, the Trustee shall authenticate and deliver in exchange
for such Initial Security an Initial Security or Initial Securities
(representing the same aggregate principal amount of the Initial
Security being exchanged) without such legend. If the Private Placement
Legend has been removed from an Initial Security, as provided above, no
other Initial Security issued in exchange for all or any part of such
Initial Security shall bear such legend, unless the Company has
reasonable cause to believe that such other Initial Security represents
a "restricted security" within the meaning of Rule 144 and instructs
the Trustee in writing to cause a legend to appear thereon.
(iv) The Company shall deliver to the Trustee, and the
Trustee shall retain for two years, copies of all documents received
pursuant to this Section 305. The Company shall have the right to
inspect and make copies of all such documents at any reasonable time
upon the giving of reasonable written notice to the Trustee.
(b) Any Initial Securities which are presented to the Registrar
for exchange pursuant to an Exchange Offer Registration shall be exchanged for
Exchange Securities or equal principal amount upon surrender to the Registrar of
the Initial Securities to be exchanged in accordance with the terms of the
Exchange Offer Registration; provided that the Initial Securities so surrendered
for exchange are duly endorsed and accompanied by a letter of transmittal or
written instrument of transfer in form satisfactory to the Company, the Trustee
and the Registrar and duly executed by the Holder thereof or such Holder's
attorney who shall be duly authorized in writing to execute such document on
behalf of such Holder. Whenever any Initial Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver to the surrendering Holder thereof Exchange Securities in the same
aggregate principal amount as the Initial Securities so surrendered.
(c) The Initial Global Security or Exchange Global Security, as
the case may be, shall be exchanged by the Company for one or more Initial
Certificated Securities or Exchange Certificated Securities, as the case may be,
if (a) the Depositary (i) has notified the Company that it is unwilling or
unable to continue as, or ceases to be, a clearing agency registered under
Section 17A of the Exchange Act and (ii) a successor to the Depositary
registered as a clearing agency under Section 17A of the Exchange Act is not
able to be appointed by the Company within 20 calendar days or (b) the
Depositary is at any time unwilling or unable to continue as Depositary and a
successor to the Depositary is not able to be appointed by the Company within 90
calendar days. If an Event of Default occurs and is continuing, the Company
shall, at the request of the Holder thereof, exchange all or part of the Initial
Global Security or Exchange Global Security, as the case may be, for one or more
Initial Certificated Securities or Exchange
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Certificated Securities, as the case may be; provided that the principal amount
of each of such Initial Certificated Securities or Exchange Certificated
Securities, as the case may be, and such Global Security, after such exchange,
shall be $1,000 or an integral multiple thereof. Whenever a Global Security is
exchanged as a whole for one or more Initial Certificated Securities or Exchange
Certificated Securities, as the case may be, it shall be surrendered by the
Holder thereof to the Trustee for cancellation. Whenever a Global Security is
exchanged in part for one or more Initial Certificated Securities or Exchange
Certificated Securities, as the case may be, it shall be surrendered by the
Holder thereof to the Trustee and the Trustee shall make the appropriate
notations thereon. All Initial Certificated Securities or Exchange Certificated
Securities, as the case may be, issued in exchange for a Global Security or any
portion thereof shall be registered in such names, and delivered, as the
Depositary shall instruct the Trustee. Any Initial Certificated Securities
issued pursuant to this Section 305 shall include the Private Placement Legend,
except as set forth in this Section 305 hereof. Interests in a Global Security
may not be exchanged for Certificated Securities other than as provided in this
Section 305.
(d) No service charge shall be made for any registration of
transfer or exchange of Securities, 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 of Securities (other than in
respect of an Exchange Offer Registration, except as provided in the
Registration Rights Agreement).
(e) All Securities issued upon any registration of transfer or
exchange pursuant to the terms of this Indenture will evidence the same debt and
will be entitled to the same benefits under this Indenture as the Securities
surrendered for such registration of transfer or exchange.
(f) Prior to the effectiveness under the Securities Act of a Shelf
Registration Statement, or at any time during the suspension or following the
termination thereof, Holders of Initial Securities (or holders of interests
therein) and prospective purchasers designated by such Holders of Initial
Securities (or such holders of interests therein) shall have the right to obtain
from the Company upon request by such Holders (or such holders of interests) or
prospective purchasers, during any period in which the Company is not subject to
Section 13 or Section 15(d) of the Exchange Act, or is exempt from reporting
pursuant to 12g3- 2(b) under the Exchange Act, the information required by
paragraph (d)(4)(i) of Rule 144A in connection with any transfer or proposed
transfer of such Securities or interests.
(g) Any Holder of a Global Security shall, by acceptance of such
Global Security, agree that transfers of beneficial interests in such Global
Security may be effected only through a book entry system maintained by the
Holder of such Global Security (or its agent), and that ownership of a
beneficial interest in the Security represented thereby shall be required to be
reflected in book entry form. Transfers of a Global Security shall be limited to
transfers in whole and not in part, to the Depositary, its successors, and their
respective nominees. Interests of beneficial owners in a Global Security may be
transferred in accordance with the rules and procedures of the Depositary (or
its successors).
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(h) IBJ Xxxxxxxx Bank and Trust Company shall initially be the
"Registrar" for the purpose of registering Securities and transfers of
Securities as herein provided. The Company shall cause the Registrar to keep, so
long as it is the Security Registrar, at its corporate office at Xxx Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other office as the Registrar may
designate, a register (the register maintained in such office or in any other
office or agency designated pursuant to Section 1002 being herein sometimes
referred to as the "Security Register") in which, subject to such reasonable
regulations as the Registrar may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Company may
appoint one or more co-registrars.
Upon surrender for registration of transfer of any Security at
the office or agency of the Company designated pursuant to Section 1002, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series of any authorized denomination or denominations, of a like
aggregate principal amount.
At the option of the Holder, Securities may be exchanged for
other Securities of any authorized denomination or denominations, of a like
aggregate principal amount, upon surrender of the Securities to be exchanged at
such office or agency. Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver, the
Securities of the same series which the Holder making the exchange is entitled
to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same Indebtedness, and entitled to the same benefits under this Indenture,
as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer, or for exchange or redemption shall (if so required by the Company or
the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security 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 Securities, but the
Company may require payment of a sum sufficient to pay all documentary, stamp or
similar issue or transfer taxes or other governmental charges that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 303, 304, 305, 306, 906,
1012, 1016 or 1108 not involving any transfer.
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The Company shall not be required (a) to issue, register the
transfer of or exchange any Security during a period beginning at the opening of
business 15 days before the mailing of a notice of redemption of the Securities
selected for redemption under Section 1104 and ending at the close of business
on the day of such mailing or (b) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the unredeemed
portion of Securities being redeemed in part.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If (a) any mutilated Security 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 Security, 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, then, in the absence of notice
to the Company or the Trustee that such Security has been acquired by a bona
fide purchaser, the Company shall execute and upon a Company Request the Trustee
shall authenticate and deliver, in exchange for any such mutilated Security or
in lieu of any such destroyed, lost or stolen Security, a replacement Security
of like tenor and principal amount, bearing a number not contemporaneously
Outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a replacement Security, pay such Security.
Upon the issuance of any replacement Securities under this
Section, the Company may require the payment of a sum sufficient to pay all
documentary, stamp or similar issue or transfer taxes 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.
Every replacement Security issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company and any other obligor upon the
Securities, whether or not the destroyed, lost or stolen Security 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 Securities 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 Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Security (or one
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or more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest payment.
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on the Stated Maturity of such and
interest on such defaulted interest at the then applicable interest rate borne
by the Securities, 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 Securities (or
their respective Predecessor Securities) 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 of the
amount of Defaulted Interest proposed to be paid on each
Security and the date (not less than 30 days after such
notice) of the proposed payment (the "Special Payment Date"),
and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such
deposit prior to the Special Payment Date, such money when
deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this Subsection
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
Special Payment Date 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 his address as it appears in the Security 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 and Special Payment Date therefor
having been so mailed, such Defaulted Interest shall be paid
to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered on such
Special Record Date and shall no longer be payable pursuant to
the following Subsection (b).
(b) The Company may make payment to the Persons in whose name
the Securities are registered at the close of business on the
Special Record Date of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and
upon such notice as may be required by such exchange, if,
after written notice
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given by the Company to the Trustee of the proposed payment
pursuant to this Subsection, such payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section 307, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Security 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 Security is registered as the owner of
such Security for the purpose of receiving payment of principal of, premium, if
any, and (subject to Section 307) interest on such Security and for all other
purposes whatsoever, whether or not such Security is 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 309. Cancellation.
All Securities surrendered for payment, purchase, 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 Securities previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Securities so delivered shall be promptly cancelled
by the Trustee. No Securities shall be authenticated in lieu of or in exchange
for any Securities cancelled as provided in this Section 309, except as
expressly permitted by this Indenture. All cancelled Securities held by the
Trustee shall be returned to the Company. The Trustee shall provide the Company
a list of all Securities that have been cancelled from time to time as requested
in writing by the Company.
Section 310. Computation of Interest.
Interest on the Securities shall be computed on the basis of a
360-day year of twelve 30-day months.
Section 311. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers
(if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers
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printed on the Securities, and any such redemption shall not be affected by any
defect in or omission of such numbers.
ARTICLE FOUR
DEFEASANCE AND COVENANT DEFEASANCE
Section 401. Company's Option to Effect Defeasance or Covenant
Defeasance.
The Company may, at its option by Board Resolution, at any
time, with respect to the Securities, elect to have either Section 402 or
Section 403 be applied to all of the Outstanding Securities (the "Defeased
Securities"), upon compliance with the conditions set forth below in this
Article Four.
Section 402. Defeasance and Discharge.
Upon the Company's exercise under Section 401 of the option
applicable to this Section 402, the Company and any other obligor upon the
Securities, if any, shall be deemed to have been discharged from its obligations
with respect to the Defeased Securities on the date the conditions set forth in
Section 404 below are satisfied (hereinafter, "defeasance"). For this purpose,
such defeasance means that each of the Company and any other obligor upon the
Securities shall be deemed to have paid and discharged the entire Indebtedness
represented by the Defeased Securities, which shall thereafter be deemed to be
"Outstanding" only for the purposes of Section 405 and the other Sections of
this Indenture referred to in (a) and (b) below, and to have satisfied all its
other obligations under such Securities and this Indenture insofar as such
Securities are concerned (and the Trustee, at the expense of the Company, and,
upon Company Request, shall execute proper instruments acknowledging the same),
except for the following which shall survive until otherwise terminated or
discharged hereunder: (a) the rights of Holders of Defeased Securities to
receive, solely from the trust fund described in Section 404 and as more fully
set forth in such Section, payments in respect of the principal of, premium, if
any, and interest on such Securities when such payments are due, (b) the
Company's obligations with respect to such Defeased Securities under Sections
304, 305, 306, 1002 and 1003, (c) the rights, powers, trusts, duties,
indemnities and immunities of the Trustee hereunder, including, without
limitation, the Trustee's rights under Section 606, and (d) this Article Four.
Subject to compliance with this Article Four, the Company may exercise its
option under this Section 402 notwithstanding the prior exercise of its option
under Section 403 with respect to the Securities.
Section 403. Covenant Defeasance.
Upon the Company's exercise under Section 401 of the option
applicable to this Section 403, the Company and any other obligor upon the
Securities shall be released from its
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obligations under any covenant or provision contained or referred to in Sections
1005 through 1020, inclusive, and the provisions of clauses (iii) and (iv) of
Section 801(a) and Article Twelve shall not apply, with respect to the Defeased
Securities on and after the date the conditions set forth in Section 404 below
are satisfied (hereinafter, "covenant defeasance"), and the Defeased Securities
shall thereafter be deemed to be not "Outstanding" for the purposes of any
direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with such covenants and the
provisions of Article Twelve, but shall continue to be deemed "Outstanding" for
all other purposes hereunder. For this purpose, such covenant defeasance means
that, with respect to the Defeased Securities, the Company and any such obligor
may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such Section or Article, whether
directly or indirectly, by reason of any reference elsewhere herein or in such
Defeased Securities or other documents to any such Section or Article or by
reason of any reference in any such Section or Article 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 501(c) but, except as specified
above, the remainder of this Indenture and such Defeased Securities shall be
unaffected thereby.
Section 404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either
Section 402 or Section 403 to the Defeased Securities:
(1) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the requirements of
Section 608 who shall agree to comply with the provisions of this Article Four
applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities, (a) United States dollars in
an amount, (b) U.S. Government Obligations which through the scheduled payment
of principal and interest in respect thereof in accordance with their terms and
with no further reinvestment will provide, not later than one day before the due
date of any payment, money in an amount, or (c) a combination thereof, in such
amounts as will be sufficient, in the opinion of a nationally recognized firm of
independent public accountants or a nationally recognized investment banking
firm expressed in a written certification thereof delivered to the Trustee, to
pay and discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge the principal of, premium, if any, and
interest on the Defeased Securities on the Stated Maturity of such principal or
installment of principal or interest (or on any date after October 15, 2003
(such date being referred to as the "Defeasance Redemption Date")), if at or
prior to exercising under Section 401 either its option applicable to Section
402 or its option applicable to Section 403, the Company shall have delivered to
the Trustee an irrevocable notice to redeem all of the Outstanding Securities on
the Defeasance Redemption Date); provided that the Trustee (or such qualifying
trustee) shall have been irrevocably instructed to apply such United States
dollars or the proceeds of such U.S. Government Obligations to said payments
with respect to the Securities; and provided, further, that the United States
dollars or U.S. Government Obligations
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deposited shall not be subject to the rights of the holders of Senior
Indebtedness pursuant to the provisions of Article Twelve. For this purpose,
"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 depository 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 depository receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository 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 depository
receipt.
(2) In the case of an election under Section 402, the Company
shall have delivered to the Trustee an Opinion of Independent Counsel in the
United States stating that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since the date of
this Indenture, there has been a change in the applicable federal income tax
law, in either case to the effect that, and based thereon such Opinion of
Independent Counsel in the United States shall confirm that, the Holders of the
Outstanding Securities will not recognize income, gain or loss for federal
income tax purposes as a result of such 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 had not occurred.
(3) In the case of an election under Section 403, the Company
shall have delivered to the Trustee an Opinion of Independent Counsel in the
United States to the effect that the Holders of the Outstanding Securities will
not recognize income, gain or loss for federal income tax purposes as a result
of such covenant defeasance and will be subject to federal income tax on the
same amounts, in the same manner and at the same times as would have been the
case if such covenant defeasance had not occurred.
(4) No Default or Event of Default shall have occurred and be
continuing on the date of such deposit or insofar as subsections 501(g) and (h)
are concerned, at any time during the period ending on the 91st day after the
date of deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(5) Such defeasance or covenant defeasance shall not cause the
Trustee to have a conflicting interest as defined in this Indenture and for
purposes of the Trust Indenture Act with respect to any securities of the
Company or any other obligor upon the Securities (assuming the Securities are in
default within the meaning of said Act).
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(6) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, this Indenture or any
other material agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which it is bound.
(7) Such defeasance or covenant defeasance shall not result in
the trust arising from such deposit constituting an investment company as
defined in the Investment Company Act of 1940, as amended, unless such trust
shall be qualified under such Act or exempt from regulation thereunder.
(8) The Company shall have delivered to the Trustee an Opinion
of Independent Counsel to the effect that 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.
(9) The Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the Company with
the intent of preferring the holders of the Securities over the other creditors
of the Company with the intent of defeating, hindering, delaying or defrauding
creditors of the Company or others.
(10) No event or condition shall exist that would prevent the
Company from making payments of the principal of, premium, if any, and interest
on the Securities on the date of such deposit or at any time ending on the 91st
day after the date of such deposit.
(11) The Company will have delivered to the Trustee an
Officers' Certificate and an Opinion of Independent Counsel in the United
States, each stating that all conditions precedent provided for relating to
either the defeasance under Section 402 or the covenant defeasance under Section
403 (as the case may be) have been complied with as contemplated by this Section
404.
Opinions of Counsel or Opinions of Independent Counsel
required to be delivered under this Section may have qualifications customary
for opinions of the type required and counsel delivering such opinions may rely
on certificates of the Company or government or other officials customary for
opinions of the type required, which certificates shall be limited as to matters
of fact, including that various financial covenants have been complied with.
Section 405. Deposited Money and U.S. Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section
1003, all United States dollars and U.S. Government Obligations (including the
proceeds thereof) deposited with the Trustee (or other qualifying
trustee--collectively for purposes of this Section 405, the "Trustee") pursuant
to Section 404 in respect of the Defeased Securities shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Securities and
this Indenture, to the
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payment, either directly or through any Paying Agent (excluding the Company or
any of its Affiliates acting as Paying Agent) as the Trustee may determine, to
the Holders of such Securities 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. Money so held
in trust shall not be subject to the provisions of Article Twelve.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 404 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of the Defeased Securities.
Anything in this Article Four to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon Company
Request any United States dollars or U.S. Government Obligations held by it as
provided in Section 404 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect defeasance or covenant defeasance.
Section 406. Reinstatement.
If the Trustee or Paying Agent is unable to apply any United
States dollars or U.S. Government Obligations in accordance with Section 402 or
403, as the case may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the
Securities, and the provisions of Article Twelve hereof, shall be revived and
reinstated as though no deposit had occurred pursuant to Section 402 or 403, as
the case may be, until such time as the Trustee or Paying Agent is permitted to
apply all such United States dollars or U.S. Government Obligations in
accordance with Section 402 or 403, as the case may be; provided, however, that
if the Company makes any payment to the Trustee or Paying Agent of principal,
premium, if any, or interest on any Security following the reinstatement of its
obligations, the Trustee or Paying Agent shall promptly pay any such amount to
the Holders of the Securities and the Company shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the United States
dollars and U.S. Government Obligations held by the Trustee or Paying Agent.
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ARTICLE FIVE
REMEDIES
Section 501. 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 occasioned by the provisions of Article Twelve or 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):
(a) there shall be a default in the payment of any interest on
any Security when it becomes due and payable, and such default shall continue
for a period of 30 days;
(b) there shall be a default in the payment of the principal
of (or premium, if any, on) any Security at its Maturity (upon acceleration,
optional or mandatory redemption, if any, required repurchase or otherwise);
(c) (i) there shall be a default in the performance, or
breach, of any covenant or agreement of the Company under this Indenture (other
than a default in the performance, or breach, of a covenant or agreement which
is specifically dealt with in Subsection (a) or (b) of this Section 501 or in
clauses (ii), (iii) and (iv) of this Subsection (c) of this Section 501) and
such default or breach shall continue for a period of 30 days after written
notice has been given, by certified mail, (x) to the Company by the Trustee or
(y) to the Company and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Outstanding Securities, specifying such default or
breach and requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; (ii) there shall be a default in the performance or
breach of the provisions of Article Eight; (iii) the Company shall have failed
to make or consummate an Offer in accordance with the provisions of Section
1012; or (iv) the Company shall have failed to make or consummate a Change in
Control Offer in accordance with the provisions of Section 1016;
(d) one or more defaults shall have occurred under any
agreements, indentures or instruments under which the Company or any of its
Subsidiaries then has outstanding Indebtedness in excess of $10 million in the
aggregate and, if such Indebtedness has not already matured at its final
maturity in accordance with its terms, such Indebtedness shall have been
accelerated;
(e) one or more judgments, orders or decrees for the payment
of money in excess of $10 million, either individually or in the aggregate,
shall be rendered against the Company or any of its Subsidiaries or any of their
respective properties and shall not be discharged and either (i) any creditor
shall have commenced an enforcement proceeding upon such judgment, order or
decree or (ii) there shall have been a period of 60 consecutive days
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during which a stay of enforcement of such judgment or order, by reason of an
appeal or otherwise, shall not be in effect;
(f) any holder or holders of at least $10 million in aggregate
principal amount of Indebtedness of the Company or any of its Subsidiaries after
a default under such Indebtedness shall notify the Trustee of the intended sale
or disposition of any assets of the Company or any of its Subsidiaries that have
been pledged to or for the benefit of such holder or holders to secure such
Indebtedness or shall commence proceedings, or take any action (including by way
of set-off), to retain in satisfaction of such Indebtedness or to collect on,
seize, dispose of or apply in satisfaction of Indebtedness, assets of the
Company or any of its Subsidiaries (including funds on deposit or held pursuant
to lock-box and other similar arrangements);
(g) there shall have been the entry by a court of competent
jurisdiction of (i) a decree or order for relief in respect of the Company or
any of its Subsidiaries in an involuntary case or proceeding under any
applicable Bankruptcy Law or (ii) a decree or order adjudging the Company or any
of its Subsidiaries bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company or any of
its Subsidiaries under any applicable federal or state law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of the Company or any of its Subsidiaries or of any
substantial part of their respective properties, or ordering the winding up or
liquidation of their respective affairs, and any such decree or order for relief
shall continue to be in effect, or any such other decree or order shall be
unstayed and in effect, for a period of 60 consecutive days; or
(h) (i) the Company or any of its Subsidiaries 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 of its Subsidiaries consents to the entry of a decree or order for relief in
respect of the Company or any such 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
of its Subsidiaries files a petition or answer or consent seeking reorganization
or relief under any applicable federal or state law, (iv) the Company or any of
its Subsidiaries (1) consents to the filing of such petition or the appointment
of, or taking possession by, a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Company or any such Subsidiary
or of any substantial part of their respective properties, (2) makes an
assignment for the benefit of creditors or (3) admits in writing its inability
to pay its debts generally as they become due, or (v) the Company or any of its
Subsidiaries takes any corporate action in furtherance of any such actions in
this paragraph (h).
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Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default
specified in Sections 501(g) and (h)) shall occur and be continuing, the Trustee
or the Holders of not less than 25% in aggregate principal amount of the
Securities Outstanding may, and the Trustee at the request of the Holders of not
less than 25% in aggregate principal amount of the Securities Outstanding shall,
declare all unpaid principal of, premium, if any, and accrued interest on all
the Securities to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by the Holders of the Securities) and upon
any such declaration, such principal, premium, if any, and interest shall become
due and payable immediately. If an Event of Default specified in clause (g) or
(h) of Section 501 occurs and is continuing with respect to the Company and is
continuing, then all the Securities shall ipso facto become and be due and
payable immediately in an amount equal to the principal amount of the
Securities, together with premium, if any, and accrued and unpaid interest, if
any, to the date the Securities become due and payable, without any declaration
or other act on the part of the Trustee or any Holder. Thereupon, the Trustee
may, at its discretion, proceed to protect and enforce the rights of the holders
of Securities by appropriate judicial proceedings.
After such declaration of acceleration but before a judgment
or decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in aggregate
principal amount of the Securities Outstanding, by written notice to the Company
and the Trustee, may rescind and annul such declaration and its consequences 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 Section 607 and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel,
(ii) all overdue interest on all Outstanding
Securities,
(iii) the principal of and premium, if any, on any
Outstanding Securities which have become due otherwise than by
such declaration of acceleration and interest thereon at a
rate borne by the Securities, and
(iv) to the extent that payment of such interest
is lawful, interest upon overdue interest at the rate borne by
the Securities; and
(b) all Events of Default, other than the non-payment of
principal of the Securities which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
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No such rescission shall affect any subsequent Default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if:
(a) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such
default continues for a period of 30 days, or
(b) default is made in the payment of the principal of or
premium, if any, on any Security at the Stated Maturity
thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, subject to Article Twelve, the whole amount then due
and payable on such Securities for principal and premium, if any, and interest,
with interest upon the overdue principal and premium, if any, and, to the extent
that payment of such interest shall be legally enforceable, upon overdue
installments of interest, at the rate borne by the Securities; 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
institute a judicial proceeding for the collection of the sums so due and unpaid
and may prosecute such proceeding to judgment or final decree, and may enforce
the same against the Company or any other obligor upon the Securities 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 Securities,
wherever situated.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Holders under this Indenture 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 in
this Indenture or in aid of the exercise of any power granted herein or therein,
or to enforce any other proper remedy, subject however to Section 512. 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.
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Section 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
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,
(a) to file and prove a claim for the whole amount of
principal, and premium, if any, and interest owing and unpaid in respect of the
Securities and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(b) subject to Article Twelve, to collect and receive any
moneys or other property payable or deliverable on any such claims and to
distribute the same; and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or similar official in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay 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 607.
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
Securities 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 505. Trustee May Enforce Claims without Possession of
Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities 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 Securities in respect of which such
judgment has been recovered.
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Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article or
otherwise on behalf of the Holders or the Trustee pursuant to this Article or
through any proceeding or any arrangement or restructuring in anticipation or in
lieu of any proceeding contemplated by this Article shall be applied, subject to
applicable law, 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 Securities and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: Subject to Article Twelve, to the payment of the
amounts then due and unpaid upon the Securities for principal, premium, if any,
and interest, in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Securities for principal, premium, if
any, and interest; and
THIRD: Subject to Article Twelve, the balance, if any, to the
Person or Persons entitled thereto, including the Company, provided that all
sums due and owing to the Holders and the Trustee have been paid in full as
required by this Indenture.
Section 507. Limitation on Suits.
No Holder of any Securities shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture or the
Securities, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(b) the Holders of not less than 25% in principal amount of
the Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
trustee hereunder;
(c) such Holder or Holders have offered to the Trustee an
indemnity satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
(d) the Trustee for 15 days after its receipt of such notice,
request and offer (and if requested, provision) of indemnity has failed to
institute any such proceeding; and
(e) no direction inconsistent with such written request has
been given to the Trustee during such 15-day period by the Holders of a majority
in principal amount of the Outstanding Securities;
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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 Security 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 Security,
except in the manner provided in this Indenture and for the equal and ratable
benefit of all the Holders.
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, but
subject to Article Twelve, the Holder of any Security shall have the right based
on the terms stated herein, which is absolute and unconditional, to receive
payment of the principal of, premium, if any, and (subject to Section 307)
interest on such Security on the respective Stated Maturities expressed in such
Security (or, in the case of redemption or repurchase, on the Redemption Date or
the repurchase date) and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of such
Holder, subject to Article Twelve.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, any
other obligor on the Securities, 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.
Section 510. Rights and Remedies Cumulative.
Except as provided in Section 306, 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 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Security 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 or by law to the Trustee or to the Holders may be exercised from
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time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
Section 512. Control by Holders.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, provided
that
(a) such direction shall not be in conflict with any rule of
law or with this Indenture (including, without limitation, Section 507), expose
the Trustee to personal liability, or be unduly prejudicial to Holders not
joining therein; and
(b) subject to the provisions of Section 315 of the Trust
Indenture Act, the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities may on behalf of the Holders of all the
Securities 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 Security; or
(b) in respect of a covenant or a provision hereof which under
Article Nine cannot be modified or amended without the consent of the Holder of
each Security Outstanding affected by such modification or amendment.
Upon any such waiver, such Default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security 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 any
right or remedy under this Indenture, 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
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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 Securities,
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 Security on or after the
respective Stated Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
Section 515. Waiver of Stay, Extension or Usury Laws.
Each of the Company and any other obligor upon the Securities
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 or any such obligor from paying all or any portion of the
principal of, premium, if any, or interest on the Securities contemplated herein
or in the Securities or which may affect the covenants or the performance of
this Indenture; and each of the Company and any such obligor (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.
Section 516. Remedies Subject to Applicable Law.
All rights, remedies and powers provided by this Article Five
may be exercised only to the extent that the exercise thereof does not violate
any applicable provision of law in the premises, and all the provisions of this
Indenture are intended to be subject to all applicable mandatory provisions of
law which may be controlling in the premises and to be limited to the extent
necessary so that they will not render this Indenture invalid, unenforceable or
not entitled to be recorded, registered or filed under the provisions of any
applicable law.
ARTICLE SIX
THE TRUSTEE
Section 601. Duties of Trustee.
Subject to the provisions of Trust Indenture Act Section
315(a) through 315(d):
(a) if a Default or an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture and use the
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same degree of care and skill in its exercise thereof as a prudent person would
exercise or use under the circumstances in the conduct of his own affairs.
(b) except during the continuance of a Default or an
Event of Default:
(1) the Trustee need perform only those duties
as are specifically set forth in this Indenture and no
covenants or obligations shall be implied in this Indenture
that are adverse to the Trustee; and
(2) in the absence of bad faith or willful
misconduct on its part, the Trustee may conclusively rely, as
to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of
this Indenture. However, in the case of any such certificates
or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall
examine the certificates and opinions to determine whether or
not they conform to the requirements of this Indenture, but
need not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein.
(c) the Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this Subsection (c) does not limit the
effect of Subsection (b) of this Section 601;
(2) the Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer,
unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect
to any action it takes or omits to take in good faith, in
accordance with a direction of the Holders of a majority in
principal amount of Outstanding Securities relating to the
time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or
power confirmed upon the Trustee under this Indenture.
(d) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or in the exercise
of any of its rights or powers if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
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(e) whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject to
Subsections (a), (b), (c) and (d) of this Section 601.
(f) the Trustee shall not be liable for interest on any
money or assets received by it except as the Trustee may agree in writing with
the Company. Assets held in trust by the Trustee need not be segregated from
other assets except to the extent required by law.
Section 602. Notice of Defaults.
Within 90 days after the occurrence of any Default, the
Trustee shall transmit by mail to all Holders and any other persons entitled to
receive reports pursuant to Section 313(c) of the Trust Indenture Act, as their
names and addresses appear in the Security Register, notice of such Default
hereunder known to the Trustee, unless such Default shall have been cured or
waived; provided, however, that, except in the case of a Default in the payment
of the principal of, premium, if any, or interest on any Security, the Trustee
shall be protected in withholding such notice if and so long as a trust
committee of Responsible Officers of the Trustee in good faith determines that
the withholding of such notice is in the interest of the Holders.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601 hereof and Trust
Indenture Act Sections 315(a) through 315(d):
(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, bond,
debenture, note, 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 may be sufficiently evidenced by a
Board Resolution;
(c) the Trustee may consult with counsel of its selection
and any 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;
(d) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee security or indemnity
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satisfactory to the Trustee against the costs, expenses and liabilities which
might be incurred therein or thereby in compliance with such request or
direction;
(e) the Trustee shall not be liable for any action taken
or omitted by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture other than any
liabilities arising out of the negligence, bad faith or willful misconduct of
the Trustee;
(f) the Trustee 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 or other
paper or document unless requested in writing to do so by the Holders of not
less than a majority in aggregate principal amount of the Securities then
Outstanding; provided that, if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms of this
Indenture, the Trustee may require reasonable indemnity against such expenses or
liabilities as a condition to proceeding; the reasonable expenses of every such
investigation shall be paid by the Company or, if paid by the Trustee or any
predecessor Trustee, shall be repaid by the Company upon demand; provided,
further, 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;
(g) 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;
(h) the Trustee 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 or attorney appointed with due care by it
hereunder; and
(i) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers.
Section 604. Trustee Not Responsible for Recitals, Dispositions of
Securities or Application of Proceeds Thereof.
The recitals contained herein and in the Securities, except
the Trustee's certificates of authentication, shall be taken as the statements
of the Company, and the Trustee
assumes no
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responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities, except that
the Trustee represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Securities and perform its obligations hereunder and
that the statements made by it in a Statement of Eligibility on Form T-1
supplied to the Company 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 Securities or the proceeds thereof.
Section 605. Trustee and Agents May Hold Securities; Collections; etc.
The Trustee, any Paying Agent, Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities, with the same rights it would have if it were
not the Trustee, Paying Agent, Security Registrar or such other agent and,
subject to Sections 608 and 613 hereof and Trust Indenture Act Sections 310 and
311, may otherwise deal with the Company and receive, collect, hold and retain
collections from the Company with the same rights it would have if it were not
the Trustee, Paying Agent, Security Registrar or such other agent.
Section 606. 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 by mandatory provisions of law. Except for funds or securities
deposited with the Trustee pursuant to Article Four, the Trustee shall be
required to invest all moneys received by the Trustee, until used or applied as
herein provided, in Cash Equivalents in accordance with the specific written
directions of the Company.
Section 607. Compensation and Indemnification of Trustee and Its Prior
Claim.
The Company covenants and agrees to pay to the Trustee from
time to time, and the Trustee shall be entitled to, such compensation as the
Company and the Trustee shall from time to time agree in writing 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) and the
Company covenants and agrees to pay or 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 the Trustee 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 expense, disbursement or
advance as may arise from its negligence, bad faith or willful misconduct. The
Company also covenants and agrees to indemnify the Trustee and each predecessor
Trustee for, and to hold it harmless against, any and all claim, loss, damage,
liability, tax, assessment or other governmental charge (other than taxes
applicable to the Trustee's compensation hereunder) or expense incurred without
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negligence, bad faith or willful misconduct on its part, arising out of or in
connection with the acceptance or administration of this Indenture or the trusts
hereunder and its duties hereunder, including enforcement of this Section 607
and also including any liability which the Trustee may incur as a result of
failure to withhold, pay or report any tax, assessment or other governmental
charge, and the costs and expenses of defending itself against or investigating
any claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder. The obligations of the Company under this
Section 607 to compensate, reimburse 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 and the resignation or removal of the Trustee and each predecessor
Trustee.
The Trustee shall have a lien prior to the Securities as to
all property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 607, except with respect to funds
held in trust for the benefit of the Holders of particular Securities.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(g) or Section
501(h), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable federal or state bankruptcy,
insolvency or other similar law.
Section 608. Conflicting Interests.
The Trustee shall comply with the provisions of Section 310(b)
of the Trust Indenture Act.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
eligible to act as trustee under Trust Indenture Act Section 310(a)(5) and which
shall have an office in The City of New York, a combined capital and surplus of
at least $100,000,000, to the extent there is an institution eligible and
willing to serve. If the Trustee does not have an office in The City of New
York, the Trustee may appoint an agent in The City of New York reasonably
acceptable to the Company to conduct any activities which the Trustee may be
required under this Indenture to conduct in The City of New York. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of federal, state, territorial or District of Columbia
supervising or examining authority, then for the purposes of this Section 609,
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 609, the Trustee shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
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Section 610. 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 611.
(b) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign by giving written notice thereof to the
Company. Upon receiving such notice of resignation, the Company shall promptly
appoint a successor trustee by written instrument executed by authority of the
Board of Directors, a copy of which shall be delivered to the resigning Trustee
and a copy to the successor trustee.
(c) The Trustee may be removed at any time by an Act of
the Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the
provisions of Trust Indenture Act Section 310(b) after written
request therefor by the Company or by any Holder who has been
a bona fide Holder of a Security for at least six months,
(2) the Trustee shall cease to be eligible under
Section 609 and shall fail to resign after written request
therefor by the Company or by any Holder who has been a bona
fide Holder of a Security for at least six months, 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 of rehabilitation,
conservation or liquidation,
then, in any case, (i) the Company by a Board Resolution may remove the Trustee,
or (ii) subject to Section 514, the Holder of any Security who has been a bona
fide Holder of a Security 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, by a Board Resolution, shall promptly appoint a
successor trustee and shall comply with the applicable requirements of Section
611. If an instrument of acceptance by a successor trustee shall not have been
delivered to the Trustee within 30 days after the giving of such notice of
resignation, or
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after such removal or incapacity, the resigning Trustee may, or any Holder who
has been a bona fide Holder of a Security 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. If, within one year after such resignation, removal or incapability, or
the occurrence of such vacancy, the Company has not appointed a successor
Trustee, a successor trustee shall be appointed by the Act of the Holders of a
majority in principal amount of the Outstanding Securities delivered to the
Company and the retiring Trustee. Such 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. If no successor
trustee shall have been so appointed by the Company or the Holders of the
Securities and accepted appointment in the manner hereinafter provided, the
Holder of any Security who has been a bona fide Holder for at least six months
may, subject to Section 514, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a
successor trustee.
(f) The Company 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 Securities as their names and addresses appear in the Security
Register. Each notice shall include the name of the successor trustee and the
address of its Corporate Trust Office or agent hereunder.
Section 611. Acceptance of Appointment by Successor.
Every successor trustee appointed hereunder shall execute,
acknowledge and deliver to the Company 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 or
the successor trustee, upon payment of its charges pursuant to Section 607 then
unpaid, such retiring Trustee shall pay over to the successor trustee all moneys
at the time held by it hereunder and shall execute and deliver an instrument
transferring to such successor trustee all such rights, powers, duties and
obligations. Upon request of any such successor trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor trustee all such rights and powers. Any Trustee
ceasing to act shall, nevertheless, retain a prior lien upon all property or
funds held or collected by such Trustee or such successor trustee to secure any
amounts then due such Trustee pursuant to the provisions of Section 607.
No successor trustee with respect to the Securities shall
accept appointment as provided in this Section 611 unless at the time of such
acceptance such successor trustee shall be eligible to act as trustee under the
provisions of Trust Indenture Act Section 310(a) and this
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Article Six and shall have a combined capital and surplus of at least
$100,000,000 and have a Corporate Trust Office or an agent selected in
accordance with Section 609.
Upon acceptance of appointment by any successor trustee as
provided in this Section 611, the Company shall give notice thereof to the
Holders of the Securities, by mailing such notice to such Holders at their
addresses as they shall appear on the Security 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 610. If the Company fails 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 612. Merger, Conversion, Consolidation or Succession to
Business.
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, provided such corporation shall be eligible under Trust Indenture Act
Section 310(a) and this Article Six and shall have a combined capital and
surplus of at least $100,000,000 and have a Corporate Trust Office or an agent
selected in accordance with Section 609 without the execution or filing of any
paper or any further act on the part of any of the parties hereto.
In case at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture any of the Securities 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 Securities so authenticated; and, in case at that time any of the
Securities shall not have been authenticated, any successor to the Trustee may
authenticate such Securities 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 Securities or in this
Indenture provided that the certificate of the Trustee shall have; provided that
the right to adopt the certificate of authentication of any predecessor Trustee
or to authenticate Securities in the name of any predecessor Trustee shall apply
only to its successor or successors by merger, amalgamation, conversion or
consolidation.
Section 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the
Company (or other obligor under the Securities), the Trustee shall be subject to
the provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor). A Trustee who has resigned or
been removed shall be subject to the Trust Indenture Act Section 311 (a) to the
extent indicated therein.
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the
Trustee
(a) 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
(b) at such other times as the Trustee may reasonably request
in writing, within 30 days after receipt by the Company of any such request, a
list of similar form and content to that in Subsection (a) hereof 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 Security
Registrar, no such list need be furnished.
Section 702. Disclosure of Names and Addresses of Holders.
Holders may communicate pursuant to Trust Indenture Act
Section 312(b) with other Holders with respect to their rights under this
Indenture or the Securities, and the Trustee shall comply with Trust Indenture
Act Section 312(b). The Company, the Trustee, the Registrar and any other Person
shall have the protection of Trust Indenture Act Section 312(c). Further, every
Holder of Securities, by receiving and holding the same, agrees with the Company
and the Trustee that neither the Company nor the Trustee or any agent of either
of them shall be held accountable by reason of the disclosure of any information
as to the names and addresses of the Holders in accordance with Trust Indenture
Act Section 312, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under Trust Indenture Act Section 312.
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Section 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with
the first May 15 after the issuance of Securities, the Trustee, if so required
under the Trust Indenture Act, shall transmit by mail to all Holders, in the
manner and to the extent provided in Trust Indenture Act Section 313(c), a brief
report dated as of such May 15 in accordance with and with respect to the
matters required by Trust Indenture Act Section 313(a). The Trustee shall also
transmit by mail to all Holders, in the manner and to the extent provided in
Trust Indenture Act Section 313(c), a brief report in accordance with and with
respect to the matters required by Trust Indenture Act Section 313(b)(2).
(b) A copy of each report transmitted to Holders pursuant to
this Section 703 shall, at the time of such transmission, be mailed to the
Company and filed with each stock exchange, if any, upon which the securities
are listed and also with the Commission. The Company will promptly notify the
Trustee when the Securities are listed on any stock exchange.
Section 704. Reports by Company.
The Company shall:
(a) file with the Trustee, within 30 days after the Company is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if
the Company is not required to file information, documents or reports pursuant
to either of said Sections, then it shall (i) deliver to the Trustee annual
audited financial statements of the Company and its Subsidiaries, prepared on a
consolidated basis in conformity with GAAP, within 150 days after the end of
each fiscal year of the Company, and (ii) file with the Trustee and the
Commission, in accordance with the rules and regulations prescribed from time to
time by the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Exchange Act in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules and
regulations;
(b) file with the Trustee and the Commission, in accordance
with the rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as is required
from time to time by such rules and regulations (including such information,
documents and reports referred to in Trust Indenture Act Section 314(a)); and
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(c) within 30 days after the filing thereof with the Trustee,
transmit by mail to all Holders in the manner and to the extent provided in
Trust Indenture Act Section 313(c), such summaries of any information, documents
and reports required to be filed by the Company pursuant to Section 1020
hereunder and subsections (a) and (b) of this Section as is required by rules
and regulations prescribed from time to time by the Commission.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company May Consolidate, etc., Only on Certain Terms.
The Company will not, in a single transaction or through a
series of related transactions, consolidate with or merge with or into any other
Person or sell, assign, convey, transfer, lease or otherwise dispose of all or
substantially all of its properties and assets to any Person or group of
affiliated Persons, or permit any of its 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 disposition of all or substantially all of the
properties and assets of the Company and its Subsidiaries on a Consolidated
basis to any other Person or group of affiliated Persons, unless at the time and
after giving effect thereto:
(i) either (1) the Company shall be the continuing
corporation or (2) the Person (if other than the Company)
formed by such consolidation or into which the Company is
merged or the Person which acquires by sale, assignment,
conveyance, transfer, lease or disposition of all or
substantially all of the properties and assets of the Company
and its Subsidiaries on a Consolidated basis (the "Surviving
Entity") shall be a corporation duly organized and validly
existing under the laws of the United States of America, any
state thereof or the District of Columbia and such Person
expressly assumes, by a supplemental indenture, executed and
delivered to the Trustee, in a form satisfactory to the
Trustee, all the obligations of the Company under the
Securities and this Indenture, as the case may be, and the
Securities and this Indenture shall remain in full force and
effect as so supplemented;
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(ii) immediately before and immediately after
giving effect to such transaction on a pro forma basis (and
treating any Indebtedness not previously an obligation of the
Company or any of its Subsidiaries which becomes an obligation
of the Company or any of its Subsidiaries in connection with
or as a result of such transaction as having been incurred at
the time of such transaction), no Default or Event of Default
shall have occurred and be continuing;
(iii) immediately before and immediately after
giving effect to such transaction on a pro forma basis (on the
assumption that the transaction occurred on the first day of
the four-quarter period immediately prior to the consummation
of such transaction with the appropriate adjustments with
respect to the transaction being included in such pro forma
calculation), the Company (or the Surviving Entity if the
Company is not the continuing obligor under this Indenture)
could incur $1.00 of additional Indebtedness (other than
Permitted Indebtedness) under Section 1008; and
(iv) at the time of the transaction the Company
or the Surviving Entity shall have delivered, or caused to be
delivered, to the Trustee, in form and substance reasonably
satisfactory to the Trustee, an Officers' Certificate and an
Opinion of Counsel, each to the effect that such
consolidation, merger, sale, assignment, conveyance, transfer,
lease or other transaction and the supplemental indenture in
respect thereof comply with this Indenture and that all
conditions precedent herein provided for relating to such
transaction have been complied with.
Section 802. Successor Substituted.
Upon any consolidation or merger, or any sale, assignment,
conveyance, transfer, lease or disposition of all or substantially all of the
properties and assets of the Company in accordance with Section 801, the
successor Person formed by such consolidation or into which the Company is
merged or the successor Person to which such sale, assignment, conveyance,
transfer, lease or disposition is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Indenture and
the Securities with the same effect as if such successor had been named as the
Company herein and in the Securities. When a successor (other than a successor
that is an Affiliate of the Company) assumes all the obligations of its
predecessor under this Indenture or the Securities, the predecessor shall be
released from those obligations; provided that in the case of a transfer by
lease, the predecessor shall not be released from the payment of principal and
interest on the Securities.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures and Agreements without Consent of
Holders.
Without the consent of any Holders, the Company and any other
obligor upon the Securities, when authorized by a Board Resolution, and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form and substance satisfactory to the
Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the
Company or any other obligor upon the Securities, and the assumption by any such
successor of the covenants of the Company or such obligor herein and in the
Securities in accordance with Article Eight;
(b) to add to the covenants of the Company or any other
obligor upon the Securities for the benefit of the Holders or to surrender any
right or power herein conferred upon the Company or any other obligor upon the
Securities, as applicable, herein or in the Securities;
(c) to cure any ambiguity, to correct or supplement any
provision herein or in the Securities which may be defective or inconsistent
with any other provision herein or in the Securities or to make any other
provisions with respect to matters or questions arising under this Indenture or
the Securities; provided that, in each case, such provisions shall not adversely
affect the interests of the Holders;
(d) to comply with the requirements of the Commission in order
to effect or maintain the qualification of this Indenture under the Trust
Indenture Act, as contemplated by Section 905 or otherwise;
(e) to add a Guarantor pursuant to the requirements of Section
1014 or 1015;
(f) to evidence and provide the acceptance of the appointment
of a successor trustee hereunder; or
(g) to mortgage, pledge, hypothecate or grant a security
interest in favor of the Trustee for the benefit of the Holders as additional
security for the payment and performance of the Indenture Obligations, in any
property or assets, including any which are required to be mortgaged, pledged or
hypothecated, or in which a security interest is required to be granted to the
Trustee pursuant to this Indenture or otherwise.
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Section 902. Supplemental Indentures and Agreements with Consent of
Holders.
With the consent of the Holders of at least a majority in
aggregate principal amount of the Outstanding Securities, by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by Board
Resolutions, and the Trustee may (i) enter into an indenture or indentures
supplemental hereto in form and substance satisfactory to the Trustee, for the
purpose of adding any provisions to or amending, modifying or changing in any
manner or eliminating any of the provisions of this Indenture or the Securities
(including but not limited to, for the purpose of modifying in any manner the
rights of the Holders under this Indenture or the Securities) or (ii) waive
compliance with any provision in this Indenture or the Securities (other than
waivers of past Defaults covered by Section 513 and waivers of covenants which
are covered by Section 1022); provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby:
(a) change the Stated Maturity of the principal of, or any
installment of interest on, any Security or waive a default in the payment of
the principal or interest on any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or change the coin or currency in which the principal of any
Security or any premium or the interest thereon is payable, or impair the right
to institute suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the Redemption
Date);
(b) amend, change or modify the obligation of the Company to
make and consummate an Offer with respect to any Asset Sale or Asset Sales in
accordance with Section 1012 or the obligation of the Company to make and
consummate a Change in Control Offer in the event of a Change in Control in
accordance with Section 1016, including amending, changing or modifying any
definitions with respect thereto;
(c) reduce the percentage in principal amount of the
Outstanding Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences provided for in this Indenture;
(d) modify any of the provisions of this Section 902 or
Section 513 or 1022, except to increase the percentage in principal amount of
the Outstanding Securities the consent of whose Holders is required for any such
actions or to provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each Security affected
thereby;
(e) except as otherwise permitted under Article Eight, consent
to the assignment or transfer by the Company of any of its rights and
obligations under this Indenture; or
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(f) amend or modify any of the provisions of this Indenture
relating to the subordination of the Securities in any manner adverse to the
Holders or otherwise affect the ranking of the Securities in any manner adverse
to the Holders.
Upon the written request of the Company accompanied by a copy
of Board Resolutions authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of the consent of
Holders as aforesaid, the Trustee shall join with the Company in the execution
of such supplemental indenture.
It shall not be necessary for any Act of Holders under this
Section 902 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture or waiver permitted by this Article Nine or the
modifications thereby of the trusts created by this Indenture, the Trustee shall
be entitled to receive, and (subject to Trust Indenture Act Section 315(a)
through 315(d) and Section 602 hereof) shall be fully protected in relying upon,
an Opinion of Counsel and an Officers' Certificate stating that the execution of
such supplemental indenture (a) is authorized or permitted by this Indenture and
(b) does not violate the provisions of any agreement or instrument evidencing
any other Indebtedness of the Company or any of its Subsidiaries. The Trustee
may, but shall not be obligated to, enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture and the Securities shall be modified in accordance
therewith, and such supplemental indenture shall form a part of this Indenture
for all purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
Nine shall conform to the requirements of the Trust Indenture Act as then in
effect.
Section 906. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article Nine may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If
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the Company shall so determine, new Securities so modified as to conform, in the
opinion of the Trustee and the Board of Directors, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Securities.
Section 907. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of
any supplemental indenture pursuant to the provisions of Section 902, the
Company shall give notice thereof to the Holders of each Outstanding Security
affected, in the manner provided for in Section 106, setting forth in general
terms the substance of such supplemental indenture.
Section 908. Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to
it by a Holder of a Security is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the same
Indebtedness as the consenting Holder's Security, even if a notation of the
consent is not made on any Security. However, any such Holder, or subsequent
Holder, may revoke the consent as to his Security or portion of a Security if
the Trustee receives the notice of revocation before the date the amendment or
waiver becomes effective. An amendment or waiver shall become effective in
accordance with its terms and thereafter bind every Holder.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest.
Subject to the provisions of Article Twelve, the Company shall
duly and punctually pay the principal of, premium, if any, and interest on the
Securities in accordance with the terms of the Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
The Company shall maintain in The City of New York an office
or agency where Securities may be presented or surrendered for payment, and
where Securities may be surrendered for registration of transfer, redemption or
exchange and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location and any change in the location of
any such offices or agencies. If at any time the Company shall fail to maintain
any such required offices or agencies or shall fail to furnish the Trustee with
the address thereof, such
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presentations, surrenders, notices and demands may be made or served at the
office of the agent of the Trustee described above and the Company hereby
appoints such agent as its agent to receive all such presentations, surrenders,
notices and demands.
The Company may from time to time designate one or more other
offices or agencies (in or outside of The City of New York) where the Securities
may be presented or surrendered for any or all such purposes, and may from time
to time rescind such designation. 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 office or agency.
Section 1003. Money for Security Payments to Be Held in Trust.
If the Company or any of its Affiliates shall at any time act
as Paying Agent, it will, on or before each due date of the principal of,
premium, if any, or interest on any of the Securities, 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 or any of its Affiliates 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 Securities, 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
Persons 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, 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 Securities in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(b) give the Trustee notice of any Default by the Company (or
any other obligor upon the Securities) in the making of any payment of
principal, premium, if any, or interest;
(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 aspects
with the provisions of this Indenture relating to the duties, rights and
disabilities 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
by Company Order 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 Security and remaining unclaimed for two years after
such principal and premium, if any, or interest has become due and payable shall
promptly be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
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, may at the
expense of the Company cause to be published once, in the New York Times and The
Wall Street Journal (national edition), and mail to each such Holder, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such notification,
publication and mailing, any unclaimed balance of such money then remaining will
promptly be repaid to the Company.
Section 1004. Corporate Existence.
Subject to Article Eight, the Company shall do or cause to be
done all things necessary to preserve and keep in full force and effect the
corporate existence and related rights and franchises (charter and statutory) of
the Company and each of its Subsidiaries; provided, however, that the Company
shall not be required to preserve any such right or franchise or the corporate
existence of any such Subsidiary if the Board of Directors of the Company shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company and its Subsidiaries as a whole and that the loss
thereof would not reasonably be expected to have a material adverse effect on
the ability of the Company to perform its obligations hereunder; and 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 in compliance
with the terms of this Indenture.
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Section 1005. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or
discharged, on or before the date the same shall become due and payable, (a) all
taxes, assessments and governmental charges levied or imposed upon the Company
or any of its Subsidiaries shown to be due on any return of the Company or any
of its Subsidiaries or otherwise assessed or upon the income, profits or
property of the Company or any of its Subsidiaries if failure to pay or
discharge the same could reasonably be expected to have a material adverse
effect on the ability of the Company to perform its obligations hereunder and
(b) all lawful claims for labor, materials and supplies, which, if unpaid, would
by law become a Lien upon the property of the Company or any of its
Subsidiaries, except for any Lien permitted to be incurred under Section 1012,
if failure to pay or discharge the same could reasonably be expected to have a
material adverse effect on the ability of the Company to perform its obligations
hereunder; 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 and in
respect of which appropriate reserves (in the good faith judgment of management
of the Company) are being maintained in accordance with GAAP.
Section 1006. Maintenance of Properties.
The Company shall cause all material properties owned by the
Company or any of its Subsidiaries or used or held for use in the conduct of its
business or the business of any of its Subsidiaries to be maintained and kept in
good condition, repair and working order (ordinary wear and tear excepted) and
supplied with all necessary equipment and will cause to be made all necessary
repairs, renewals, replacements, betterments and improvements thereof, all as in
the reasonable judgment of the Company may be consistent with sound business
practice and necessary so that the business carried on in connection therewith
may be properly conducted at all times; provided, however, that nothing in this
Section shall prevent the Company from discontinuing the maintenance of any of
such properties if such discontinuance is, in the reasonable judgment of the
Company, desirable in the conduct of its business or the business of any of its
Subsidiaries and not reasonably expected to have a material adverse effect on
the ability of the Company to perform its obligations hereunder.
Section 1007. Insurance.
The Company shall at all times keep all of its and its
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
in the same general geographic areas in which the Company and its Subsidiaries
operate, except where the failure to do so could not reasonably be expected to
have a material adverse effect on
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the condition (financial or otherwise), earnings, business affairs or prospects
of the Company and its Subsidiaries, taken as a whole.
Section 1008. Limitation on Indebtedness.
The Company will not, and will not permit any of its
Subsidiaries to, create, issue, incur, assume, guarantee or otherwise in any
manner become directly or indirectly liable for the payment of or otherwise
incur (collectively, "incur"), any Indebtedness (including any Acquired
Indebtedness) other than Permitted Indebtedness which may be incurred at any
time, except for (a) Indebtedness of the Company and (b) Permitted Subsidiary
Indebtedness; provided that, in each case, the Company's Consolidated Fixed
Charge Coverage Ratio for the four full fiscal quarters for which financial
results are available immediately preceding the incurrence of such Indebtedness
taken as one period (and after giving pro forma effect to (i) the incurrence of
such Indebtedness and (if applicable) the application of the net proceeds
therefrom, including to refinance other Indebtedness, as if such Indebtedness
was incurred, and the application of such proceeds occurred, on the first day of
such applicable period; (ii) the incurrence, repayment or retirement of any
other Indebtedness by the Company and its Subsidiaries since the first day of
such applicable period as if such Indebtedness was incurred, repaid or retired
at the beginning of such applicable period (except that, in making such
computation, the amount of Indebtedness under any revolving credit facility
shall be computed based upon the average daily balance of such Indebtedness
during such applicable period); (iii) in the case of Acquired Indebtedness or
any acquisition occurring at the time of the incurrence of such Indebtedness,
the related acquisition, assuming such acquisition had been consummated on the
first day of such applicable period; and (iv) any acquisition or disposition by
the Company and its Subsidiaries of any company or any business or any assets
out of the ordinary course of business, whether by merger, stock purchase or
sale or asset purchase or sale, or any related repayment of Indebtedness, in
each case since the first day of such applicable period, assuming such
acquisition or disposition had been consummated on the first day of such
applicable period) is at least equal to or greater than 2.0:1.0x.
Section 1009. Limitation on Restricted Payments.
(a) The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly:
(i) declare or pay any dividend on, or make any
distribution to holders of, any shares of the Company's
Capital Stock (other than dividends or distributions payable
solely in its shares of Qualified Capital Stock or in options,
warrants or other rights to acquire shares of such Qualified
Capital Stock);
(ii) purchase, redeem or otherwise acquire or
retire for value, directly or indirectly, the Company's
Capital Stock or any Capital Stock of any Affiliate of
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the Company (other than Capital Stock of any Wholly Owned
Subsidiary) or options, warrants or other rights to acquire
such Capital Stock;
(iii) make any principal payment on, or
repurchase, redeem, defease, retire or otherwise acquire for
value, prior to any scheduled principal payment, sinking fund
payment or maturity, any Subordinated Indebtedness;
(iv) declare or pay any dividend or distribution
on any Capital Stock of any Subsidiary of the Company to any
Person (other than (a) to the Company or any Wholly Owned
Subsidiary or (b) to all holders of Capital Stock of such
Subsidiary on a pro rata basis);
(v) incur, create or assume any guarantee of
Indebtedness of any Affiliate of the Company (other than (a)
guarantees of Indebtedness of a Wholly Owned Subsidiary given
by the Company or (b) guarantees of Indebtedness of the
Company given by any Subsidiary of the Company, in each case,
in accordance with the terms of this Indenture); or
(vi) make any Investment in any Person (other
than any Permitted Investments)
(any of the foregoing actions described in clauses (i) through (vi), other than
any such action that is a Permitted Payment (as defined below), collectively,
"Restricted Payments") (the amount of any such Restricted Payment, if other than
cash, as determined by the Board of Directors of the Company, whose
determination shall be conclusive and evidenced by a Board Resolution), unless
(1) immediately before and immediately after giving effect to such Restricted
Payment on a pro forma basis, no Default or Event of Default shall have occurred
and be continuing and such Restricted Payment shall not be an event which is, or
after notice or lapse of time or both, would be, an "event of default" under the
terms of any Indebtedness of the Company or its Subsidiaries; (2) immediately
before and immediately after giving effect to such Restricted Payment on a pro
forma basis, the Company could incur $1.00 of additional Indebtedness (other
than Permitted Indebtedness) under the provisions contained in Section 1008; and
(3) after giving effect to the proposed Restricted Payment, the aggregate amount
of all such Restricted Payments declared or made after the date of this
Indenture, does not exceed the sum of:
(A) $50 million;
(B) 50% of the aggregate cumulative Consolidated Net Income of the
Company accrued on a cumulative basis during the period
beginning July 1, 1998 and ending on the last day of the
Company's last fiscal quarter ending prior to the date of the
Restricted Payment (or, if such aggregate cumulative
Consolidated Net Income shall be a loss, minus 100% of such
loss);
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(C) the aggregate Net Cash Proceeds received after the date of
this Indenture by the Company from the issuance or sale (other
than to any of its Subsidiaries) of Qualified Capital Stock of
the Company or any options, warrants or rights to purchase
such Qualified Capital Stock of the Company (except, in each
case, to the extent such proceeds are used to purchase, redeem
or otherwise retire Capital Stock or Subordinated Indebtedness
as set forth in clause (ii) or (iii) of paragraph (b) of this
Section 1009);
(D) the aggregate Net Cash Proceeds received after the date of
this Indenture by the Company (other than from any of its
Subsidiaries) upon the exercise of any options, warrants or
rights to purchase Qualified Capital Stock of the Company;
(E) the aggregate Net Cash Proceeds received after the date of
this Indenture by the Company from the conversion or exchange,
if any, of debt securities or Redeemable Capital Stock of the
Company or its Subsidiaries into or for Qualified Capital
Stock of the Company plus, to the extent such converted debt
securities or Redeemable Capital Stock were issued after the
date of this Indenture, the aggregate Net Cash Proceeds from
their original issuance; and
(F) to the extent not otherwise included in the Company's
Consolidated Net Income, the aggregate payments in cash of
interest on Indebtedness or dividends or other distributions
received by the Company or any of its Subsidiaries after the
date of this Indenture from any Unrestricted Subsidiary (or
from redesignation of an Unrestricted Subsidiary as a
Subsidiary of the Company), except to the extent any such
payments are in respect of taxes to be paid by the Company
with respect to the operations of such Unrestricted
Subsidiary.
(b) Notwithstanding the foregoing, and in the case of
clauses (ii) through (vii) below, so long as there is no Default or Event of
Default continuing, the foregoing provisions shall not prohibit the following
actions (each of clauses (i) through (iv) being referred to as a "Permitted
Payment"):
(i) the payment of any dividend within 60 days
after the date of declaration thereof, if at
such date of declaration such payment was permitted by the
provisions of paragraph (a) of this Section 1009 and such
payment shall have been deemed to have been paid on such date
of declaration and shall not have been deemed a "Permitted
Payment" for purposes of the calculation required by paragraph
(a) of this Section 1009;
(ii) the repurchase, redemption, or other
acquisition or retirement of any shares of any class of
Capital Stock of the Company in exchange for (including any
such exchange pursuant to the exercise of a conversion right
or privilege in connection with which cash is paid in lieu of
the issuance of fractional shares or
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scrip), or out of the Net Cash Proceeds of a substantially
concurrent issue and sale for cash (other than to a Subsidiary
of the Company) of, other shares of Qualified Capital Stock of
the Company; provided that the Net Cash Proceeds from the
issuance of such shares of Qualified Capital Stock are, to the
extent so used, excluded from clause (3)(C) of paragraph (a)
of this Section 1009;
(iii) the repurchase, redemption, defeasance,
retirement or acquisition for value or payment of principal of
any Subordinated Indebtedness in exchange for, or in an amount
not in excess of the net proceeds of, a substantially
concurrent issuance and sale for cash (other than to any
Subsidiary of the Company) of any Qualified Capital Stock of
the Company, provided that the Net Cash Proceeds from the
issuance of such shares of Qualified Capital Stock are, to the
extent so used, excluded from clause (3)(C) of paragraph (a)
of this Section 1009;
(iv) the repurchase, redemption, defeasance,
retirement, refinancing, acquisition for value or payment of
principal of any Subordinated Indebtedness (other than
Redeemable Capital Stock) (a "refinancing") through the
substantially concurrent issuance of new Subordinated
Indebtedness of the Company, provided that any such new
Subordinated Indebtedness (1) shall be in a principal amount
that does not exceed the principal amount so refinanced (or,
if such Subordinated Indebtedness provides for an amount less
than the principal amount thereof to be due and payable upon a
declaration of acceleration thereof, then such lesser amount
as of the date of determination), plus the lesser of (I) the
stated amount of any premium or other payment required to be
paid in connection with such a refinancing pursuant to the
terms of the Subordinated Indebtedness being refinanced or
(II) the amount of premium or other payment actually paid at
such time to refinance the Subordinated Indebtedness, plus, in
either case, the amount of expenses of the Company incurred in
connection with such refinancing; (2) has an Average Life to
Stated Maturity greater than the remaining Average Life to
Stated Maturity of the Securities; (3) has a Stated Maturity
for its final scheduled principal payment later than the
Stated Maturity for the final scheduled principal payment of
the Securities; and (4) is expressly subordinated in right of
payment to the Securities at least to the same extent as the
Subordinated Indebtedness to be refinanced;
(v) the repurchase of any Subordinated
Indebtedness of the Company at a purchase price not greater
than 101% of the principal amount of such Subordinated
Indebtedness in the event of a Change in Control pursuant to a
provision similar to Section 1016; provided that prior to or
simultaneously with such repurchase, the Company has made the
Change in Control Offer as provided in Section 1016 and has
repurchased all Securities validly tendered for payment in
connection with such Change in Control Offer;
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(vi) the repurchase of any Subordinated
Indebtedness of the Company, at a purchase price not greater
than 100% of the principal amount of such Indebtedness in the
event of an Asset Sale pursuant to a provision similar to
Section 1012; provided that prior to such repurchase the
Company has made an Offer to purchase the Securities as
provided in Section 1012 and has repurchased all Securities
validly tendered for payment in connection with such Offer;
and
(vii) the repurchase of shares of Capital Stock of
the Company from employees of the Company upon termination of
employment, death or retirement pursuant to the terms of an
employee benefit plan or employment agreement; provided that
the aggregate amount of all such repurchases in any 12-month
period may not exceed $2 million plus the aggregate amount by
which repurchases in prior years was less than $2 million.
Section 1010. Limitation on Transactions with Affiliates.
The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, enter into any transaction or series of
related transactions (including, without limitation, the sale, purchase,
exchange or lease of assets, property or services) with any Affiliate of the
Company (other than the Company or a Wholly Owned Subsidiary) unless (i) such
transaction or series of related transactions is in writing and on terms that
are no less favorable to the Company or such Subsidiary, as the case may be,
than those that would be available in a comparable transaction in arm's-length
dealings with an unrelated third party, (ii) with respect to any transaction or
series of related transactions involving an aggregate value in excess of $1
million, the Company delivers an Officers' Certificate to the Trustee certifying
that such transaction or series of related transactions complies with clause (i)
above and (iii) with respect to any transaction or series of related
transactions involving an aggregate value in excess of $5 million, either (x)
such transaction or series of related transactions has been approved by a
majority of the Disinterested Directors of the Company, or in the event there is
only one Disinterested Director, by such Disinterested Director, or (y) the
Company delivers to the Trustee a written opinion of an investment banking firm
of national standing or other recognized independent expert with experience
appraising the terms and conditions of the type of transaction or series of
related transactions for which an opinion is required stating that the
transactions or series of related transactions is fair to the Company or such
Subsidiary from a financial point of view; provided, however, that this
provision shall not apply to any transaction with an officer or director of the
Company or any of its Subsidiaries entered into in the ordinary course of
business (including compensation or employee benefit arrangements with any
officer or director of the Company or any of its Subsidiaries, including under
any stock option or stock incentive plans).
Section 1011. Limitation on Liens.
The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, create, incur or affirm any Lien of any
kind (other than Permitted Liens) securing any
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Pari Passu Indebtedness or Subordinated Indebtedness (including any assumption,
guarantee or other liability with respect thereto by any Subsidiary of the
Company) upon any property or assets (including any intercompany notes) of the
Company or any of its Subsidiaries owned on the date of this Indenture or
acquired after the date of this Indenture, or any income or profits therefrom,
unless the Securities are directly secured equally and ratably with (or, in the
case of Subordinated Indebtedness, prior or senior thereto, with the same
relative priority as the Securities shall have with respect to such Subordinated
Indebtedness) the obligation or liability secured by such Lien, and except for
any Lien securing Acquired Indebtedness created prior to (and not created in
connection with, or in contemplation of) the incurrence of such Pari Passu
Indebtedness or Subordinated Indebtedness by the Company or any of its
Subsidiaries which Indebtedness is permitted under the provisions of Section
1008; provided that any such Lien extends only to the assets that were subject
to such Lien securing such Acquired Indebtedness prior to the related
acquisition by the Company or its Subsidiaries.
Section 1012. Limitation on Sale of Assets.
(a) The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, consummate an Asset Sale unless (i) at
least 75% of the consideration from such Asset Sale are received in cash and
(ii) the Company or such Subsidiary receives consideration at the time of such
Asset Sale at least equal to the Fair Market Value of the assets subject to such
Asset Sale (as determined by the Board of Directors of the Company and evidenced
in a Board Resolution); provided that the amount of any Senior Indebtedness (as
shown on the Company's most recent balance sheet or in the notes thereto) of the
Company that is assumed by the transferee of any asset in connection with any
Asset Sale shall be deemed to be cash for all purposes of this provision.
(b) If all or a portion of the Net Cash Proceeds of any
Asset Sale are not required to be applied to repay permanently any Senior
Indebtedness then outstanding as required by the terms thereof, or the Company
determines not to apply such Net Cash Proceeds to the permanent prepayment of
such Senior Indebtedness, or if no such Senior Indebtedness is then outstanding,
then the Company or any of its Subsidiaries may, within 18 months of the Asset
Sale, invest (or enter into a legally binding commitment to invest) the Net Cash
Proceeds in properties and other assets that (as determined by the Board of
Directors of the Company) replace the properties and assets that were the
subject of the Asset Sale or in properties and assets that will be used in the
businesses of the Company or its Subsidiaries existing on the date of this
Indenture or in businesses reasonably related thereto. If any such legally
binding commitment to invest such Net Cash Proceeds is terminated, then the
Company may, within 90 days of such termination or within 18 months of such
Asset Sale, whichever is later, invest such Net Cash Proceeds as provided above.
The amount of such Net Cash Proceeds not used or invested as set forth in this
subsection (b) of this Section 1012 constitutes "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds
$15 million, the Company will apply the Excess Proceeds to the repayment of the
Securities and any other Pari
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Passu Indebtedness outstanding with similar provisions requiring the Company to
make an offer to purchase such Indebtedness with the proceeds from any Asset
Sale as follows: (A) the Company will make an offer to purchase (an "Offer")
from all holders of the Securities in accordance with the procedures set forth
in this Indenture in the maximum principal amount (expressed as a multiple of
$1,000) of Securities that may be purchased out of an amount (the "Security
Amount") equal to the product of such Excess Proceeds multiplied by a fraction,
the numerator of which is the outstanding principal amount of the Securities,
and the denominator of which is the sum of the outstanding principal amount of
the Securities and such Pari Passu Indebtedness (subject to proration in the
event such amount is less than the aggregate Offered Price (as defined herein)
of all Securities tendered) and (B) to the extent required by such Pari Passu
Indebtedness to reduce permanently the principal amount of such Pari Passu
Indebtedness, the Company will make an offer to purchase or otherwise repurchase
or redeem Pari Passu Indebtedness (a "Pari Passu Offer") in an amount (the "Pari
Passu Debt Amount") equal to the excess of the Excess Proceeds over the Security
Amount; provided that in no event will the Company be required to make a Pari
Passu Offer in a Pari Passu Debt Amount exceeding the principal amount of such
Pari Passu Indebtedness plus the amount of any premium required to be paid to
repurchase such Pari Passu Indebtedness. The offer price for the Securities will
be payable in cash in an amount equal to 100% of the principal amount of the
Securities plus accrued and unpaid interest, if any, to the date (the "Offer
Date") such Offer is consummated (the "Offered Price"), in accordance with the
procedures set forth in this Indenture. To the extent that the aggregate Offered
Price of the Securities tendered pursuant to the Offer is less than the Security
Amount relating thereto or the aggregate amount of Pari Passu Indebtedness that
is purchased in a Pari Passu Offer is less than the Pari Passu Debt Amount, the
Company may use any remaining Excess Proceeds for general corporate purposes. If
the aggregate principal amount of Securities and Pari Passu Indebtedness
surrendered by holders thereof exceeds the amount of Excess Proceeds, the
Trustee shall select the Securities to be purchased on a pro rata basis. Upon
the completion of the purchase of all the Securities tendered pursuant to an
Offer and the completion of a Pari Passu Offer, the amount of Excess Proceeds,
if any, shall be reset at zero.
(d) When the aggregate amount of Excess Proceeds exceeds
$15 million, such Excess Proceeds will, prior to any purchase of Securities
described in subsection (c) of this Section 1012, be set aside by the Company in
a separate account pending (i) deposit with the depository or a paying agent of
the amount required to purchase the Securities tendered in an Offer or Pari
Passu Indebtedness tendered in a Pari Passu Offer, (ii) delivery by the Company
of the Offered Price to the holders of the Securities tendered in an Offer or
Pari Passu Indebtedness tendered in a Pari Passu Offer and (iii) application, as
set forth above, of Excess Proceeds in the business of the Company and its
Subsidiaries for general corporate purposes. Such Excess Proceeds may be
invested in Cash Equivalents, provided that the maturity date of any such
investment made after the amount of Excess Proceeds exceeds $15 million shall
not be later than the Offer Date. The Company shall be entitled to any interest
or dividends accrued, earned or paid on such Cash Equivalents; provided that the
Company shall not withdraw such interest from the separate account if an Event
of Default has occurred and is continuing.
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(e) If the Company becomes obligated to make an Offer
pursuant to subsection (c) of this Section 1012, the Securities and the Pari
Passu Indebtedness shall be purchased by the Company, at the option of the
holders thereof, in whole or in part in integral multiples of $1,000, on a date
that is not earlier than 45 days and not later than 60 days from the date the
notice of the Offer is given to holders, or such later date as may be necessary
for the Company to comply with the requirements under the Exchange Act.
(f) The Company will comply with the applicable tender
offer rules, including Rule 14e-1 under the Exchange Act, and any other
applicable securities laws or regulations in connection with an Offer.
(g) The Company will not, and will not permit any of its
Subsidiaries to, create or permit to exist or become effective any restriction
(other than restrictions existing under (A) Pari Passu Indebtedness or
Subordinated Indebtedness as in effect on the date of this Indenture and listed
on Schedule I hereto as such Indebtedness may be refinanced from time to time or
(B) any Senior Indebtedness existing on the date of this Indenture or
thereafter; provided that such restrictions are no less favorable to the holders
of Securities than those existing on the date of this Indenture) that would
materially impair the ability of the Company to make an Offer to purchase the
Securities or, if such Offer is made, to pay for the Securities tendered for
purchase.
(h) Subject to paragraph (f) above, within 30 days after
the date on which the amount of Excess Proceeds equals or exceeds $15 million,
the Company shall send or cause to be sent by first-class mail, postage prepaid,
to the Trustee and to each Holder, at his address appearing in the Security
Register, a notice stating or including:
(1) that the Holder has the right to require the
Company to repurchase, subject to proration, such Holder's
Securities at the Offered Price;
(2) the Offer Date;
(3) the instructions a Holder must follow in order to
have his Securities purchased in accordance with subsection
(c) of this Section 1012;
(4) (i) the most recently filed Annual Report on Form
10-K (including audited consolidated financial statements) of
the Company, the most recent subsequently filed Quarterly
Report on Form 10-Q, as applicable, and any Current Report on
Form 8-K of the Company filed subsequent to such
Quarterly Report, other than Current Reports describing Asset
Sales otherwise described in the offering materials (or
corresponding successor reports) (or in the event the Company
is not required to prepare any of the foregoing Forms, the
comparable information required pursuant to Section 1020),
(ii) a description of material developments in the Company's
business subsequent to the date of the latest of
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such Reports, (iii) if material, appropriate pro forma
financial information, and (iv) such other information, if
any, concerning the business of the Company which the Company
in good faith believes will enable such Holders to make an
informed investment decision regarding the Offer;
(5) the Offered Price;
(6) the names and addresses of the Paying Agent and
the offices or agencies referred to in Section 1002;
(7) that Securities must be surrendered at least
three Business Days prior to the Offer Date to the Paying
Agent to an office or agency referred to in Section 1002 to
collect payment;
(8) that any Securities not tendered will continue to
accrue interest and that unless the Company defaults in the
payment of the purchase price, any Security accepted for
payment pursuant to the Offer shall cease to accrue interest
on and after the Offer Date; and
(9) the procedures for withdrawing a tender.
(i) Holders electing to have Securities purchased
hereunder will be required to surrender such Securities at the address specified
in the notice at least three Business Days prior to the Offer Date. Holders will
be entitled to withdraw their election to have their Securities purchased
pursuant to this Section 1012 if the Company receives, not later than the Offer
Date, a facsimile transmission or letter setting forth (1) the name of the
Holder, (2) the certificate number of the Security in respect of which such
notice of withdrawal is being submitted, (3) the principal amount of the
Security (which shall be $1,000 or an integral multiple thereof) delivered for
purchase by the Holder as to which his election is to be withdrawn, (4) a
statement that such Holder is withdrawing his election to have such principal
amount of such Security purchased, and (5) the principal amount, if any, of such
Security (which shall be $1,000 or an integral multiple thereof) that remains
subject to the original notice of the Offer and that has been or will be
delivered for purchase by the Company.
(j) The Company shall (i) not later than the Offer Date,
accept for payment Securities or portions thereof tendered pursuant to the
Offer, (ii) not later than 10:00 a.m. (New York time) on the Offer Date, deposit
with the Trustee or with a Paying Agent (or, if the Company or any of its
Affiliates is acting as Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money in same day funds (or New York Clearing
House funds if such deposit is made prior to the Offer Date) sufficient to pay
the aggregate Offered Price of all the Securities or portions thereof which are
to be purchased on that date and (iii) not later than 10:00 a.m. (New York time)
on the Offer Date, deliver to the Paying Agent (if other
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than the Company) an Officers' Certificate stating the Securities or portions
thereof accepted for payment by the Company.
Subject to applicable escheat laws, as provided in the
Securities, the Trustee and the Paying Agent shall return to the Company any
cash that remains unclaimed, together with interest, if any, thereon, held by
them for the payment of the Offered Price; provided, however, that (x) to the
extent that the aggregate amount of cash deposited by the Company with the
Trustee in respect of an Offer exceeds the aggregate Offered Price of the
Securities or portions thereof to be purchased, then the Trustee shall hold such
excess for the Company and (y) unless otherwise directed by the Company in
writing, promptly after the Business Day following the Offer Date the Trustee
shall return any such excess to the Company together with interest or dividends,
if any, thereon.
(k) Securities to be purchased shall, on the Offer Date,
become due and payable at the Offered Price and from and after such date (unless
the Company shall default in the payment of the Offered Price) such Securities
shall cease to bear interest. Such Offered Price shall be paid to such Holder
promptly following the later of the Offer Date and the time of delivery of such
Security to the relevant Paying Agent at the office of such Paying Agent by the
Holder thereof in the manner required. Upon surrender of any such Security for
purchase in accordance with the foregoing provisions, such Security shall be
paid by the Company at the Offered Price; provided, however, that installments
of interest whose Stated Maturity is on or prior to the Offer Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such on the relevant Regular Record Dates according to
the terms and the provisions of Section 307; provided, further, that Securities
to be purchased are subject to proration in the event the Security Amount is
less than the aggregate Offered Price of all Securities tendered for purchase,
with such adjustments as may be appropriate by the Trustee so that only
Securities in denominations of $1,000 or integral multiples thereof, shall be
purchased. If any Security tendered for purchase shall not be so paid upon
surrender thereof by deposit of funds with the Trustee or a Paying Agent in
accordance with subsection (j) of this Section 1012, the principal thereof (and
premium, if any, thereon) shall, until paid, bear interest from the Offer Date
at the rate borne by such Security. Any Security that is to be purchased only in
part shall be surrendered to a Paying Agent at the office of such Paying Agent
(with, if the Company, the Security Registrar or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Security 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 Security, without service charge, one or more new Securities of any
authorized denomination as requested by such Holder in an aggregate principal
amount equal to, and in exchange for, the portion of the principal amount of the
Security so surrendered that is not purchased. The Company shall publicly
announce the results of the Offer on or as soon as practicable after the Offer
Date.
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Section 1013. Limitation on Senior Subordinated Indebtedness.
The Company will not, directly or indirectly, create, incur,
issue, assume, guarantee or otherwise in any manner become directly or
indirectly liable for or with respect to or otherwise permit to exist any
Indebtedness that is subordinate by its express terms in right of payment to any
Indebtedness of the Company, unless such Indebtedness is also pari passu with
the Securities or subordinate in right of payment to the Securities at least to
the same extent as the Securities are subordinate in right of payment to Senior
Indebtedness as set forth in this Indenture.
Section 1014. Limitation on Issuances of Guarantees of Subordinated and
Pari Passu Indebtedness.
(a) The Company will not permit any of its Subsidiaries,
directly or indirectly, to guarantee, assume or in any other manner become
liable with respect to any Subordinated Indebtedness or Pari Passu Indebtedness
of the Company unless such Subsidiary simultaneously executes and delivers a
supplemental indenture to this Indenture providing for a Guarantee of the
Securities, on the same terms as the guarantee of such Indebtedness except that
(A) if any such guarantee, assumption or liability is subordinated to a
guarantee of Senior Indebtedness, the Guarantee under the supplemental indenture
shall be subordinated to such guarantee of Senior Indebtedness to the same
extent as the Securities are subordinated to Senior Indebtedness under this
Indenture and (B) if such Indebtedness constitutes Subordinated Indebtedness any
such guarantee, assumption or other liability of such Subsidiary with respect to
such Subordinated Indebtedness shall be subordinated to such Subsidiary's
Guarantee of the Securities at least to the same extent as such Subordinated
Indebtedness is subordinated to the Securities.
(b) Notwithstanding the foregoing, any Guarantee by a
Subsidiary of the Company of the Securities shall provide by its terms that it
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 Company's Capital Stock in, or all or substantially all of the assets
of, such Subsidiary; provided that such transaction is in compliance with the
terms of this Indenture and such Subsidiary is released from its guarantees of
all other Subordinated Indebtedness and Pari Passu Indebtedness of the Company.
Section 1015. Restriction on Transfer of Assets.
The Company will not sell, convey, transfer or otherwise
dispose of its assets or property to any Subsidiary of the Company, except for
sales, conveyances, transfers or other dispositions (a) made in the ordinary
course of business or (b) to any Subsidiary of the Company if such Subsidiary
simultaneously executes and delivers a supplemental indenture to this Indenture
providing for a Guarantee by such Subsidiary of the Securities on a senior
subordinated basis to the same extent as the Securities are subordinated to
Senior Indebtedness.
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Section 1016. Purchase of Securities upon a Change in Control.
(a) If a Change in Control shall occur at any time, then
each Holder shall have the right to require that the Company purchase such
Holder's Securities in whole or in part in integral multiples of $1,000, at a
purchase price (the "Change in Control Purchase Price") in cash in an amount
equal to 101% of the principal amount of such Securities, plus accrued and
unpaid interest, if any, to the date of purchase (the "Change in Control
Purchase Date"), pursuant to the offer described below in this Section 1016 (the
"Change in Control Offer") and in accordance with the procedures set forth in
Subsections (b), (c), (d), (e) and (f) of this Section 1016.
(b) Within 30 days following a Change in Control and
prior to the mailing of the Change in Control Purchase Notice (as defined) to
the Holders provided for in subsection (c) of this Section 1016, the Company
will either (1) repay in full all Indebtedness under the Bank Credit Facility
and permanently reduce the commitments of the Banks thereunder or offer to repay
in full all such Indebtedness and permanently reduce the commitment of each Bank
who has accepted such offer or (2) obtain the requisite consent under the Bank
Credit Facility to permit the repurchase of the Securities as provided for in
this Section 1016. The Company shall first comply with the provisions of this
subsection (b) of this Section 1016 before it shall be required to repurchase
the Securities in accordance with this Section 1016, but any failure to comply
with this Section 1016 shall constitute an Event of Default under this
Indenture.
(c) Within 30 days following any Change in Control, the
Company shall notify the Trustee thereof and give written notice (a "Change in
Control Purchase Notice") of such Change in Control to each Holder by
first-class mail, postage prepaid, at his address appearing in the Security
Register stating or including:
(1) that a Change in Control has occurred, the
date of such event, and that such Holder has the right to
require the Company to repurchase such Holder's Securities at
the Change in Control Purchase Price;
(2) the circumstances and relevant facts
regarding such Change in Control (including but not limited to
information with respect to pro forma historical income, cash
flow and capitalization after giving effect to such Change in
Control);
(3) (i) the most recently filed Annual Report on
Form 10-K (including audited consolidated financial
statements) of the Company, the most recent subsequently filed
Quarterly Report on Form 10-Q, as applicable, and any Current
Report on Form 8-K of the Company filed subsequent to such
Quarterly Report (or in the event the Company is not required
to prepare any of the foregoing Forms, the comparable
information required to be prepared by the Company pursuant to
Section 1020), (ii) a description of material developments in
the Company's business subsequent to the date of the latest of
such reports and
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(iii) such other information, if any, concerning the business
of the Company which the Company in good faith believes will
enable such Holders to make an informed investment decision
regarding the Change in Control Offer;
(4) that the Change in Control Offer is being
made pursuant to this Section 1016 and that all Securities
properly tendered pursuant to the Change in Control Offer will
be accepted for payment at the Change in Control Purchase
Price;
(5) the Change in Control Purchase Date which
shall be fixed by the Company and shall be a Business Day no
earlier than 30 days nor later than 60 days from the date such
notice is mailed, or such later date as is necessary to comply
with requirements under the Exchange Act;
(6) the Change in Control Purchase Price;
(7) the names and addresses of the Paying Agent
and the offices or agencies referred to in Section 1002;
(8) that Securities must be surrendered at least
one Business Day prior to the Change in Control Purchase Date
to the Paying Agent at the office of the Paying Agent or to an
office or agency referred to in Section 1002 to collect
payment;
(9) that the Change in Control Purchase Price
for any Security which has been properly tendered and not
properly withdrawn will be paid promptly following the Change
in Control Offer Purchase Date;
(10) the procedures for withdrawing a tender of
Securities and Change in Control Purchase Notice;
(11) that any Security not tendered will continue
to accrue interest; and
(12) that, unless the Company defaults in the
payment of the Change in Control Purchase Price, any
Securities accepted for payment pursuant to the Change in
Control Offer shall cease to accrue interest after the Change
in Control Purchase Date.
(d) Upon receipt by the Company of the proper tender of
Securities, the Holder of the Security in respect of which such proper tender
was made shall (unless the tender of such Security is properly withdrawn)
thereafter be entitled to receive solely the Change in Control Purchase Price
with respect to such Security. Upon surrender of any such Security for purchase
in accordance with the foregoing provisions, such Security shall be paid by the
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Company at the Change in Control Purchase Price; provided, however, that
installments of interest whose Stated Maturity is on or prior to the Change in
Control Purchase Date shall be payable to the Holders of such Securities, or one
or more Predecessor Securities, registered as such on the relevant Regular
Record Dates according to the terms and the provisions of Section 307. If any
Security tendered for purchase in accordance with the provisions of this Section
1016 shall not be so paid upon surrender thereof, the principal thereof (and
premium, if any, thereon) shall, until paid, bear interest from the Change in
Control Purchase Date at the rate borne by such Security. Holders electing to
have Securities purchased will be required to surrender such Securities to the
Paying Agent at the address specified in the Change in Control Purchase Notice
at least one Business Day prior to the Change in Control Purchase Date. Any
Security that is to be purchased only in part shall be surrendered to a Paying
Agent at the office of such Paying Agent (with, if the Company, the Security
Registrar or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar or the Trustee, as the case may be, 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 Security, without service charge, one or more new Securities of any
authorized denomination as requested by such Holder in an aggregate principal
amount equal to, and in exchange for, the portion of the principal amount of the
Security so surrendered that is not purchased.
(e) The Company shall (i) not later than the Change in
Control Purchase Date, accept for payment Securities or portions thereof
tendered pursuant to the Change in Control Offer, (ii) not later than 10:00 a.m.
(New York time) on the Change in Control Purchase Date, deposit with the Paying
Agent an amount of cash sufficient to pay the aggregate Change in Control
Purchase Price of all the Securities or portions thereof which are to be
purchased as of the Change in Control Purchase Date and (iii) not later than
10:00 a.m. (New York time) on the Change in Control Purchase Date, deliver to
the Paying Agent an Officers' Certificate stating the Securities or portions
thereof accepted for payment by the Company. The Paying Agent shall promptly
mail or deliver to Holders of Securities so accepted payment in an amount equal
to the Change in Control Purchase Price of the Securities purchased from each
such Holder, and the Company shall execute and the Trustee shall promptly
authenticate and mail or deliver to such Holders a new Security equal in
principal amount to any unpurchased portion of the Security surrendered. Any
Securities not so accepted shall be promptly mailed or delivered by the Paying
Agent at the Company's expense to the Holder thereof. The Company will publicly
announce the results of the Change in Control Offer on the Change in Control
Purchase Date. For purposes of this Section 1016, the Company shall choose a
Paying Agent which shall not be the Company.
(f) A tender made in response to a Change in Control
Purchase Notice may be withdrawn before or after delivery by the Holder to the
Paying Agent at the office of the Paying Agent of the Security to which such
tender relates, by means of a written notice of withdrawal delivered by the
Holder to the Paying Agent at the office of the Paying Agent or to the office or
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agency referred to in Section 1002 to which the related tender was delivered
prior to the Change in Control Purchase Date specifying, as applicable:
(1) the name of the Holder;
(2) the certificate number of the
Security in respect of which such notice of
withdrawal is being submitted;
(3) the principal amount of the
Security (which shall be $1,000 or an integral
multiple thereof) delivered for purchase by the
Holder as to which such notice of withdrawal is being
submitted; and
(4) the principal amount, if any, of
such Security (which shall be $1,000 or an integral
multiple thereof) that remains subject to the
original Change in Control Purchase Notice and that
has been or will be delivered for purchase by the
Company.
(g) Subject to applicable escheat laws, as provided in
the Securities, the Trustee and the Paying Agent shall return to the Company any
cash that remains unclaimed, together with interest or dividends, if any,
thereon, held by them for the payment of the Change in Control Purchase Price;
provided, however, that, (x) to the extent that the aggregate amount of cash
deposited by the Company pursuant to clause (ii) of subsection (e) of this
Section 1016 exceeds the aggregate Change in Control Purchase Price of the
Securities or portions thereof to be purchased, then the Trustee shall hold such
excess for the Company and (y) unless otherwise directed by the Company in
writing, promptly after the Business Day following the Change in Control
Purchase Date the Trustee shall return any such excess to the Company together
with interest, if any, thereon.
The Company shall not be required to make a Change in Control
Offer upon a Change in Control if a third party makes the Change in Control
Offer in the manner, at the times and otherwise in compliance with the
requirements applicable to a Change in Control Offer made by the Company and
purchases all Securities validly tendered and not withdrawn under such Change in
Control Offer.
(h) The Company will comply with the applicable tender
offer rules, including Rule 14e-1 under the Exchange Act, and any other
applicable securities laws or regulations in connection with a Change in Control
Offer.
(i) The Company will not, and will not permit any of its
Subsidiaries to, create or permit to exist or become effective any restriction
(other than restrictions existing under the Bank Credit Facility (or any
guarantee thereof) or under Indebtedness as in effect on the date of this
Indenture) and any extensions, refinancings, renewals or replacements of any of
the foregoing that would materially impair the ability of the Company to make a
Change in Control
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Offer to purchase the Securities or, if such Change in Control Offer is made, to
pay for the Securities tendered for purchase; provided that the restrictions in
any such extensions, refinancings, renewals or replacements are no less
favorable in any material respect to the holders of the Securities than those
under the Indebtedness being extended, refinanced, renewed or replaced.
Section 1017. Limitation on Subsidiary Capital Stock.
The Company will not permit (a) any Subsidiary of the Company
to issue, sell or transfer any Capital Stock, except for (i) Capital Stock
issued or sold to, held by or transferred to the Company or a Wholly Owned
Subsidiary, (ii) the ownership by directors of directors' qualifying shares or
the ownership by foreign nationals of Capital Stock of any Subsidiary of the
Company, to the extent required by applicable law, and (iii) Capital Stock
issued by a Person prior to the time (A) such Person becomes a Subsidiary of the
Company, (B) such Person merges with or into a Subsidiary of the Company or (C)
a Subsidiary of the Company merges with or into such Person; provided that such
Capital Stock was not issued or incurred by such Person in anticipation of the
type of transaction contemplated by subclause (A), (B) or (C) or (b) any Person
(other than the Company or a Wholly Owned Subsidiary) to acquire Capital Stock
of any Subsidiary of the Company from the Company or any Wholly Owned Subsidiary
except, in the case of clause (a) or (b), upon the acquisition of all the
outstanding Capital Stock of such Subsidiary which is not in violation with any
other terms of this Indenture.
Section 1018. Limitation on Dividends and Other Payment Restrictions
Affecting Subsidiaries.
The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or restriction on the
ability of any of its Subsidiaries to (i) pay dividends or make any other
distribution on its Capital Stock, (ii) pay any Indebtedness owed to the Company
or any other of its Subsidiaries, (iii) make any Investment in the Company or
any other Subsidiary of the Company or (iv) transfer any of its properties or
assets to the Company or any other of its Subsidiaries, except for: (a) any
agreement in effect on the date of this Indenture and listed on Schedule III
hereto; (b) any encumbrance or restriction, with respect to a Subsidiary of the
Company that is not a Subsidiary of the Company on the date of this Indenture,
in existence at the time such Person becomes a Subsidiary of the Company and not
incurred in connection with, or in contemplation of, such Person becoming a
Subsidiary of the Company; (c) any encumbrance or restriction existing by reason
of applicable law; (d) any encumbrance or restriction existing under any
customary non-assignment provisions of any lease governing a leasehold interest
of the Company or any Subsidiary of the Company; (e) any encumbrance or
restriction contained in any working capital facility of a foreign Subsidiary of
the Company; and (f) any encumbrance or restriction existing under any agreement
that extends, renews, refinances or replaces the agreements containing the
encumbrances or restrictions in the foregoing clauses (a) and (b), or in this
clause (f), provided that the terms and conditions of any such
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encumbrances or restrictions are no more restrictive in any material respect
than those under or pursuant to the agreement evidencing the Indebtedness so
extended, renewed, refinanced or replaced.
Section 1019. Limitation on Unrestricted Subsidiaries.
The Company will not make, and will not permit its
Subsidiaries to make, any Investment in an Unrestricted Subsidiary if, at the
time thereof, the amount of such Investment would exceed the amount of
Restricted Payments then permitted to be made pursuant to Section 1009 plus the
amount of Permitted Investments described in clauses (ix) and (x) of the
definition thereof then permitted to be made. Any Investment in an Unrestricted
Subsidiary permitted to be made pursuant to this Section 1019 (i) will be
treated as a Restricted Payment (unless such Investment was a Permitted
Investment) in calculating the amount of Restricted Payments made by the Company
and (ii) may be made in cash or property.
Section 1020. Provision of Financial Statements.
Whether or not the Company is subject to Section 13(a) or
15(d) of the Exchange Act, the Company will, to the extent permitted under the
Exchange Act, file with the Commission the annual reports, quarterly reports and
other documents which the Company would have been required to file with the
Commission pursuant to such Section 13(a) or 15(d) if the Company were so
subject, such documents to be filed with the Commission on or prior to the date
(the "Required Filing Date") by which the Company would have been required so to
file such documents if the Company were so subject. The Company will also in any
event (x) within 15 days of each Required Filing Date (i) transmit by mail to
all Holders, as their names and addresses appear in the Security Register,
without cost to such holders and (ii) file with the Trustee copies of the annual
reports, quarterly reports and other documents which the Company would have been
required to file with the Commission pursuant to Section 13(a) or 15(d) of the
Exchange Act if the Company were subject to either of such Sections and (y) if
filing such documents by the Company with the Commission is not permitted under
the Exchange Act, promptly upon written request and payment of the reasonable
cost of duplication and delivery, supply copies of such documents to any
prospective holder at the Company's cost.
Section 1021. Statement by Officers as to Default.
(a) The Company will deliver to the Trustee, not more than 120
days after the end of each fiscal year of the Company ending after the date
hereof, a written statement signed by two executive officers of the Company, one
of whom shall be the principal executive officer, principal financial officer or
principal accounting officer of the Company, stating whether or not, after a
review of the activities of the Company during such year and of the Company's
performance under this Indenture, to the best knowledge, based on such review,
of the signers thereof, the Company has fulfilled all of its obligations and is
in compliance with all conditions and covenants under this Indenture throughout
such year and, if there has been a Default
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specifying each Default and the nature and status thereof and any actions being
taken by the Company with respect thereto.
(b) When any Default or Event of Default has occurred and is
continuing, or if the Trustee or any Holder or the trustee for or the holder of
any other evidence of Indebtedness of the Company or any of its Subsidiaries
gives any notice or takes any other action with respect to a claimed default the
Company shall deliver to the Trustee by registered or certified mail or
facsimile transmission followed by hard copy an Officers' Certificate specifying
such Default, Event of Default, notice or other action, the status thereof and
what actions the Company is taking or proposes to take with respect thereto,
within 10 Business Days of its occurrence.
Section 1022. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any covenant or condition set forth in Sections 1006 through 1011, 1013, 1014,
1015 and 1017 through 1020, if, before or after the time for such compliance,
the Holders of not less than a majority in aggregate principal amount of the
Securities at the time Outstanding shall, by Act of such Holders, waive such
compliance in such instance with such covenant or condition, but no such waiver
shall extend to or affect such covenant or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the duties of the Trustee in respect of any such covenant or
condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Rights of Redemption.
(a) The Securities are subject to redemption, at any time on
or after October 15, 2003, at the option of the Company, in whole or in part,
subject to the conditions, and at the Redemption Prices, specified in the form
of Security, together with accrued and unpaid interest, if any, to the
Redemption Date (subject to the right of Holders of record on relevant Regular
Record Dates and Special Record Dates to receive interest due on applicable
Interest Payment Dates and Special Payment Dates).
(b) Up to 35% of the aggregate principal amount of the
Securities may be redeemed at any time prior to October 15, 2001, at the option
of the Company within 60 days after the consummation of one or more Public
Equity Offerings by the Company from the net proceeds to the Company of such
Public Equity Offerings, upon not less than 20 nor more than 60 days' prior
notice to the Holders, in amounts of $1,000 or integral multiples of $1,000, at
a redemption price equal to 108.000% of the principal amount, together, in each
case, with accrued and unpaid interest if any, to the Redemption Date (subject
to the right of Holders of record on
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applicable Record Dates or Special Record Dates to receive interest due on
applicable Interest Payment Dates or Special Payment Dates); provided that after
giving effect to any such redemption, at least $97.5 million aggregate principal
amount of the Securities remains outstanding.
Section 1102. Applicability of Article.
Redemption of Securities at the election of the Company or
otherwise, as permitted or required by any provision of this Indenture, shall be
made in accordance with such provision and this Article Eleven.
Section 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities pursuant
to Section 1101 shall be evidenced by a Company Order and an Officers'
Certificate. In case of any redemption at the election of the Company, the
Company shall, not less than 45 nor more than 60 days prior to the Redemption
Date fixed by the Company, notify the Trustee in writing of such Redemption Date
and of the principal amount of Securities to be redeemed.
Section 1104. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities are to be redeemed, the
particular Securities or portions thereof to be redeemed shall be selected not
more than 30 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities not previously called for redemption in compliance with
the requirements of the principal national securities exchange, if any, on which
the Securities being redeemed are listed, or if the Securities are not listed on
a national securities exchange, pro rata, by lot or such other method as the
Trustee shall deem fair and reasonable, and the amounts to be redeemed may be
equal to $1,000 or any integral multiple thereof.
The Trustee shall promptly notify the Company and the Security
Registrar in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, the principal amount thereof
to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in part, to
the portion of the principal amount of such Security which has been or is to be
redeemed.
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Section 1105. Notice of Redemption.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed to each Holder of Securities to be redeemed, at his
address appearing in the Security Register as follows:
(i) if the Company is redeeming the Securities pursuant
to Section 1101(a), not less than 30 nor more than 60 days prior to the
Redemption Date; or
(ii) if the Company is redeeming the Securities pursuant
to Section 1101(b), not less than 20 nor more than 60 days prior to the
Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all Outstanding Securities are to be
redeemed, the identification of the particular Securities to be redeemed;
(d) in the case of a Security to be redeemed in part, the
principal amount of such Security to be redeemed and that after the Redemption
Date upon surrender of such Security, new Security or Securities in the
aggregate principal amount equal to the unredeemed portion thereof will be
issued;
(e) that Securities 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 Security or portion thereof to be
redeemed, 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 Securities are to be
surrendered for payment of the Redemption Price; and
(h) the CUSIP number, if any, relating to such
Securities.
Notice of redemption of Securities to be redeemed at the
election of the Company 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.
If the Company elects to give notice of redemption, it shall provide the Trustee
with a certificate stating that such notice has been given in compliance with
the requirements of this Section 1105.
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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 and shall be deemed to have been given on the date of the mailing of
such notice. In any case, failure to give such notice by mail or any defect in
the notice to the Holder of any Security designated for redemption as a whole or
in part shall not affect the validity of the proceedings for the redemption of
any other Security.
Section 1106. Deposit of Redemption Price.
On or prior to 10:00 a.m. (New York time) on any Redemption
Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if
the Company or any of its Affiliates is acting as Paying Agent, segregate and
hold in trust as provided in Section 1003) an amount of money in same day funds
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date or Special Payment Date) accrued interest on,
all the Securities or portions thereof which are to be redeemed on that date.
All money earned on funds held in trust by the Trustee or any Paying Agent shall
be remitted to the Company.
Section 1107. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities 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 and
accrued interest) such Securities shall cease to bear interest. Upon surrender
of any such Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price together with
accrued interest to the Redemption Date; 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 Securities, or one or more Predecessor
Securities, registered as such on the relevant Regular Record Dates and Special
Record Dates according to the terms and the provisions of Section 307.
If any Security 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 borne by such
Security.
Section 1108. Securities Redeemed or Purchased in Part.
Any Security 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 1002 (with, if the Company, the Security
Registrar or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company, the Security
Registrar or the Trustee, as the case may be, duly executed by, the Holder
thereof or such Holder's attorney duly authorized in writing), and the Company
shall execute, and the
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Trustee shall authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities, of any authorized denomination as
requested by such Holder in aggregate principal amount equal to, and in exchange
for, the unredeemed portion of the principal of the Security so surrendered that
is not redeemed or purchased.
ARTICLE TWELVE
SUBORDINATION OF SECURITIES
Section 1201. Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a
Security, by his acceptance thereof, likewise covenants and agrees, that, to the
extent and in the manner hereinafter set forth in this Article, the Indebtedness
represented by the Securities and the payment of the principal of, premium, if
any, and interest on the Securities are hereby expressly made subordinate and
subject in right of payment as provided in this Article to the prior payment in
full of all Senior Indebtedness.
This Article Twelve 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 may enforce such provisions.
Section 1202. 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, relative to the Company or to its
assets, or (b) any liquidation, dissolution or other winding up of the Company,
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or (c) any assignment for the benefit of creditors or any other
marshaling of assets or liabilities of the Company, then and in any such event:
(1) the holders of Senior Indebtedness shall be entitled to
receive payment in full before the Holders of the Securities are entitled to
receive any payment or distribution of any kind or character excluding
securities of the Company or any other corporation that are equity securities or
are subordinated in right of payment to all Senior Indebtedness, that may at the
time be outstanding, to substantially the same extent as, or to a greater extent
than, the Securities are so subordinated as provided in this Article; such
securities are hereinafter collectively referred to as "Permitted Junior
Securities" on account of principal of, premium, if any, or interest on the
Securities (including any payment or other distribution which may be received
from the holders of Subordinated Indebtedness as a result of any payment on such
Subordinated Indebtedness); and
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(2) any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities (excluding
Permitted Junior Securities), by set-off or otherwise, to which the Holders or
the Trustee would be entitled but for the provisions of this Article (including
any payment or other distribution which may be received from the holders of
Subordinated Indebtedness as a result of any payment on such Subordinated
Indebtedness) 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 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, the Trustee or the Holder of any Security shall have
received any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, in respect of principal,
premium, if any, and interest on the Securities before all Senior Indebtedness
is paid in full, then and in such event such payment or distribution (excluding
Permitted Junior Securities) (including any payment or other distribution which
may be received from the holders of Subordinated Indebtedness as a result of any
payment on such Subordinated Indebtedness) shall be paid over or delivered
forthwith 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 have been issued for
application to the payment of all Senior Indebtedness remaining unpaid, to the
extent necessary to pay all Senior Indebtedness in full 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 shall not be deemed a dissolution, winding up,
liquidation, reorganization, assignment for the benefit of creditors or
marshaling of assets and liabilities of the Company for the purposes of this
Section if 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 Article Eight.
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Section 1203. Suspension of Payment When Senior Indebtedness in
Default.
(a) Unless Section 1202 shall be applicable, upon (1) the
occurrence and during the continuance of any default in the payment of any
Designated Senior Indebtedness beyond any applicable grace period (a "Payment
Default") and (2) receipt by the Trustee from the Senior Representative of
written notice of such Payment Default, no payment (other than any payments
previously made pursuant to Section 402 or 403 in this Indenture) or
distribution of any assets of the Company of any kind or character (excluding
Permitted Junior Securities) shall be made by the Company on account of
principal of, premium, if any, or interest on, the Securities, or on account of
the purchase, redemption, defeasance or other acquisition of or in respect of
the Securities unless and until such Payment Default shall have been cured or
waived or shall have ceased to exist or the Designated Senior Indebtedness shall
have been discharged or paid in full after which the Company shall (subject to
the other provisions of this Article Twelve) resume making any and all required
payments in respect of the Securities, including any missed payments.
(b) Unless Section 1202 shall be applicable, upon (1) the
occurrence and during the continuance of any non-payment default with respect to
any Designated Senior Indebtedness pursuant to which the maturity thereof may
then be accelerated (a "Non-payment Default") and (2) receipt by the Trustee and
the Company from a Senior Representative of written notice of such Non-payment
Default, no payment (other than any payments previously made pursuant to
Sections 402 or 403 in this Indenture) or distribution of any assets of the
Company of any kind or character (excluding Permitted Junior Securities) shall
be made by the Company on account of any principal of, premium, if any, or
interest on, the Securities, or on account of the purchase, redemption,
defeasance or other acquisition of, or in respect of, Securities for a period
("Payment Blockage Period") commencing on the date of receipt by the Trustee of
such notice and continuing until the earliest of (subject to any blockage of
payments that may then or thereafter be in effect under subsection (a) of this
Section 1203) (x) 179 days after receipt of such written notice by the Trustee
(provided any Designated Senior Indebtedness as to which notice was given shall
theretofore have not been accelerated), (y) the date on which such Non-payment
Default (and all Non-payment Defaults as to which notice is given after such
Payment Blockage Period is initiated) is cured or waived or ceases to exist or
on which the Designated Senior Indebtedness related thereto is discharged or
paid in full or (z) the date on which such Payment Blockage Period (and all
Non-payment Defaults as to which notice is given after such Payment Blockage
Period is initiated) shall have been terminated by written notice to the Company
or the Trustee from the Senior Representative or holder of Designated Senior
Indebtedness initiating such Payment Blockage Period, after which, in the case
of clause (x), (y) or (z), the Company shall (subject to the other provisions of
this Article including subsection (a) of this Section 1203) promptly resume
making any and all required payments in respect of the Securities, including any
missed payments. Notwithstanding any other provision of this Indenture, in no
event shall a Payment Blockage Period under this subsection (b) of this Section
1203 extend beyond 179 days from the date of the receipt by the Company or the
Trustee of the notice referred to in clause (2) of this subsection (b) of this
Section 1203 (such 179-day period
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referred to as the "Initial Period"). Any number of notices of Non-payment
Defaults may be given during the Initial Period; provided that during any period
of 365 consecutive days only one Payment Blockage Period during which payment of
principal of, premium, if any, or interest on the Securities may not be made,
may commence and the duration of such period may not exceed 179 days. No Non-
payment Default with respect to any Designated Senior Indebtedness that existed
or was continuing on the date of the commencement of any Payment Blockage Period
will be, or can 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 Non-payment Default shall have been cured or waived for a period of not
less than 90 consecutive days. The Company shall deliver a notice to the Trustee
promptly after the date on which any Non-payment Default is cured or waived or
ceases to exist or on which the Designated Senior Indebtedness related thereto
is discharged or paid in full and the Trustee is authorized to act in reliance
on such notice.
(c) In the event that, notwithstanding the foregoing, the
Company shall make any payment to the Trustee or the Holder of any Security
prohibited by the foregoing provisions of this Section, then and in such event
such payment shall be paid over and delivered forthwith to a Senior
Representative of the holders of the Designated Senior Indebtedness or as a
court of competent jurisdiction shall direct.
Section 1204. Payment Permitted if No Default.
Nothing contained in this Article, elsewhere in this Indenture
or in any of the Securities shall prevent the Company, at any time except during
the pendency of any case, proceeding, dissolution, liquidation or other
winding-up, assignment for the benefit of creditors or other marshaling of
assets and liabilities of the Company referred to in Section 1202 or under the
conditions described in Section 1203, from making payments at any time of
principal of, premium, if any, or interest on the Securities.
Section 1205. Subrogation to Rights of Holders of Senior Indebtedness.
After the payment in full of all Senior Indebtedness, the
Holders of the Securities 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,
premium, if any, and interest on the Securities shall be paid in full. 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 of
the Securities 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 of the Securities or the Trustee,
shall, as among the Company, its creditors other than holders of Senior
Indebtedness, and the Holders of the Securities, be deemed to be a payment or
distribution by the Company to or on account of the Senior Indebtedness.
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Section 1206. Provisions Solely to Define Relative Rights.
The provisions of this Article are intended solely for the
purpose of defining the relative rights of the Holders of the Securities on the
one hand and the holders of Senior Indebtedness on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities is
intended to or shall (a) impair, the Company, its creditors other than holders
of Senior Indebtedness and the Holders of the Securities, the obligation of the
Company, which is absolute and unconditional, to pay to the Holders of the
Securities the principal of, premium, if any, and interest on the Securities 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 of the
Securities and creditors of the Company other than the holders of Senior
Indebtedness; or (c) prevent the Trustee or the Holder of any Security from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article of the holders
of 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 Company referred to in Section 1202, 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 1203, to prevent any payment prohibited by such
Section or enforce their rights pursuant to Section 1203(c).
Section 1207. Trustee to Effectuate Subordination.
Each Holder of a Security 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 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 a proper claim at least 30 days before the expiration of the time
to file such claim, then the holders of Senior Indebtedness, and their agents,
trustees or other representatives are authorized (but shall not have any
obligation) to do so for and on behalf of the Holders of the Securities.
Section 1208. 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.
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(b) without limiting the generality of Subsection (a) of this
Section, 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 of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article or
the obligations hereunder of the Holders of the Securities 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 of the Securities to
take any action to accelerate the maturity of the Securities pursuant to Article
Five of this Indenture 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 Article, subject to the rights, if any, under this Article, of the
holders, from time to time, of Senior Indebtedness to receive the cash, property
or securities receivable upon the exercise of such rights or remedies.
Section 1209. 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 Securities. Notwithstanding the
provisions of this Article or any 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 Securities,
unless and until the Trustee shall have received written notice thereof from the
Company or a holder of Senior Indebtedness or from a Senior Representative or
any trustee, fiduciary or agent therefor; and, prior to the receipt of any such
written notice, the Trustee 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 at least two Business Days prior to the
date upon which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of, premium, if
any, or interest on any Security), then, anything herein contained to the
contrary notwithstanding but without limiting the rights and remedies of the
holders of Senior Indebtedness, a Senior Representative 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.
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(b) The Trustee shall be entitled to rely on the delivery to
it of a written notice to the Trustee and the Company by a Person representing
himself to be a Senior Representative or a holder of Senior Indebtedness (or a
trustee, fiduciary or agent therefor) to establish that such notice has been
given by a Senior Representative or a holder of Senior Indebtedness (or a
trustee, fiduciary or agent therefor); provided, however, that failure to give
such notice to the Company shall not affect in any way the ability of the
Trustee to rely on such notice. In the event that the Trustee determines in good
faith that other 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, 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, 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. A
certificate of the Senior Representative shall be sufficient evidence with
respect to Designated Senior Indebtedness.
Section 1210. Reliance on Judicial Orders or Certificates.
Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee and the Holders of the Securities 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
of Securities or a Certificate of a Senior Representative, 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 that the foregoing shall apply only if such court has been fully
apprised of the provisions of this Article.
Section 1211. 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 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 rights as such holder. Nothing in this Article shall apply to claims
of, or payments to, the Trustee under or pursuant to Section 607.
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Section 1212. 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 under this
Indenture, the term "Trustee" as used in this Article shall in such case (except
with respect to delivery of notices and 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 in addition to or in place of the Trustee; provided, however, that
Section 1211 shall not apply to the Company or any Affiliate of the Company if
it or such Affiliate acts as Paying Agent.
Section 1213. No Suspension of Remedies.
Nothing contained in this Article shall limit the right of the
Trustee or the Holders of Securities to take any action to accelerate the
maturity of the Securities pursuant to Article Five of this Indenture or to
pursue any rights or remedies hereunder or under applicable law, subject to the
rights, if any, under this Article of the holders, from time to time, of Senior
Indebtedness to receive the cash, property or securities receivable upon the
exercise of such rights or remedies.
Section 1214. 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, and no implied
covenants or obligations with respect to the holders of Senior Indebtedness
shall be read into this Article 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 (absent gross negligence, bad faith or willful misconduct) pay over
or deliver to Holders, the Company or any other Person moneys or assets to which
any holder of Senior Indebtedness shall be entitled by virtue of this Article or
otherwise.
ARTICLE THIRTEEN
SATISFACTION AND DISCHARGE
Section 1301. Satisfaction and Discharge of Indenture.
This Indenture will be discharged and will cease to be of
further effect (except as to surviving rights of registration of transfer or
exchange of Securities expressly provided for herein) and the Trustee, upon
Company Request and at the expense of the Company, shall
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execute proper instruments acknowledging satisfaction and discharge of this
Indenture (including, but not limited to Article Twelve), when
(a) either
(1) all the Securities theretofore authenticated
and delivered (other than (i) Securities which have been destroyed,
lost or stolen and which have been replaced or paid as provided in
Section 306 or (ii) all Securities for whose payment United States
dollars have theretofore been deposited in trust or segregated and held
in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(2) all such Securities not theretofore
delivered to the Trustee cancelled or for cancellation (x) have become
due and payable, (y) will become due and payable at their Stated
Maturity within one year or (z) are to be called for redemption within
one year under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the expense,
of the Company; and the Company has irrevocably deposited or caused to
be deposited with the Trustee as trust funds in trust for the purpose
an amount in United States dollars sufficient to pay and discharge the
entire Indebtedness on the Securities not theretofore delivered to the
Trustee for cancellation, including the principal of, premium, if any,
and accrued interest on such Securities at such Maturity, Stated
Maturity or Redemption Date;
(b) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Independent Counsel stating that (i) all
conditions precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with and (ii) such satisfaction
and discharge will not result in a breach or violation of, or constitute a
default under, this Indenture or any other material agreement or instrument to
which the Company or any of its Subsidiaries is a party or by which the Company
or any of its Subsidiaries is bound.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 607 and,
if United States dollars shall have been deposited with the Trustee pursuant to
subclause (2) of Subsection (a) of this Section 1301, the obligations of the
Trustee under Section 1302 and the last paragraph of Section 1003 shall survive.
Section 1302. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
1003, all United States dollars deposited with the Trustee pursuant to Section
1301 shall be held in trust and applied by it, in accordance with the provisions
of the Securities 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 Securities for whose payment such United
States dollars have been deposited with the Trustee.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the day and year first above written.
BUCKEYE TECHNOLOGIES INC.
[SEAL] By:
Name: XXXXX X. XXXXXXXX
Title: Senior Vice President,
Corporate Affairs
Attest:
Name: XXXXXX XXXXXX XXXXXXXXXX
Title: Vice President and General Counsel, Corporate Secretary
UNION PLANTERS BANK, N.A., as Trustee
[SEAL] By:
Name: XXXXXXXX XXXXX
Title: Vice President and
Corporate Trust
Officer
Attest:
Name:
Title:
000
XXXXX XX XXXXXXXXX
XXXXXX XX XXXXXX
Xx the 11th day of June, 1998, before me personally came Xxxxx
X. Xxxxxxxx, to me known, who, being by me duly sworn, did depose and say that
he resides at 0000 Xxxxxxx, Xxxxxxx, Xxxxxxxxx 00000; that he is Senior Vice
President, Corporate Affairs of Buckeye Technologies Inc., one of the
corporations described in and which executed the foregoing instrument; that he
knows the corporate seal of such corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed pursuant to authority
of the Board of Directors of such corporation; and that he signed his name
thereto pursuant to like authority.
----------------------------
Notary Public
My commission expires:
000
XXXXX XX XXXXXXXXX
XXXXXX XX XXXXXX
Xx the 11th day of June, 1998, before me personally came Xxxxxxxx Xxxxx to me
known, who, being by me duly sworn, did depose and say that she resides at
Memphis, Tennessee; that she is Vice President and Corporate Trust Officer of
Union Planters Bank, N.A., one of the corporations described in and which
executed the foregoing instrument; that she knows the corporate seal of such
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed pursuant to the authority of the Board of Directors of
such corporation; and that she signed her name thereto pursuant to like
authority.
----------------------------
Notary Public
My commission expires:
118
SCHEDULE I
Permitted Holders
1) Xxxxxx X. Xxxxxx
2) Xxxxxxx X. Xxxxxx
3) R. Xxxxxx Xxxxxx
4) Xxxxxx X. Xxxxxx Grantor Retained Annuity Trust
5) Xxxxxxx Xxxxxx Xxxxxx Grantor Retained Annuity Trust
6) Xxxxx X. Xxxxxxx
7) Xxxxxxx X. Xxxxxxx
8) Xxxxx X. Xxxxxxx Grantor Retained Annuity Trust
119
SCHEDULE II
Existing Indebtedness
I. Buckeye Florida, Limited Partnership has pledged certificates of
deposit in the amounts of $2,300,000 and $900,000 to Union Planters Bank, N.A.,
to secure payment by certain executive officers of the Company of loans, which
are in the principal amounts equal to the denominations of the respective
certificates of deposit, the proceeds of which were utilized to purchase stock
in the Company.
II. The Company is the lessee under the following leases:
Capital Lease for Scanner with Measurex from April 1997 - April 2002.
Capital Lease for Copier with Woodchester from July 1996 - July 1999.
Capital Lease for FAX Machine with Woodchester from September 1996 -
September 1999.
Operating Lease for Copiers with Xerox Corporation from April 1997 -
April 2001
Operating Lease for Computer Hardware with Winthrop Resources from
February 1997 - February 2000
Operating Lease for Computer Hardware with Winthrop Resources from
October 1997 October 2000
Operating Lease for Computer Hardware with Winthrop Resources from
April 1998 - April 2001
Operating Lease for Computer Hardware with Winthrop Resources from
August 1998 - August 2001
Operating Lease for Personal Computer Equipment with Winthrop Resources
from June 1998 - June 2000
Operating Leases for Copiers with Xerox Corporation from November 1995
-November 2000.
Operating Leases for Forklifts with various vendors from December 1995
- August 2001.
Operating Leases for Trucks and Trailers with Ryder from May 1996 - May
2003.
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III. The Company has outstanding the following additional Indebtedness:
Indebtedness under the Company's 10 1/4% Senior Notes due 2001 of
$6,913,000.
$150,000,000 aggregate principal amount of 8 1/2% Senior Subordinated
Notes due 2005.
$100,000,000 aggregate principal amount of 9 1/4% Senior Subordinated
Notes due 2008.
Indebtedness under the Credit Agreement dated May 28, 1997, with Fleet
National Bank, as Agent, and Suntrust Bank, Central Florida, N.A., as
Documentation Agent and Toronto Dominion (Texas), Inc. as Documentation
Agent, as amended.
Indebtedness under the Credit Agreement dated April 23, 1996, between
Buckeye Xxxxxxxxx XxxX xxx Xxxxxxxx Xxxx X.X., Xxxxxxxxx, Xxxxxxx.
Indebtedness under the Credit Agreement dated November 6, 1997 between
the Canadian Imperial Bank of Commerce and Buckeye Canada Inc.
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SCHEDULE III
Existing Dividend Restrictions
I. Indenture dated as of May 27, 1993 between the Company and Bankers
Trust Company, as trustee, as amended November 9, 1995
II. Credit Agreement dated May 28, 1997, with Fleet National Bank as Agent,
SunTrust Bank, Central Florida, N.A., as Documentation Agent and Toronto
Dominion (Texas), Inc. as Documentation Agent.
III. Indenture dated as of November 28, 1995 between the Company and Union
Planters Bank, N.A., as Trustee, pertaining to the Company's $150,000,000 8 1/2%
Senior Subordinated Notes due 2005.
IV. Indenture dated as of July 2, 1996 between the Company and Union
Planters Bank, N.A., as Trustee, pertaining to the Company's $100,000,000 9 1/4%
Senior Subordinated Notes due 2008.
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EXHIBIT A
Form of Face of Initial Securities
Form of Reverse of Initial Securities
123
EXHIBIT A
FORM OF INITIAL GLOBAL SECURITY
BUCKEYE TECHNOLOGIES INC.
No. 001 CUSIP No. 118255 AA 6
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO.
THE SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT
OF, U.S. PERSONS EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3), or (7) UNDER THE SECURITIES
ACT) (AN "ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING
THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL
ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A)
TO THE ISSUER THEREOF OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO
A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN ACCREDITED INVESTOR THAT,
PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S.
BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS
AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE
FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE FOR THIS SECURITY), (D)
OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904
UNDER THE SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR (F) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT
IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF
THIS SECURITY, IF THE PROPOSED TRANSFEREE IS AN ACCREDITED INVESTOR, THE HOLDER
MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE ISSUER SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM OR IN A TRANSACTION NOT SUBJECT TO, THE
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REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE
TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE
MEANING GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO BUCKEYE TECHNOLOGIES INC. OR THE REGISTRAR FOR
REGISTRATION OF TRANSFER OR EXCHANGE AND ANY SECURITY ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR SUCH OTHER ENTITY AS HAS BEEN REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS HAS BEEN REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFER OF THIS GLOBAL SECURTIY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, AND NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF INTERESTS IN THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN SECTION 305 OF THE INDENTURE, DATED AS OF JUNE 11,
1998, BETWEEN BUCKEYE TECHNOLOGIES INC. AND THE TRUSTEE NAMED THEREIN, PURSUANT
TO WHICH THIS SECURITY WAS ISSUED.
GLOBAL SECURITY
REPRESENTING 8% SENIOR SUBORDINATED NOTES DUE 2010
Buckeye Technologies Inc., a Delaware corporation, for value
received, hereby promises to pay to CEDE & CO., or its registered assigns, the
principal sum indicated on Schedule A hereof, on October 15, 2010.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purposes.
IN WITNESS WHEREOF, the Company has caused this Security to be
fully executed.
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Dated:
BUCKEYE TECHNOLOGIES INC.
By:
---------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
-----------------------,
as Trustee, certifies that this is one of
the Securities referred to in the Indenture.
By:
-----------------------------------------
Authorized Officer
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REVERSE SIDE OF FORM OF INITIAL GLOBAL SECURITY
BUCKEYE TECHNOLOGIES INC.
GLOBAL SECURITY
REPRESENTING 8% SENIOR SUBORDINATED NOTES DUE 2010
1. Indenture.
This Security is one of a duly authorized issue of debt
securities of the Company (as defined below) designated as its "8% Senior
Subordinated Notes due 2010" (herein called the "Securities") limited in
aggregate principal amount at Stated Maturity to $150,000,000, issued under an
indenture dated as of June 11, 1998 (as amended or supplemented from time to
time, the "Indenture") between the Company and Union Planters Bank, N.A., as
trustee (the "Trustee," which term includes any successor Trustee under the
Indenture), to which Indenture reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and each Holder of Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. The
summary of the terms of this Security contained herein does not purport to be
complete and is qualified by reference to the Indenture. All terms used in this
Security which are not defined herein shall have the same meanings assigned to
them in the Indenture or the Registration Rights Agreement, dated June 11, 1998,
among the Company and the Placement Agents (the "Registration Rights
Agreement"), which agreement is attached to the Indenture as Exhibit E thereto.
The Indenture imposes certain limitations on the ability of
the Company to, among other things, make certain Investments and Restricted
Payments, pay dividends and other distributions, incur Indebtedness, enter into
consensual restrictions upon the payment of certain dividends and distributions
by its Subsidiaries, enter into or permit certain transactions with Affiliates,
create or incur Liens, and make Asset Sales. The Indenture also imposes
limitations on the ability of the Company to consolidate or merge with or into
any other Person or permit any other Person to merge with or into the Company,
or sell, convey, assign, transfer, lease or otherwise dispose of all or
substantially all of the Property of the Company to any other Person and on the
ability of the Company's Subsidiaries to issue Capital Stock.
2. Principal and Interest.
Buckeye Technologies Inc., a Delaware corporation (such
corporation, and its successors and assigns under the Indenture, being herein
called the "Company"), promises to pay the principal amount set forth on
Schedule A of this Security to the Holder hereof on October 15, 2010.
The Company shall pay interest at a rate of 8%, per annum,
from June 11, 1998, or from the most recent Interest Payment Date thereafter to
which interest has been paid or duly
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provided for, semiannually on April 15 and October 15 of each year, commencing
on October 15, 1998, in cash, to the Holder hereof until the principal amount
hereof is paid or made available for payment. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, subject
to certain exceptions provided in the Indenture, be paid to the Person in whose
name this Security (or the Security in exchange or substitution for which this
Security was issued) is registered at the close of business on the Regular
Record Date for interest payable on such Interest Payment Date. The Regular
Record Date for any interest payment is the close of business on April 1 or
October 1, as the case may be, whether or not a Business Day, immediately
preceding the Interest Payment Date on which such interest is payable. Any such
interest not so punctually paid or duly provided for ("Defaulted Interest")
shall forthwith cease to be payable to the Holder on such Regular Record Date
and shall be paid as provided in Section 307 of the Indenture. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
Each payment of interest in respect of an Interest Payment
Date will include interest accrued through the day before such Interest Payment
Date. If an Interest Payment Date falls on a day that is not a Business Day, the
interest payment to be made on such Interest Payment Date will be made on the
next succeeding Business Day with the same force and effect as if made on such
Interest Payment Date, and no additional interest will accrue as a result of
such delayed payment.
If this Security is exchanged in an Exchange Offer (as such
term is defined in the Registration Rights Agreement (as defined herein)) prior
to the Regular Record Date for the first Interest Payment Date following such
exchange, accrued and unpaid interest, if any, on this Security, up to but not
including the date of issuance of the Exchange Security or Exchange Securities
issued in exchange for this Security, shall be paid on the first Interest
Payment Date for such Exchange Security or Exchange Securities to the Holder or
Holders of such Exchange Security or Exchange Securities on the first Regular
Record Date with respect to such Exchange Security or Exchange Securities. If
this Security is exchanged in an Exchange Offer subsequent to the Regular Record
Date for the first Interest Payment Date following such exchange but on or prior
to such Interest Payment Date, then any such accrued and unpaid interest with
respect to this Security and any accrued and unpaid interest on the Exchange
Security or Exchange Securities issued in exchange for this Security, through
the day before such Interest Payment Date, shall be paid on such Interest
Payment Date to the Holder of this Security on such Regular Record Date.
3. Additional Interest.
The Holder of this Security is entitled to the benefits of the
Registration Rights Agreement. If the Company fails to file a Registration
Statement within the time periods specified in the Registration Rights Agreement
or if the Exchange Offer Registration Statement or the Shelf Registration
Statement fails to become effective, then, as liquidated damages, additional
interest (the "Additional Interest") shall become payable in respect of the
Securities as follows:
(a) if (A) neither the Exchange Offer Registration Statement
nor the Shelf Registration Statement is filed with the Commission within 60 days
following the Issue Date or (B)
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notwithstanding that the Company has consummated or will consummate an Exchange
Offer, the Company is required to file a Shelf Registration Statement and such
Shelf Registration Statement is not filed on or prior to the date required by
the Registration Rights Agreement, then commencing on the day after either such
required filing date, Additional Interest shall be paid on the principal amount
of the Securities at a rate per annum equal to 0.5% of the principal amount of
the Securities; or
(b) if (A) neither the Exchange Offer Registration Statement
nor the Shelf Registration Statement is declared effective by the Commission
within six (6) months following the Closing Date or (B) notwithstanding that the
Company has consummated or will consummate a Exchange Offer, the Company is
required to file a Shelf Registration Statement and such Shelf Registration
Statement is not declared effective by the Commission on or prior to the date
which is six (6) months following the Closing Date, then, commencing on the day
after either such required effective date, Additional Interest shall be paid on
the principal amount of the Securities at a rate per annum equal to 0.5% of the
principal amount of the Securities; or
(c) if applicable, the Shelf Registration Statement has been
declared effective and such Shelf Registration Statement ceases to be effective
at any time prior to the second anniversary of the Issue Date (other than after
such time as all Securities have been disposed of thereunder and other than
during any Suspension Period (as defined in the Registration Rights Agreement)),
then Additional Interest shall be paid on the principal amount of the Securities
at a rate per annum equal to 0.5% of the principal amount of the Securities
commencing on the day such Shelf Registration Statement ceases to be effective;
provided, however, that the Additional Interest rate on the
Securities may not exceed in the aggregate 1.5% per annum of the principal
amount; provided, further, however, that (1) upon the filing of the Exchange
Offer Registration Statement or a Shelf Registration Statement (in the case of
clause (a) above), (2) upon the effectiveness of the Exchange Offer Registration
Statement or a Shelf Registration Statement (in the case of clause (b) above),
or (3) upon the effectiveness of the Shelf Registration Statement which had
ceased to remain effective (in the case of clause (c) above). Additional
Interest on the Securities as a result of such clause (or the relevant subclause
thereof), as the case may be, shall cease to accrue and the terms of the
Securities shall revert to their original terms.
Any amounts of Additional Interest due pursuant to clause (a),
(b) or (c) above will be payable in cash on April 15 and October 15 of each
year.
Except as expressly provided in this paragraph 3, Additional
Interest shall be treated as interest and any date on which Additional Interest
is due and payable shall be treated as an Interest Payment Date, for all
purposes under this Security and the Indenture.
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4. Method of Payment.
The Company, through the Paying Agent, shall pay interest on
this Security to the registered Holder of this Security, as provided above. The
Holder must surrender this Security to a Paying Agent to collect principal
payments. The Company will pay principal and interest in money of the United
States of America that at the time of payment is legal tender for payment of all
debts public and private. Principal and interest will be payable at the office
of the Paying Agent but, at the option of the Company, interest may be paid by
check mailed to the registered Holders at their registered addresses.
5. Paying Agent and Registrar.
Initially, IBJ Xxxxxxxx Bank and Trust Company will act as the
Transfer Agent, Paying Agent and Registrar under the Indenture. The Company may,
upon written notice to the Paying Agent and Trustee, appoint and change any
Transfer Agent, Paying Agent or Registrar. The Company or any of its
subsidiaries may act as Transfer Agent, Paying Agent or Registrar.
6. Optional Redemption.
After October 15, 2003, the Securities will be subject to
redemption at the option of the Company, in whole or in part, upon not less than
30 calendar days, nor more than 60 calendar days' notice, at the prices
(expressed as percentages of principal amounts) set forth below, plus accrued
and unpaid interest thereon (if any) at the applicable Redemption Date, if
redeemed during the twelve-month period beginning Octoebr 15 of the years
indicated below:
Year Percentage
---- ----------
2003 104.000%
2004 102.667%
2005 101.333%
2006 and thereafter 100.000%
Notwithstanding the foregoing, at any time prior to October
15, 2001, the Company may redeem up to 35% of the aggregate principal amounts of
Securities with the net proceeds of one or more Equity Offerings of the Company
at a redemption price equal to 108% of the aggregate principal amount thereof,
on the date of redemption; provided, however, that, after giving effect to any
such redemption, at least $97.5 million aggregate principal amount of the
Securities remain outstanding.
7. Notice of Redemption.
At least 30 calendar days but not more than 60 calendar days
before a Redemption Date, the Company will send a notice of redemption,
first-class mail, postage prepaid, to Holders of Securities to be redeemed at
the addresses of such Holders as they appear in the Security Register.
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If less than all of the Securities are to be redeemed at any
time, the Securities to be redeemed will be chosen by the Trustee in accordance
with the Indenture. If any Security is redeemed subsequent to a Regular Record
Date with respect to any Interest Payment Date specified above and on or prior
to such Interest Payment Date, then any accrued interest will be paid on such
Interest Payment Date to the Holder of the Security on such Regular Record Date.
If money in an amount sufficient to pay the Redemption Price of all Securities
(or portions thereof) to be redeemed on the Redemption Date is deposited with
the Paying Agent on or before the applicable Redemption Date and certain other
conditions are satisfied, interest on the Securities to be redeemed on the
applicable Redemption Date will cease to accrue.
The Securities are not subject to any sinking fund.
8. Repurchase at the Option of Holders upon Change of
Control.
Upon the occurrence of a Change of Control, each Holder of
Securities shall have the right to require the Company to purchase such Holder's
Securities, in whole, or in part in a principal amount that is an integral
multiple of $1,000, pursuant to a Change of Control Offer, at a purchase price
in cash equal to 101% of the aggregate principal amount thereof on any Change of
Control Purchase Date, plus accrued and unpaid interest, if any, to the Change
of Control Purchase Date.
Within 30 calendar days following any Change of Control, the
Company shall send, or cause to be sent, by first-class mail, postage prepaid, a
notice regarding the Change of Control Offer to each Holder of Securities. The
Holder of this Security may elect to have this Security or a portion hereof in
an authorized denomination purchased by completing the form entitled "Option of
Holder to Require Purchase" appearing below and tendering this Security pursuant
to the Change of Control Offer. Unless the Company defaults in the payment of
the Change of Control Purchase Price with respect thereto, all Securities or
portions thereof accepted for payment pursuant to the Change of Control Offer
will cease to accrue interest from and after the Change of Control Purchase
Date.
9. Repurchase at the Option of Holders upon Asset Sale.
If at any time the aggregate amount of Excess Proceeds
(including any Net Cash Proceeds to be applied to the permanent reduction of
Indebtedness represented by the Existing Senior Subordinated Notes) calculated
as of such date exceeds $15 million, the Company shall, within 30 days of the
date the amount of Excess Proceeds exceeds $15 million, use such Excess Proceeds
to make an offer to purchase (an "Asset Sale Offer") on a pro rata basis, from
all holders, outstanding Securities, Existing Senior Subordinated Notes in an
aggregate principal amount equal to the maximum principal amount that may be
purchased out of Excess Proceeds, at a purchase price (the "Offered Price") in
cash equal to (a) with respect to the Existing Notes, 100% of the Accreted Value
thereof (as defined in the relevant indenture) and (b) with respect to the
Securities, 100% of the principal amount thereof, plus, in each case, accrued
and unpaid interest, if any, to the purchase date, in accordance with the
procedures set forth in the relevant indenture. Upon completion of an
X-0
000
Xxxxx Sale Offer (including payment of the Offered Price), any surplus Excess
Proceeds that were the subject of such offer shall cease to be Excess Proceeds,
and the Company may then use such amounts for general corporate purposes.
Within 30 calendar days of the date the amount of Excess
Proceeds equals or exceeds $15 million, the Company shall send, or cause to be
sent, by first-class mail, postage prepaid, a notice regarding the Asset Sale
Offer to each Holder of Securities. The Holder of this Security may elect to
have this Security or a portion hereof in an authorized denomination purchased
by completing the form entitled "Option of Holder to Require Purchase" appearing
below and tendering this Security pursuant to the Asset Sale Offer. Unless the
Company defaults in the payment of the Offered Price with respect thereto, all
Securities or portions thereof selected for payment pursuant to the Asset Sale
Offer will cease to accrue interest from and after the Offer Date.
10. The Global Security.
So long as this Global Security is registered in the name of
the Depositary or its nominee, members of, or participants in, the Depositary
("Agent Members") shall have no rights under the Indenture with respect to this
Global Security held on their behalf by the Depositary or the Trustee as its
custodian, 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 this Global
Security for all purposes. Notwithstanding the foregoing, nothing herein shall
(i) 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 (ii) impair, as between the Depositary and its
Agent Members, the operation of customary practices governing the exercise of
the rights of a Holder of Securities.
The Holder of this Global Security may grant proxies and
otherwise authorize any Person, including Agent Members and Persons that may
hold interests in this Global Security through Agent Members, to take any action
which a Holder of Securities is entitled to take under the Indenture or the
Securities.
Whenever, as a result of optional redemption by the Company, a
Change of Control Offer, an Asset Sale Offer, a Registered Exchange Offer or an
exchange for Certificated Securities, this Global Security is redeemed,
repurchased or exchanged in part, this Global Security shall be surrendered by
the Holder thereof to the Trustee who shall cause an adjustment to be made to
Schedule A hereof so that the principal amount of this Global Security will be
equal to the portion not redeemed, repurchased or exchanged and shall thereafter
return this Global Security to such holder; provided that this Global Security
shall be in a principal amount of $1,000 or an integral multiple of $1,000.
11. The Registered Exchange Offer.
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Any Initial Securities represented by this Global Security
which are presented to the Registrar for exchange pursuant to the Exchange Offer
Registration shall be exchanged for a Global Security representing Exchange
Securities of equal principal amount upon surrender of this Global Security to
the Registrar in accordance with the terms of the Exchange Offer Registration
and the Indenture.
12. Transfer and Exchange.
By its acceptance of any Security represented by a certificate
bearing the Private Placement Legend, each Holder of, and beneficial owner of an
interest in, such a Security acknowledges the restrictions on transfer of such a
Security set forth in the Private Placement Legend and under the heading
"Transfer Restrictions" in the Final Memorandum, and agrees that it will
transfer such a Security only in accordance with the Private Placement Legend
and that it will transfer such a Security only in accordance under the heading
"Transfer Restrictions" in the Final Memorandum.
In connection with any registration of transfer of a Security
bearing the Private Placement Legend other than to a Person whom the Holder
reasonably believes to be a "qualified institutional buyer" under the Securities
Act, such Holder shall deliver to the Company such satisfactory evidence, which
may include an opinion of independent counsel licensed to practice law in the
State of New York, as reasonably may be requested by the Company to confirm that
such transfer is being made in accordance with the limitations set forth in the
Private Placement Legend. In the event the Company reasonably determines that
any such transfer is not in accordance with the Private Placement Legend, the
Company shall so inform the Registrar who shall not register such transfer;
provided that the Registrar shall not be required to determine (but may rely on
a determination made by the Company with respect to) the sufficiency of any such
evidence.
Upon the registration of transfer, exchange or replacement of
a Security not bearing the Private Placement Legend, the Trustee shall deliver a
Security that does not bear the Private Placement Legend. Upon the registration
of transfer, exchange or replacement of a Security bearing the Private Placement
Legend, the Trustee shall deliver a Security bearing the Private Placement
Legend, unless such legend may be removed from such Security as provided in the
next sentence. The Private Placement Legend may be removed from a Security if
there is delivered to the Company such satisfactory evidence, which may include
an opinion of independent counsel licensed to practice law in the State of New
York, as reasonably may be requested by the Company to confirm that neither such
legend nor the restrictions on transfer set forth therein are required to ensure
that transfers of such Security will not violate the registration and prospectus
delivery requirements of the Securities Act; provided that the Trustee shall not
be required to determine (but may rely on a determination made by the Company
with respect to) the sufficiency of any such evidence. Upon provision of such
evidence, the Trustee shall authenticate and deliver in exchange for such
Security, a Security or Securities (representing the same aggregate principal
amount of the Security being exchanged) without such legend. If the Private
Placement Legend has been removed from a Security, as provided above, no other
Security issued in exchange for all or any part of such Security
A-10
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shall bear such legend, unless the Company has reasonable cause to believe that
such other Security represents a "restricted security" within the meaning of
Rule 144 and instructs the Trustee to cause a legend to appear thereon.
The Holder of this Global Security shall, by acceptance of
this Global Security, agree that transfers of beneficial interests in this
Global Security may be effected only through a book entry system maintained by
such Holder (or its agent), and that ownership of a beneficial interest in the
Securities represented thereby shall be required to be reflected in book entry
form.
Transfers of this Global Security shall be limited to
transfers in whole, and not in part, to the Depositary, its successors and their
respective nominees. Interests of beneficial owners in this Global Security may
be transferred in accordance with the rules and procedures of the Depositary (or
its successors).
This Global Security will be exchanged by the Company for one
or more Certificated Securities if (a) the Depositary (i) has notified the
Company that it is unwilling to or unable to continue as, or ceases to be, a
clearing agency registered under Section 17A of the Exchange Act and (ii) a
successor to the Depositary registered as a clearing agency under Section 17 A
of the Exchange Act is not able to be appointed by the Company within 90
calendar days or (b) the Depositary is at any time unwilling to or unable to
continue as Depositary and a successor to the Depositary is not able to be
appointed by the Company within 90 calendar days. If an Event of Default occurs
and is continuing, the Company shall, at the request of the Holder hereof,
exchange all or part of this Global Security for one or more Certificated
Securities; provided that the principal amount of each of such Certificated
Securities and this Global Security, after such exchange, shall be $1,000 or an
integral multiple thereof. Whenever this Global Security is exchanged as a whole
for one or more Certificated Securities, it shall be surrendered by the Holder
to the Trustee for cancellation. Whenever this Global Security is exchanged in
part for one or more Certificated Securities, it shall be surrendered by the
Holder to the Trustee and the Trustee shall make the appropriate notations
thereon pursuant to Section 305 of the Indenture. All Certificated Securities
issued in exchange for this Global Security or any portion hereof shall be
registered in such names as the Depositary shall instruct the Trustee. Any
Certificated Securities issued in exchange for this Global Security shall
include the Private Placement Legend except as set forth in Section 305 of the
Indenture. Interests in this Global Security may not be exchanged for
Certificated Securities other than as provided in this paragraph.
Prior to the effectiveness of a Shelf Registration Statement
or following the suspension or termination thereof, the Holder of this Security
(or holders of interests therein) and prospective purchasers designated by such
Holder (or such holders of interests therein) shall have the right to obtain
from the Company upon request by such Holder (or such holders of interests) or
prospective purchasers, during any period in which the Company is not subject to
Section 13 or 15(d) of the Exchange Act, or exempt from reporting pursuant to
12g3-2(b) under the Exchange Act, the information required by paragraph
(d)(4)(i) of Rule 144A in connection with any transfer or proposed transfer of
such Security or interest.
X-00
000
00. Denominations.
The Securities are issuable only in registered form without
coupons in denominations of $1,000 and integral multiples thereof of principal
amount.
14. Unclaimed Money.
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back to
the Company at its request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only to
the Company and not to the Trustee for payment unless such abandoned property
law designates another Person.
15. Discharge and Defeasance.
Subject to certain conditions, the Company at any time may
terminate some or all of its obligations under the Securities and the Indenture
if the Company irrevocably deposits with the Trustee money or U.S. Government
Obligations for the payment of principal and interest on the Securities to
redemption or maturity, as the case may be.
16. Amendment, Waiver.
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in principal amount of the Outstanding Securities
and (ii) any past Default and its consequences may be waived with the written
consent of the Holders of at least a majority in principal amount of the
Outstanding Securities. Subject to certain exceptions set forth in the
Indenture, without the consent of any Holder of Securities, the Company and the
Trustee may amend Indenture or the Securities (i) to evidence the succession of
another Person to the Company and the assumption by such successor of the
covenants of the company under the Indenture and contained in the Securities;
(ii) to add additional covenants or to surrender rights and powers conferred on
the Company; (iii) to add any additional Events of Default; (iv) to provide for
uncertificated Securities in addition to or in place of Certificated Securities;
(v) to evidence and provide for the acceptance of appointment under the
Indenture of a successor Trustee; (vi) to secure the Securities; (vii) to cure
any ambiguity in the Indenture, to correct or supplement any provision in the
Indenture which may be inconsistent with any other provision therein or to add
any other provisions with respect to matters or questions arising under the
Indenture, provided that such actions shall not adversely affect the interests
of the Holders in any material respect; or (viii) to comply with the
requirements of the Commission in order to effect or maintain the qualification
of the Indenture under the Trust Indenture Act.
17. Defaults and Remedies.
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If an Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in principal amount of the Securities, subject to
certain limitations, may declare all the Securities to be immediately due and
payable. Certain events of bankruptcy or insolvency are Events of Default and
shall result in the Securities being immediately due and payable upon the
occurrence of such Events of Default without any further act of the Trustee or
any Holder.
Holders of Securities may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may refuse to
enforce the Indenture or the Securities unless it receives reasonable indemnity
or security. Subject to certain limitations, Holders of a majority in principal
amount of the Securities may direct the Trustee in its exercise of any trust or
power under the Indenture. The Holders of a majority in principal amount of the
outstanding Securities, by written notice to the Company and the Trustee, may
rescind any declaration of acceleration and its consequences if the rescission
would not conflict with any judgment or decree, and if all Events of Default
have been cured or waived except nonpayment of principal and interest that has
become due solely because of the acceleration.
18. Individual Rights of Trustee.
Subject to certain limitations imposed by the Trust Indenture
Act, the Trustee or any Paying Agent or Registrar, in its individual or any
other capacity, may become the owner or pledgee of Securities and may otherwise
deal with the Company or its Affiliates with the same rights it would have if it
were not Trustee, Paying Agent or Registrar, as the case may be, under the
Indenture.
19. No Recourse Against Certain Others.
No director, officer, employee, incorporator or stockholder of
the Company, as such, shall have any liability for any obligations of the
Company under the Securities or the Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation, solely by
reason of its status as a director, officer, employee, incorporator or
stockholder of the Company. By accepting a Security, each Holder waives and
releases all such liability (but only such liability) as part of the
consideration for issuance of such Security to such Holder.
20. Governing Law.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE.
The Company will furnish to any Holder of Securities upon
written request and without charge to the Holder a copy of the Indenture which
has in it the text of this Security. Requests may be made to:
X-00
000
Xxxxxxx Technologies Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx Xxxxxx Xxxxxxxxxx
A-14
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SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT
The initial principal amount of this Security shall be $144,735,000.00. The
following decreases/increases in the principal amount of this Security have been
made:
Total Principal Notation
Amount Made by
Date of Decrease in Increase in Following Such or on
Decrease/ Principal Principal Decrease/ Behalf of
Increase Amount Amount Increase Trustee
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
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---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
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---------- ---------- ---------- ---------- ----------
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---------- ---------- ---------- ---------- ----------
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ASSIGNMENT
(To be executed by the registered Holder
if such Holder desires to transfer this Security)
FOR VALUE RECEIVED _________________________ hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER TAX IDENTIFYING NUMBER OF
TRANSFEREE
----------------------------
-------------------------------------------------------------------
(Please print name and address of transferee)
-------------------------------------------------------------------
this Security, together with all right, title and interest herein, and
does hereby irrevocably constitute and appoint ______________________
Attorney to transfer this Security on the Security Register, with full
power of substitution.
--------------------------------------------------------------------
Dated:
-----------------
------------------------------- -----------------------------
Signature of Holder Signature Guaranteed:
Commercial Bank or Trust Company
Or Member Firm of the New York
Stock Exchange, Inc.
NOTICE: The signature to the foregoing Assignment must correspond to
the Name as written upon the face of this Security in every particular,
without alteration or any change whatsoever.
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139
OPTION OF HOLDER TO ELECT PURCHASE
(Check as appropriate)
[ ] In connection with the Change of Control Offer made pursuant to Section
_____ of the Indenture, the undersigned hereby elects to have
[ ] $__________($1,000 in principal amount or an integral multiple
thereof) of this Security
repurchased by the Company. The undersigned hereby directs the
Trustee or Paying Agent to pay it or ___________ an amount in cash
equal to 101% with respect to the principal amount indicated in the
preceding sentence or the principal amount indicated in the preceding
sentences, as the case may be, plus accrued and unpaid interest
thereon, if any, to the Change of Control Payment Date.
[ ] In connection with the Asset Sale Offer made pursuant to Section _____
of the Indenture, the undersigned hereby elects to have
[ ] $_________($1,000 in principal amount or an integral multiple
thereof) of this Security
repurchased by the Company. The undersigned hereby directs
the Trustee or Paying Agent to pay it or _____________ an amount
in cash equal to 100% with respect to the principal amount
indicated in the preceding sentence, plus accrued and unpaid
interest thereon, if any, to the Asset Sale Payment Date.
Dated:
--------------------
------------------------------------ ---------------------------------
Signature of Holder Signature Guaranteed:
Commercial Bank or Trust Company
Or Member Firm of the New York
Stock Exchange, Inc.
NOTICE: The signature to the foregoing Assignment must correspond to the Name as
written upon the face of this Security in every particular, without alteration
or any change whatsoever.
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EXHIBIT B
Form of Face of Initial Securities
Form of Reverse of Initial Securities
141
EXHIBIT B
FORM OF INITIAL CERTIFICATED SECURITY
BUCKEYE TECHNOLOGIES INC.
No. 001 CUSIP No. UO563M AA 5
THE SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT
OF, U.S. PERSONS EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3), or (7) UNDER THE SECURITIES
ACT) (AN "ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING
THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL
ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A)
TO THE ISSUER THEREOF OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO
A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN ACCREDITED INVESTOR THAT,
PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S.
BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS
AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE
FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE FOR THIS SECURITY), (D)
OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904
UNDER THE SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR (F) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT
IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF
THIS SECURITY, IF THE PROPOSED TRANSFEREE IS AN ACCREDITED INVESTOR, THE HOLDER
MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE ISSUER SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED
STATES" AND "U.S. PERSON" HAVE THE MEANING GIVEN TO THEM BY REGULATIONS UNDER
THE SECURITIES ACT.
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142
8% SENIOR SUBORDINATED NOTES DUE 2010
Buckeye Technologies Inc., a Delaware corporation, for value
received, hereby promises to pay to CEDE & CO., or its registered assigns,
$5,265,000.00, on October 15, 2010.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purposes.
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143
IN WITNESS WHEREOF, the Company has caused this Security to be
fully executed.
Dated:
BUCKEYE TECHNOLOGIES INC.
By:
----------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
----------------,
as Trustee, certifies that this is one of
the Securities referred to in the Indenture.
By:
------------------------------------------
Authorized Officer
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144
REVERSE SIDE OF FORM OF INITIAL CERTIFICATED SECURITY
BUCKEYE TECHNOLOGIES INC.
CERTIFICATED SECURITY
8% SENIOR SUBORDINATED NOTES DUE 2010
1. Indenture.
This Security is one of a duly authorized issue of debt
securities of the Company (as defined below) designated as its "8% Senior
Subordinated Notes due 2010" (herein called the "Securities") limited in
aggregate principal amount at Stated Maturity to $150,000,000, issued under an
indenture dated as of June 11, 1998 (as amended or supplemented from time to
time, the "Indenture") between the Company and Union PlanterS Bank, N.A., as
trustee (the "Trustee," which term includes any successor Trustee under the
Indenture), to which Indenture reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and each Holder of Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. The
summary of the terms of this Security contained herein does not purport to be
complete and is qualified by reference to the Indenture. All terms used in this
Security which are not defined herein shall have the same meanings assigned to
them in the Indenture or the Registration Rights Agreement, dated June 11, 1998,
among the Company and the Placement Agents (the "Registration Rights
Agreement"), which agreement is attached to the Indenture as Exhibit E thereto.
The Indenture imposes certain limitations on the ability of
the Company to, among other things, make certain Investments and other
Restricted Payments, pay dividends and other distributions, incur Indebtedness,
enter into consensual restrictions upon the payment of certain dividends and
distributions by its Subsidiaries, enter into or permit certain transactions
with Affiliates, create or incur Liens, and make Asset Sales. The Indenture also
imposes limitations on the ability of the Company to consolidate or merge with
or into any other Person or permit any other Person to merge with or into the
Company, or sell, convey, assign, transfer, lease or otherwise dispose of all or
substantially all of the Property of the Company to any other Person and on the
ability of the Company's Subsidiaries to issue Capital Stock.
2. Principal and Interest.
Buckeye Technologies Inc., a Delaware corporation (such
corporation, and its successors and assigns under the Indenture, being herein
called the "Company"), promises to pay $5,265,000.00 to the Holder hereof on
October 15, 2010.
The Company shall pay interest at a rate of 8%, per annum,
from June 11, 1998, or from the most recent Interest Payment Date thereafter to
which interest has been paid or duly provided for, semiannually on April 15 and
October 15 of each year, commencing on October 15,
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1998, in cash, to the Holder hereof until the principal amount hereof is paid or
made available for payment. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, subject to certain exceptions
provided in the Indenture, be paid to the Person in whose name this Security (or
the Security in exchange or substitution for which this Security was issued) is
registered at the close of business on the Regular Record Date for interest
payable on such Interest Payment Date. The Regular Record Date for any interest
payment is the close of business on April 1 or October 1, as the case may be,
whether or not a Business Day, immediately preceding the Interest Payment Date
on which such interest is payable. Any such interest not so punctually paid or
duly provided for ("Defaulted Interest") shall forthwith cease to be payable to
the Holder on such Regular Record Date and shall be paid as provided in Section
307 of the Indenture. Interest will be computed on the basis of a 360-day year
of twelve 30-day months.
Each payment of interest in respect of an Interest Payment
Date will include interest accrued through the day before such Interest Payment
Date. If an Interest Payment Date falls on a day that is not a Business Day, the
interest payment to be made on such Interest Payment Date will be made on the
next succeeding Business Day with the same force and effect as if made on such
Interest Payment Date, and no additional interest will accrue as a result of
such delayed payment.
If this Security is exchanged in an Exchange Offer (as such
term is defined in the Registration Rights Agreement (as defined herein)) prior
to the Regular Record Date for the first Interest Payment Date following such
exchange, accrued and unpaid interest, if any, on this Security, up to but not
including the date of issuance of the Exchange Security or Exchange Securities
issued in exchange for this Security, shall be paid on the first Interest
Payment Date for such Exchange Security or Exchange Securities to the Holder or
Holders of such Exchange Security or Exchange Securities on the first Regular
Record Date with respect to such Exchange Security or Exchange Securities. If
this Security is exchanged in an Exchange Offer subsequent to the Regular Record
Date for the first Interest Payment Date following such exchange but on or prior
to such Interest Payment Date, then any such accrued and unpaid interest with
respect to this Security and any accrued and unpaid interest on the Exchange
Security or Exchange Securities issued in exchange for this Security, through
the day before such Interest Payment Date, shall be paid on such Interest
Payment Date to the Holder of this Security on such Regular Record Date.
3. Additional Interest.
The Holder of this Security is entitled to the benefits of the
Registration Rights Agreement. If the Company fails to file a Registration
Statement within the time periods specified in the Registration Rights Agreement
or if the Exchange Offer Registration Statement or the Shelf Registration
Statement fails to become effective, then, as liquidated damages, additional
interest (the "Additional Interest") shall become payable in respect of the
Securities as follows:
(a) if (A) neither the Exchange Offer Registration Statement
nor the Shelf Registration Statement is filed with the Commission within 60 days
following the Issue Date or (B) notwithstanding that the Company has consummated
or will consummate an Exchange Offer, the
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Company is required to file a Shelf Registration Statement and such Shelf
Registration Statement is not filed on or prior to the date required by the
Registration Rights Agreement, then commencing on the day after either such
required filing date, Additional Interest shall be paid on the principal amount
of the Securities at a rate per annum equal to 0.5% of the principal amount of
the Securities; or
(b) if (A) neither the Exchange Offer Registration Statement
nor the Shelf Registration Statement is declared effective by the Commission
within six (6) months following the Closing Date or (B) notwithstanding that the
Company has consummated or will consummate an Exchange Offer, the Company is
required to file a Shelf Registration Statement and such Shelf Registration
Statement is not declared effective by the Commission on or prior to the date
which is six (6) months following the Closing Date, then, commencing on the day
after either such required effective date, Additional Interest shall be paid on
the principal amount of the Securities at a rate per annum equal to 0.5% of the
principal amount of the Securities; or
(c) if applicable, the Shelf Registration Statement has been
declared effective and such Shelf Registration Statement ceases to be effective
at any time prior to the third anniversary of the Issue Date (other than after
such time as all Securities have been disposed of thereunder and other than
during any Suspension Period (as defined in the Registration Rights Agreement)),
then Additional Interest shall be paid on the principal amount of the Securities
at a rate per annum equal to 0.5% of the principal amount of the Securities
commencing on the day such Shelf Registration Statement ceases to be effective;
provided, however, that the Additional Interest rate on the
Securities may not exceed in the aggregate 1.5% per annum of the principal
amount; provided, further, however, that (1) upon the filing of the Exchange
Offer Registration Statement or a Shelf Registration Statement (in the case of
clause (a) above), (2) upon the effectiveness of the Exchange Offer Registration
Statement or a Shelf Registration Statement (in the case of clause (b) above),
or (3) upon the effectiveness of the Shelf Registration Statement which had
ceased to remain effective (in the case of clause (c) above). Additional
Interest on the Securities as a result of such clause (or the relevant subclause
thereof), as the case may be, shall cease to accrue and the terms of the
Securities shall revert to their original terms.
Any amounts of Additional Interest due pursuant to clause (a),
(b) or (c) above will be payable in cash on April 15 and October 15 of each
year.
Except as expressly provided in this paragraph 3, Additional
Interest shall be treated as interest and any date on which Additional Interest
is due and payable shall be treated as an Interest Payment Date, for all
purposes under this Security and the Indenture.
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4. Method of Payment.
The Company, through the Paying Agent, shall pay interest on
this Security to the registered Holder of this Security, as provided above. The
Holder must surrender this Security to a Paying Agent to collect principal
payments. The Company will pay principal and interest in money of the United
States of America that at the time of payment is legal tender for payment of all
debts public and private. Principal and interest will be payable at the office
of the Paying Agent but, at the option of the Company, interest may be paid by
check mailed to the registered Holders at their registered addresses.
5. Transfer Agent, Paying Agent and Registrar.
Initially, IBJ Xxxxxxxx Bank and Trust Company will act as
Transfer Agent, Paying Agent and Registrar ("Paying Agent") under the Indenture.
The Company may, upon written notice to the Paying Agent and Trustee, appoint
and change any Transfer Agent, Paying Agent or Registrar. The Company or any of
its subsidiaries may act as Transfer Agent, Paying Agent or Registrar.
6. Optional Redemption.
After October 15, 2003, the Securities will be subject to
redemption at the option of the Company, in whole or in part, upon not less than
30 calendar days, nor more than 60 calendar days' notice, at the prices
(expressed as percentages of principal amounts) set forth below, plus accrued
and unpaid interest thereon (if any) at the applicable Redemption Date, if
redeemed during the twelve-month period beginning October 15 of the years
indicated below:
Year Percentage
---- ----------
2003 104.000%
2004 102.667%
2005 101.333%
2006 and thereafter 100.000%
Notwithstanding the foregoing, at any time prior to October
15, 2001, the Company may redeem up to 35% of the aggregate principal amounts of
Securities with the net proceeds of one or more Equity Offerings of the Company
at a redemption price equal to 108% of the aggregate principal amount thereof,
on the date of redemption; provided, however, that, after giving effect to any
such redemption, at least $97.5 million aggregate principal amount of the
Securities remain outstanding.
7. Notice of Redemption.
At least 30 calendar days but not more than 60 calendar days
before a Redemption Date, the Company will send a notice of redemption,
first-class mail, postage prepaid, to Holders of Securities to be redeemed at
the addresses of such Holders as they appear in the Security Register.
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If less than all of the Securities are to be redeemed at any
time, the Securities to be redeemed will be chosen by the Trustee in accordance
with the Indenture. If any Note is redeemed subsequent to a Regular Record Date
with respect to any Interest Payment Date specified above and on or prior to
such Interest Payment Date, then any accrued interest will be paid on such
Interest Payment Date to the Holder of the Security on such Regular Record Date.
If money in an amount sufficient to pay the Redemption Price of all Securities
(or portions thereof) to be redeemed on the Redemption Date is deposited with
the Paying Agent on or before the applicable Redemption Date and certain other
conditions are satisfied, interest on the Securities to be redeemed on the
applicable Redemption Date will cease to accrue.
The Securities are not subject to any sinking fund.
8. Repurchase at the Option of Holders upon Change of
Control.
Upon the occurrence of a Change of Control, each Holder of
Securities shall have the right to require the Company to purchase such Holder's
Securities, in whole, or in part in a principal amount that is an integral
multiple of $1,000, pursuant to a Change of Control Offer, at a purchase price
in cash equal to 101% of the aggregate principal amount thereof on any Change of
Control Purchase Date, plus accrued and unpaid interest, if any, to the Change
of Control Purchase Date.
Within 30 calendar days following any Change of Control, the
Company shall send, or cause to be sent, by first-class mail, postage prepaid, a
notice regarding the Change of Control Offer to each Holder of Securities. The
Holder of this Security may elect to have this Security or a portion hereof in
an authorized denomination purchased by completing the form entitled "Option of
Holder to Require Purchase" appearing below and tendering this Security pursuant
to the Change of Control Offer. Unless the Company defaults in the payment of
the Change of Control Purchase Price with respect thereto, all Securities or
portions thereof accepted for payment pursuant to the Change of Control Offer
will cease to accrue interest from and after the Change of Control Purchase
Date.
9. Repurchase at the Option of Holders upon Asset Sale.
If at any time the aggregate amount of Excess Proceeds
(including any Net Cash Proceeds to be applied to the permanent reduction of
Indebtedness represented by the Existing Senior Subordinated Notes) calculated
as of such date exceeds $15 million, the Company shall, within 30 days of the
date the amount of Excess Proceeds exceeds $15 million, use such Excess Proceeds
to make an offer to purchase (an "Asset Sale Offer") on a pro rata basis, from
all holders, outstanding Notes, Existing Senior Subordinated Notes in an
aggregate principal amount equal to the maximum principal amount that may be
purchased out of Excess Proceeds, at a purchase price (the "Offer Purchase
Price") in cash equal to (a) with respect to the Existing Notes, 100% of the
Accreted Value thereof (as defined in the relevant indenture) and (b) with
respect to the Securities, 100% of the principal amount thereof, plus, in each
case, accrued and unpaid interest, if any, to the purchase date, in accordance
with the procedures set forth in the relevant indenture. Upon
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completion of an Asset Sale Offer (including payment of the Offered Price), any
surplus Excess Proceeds that were the subject of such offer shall cease to be
Excess Proceeds, and the Company may then use such amounts for general corporate
purposes.
Within 30 calendar days of the date the amount of Excess
Proceeds exceeds $10,000,000, the Company shall send, or cause to be sent, by
first-class mail, postage prepaid, a notice regarding the Asset Sale Offer to
each Holder of Securities. The Holder of this Security may elect to have this
Security or a portion hereof in an authorized denomination purchased by
completing the form entitled "Option of Holder to Require Purchase" appearing
below and tendering this Security pursuant to the Asset Sale Offer. Unless the
Company defaults in the payment of the Offered Price with respect thereto, all
Securities or portions thereof selected for payment pursuant to the Asset Sale
Offer will cease to accrue interest from and after the Offer Date.
10. The Registered Exchange Offer.
Any Initial Securities represented by this Certificated
Security which are presented to the Registrar for exchange pursuant to the
Exchange Offer Registration shall be exchanged for a Certificated Security
representing Exchange Securities of equal principal amount upon surrender of
this Certificated Security to the Registrar in accordance with the terms of the
Exchange Offer Registration and the Indenture.
11. Transfer and Exchange.
By its acceptance of any Security represented by a certificate
bearing the Private Placement Legend, each Holder of, and beneficial owner of an
interest in, such a Security acknowledges the restrictions on transfer of such a
Security set forth in the Private Placement Legend and under the heading
"Transfer Restrictions" in the Final Memorandum, and agrees that it will
transfer such a Security only in accordance with the Private Placement Legend
and that it will transfer such a Security only in accordance under the heading
"Transfer Restrictions" in the Final Memorandum.
In connection with any registration of transfer of a Security
bearing the Private Placement Legend other than to a Person whom the Holder
reasonably believes to be a "qualified institutional buyer" under the Securities
Act, such Holder shall deliver to the Company such satisfactory evidence, which
may include an opinion of independent counsel licensed to practice law in the
State of New York, as reasonably may be requested by the Company to confirm that
such transfer is being made in accordance with the limitations set forth in the
Private Placement Legend. In the event the Company reasonably determines that
any such transfer is not in accordance with the Private Placement Legend, the
Company shall so inform the Registrar who shall not register such transfer;
provided that the Registrar shall not be required to determine (but may rely on
a determination made by the Company with respect to) the sufficiency of any such
evidence.
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Upon the registration of transfer, exchange or replacement of
a Security not bearing the Private Placement Legend, the Trustee shall deliver a
Security that does not bear the Private Placement Legend. Upon the registration
of transfer, exchange or replacement of a Security bearing the Private Placement
Legend, the Trustee shall deliver a Security bearing the Private Placement
Legend, unless such legend may be removed from such Security as provided in the
next sentence. The Private Placement Legend may be removed from a Security if
there is delivered to the Company such satisfactory evidence, which may include
an opinion of independent counsel licensed to practice law in the State of New
York, as reasonably may be requested by the Company to confirm that neither such
legend nor the restrictions on transfer set forth therein are required to ensure
that transfers of such Security will not violate the registration and prospectus
delivery requirements of the Securities Act; provided that the Trustee shall not
be required to determine (but may rely on a determination made by the Company
with respect to) the sufficiency of any such evidence. Upon provision of such
evidence, the Trustee shall authenticate and deliver in exchange for such
Security, a Security or Securities (representing the same aggregate principal
amount of the Security being exchanged) without such legend. If the Private
Placement Legend has been removed from a Security, as provided above, no other
Security issued in exchange for all or any part of such Security shall bear such
legend, unless the Company has reasonable cause to believe that such other
Security represents a "restricted security" within the meaning of Rule 144 and
instructs the Trustee to cause a legend to appear thereon.
Prior to the effectiveness of a Shelf Registration Statement
or following the suspension or termination thereof, the Holder of this Security
(or holders of interests therein) and prospective purchasers designated by such
Holder (or such holders of interests therein) shall have the right to obtain
from the Company upon request by such Holder (or such holders of interests) or
prospective purchasers, during any period in which the Company is not subject to
Section 13 or 15(d) of the Exchange Act, or exempt from reporting pursuant to
12g3-2(b) under the Exchange Act, the information required by paragraph
(d)(4)(i) of Rule 144A in connection with any transfer or proposed transfer of
such Security or interest.
12. Denominations.
The Securities are issuable only in registered form without
coupons in denominations of $1,000 and integral multiples thereof of principal
amount.
13. Unclaimed Money.
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back to
the Company at its request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only to
the Company and not to the Trustee for payment unless such abandoned property
law designates another Person.
14. Discharge and Defeasance.
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Subject to certain conditions, the Company at any time may
terminate some or all of its obligations under the Securities and the Indenture
if the Company irrevocably deposits with the Trustee money or U.S. Government
Obligations for the payment of principal and interest on the Securities to
redemption or maturity, as the case may be.
15. Amendment, Waiver.
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in principal amount of the Outstanding Securities
and (ii) any past Default and its consequences may be waived with the written
consent of the Holders of at least a majority in principal amount of the
Outstanding Securities. Subject to certain exceptions set forth in the
Indenture, without the consent of any Holder of Securities, the Company and the
Trustee may amend Indenture or the Securities (i) to evidence the succession of
another Person to the Company and the assumption by such successor of the
covenants of the company under the Indenture and contained in the Securities;
(ii) to add additional covenants or to surrender rights and powers conferred on
the Company; (iii) to add any additional Events of Default; (iv) to provide for
uncertificated Securities in addition to or in place of Certificated Securities;
(v) to evidence and provide for the acceptance of appointment under the
Indenture of a successor Trustee; (vi) to secure the Securities; (vii) to cure
any ambiguity in the Indenture, to correct or supplement any provision in the
Indenture which may be inconsistent with any other provision therein or to add
any other provisions with respect to matters or questions arising under the
Indenture, provided that such actions shall not adversely affect the interests
of the Holders in any material respect; or (viii) to comply with the
requirements of the Commission in order to effect or maintain the qualification
of the Indenture under the Trust Indenture Act.
16. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in principal amount of the Securities, subject to
certain limitations, may declare all the Securities to be immediately due and
payable. Certain events of bankruptcy or insolvency are Events of Default and
shall result in the Securities being immediately due and payable upon the
occurrence of such Events of Default without any further act of the Trustee or
any Holder.
Holders of Securities may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may refuse to
enforce the Indenture or the Securities unless it receives reasonable indemnity
or security. Subject to certain limitations, Holders of a majority in principal
amount of the Securities may direct the Trustee in its exercise of any trust or
power under the Indenture. The Holders of a majority in principal amount of the
outstanding Securities, by written notice to the Company and the Trustee, may
rescind any declaration of acceleration and its consequences if the rescission
would not conflict with any judgment or decree, and if all Events of Default
have been cured or waived except nonpayment of principal and interest that has
become due solely because of the acceleration.
X-00
000
00. Individual Rights of Trustee.
Subject to certain limitations imposed by the Trust Indenture
Act, the Trustee or any Transfer Agent, Paying Agent or Registrar, in its
individual or any other capacity, may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee, Transfer Agent, Paying Agent or Registrar,
as the case may be, under the Indenture.
18. No Recourse Against Certain Others.
No director, officer, employee, incorporator or stockholder of
the Company, as such, shall have any liability for any obligations of the
Company under the Securities or the Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation, solely by
reason of its status as a director, officer, employee, incorporator or
stockholder of the Company. By accepting a Security, each Holder waives and
releases all such liability (but only such liability) as part of the
consideration for issuance of such Security to such Holder.
19. Governing Law.
THE INDENTURE AND THIS SECURITYNOTE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE.
The Company will furnish to any Holder of Securities upon
written request and without charge to the Holder a copy of the Indenture which
has in it the text of this Security. Requests may be made to:
Buckeye Technologies Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx Xxxxxx Xxxxxxxxxx
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ASSIGNMENT
(To be executed by the registered Holder
if such Holder desires to transfer this Security)
FOR VALUE RECEIVED _____________________________ hereby sells, assigns
and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER TAX IDENTIFYING NUMBER OF
TRANSFEREE
----------------------------
-------------------------------------------------------------------
(Please print name and address of transferee)
-------------------------------------------------------------------
this Security, together with all right, title and interest herein, and
does hereby irrevocably constitute and appoint ______________________
Attorney to transfer this Security on the Security Register, with full
power of substitution.
--------------------------------------------------------------------
Dated:
------------------
------------------------------- -----------------------------
Signature of Holder Signature Guaranteed:
Commercial Bank or Trust Company
Or Member Firm of the New York
Stock Exchange, Inc.
NOTICE: The signature to the foregoing Assignment must correspond to
the Name as written upon the face of this Security in every particular,
without alteration or any change whatsoever.
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OPTION OF HOLDER TO ELECT PURCHASE
(Check as appropriate)
[ ] In connection with the Change of Control Offer made pursuant to Section
_____ of the Indenture, the undersigned hereby elects to have
[ ] $__________($1,000 in principal amount or an integral multiple
thereof) of this Security
repurchased by the Company. The undersigned hereby directs the
Trustee or Paying Agent to pay it or ___________ an amount in cash
equal to 101% with respect to the principal amount indicated in the
preceding sentence or the principal amount indicated in the preceding
sentences, as the case may be, plus accrued and unpaid interest
thereon, if any, to the Change of Control Payment Date.
[ ] In connection with the Asset Sale Offer made pursuant to Section ______
of the Indenture, the undersigned hereby elects to have
[ ] $_________($1,000 in principal amount or an integral multiple
thereof) of this Security
repurchased by the Company. The undersigned hereby directs
the Trustee or Paying Agent to pay it or ______________ an amount
in cash equal to 100% with respect to the principal amount
indicated in the preceding sentence, plus accrued and unpaid
interest thereon, if any, to the Asset Sale Payment Date.
Dated:
---------------------
------------------------------------ ---------------------------------
Signature of Holder Signature Guaranteed:
Commercial Bank or Trust Company
Or Member Firm of the New York
Stock Exchange, Inc.
NOTICE: The signature to the foregoing Assignment must correspond to the Name as
written upon the face of this Security in every particular, without alteration
or any change whatsoever.
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EXHIBIT C
Form of Face of Exchange Securities
Form of Reverse of Exchange Securities
156
EXHIBIT C
FORM OF EXCHANGE GLOBAL SECURITY
BUCKEYE TECHNOLOGIES INC.
No. __ CUSIP No. _____
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO BUCKEYE TECHNOLOGIES INC. OR THE REGISTRAR FOR
REGISTRATION OF TRANSFER OR EXCHANGE AND ANY SECURITY ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR SUCH OTHER ENTITY AS HAS BEEN REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS HAS BEEN REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFER OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, AND NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF INTERESTS IN THIS
GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN SECTION ___ OF THE INDENTURE, DATED AS OF June 11,
1998, BETWEEN BUCKEYE TECHNOLOGIES INC. AND THE TRUSTEE NAMED THEREIN, PURSUANT
TO WHICH THIS SECURITY WAS ISSUED.
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GLOBAL SECURITY
REPRESENTING 8% SENIOR SUBORDINATED NOTES DUE 2010
Buckeye Technologies Inc., a Delaware corporation, for value
received, hereby promises to pay to CEDE & CO., or its registered assigns, the
principal sum indicated on Schedule A hereof, on October 15, 2010.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purposes.
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IN WITNESS WHEREOF, the Company has caused this Security to be
fully executed.
Dated:
BUCKEYE TECHNOLOGIES INC.
By:
--------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
----------------,
as Trustee, certifies that this is one of
the Securities referred to in the Indenture.
By:
-------------------------------------------
Authorized Officer
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REVERSE SIDE OF FORM OF EXCHANGE GLOBAL SECURITY
BUCKEYE TECHNOLOGIES INC.
GLOBAL SECURITY
REPRESENTING 8% SENIOR SUBORDINATED NOTES DUE 2010
1. Indenture.
This Security is one of a duly authorized issue of debt
securities of the Company (as defined below) designated as its "8% Senior
Subordinated Notes due 2010" (herein called the "Securities") limited in
aggregate principal amount at Stated Maturity to $150,000,000, issued under an
indenture dated as of June 11, 1998 (as amended or supplemented from time to
time, the "Indenture") between the Company and Union Planters Bank, N.A., as
trustee (the "Trustee," which term includes any successor Trustee under the
Indenture), to which Indenture reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and each Holder of Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. The
summary of the terms of this Security contained herein does not purport to be
complete and is qualified by reference to the Indenture. All terms used in this
Security which are not defined herein shall have the same meanings assigned to
them in the Indenture.
The Indenture imposes certain limitations on the ability of
the Company and its Restricted Subsidiaries to, among other things, make certain
Investments and other Restricted Payments, pay dividends and other
distributions, incur Indebtedness, enter into consensual restrictions upon the
payment of certain dividends and distributions by such Restricted Subsidiaries,
enter into or permit certain transactions with Affiliates, create or incur
Liens, enter into or permit certain Sale and Leaseback Transactions and make
Asset Sales. The Indenture also imposes limitations on the ability of the
Company to consolidate or merge with or into any other Person or permit any
other Person to merge with or into the Company, or sell, convey, assign,
transfer, lease or otherwise dispose of all or substantially all of the Property
of the Company to any other Person and on the ability of the Company's
Restricted Subsidiaries to issue Capital Stock.
2. Principal and Interest.
Buckeye Technologies Inc., a Delaware corporation (such
corporation, and its successors and assigns under the Indenture, being herein
called the "Company"), promises to pay the principal amount set forth on
Schedule A of this Security to the Holder hereof on October 15, 2010.
The Company shall pay interest at a rate of 8%, per annum,
from June 11, 1998, or from the most recent Interest Payment Date thereafter to
which interest has been paid or duly provided for, semiannually on April 15 and
October 15 of each year, commencing on October 15,
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1998, in cash, to the Holder hereof until the principal amount hereof is paid or
made available for payment. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, subject to certain exceptions
provided in the Indenture, be paid to the Person in whose name this Security (or
the Security in exchange or substitution for which this Security was issued) is
registered at the close of business on the Record Date for interest payable on
such Interest Payment Date. The Record Date for any interest payment is the
close of business on April 1 or October 1, as the case may be, whether or not a
Business Day, immediately preceding the Interest Payment Date on which such
interest is payable. Any such interest not so punctually paid or duly provided
for ("Defaulted Interest") shall forthwith cease to be payable to the Holder on
such Record Date and shall be paid as provided in Section 307 of the Indenture.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
Each payment of interest in respect of an Interest Payment
Date will include interest accrued through the day before such Interest Payment
Date. If an Interest Payment Date falls on a day that is not a Business Day, the
interest payment to be made on such Interest Payment Date will be made on the
next succeeding Business Day with the same force and effect as if made on such
Interest Payment Date, and no additional interest will accrue as a result of
such delayed payment.
3. Method of Payment.
The Company, through the Paying Agent, shall pay interest on
this Security to the registered Holder of this Security, as provided above. The
Holder must surrender this Security to a Paying Agent to collect principal
payments. The Company will pay principal and interest in money of the United
States of America that at the time of payment is legal tender for payment of all
debts public and private. Principal and interest will be payable at the office
of the Paying Agent but, at the option of the Company, interest may be paid by
check mailed to the registered Holders at their registered addresses.
4. Transfer Agent, Paying Agent and Registrar.
Initially, IBJ Xxxxxxxx Bank and Trust Company will act as
Transfer Agent, Paying Agent and Registrar under the Indenture. The Company may,
upon written notice to the Trustee and Paying Agent, appoint and change any
Transfer Agent, Paying Agent or Registrar. The Company or any of its
subsidiaries may act as Transfer Agent, Paying Agent or Registrar.
5. Optional Redemption.
After October 15, 2003, the Securities will be subject to
redemption at the option of the Company, in whole or in part, upon not less than
30 calendar days, nor more than 60 calendar days' notice, at the prices
(expressed as percentages of principal amounts) set forth below, plus accrued
and unpaid interest thereon (if any) at the applicable Redemption Date, if
redeemed during the twelve-month period beginning Octoebr 15 of the years
indicated below:
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Year Percentage
---- ----------
2003 104.000%
2004 102.667%
2005 101.333%
2006 and thereafter 100.000%
Notwithstanding the foregoing, at any time prior to October
15, 2001, the Company may redeem up to 35% of the aggregate principal amounts of
Securities with the net proceeds of one or more Equity Offerings of the Company
at a redemption price equal to 108% of the aggregate principal amount thereof,
on the date of redemption; provided, however, that, after giving effect to any
such redemption, at least $97.5 million aggregate principal amount of the
Securities remain outstanding.
6. Notice of Redemption.
At least 30 calendar days but not more than 60 calendar days
before a Redemption Date, the Company will send a notice of redemption,
first-class mail, postage prepaid, to Holders of Securities to be redeemed at
the addresses of such Holders as they appear in the Security Register.
If less than all of the Securities are to be redeemed at any
time, the Securities to be redeemed will be chosen by the Trustee in accordance
with the Indenture. If any Security is redeemed subsequent to a Record Date with
respect to any Interest Payment Date specified above and on or prior to such
Interest Payment Date, then any accrued interest will be paid on such Interest
Payment Date to the Holder of the Security on such Record Date. If money in an
amount sufficient to pay the Redemption Price of all Securities (or portions
thereof) to be redeemed on the Redemption Date is deposited with the Paying
Agent on or before the applicable Redemption Date and certain other conditions
are satisfied, interest on the Securities to be redeemed on the applicable
Redemption Date will cease to accrue.
The Securities are not subject to any sinking fund.
7. Repurchase at the Option of Holders upon Change of
Control.
Upon the occurrence of a Change of Control, each Holder of
Securities shall have the right to require the Company to purchase such Holder's
Securities, in whole, or in part in a principal amount that is an integral
multiple of $1,000, pursuant to a Change of Control Offer, at a purchase price
in cash equal to 101% of the aggregate principal amount thereof on any Change of
Control Payment Date, plus accrued and unpaid interest, if any, to the Change of
Control Payment Date.
Within 30 calendar days following any Change of Control, the
Company shall send, or cause to be sent, by first-class mail, postage prepaid, a
notice regarding the Change of Control Offer to each Holder of Securities. The
Holder of this Security may elect to have this Security or a portion hereof in
an authorized denomination purchased by completing the form entitled "Option
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of Holder to Require Purchase" appearing below and tendering this Security
pursuant to the Change of Control Offer. Unless the Company defaults in the
payment of the Change of Control Purchase Price with respect thereto, all
Securities or portions thereof accepted for payment pursuant to the Change of
Control Offer will cease to accrue interest from and after the Change of Control
Payment Date.
8. Repurchase at the Option of Holders upon Asset Sale.
If at any time the aggregate amount of Excess Proceeds
(including any Net Cash Proceeds to be applied to the permanent reduction of
Indebtedness represented by the Existing Senior Subordinated Securities)
calculated as of such date exceeds $10 million, the Company shall, within 30
days of the date the amount of Excess Proceeds exceeds $10 million, use such
Excess Proceeds to make an offer to purchase (an "Asset Sale Offer") on a pro
rata basis, from all holders, outstanding Securities, Existing Senior
Subordinated Notes in an aggregate principal amount equal to the maximum
principal amount that may be purchased out of Excess Proceeds, at a purchase
price (the "Offer Purchase Price") in cash equal to (a) with respect to the
Existing Notes, 100% of the Accreted Value thereof (as defined in the relevant
indenture) and (b) with respect to the Securities, 100% of the principal amount
thereof, plus, in each case, accrued and unpaid interest, if any, to the
purchase date, in accordance with the procedures set forth in the relevant
indenture. Upon completion of an Asset Sale Offer (including payment of the
Offer Purchase Price), any surplus Excess Proceeds that were the subject of such
offer shall cease to be Excess Proceeds, and the Company may then use such
amounts for general corporate purposes.
Within 30 calendar days of the date the amount of Excess
Proceeds exceeds $10,000,000, the Company shall send, or cause to be sent, by
first-class mail, postage prepaid, a notice regarding the Asset Sale Offer to
each Holder of Securities. The Holder of this Security may elect to have this
Security or a portion hereof in an authorized denomination purchased by
completing the form entitled "Option of Holder to Require Purchase" appearing
below and tendering this Security pursuant to the Asset Sale Offer. Unless the
Company defaults in the payment of the Offer Purchase Price with respect
thereto, all Securities or portions thereof selected for payment pursuant to the
Asset Sale Offer will cease accrue interest from and after the Asset Sale
Payment Date.
9. The Global Security.
So long as this Global Security is registered in the name of
the Depositary or its nominee, members of, or participants in, the Depositary
("Agent Members") shall have no rights under the Indenture with respect to this
Global Security held on their behalf by the Depositary or the Trustee as its
custodian, 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 this Global
Security for all purposes. Notwithstanding the foregoing, nothing herein shall
(i) 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 (ii) impair, as between the Depositary and its
Agent
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Members, the operation of customary practices governing the exercise of the
rights of a Holder of Securities.
The Holder of this Global Security may grant proxies and
otherwise authorize any Person, including Agent Members and Persons that may
hold interests in this Global Security through Agent Members, to take any action
which a Holder of Securities is entitled to take under the Indenture or the
Securities.
Whenever, as a result of optional redemption by the Company, a
Change of Control Offer, an Asset Sale Offer, a Registered Exchange Offer or an
exchange for Certificated Securities, this Global Security is redeemed,
repurchased or exchanged in part, this Global Security shall be surrendered by
the Holder thereof to the Trustee who shall cause an adjustment to be made to
Schedule A hereof so that the principal amount of this Global Security will be
equal to the portion not redeemed, repurchased or exchanged and shall thereafter
return this Global Security to such holder; provided that this Global Security
shall be in a principal amount of $1,000 or an integral multiple of $1,000.
10. Transfer and Exchange.
The Holder of this Global Security shall, by acceptance of
this Global Note, agree that transfers of beneficial interests in this Global
Security may be effected only through a book entry system maintained by such
Holder (or its agent), and that ownership of a beneficial interest in the
Securities represented therby shall be required to be reflected in book entry
form.
Transfers of this Global Security shall be limited to
transfers in whole, and not in part, to the Depositary, its successors and their
respective nominees. Interests of beneficial owners in this Global Security may
be transferred in accordance with the rules and procedures of the Depositary (or
its successors).
This Global Security will be exchanged by the Company for one
or more Certificated Securities if (a) the Depositary (i) has notified the
Company that it is unwilling to or unable to continue as, or ceases to be, a
clearing agency registered under Section 17A of the Exchange Act and (ii) a
successor to the Depositary registered as a clearing agency under Section 17 A
of the Exchange Act is not able to be appointed by the Company within 90
calendar days or (b) the Depositary is at any time unwilling to or unable to
continue as Depositary and a successor to the Depositary is not able to be
appointed by the Company within 90 calendar days. If an Event of Default occurs
and is continuing, the Company shall, at the request of the Holder hereof,
exchange all or part of this Global Security for one or more Certificated
Securities; provided that the principal amount of each of such Certificated
Securities and this Global Security, after such exchange, shall be $1,000 or an
integral multiple thereof. Whenever this Global Security is exchanged as a whole
for one or more Certificated Securities, it shall be surrendered by the Holder
to the Trustee for cancellation. Whenever this Global Security is exchanged in
part for one or more Certificated Securities, it shall be surrendered by the
Holder to the Trustee and the Trustee shall make the appropriate notations
C-8
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thereon pursuant to Section ___ of the Indenture. All Certificated Securities
issued in exchange for this Global Security or any portion hereof shall be
registered in such names as the Depositary shall instruct the Trustee. Interests
in this Global Security may not be exchanged for Certificated Securities other
than as provided in this paragraph.
11. Denominations.
The Securities are issuable only in registered form without
coupons in denominations of $1,000 and integral multiples thereof of principal
amount.
12. Unclaimed Money.
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back to
the Company at its request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only to
the Company and not to the Trustee for payment unless such abandoned property
law designates another Person.
13. Discharge and Defeasance.
Subject to certain conditions, the Company at any time may
terminate some or all of its obligations under the Securities and the Indenture
if the Company irrevocably deposits with the Trustee money or U.S. Government
Obligations for the payment of principal and interest on the Securities to
redemption or maturity, as the case may be.
14. Amendment, Waiver.
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in principal amount of the Outstanding Securities
and (ii) any past Default and its consequences may be waived with the written
consent of the Holders of at least a majority in principal amount of the
Outstanding Securities. Subject to certain exceptions set forth in the
Indenture, without the consent of any Holder of Securities, the Company and the
Trustee may amend Indenture or the Securities (i) to evidence the succession of
another Person to the Company and the assumption by such successor of the
covenants of the company under the Indenture and contained in the Securities;
(ii) to add additional covenants or to surrender rights and powers conferred on
the Company; (iii) to add any additional Events of Default; (iv) to provide for
uncertificated Securities in addition to or in place of Certificated Securities;
(v) to evidence and provide for the acceptance of appointment under the
Indenture of a successor Trustee; (vi) to secure the Securities; (vii) to cure
any ambiguity in the Indenture, to correct or supplement any provision in the
Indenture which may be inconsistent with any other provision therein or to add
any other provisions with respect to matters or questions arising under the
Indenture, provided that such actions shall not adversely affect the interests
of the Holders
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in any material respect; or (viii) to comply with the requirements of the
Commission in order to effect or maintain the qualification of the Indenture
under the Trust Indenture Act.
15. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in principal amount of the Securities, subject to
certain limitations, may declare all the Securities to be immediately due and
payable. Certain events of bankruptcy or insolvency are Events of Default and
shall result in the Securities being immediately due and payable upon the
occurrence of such Events of Default without any further act of the Trustee or
any Holder.
Holders of Securities may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may refuse to
enforce the Indenture or the Securities unless it receives reasonable indemnity
or security. Subject to certain limitations, Holders of a majority in principal
amount of the Securities may direct the Trustee in its exercise of any trust or
power under the Indenture. The Holders of a majority in principal amount of the
outstanding Securities, by written notice to the Company and the Trustee, may
rescind any declaration of acceleration and its consequences if the rescission
would not conflict with any judgment or decree, and if all Events of Default
have been cured or waived except nonpayment of principal and interest that has
become due solely because of the acceleration.
16. Individual Rights of Trustee.
Subject to certain limitations imposed by the Trust Indenture
Act, the Trustee or any Transfer Agent, Paying Agent or Registrar, in its
individual or any other capacity, may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee, Transfer Agent, Paying Agent or Registrar,
as the case may be, under the Indenture.
17. No Recourse Against Certain Others.
No director, officer, employee, incorporator or stockholder of
the Company, as such, shall have any liability for any obligations of the
Company under the Securities or the Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation, solely by
reason of its status as a director, officer, employee, incorporator or
stockholder of the Company. By accepting a Security, each Holder waives and
releases all such liability (but only such liability) as part of the
consideration for issuance of such Security to such Holder.
18. Governing Law.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE.
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The Company will furnish to any Holder of Securities upon
written request and without charge to the Holder a copy of the Indenture which
has in it the text of this Security.
Requests may be made to:
Buckeye Technologies Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx Xxxxxx Xxxxxxxxxx
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SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT
The initial principal amount of this Security shall be $144,735,000.00. The
following decreases/increases in the principal amount of this Security have been
made:
Total Principal Notation
Amount Made by
Date of Decrease in Increase in Following Such or on
Decrease/ Principal Principal Decrease/ Behalf of
Increase Amount Amount Increase Trustee
---------- ---------- ----------- ---------- ---------
---------- ---------- ----------- ---------- ---------
---------- ---------- ----------- ---------- ---------
---------- ---------- ----------- ---------- ---------
---------- ---------- ----------- ---------- ---------
---------- ---------- ----------- ---------- ---------
---------- ---------- ----------- ---------- ---------
---------- ---------- ----------- ---------- ---------
---------- ---------- ----------- ---------- ---------
---------- ---------- ----------- ---------- ---------
---------- ---------- ----------- ---------- ---------
---------- ---------- ----------- ---------- ---------
---------- ---------- ----------- ---------- ---------
---------- ---------- ----------- ---------- ---------
---------- ---------- ----------- ---------- ---------
---------- ---------- ----------- ---------- ---------
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ASSIGNMENT
(To be executed by the registered Holder
if such Holder desires to transfer this Security)
FOR VALUE RECEIVED _____________________________ hereby sells, assigns
and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER TAX IDENTIFYING NUMBER OF
TRANSFEREE
----------------------------
-------------------------------------------------------------------
(Please print name and address of transferee)
-------------------------------------------------------------------
this Security, together with all right, title and interest herein, and
does hereby irrevocably constitute and appoint ______________________
Attorney to transfer this Security on the Security Register, with full
power of substitution.
--------------------------------------------------------------------
Dated:
------------------
------------------------------- -----------------------------
Signature of Holder Signature Guaranteed:
Commercial Bank or Trust Company
Or Member Firm of the New York
Stock Exchange, Inc.
NOTICE: The signature to the foregoing Assignment must correspond to
the Name as written upon the face of this Security in every particular,
without alteration or any change whatsoever.
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OPTION OF HOLDER TO ELECT PURCHASE
(Check as appropriate)
[ ] In connection with the Change of Control Offer made pursuant to Section
_____ of the Indenture, the undersigned hereby elects to have
[ ] $__________($1,000 in principal amount or an integral multiple
thereof) of this Security
repurchased by the Company. The undersigned hereby directs the
Trustee or Paying Agent to pay it or ___________ an amount in cash
equal to 101% with respect to the principal amount indicated in the
preceding sentence or the principal amount indicated in the preceding
sentences, as the case may be, plus accrued and unpaid interest
thereon, if any, to the Change of Control Payment Date.
[ ] In connection with the Asset Sale Offer made pursuant to Section ______
of the Indenture, the undersigned hereby elects to have
[ ] $_________($1,000 in principal amount or an integral multiple
thereof) of this Security
repurchased by the Company. The undersigned hereby directs
the Trustee or Paying Agent to pay it or ______________ an amount
in cash equal to 100% with respect to the principal amount
indicated in the preceding sentence, plus accrued and unpaid
interest thereon, if any, to the Asset Sale Payment Date.
Dated:
---------------------
------------------------------------ ---------------------------------
Signature of Holder Signature Guaranteed:
Commercial Bank or Trust Company
Or Member Firm of the New York
Stock Exchange, Inc.
NOTICE: The signature to the foregoing Assignment must correspond to the Name as
written upon the face of this Security in every particular, without alteration
or any change whatsoever.
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EXHIBIT D
Form of Face of Exchange Securities
Form of Reverse of Exchange Securities
171
EXHIBIT D
FORM OF EXCHANGE CERTIFICATED SECURITY
BUCKEYE TECHNOLOGIES INC.
No. __ CUSIP No. ____
8% SENIOR SUBORDINATED NOTES DUE 2010
Buckeye Technologies Inc., a Delaware corporation, for value
received, hereby promises to pay to CEDE & CO., or its registered assigns, the
principal sum indicated on Schedule A hereof, on October 15, 2010.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purposes.
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IN WITNESS WHEREOF, the Company has caused this Security to be
fully executed.
Dated:
BUCKEYE TECHNOLOGIES INC.
By:
----------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
----------------,
as Trustee, certifies that this is one of
the Securities referred to in the Indenture.
By:
-----------------------------------------
Authorized Officer
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REVERSE SIDE OF FORM OF EXCHANGE CERTIFICATED SECURITY
BUCKEYE TECHNOLOGIES INC.
CERTIFICATED SECURITY
REPRESENTING 8% SENIOR SUBORDINATED NOTES DUE 2010
1. Indenture.
This Security is one of a duly authorized issue of debt
securities of the Company (as defined below) designated as its "8% Senior
Subordinated Notes due 2010" (herein called the "Securities") limited in
aggregate principal amount at Stated Maturity to $150,000,000, issued under an
indenture dated as of June 11, 1998 (as amended or supplemented from time to
time, the "Indenture") between the Company and Union Planters Bank, N.A., as
trustee (the "Trustee," which term includes any successor Trustee under the
Indenture), to which Indenture reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and each Holder of Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. The
summary of the terms of this Security contained herein does not purport to be
complete and is qualified by reference to the Indenture. All terms used in this
Security which are not defined herein shall have the same meanings assigned to
them in the Indenture.
The Indenture imposes certain limitations on the ability of
the Company and its Restricted Subsidiaries to, among other things, make certain
Investments and other Restricted Payments, pay dividends and other
distributions, incur Indebtedness, enter into consensual restrictions upon the
payment of certain dividends and distributions by such Restricted Subsidiaries,
enter into or permit certain transactions with Affiliates, create or incur
Liens, enter into or permit certain Sale and Leaseback Transactions and make
Asset Sales. The Indenture also imposes limitations on the ability of the
Company to consolidate or merge with or into any other Person or permit any
other Person to merge with or into the Company, or sell, convey, assign,
transfer, lease or otherwise dispose of all or substantially all of the Property
of the Company to any other Person and on the ability of the Company's
Restricted Subsidiaries to issue Capital Stock.
2. Principal and Interest.
Buckeye Technologies Inc., a Delaware corporation (such
corporation, and its successors and assigns under the Indenture, being herein
called the "Company"), promises to pay $5,625,000.00 to the Holder hereof on
October 15, 2010.
The Company shall pay interest at a rate of 8%, per annum,
from June 11, 1998, or from the most recent Interest Payment Date thereafter to
which interest has been paid or duly provided for, semiannually on April 15 and
October 15 of each year, commencing on October 15, 1998, in cash, to the Holder
hereof until the principal amount hereof is paid or made available for
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payment. The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, subject to certain exceptions provided in the
Indenture, be paid to the Person in whose name this Security (or the Security in
exchange or substitution for which this Security was issued) is registered at
the close of business on the Record Date for interest payable on such Interest
Payment Date. The Record Date for any interest payment is the close of business
on April 1 or October 1, as the case may be, whether or not a Business Day,
immediately preceding the Interest Payment Date on which such interest is
payable. Any such interest not so punctually paid or duly provided for
("Defaulted Interest") shall forthwith cease to be payable to the Holder on such
Record Date and shall be paid as provided in Section 307 of the Indenture.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
Each payment of interest in respect of an Interest Payment
Date will include interest accrued through the day before such Interest Payment
Date. If an Interest Payment Date falls on a day that is not a Business Day, the
interest payment to be made on such Interest Payment Date will be made on the
next succeeding Business Day with the same force and effect as if made on such
Interest Payment Date, and no additional interest will accrue as a result of
such delayed payment.
3. Method of Payment.
The Company, through the Paying Agent, shall pay interest on
this Security to the registered Holder of this Security, as provided above. The
Holder must surrender this Security to a Paying Agent to collect principal
payments. The Company will pay principal and interest in money of the United
States of America that at the time of payment is legal tender for payment of all
debts public and private. Principal and interest will be payable at the office
of the Paying Agent but, at the option of the Company, interest may be paid by
check mailed to the registered Holders at their registered addresses.
4. Transfer Agent, Paying Agent and Registrar.
Initially, IBJ Xxxxxxxx Bank and Trust Company will act as
Transfer Agent, Paying Agent and Registrar under the Indenture. The Company may,
upon written notice to the Trustee and Paying Agent, appoint and change any
Transfer Agent, Paying Agent or Registrar. The Company or any of its
subsidiaries may act as Transfer Agent, Paying Agent or Registrar.
5. Optional Redemption.
After October 15, 2003, the Securities will be subject to
redemption at the option of the Company, in whole or in part, upon not less than
30 calendar days, nor more than 60 calendar days' notice, at the prices
(expressed as percentages of principal amounts) set forth below, plus accrued
and unpaid interest thereon (if any) at the applicable Redemption Date, if
redeemed during the twelve-month period beginning October 15 of the years
indicated below:
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Year Percentage
---- ----------
2003 104.000%
2004 102.667%
2005 101.333%
2006 and thereafter 100.000%
Notwithstanding the foregoing, at any time prior to October
15, 2001, the Company may redeem up to 35% of the aggregate principal amounts of
Securities with the net proceeds of one or more Equity Offerings of the Company
at a redemption price equal to 108% of the aggregate principal amount thereof,
on the date of redemption; provided, however, that, after giving effect to any
such redemption, at least $97.5 million aggregate principal amount of the
Securities remain outstanding.
6. Notice of Redemption.
At least 30 calendar days but not more than 60 calendar days
before a Redemption Date, the Company will send a notice of redemption,
first-class mail, postage prepaid, to Holders of Securities to be redeemed at
the addresses of such Holders as they appear in the Security Register.
If less than all of the Securities are to be redeemed at any
time, the Securities to be redeemed will be chosen by the Trustee in accordance
with the Indenture. If any Security is redeemed subsequent to a Record Date with
respect to any Interest Payment Date specified above and on or prior to such
Interest Payment Date, then any accrued interest will be paid on such Interest
Payment Date to the Holder of the Security on such Record Date. If money in an
amount sufficient to pay the Redemption Price of all Securities (or portions
thereof) to be redeemed on the Redemption Date is deposited with the Paying
Agent on or before the applicable Redemption Date and certain other conditions
are satisfied, interest on the Securities to be redeemed on the applicable
Redemption Date will cease to accrue.
The Securities are not subject to any sinking fund.
7. Repurchase at the Option of Holders upon Change of
Control.
Upon the occurrence of a Change of Control, each Holder of
Securities shall have the right to require the Company to purchase such Holder's
Securities, in whole, or in part in a principal amount that is an integral
multiple of $1,000, pursuant to a Change of Control Offer, at a purchase price
in cash equal to 101% of the aggregate principal amount thereof on any Change of
Control Payment Date, plus accrued and unpaid interest, if any, to the Change of
Control Payment Date.
Within 30 calendar days following any Change of Control, the
Company shall send, or cause to be sent, by first-class mail, postage prepaid, a
notice regarding the Change of Control Offer to each Holder of Securities. The
Holder of this Security may elect to have this Security or a portion hereof in
an authorized denomination purchased by completing the form entitled "Option of
Holder to Require Purchase" appearing below and tendering this Security pursuant
to the Change
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of Control Offer. Unless the Company defaults in the payment of the Change of
Control Purchase Price with respect thereto, all Securities or portions thereof
accepted for payment pursuant to the Change of Control Offer will cease to
accrue interest from and after the Change of Control Payment Date.
8. Repurchase at the Option of Holders upon Asset Sale.
If at any time the aggregate amount of Excess Proceeds
(including any Net Cash Proceeds to be applied to the permanent reduction of
Indebtedness represented by the Existing Senior Subordinated Securities)
calculated as of such date exceeds $10 million, the Company shall, within 30
days of the date the amount of Excess Proceeds exceeds $10 million, use such
Excess Proceeds to make an offer to purchase (an "Asset Sale Offer") on a pro
rata basis, from all holders, outstanding Securities, Existing Senior
Subordinated Notes in an aggregate principal amount equal to the maximum
principal amount that may be purchased out of Excess Proceeds, at a purchase
price (the "Offer Purchase Price") in cash equal to (a) with respect to the
Existing Notes, 100% of the Accreted Value thereof (as defined in the relevant
indenture) and (b) with respect to the Securities, 100% of the principal amount
thereof, plus, in each case, accrued and unpaid interest, if any, to the
purchase date, in accordance with the procedures set forth in the relevant
indenture. Upon completion of an Asset Sale Offer (including payment of the
Offer Purchase Price), any surplus Excess Proceeds that were the subject of such
offer shall cease to be Excess Proceeds, and the Company may then use such
amounts for general corporate purposes.
Within 30 calendar days of the date the amount of Excess
Proceeds exceeds $10,000,000, the Company shall send, or cause to be sent, by
first-class mail, postage prepaid, a notice regarding the Asset Sale Offer to
each Holder of Securities. The Holder of this Security may elect to have this
Security or a portion hereof in an authorized denomination purchased by
completing the form entitled "Option of Holder to Require Purchase" appearing
below and tendering this Security pursuant to the Asset Sale Offer. Unless the
Company defaults in the payment of the Offer Purchase Price with respect
thereto, all Securities or portions thereof selected for payment pursuant to the
Asset Sale Offer will cease accrue interest from and after the Asset Sale
Payment Date.
9. Transfer and Exchange.
A Holder may transfer a Security upon the surrender of such
Security for registration of transfer. No such transfer shall be effected until,
and such transferee shall succeed to the rights of a Holder only upon, final
acceptance and registration of this transfer in the Security Register by the
Registrar. When Securities are presented to the Registrar with a request to
register the transfer of, or to exchange, such Securities, the Registrar shall
register the transfer or make such exchange as requested if its requirements for
such transactions and any applicable requirements hereunder are satisfied.
X-0
000
Xx service charge shall be made for any registration of
transfer or exchange of Securities, 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 of Securities.
10. Denominations.
The Securities are issuable only in registered form without
coupons in denominations of $1,000 and integral multiples thereof of principal
amount.
11. Unclaimed Money.
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back to
the Company at its request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only to
the Company and not to the Trustee for payment unless such abandoned property
law designates another Person.
12. Discharge and Defeasance.
Subject to certain conditions, the Company at any time may
terminate some or all of its obligations under the Securities and the Indenture
if the Company irrevocably deposits with the Trustee money or U.S. Government
Obligations for the payment of principal and interest on the Securities to
redemption or maturity, as the case may be.
13. Amendment, Waiver.
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in principal amount of the Outstanding Securities
and (ii) any past Default and its consequences may be waived with the written
consent of the Holders of at least a majority in principal amount of the
Outstanding Securities. Subject to certain exceptions set forth in the
Indenture, without the consent of any Holder of Securities, the Company and the
Trustee may amend Indenture or the Securities (i) to evidence the succession of
another Person to the Company and the assumption by such successor of the
covenants of the company under the Indenture and contained in the Securities;
(ii) to add additional covenants or to surrender rights and powers conferred on
the Company; (iii) to add any additional Events of Default; (iv) to provide for
uncertificated Securities in addition to or in place of Certificated Securities;
(v) to evidence and provide for the acceptance of appointment under the
Indenture of a successor Trustee; (vi) to secure the Securities; (vii) to cure
any ambiguity in the Indenture, to correct or supplement any provision in the
Indenture which may be inconsistent with any other provision therein or to add
any other provisions with respect to matters or questions arising under the
Indenture, provided that such actions shall not adversely affect the interests
of the Holders
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178
in any material respect; or (viii) to comply with the requirements of the
Commission in order to effect or maintain the qualification of the Indenture
under the Trust Indenture Act.
14. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in principal amount of the Securities, subject to
certain limitations, may declare all the Securities to be immediately due and
payable. Certain events of bankruptcy or insolvency are Events of Default and
shall result in the Securities being immediately due and payable upon the
occurrence of such Events of Default without any further act of the Trustee or
any Holder.
Holders of Securities may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may refuse to
enforce the Indenture or the Securities unless it receives reasonable indemnity
or security. Subject to certain limitations, Holders of a majority in principal
amount of the Securities may direct the Trustee in its exercise of any trust or
power under the Indenture. The Holders of a majority in principal amount of the
outstanding Securities, by written notice to the Company and the Trustee, may
rescind any declaration of acceleration and its consequences if the rescission
would not conflict with any judgment or decree, and if all Events of Default
have been cured or waived except nonpayment of principal and interest that has
become due solely because of the acceleration.
15. Individual Rights of Trustee.
Subject to certain limitations imposed by the Trust Indenture
Act, the Trustee or any Transfer Agent, Paying Agent or Registrar, in its
individual or any other capacity, may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee, Transfer Agent, Paying Agent or Registrar,
as the case may be, under the Indenture.
16. No Recourse Against Certain Others.
No director, officer, employee, incorporator or stockholder of
the Company, as such, shall have any liability for any obligations of the
Company under the Securities or the Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation, solely by
reason of its status as a director, officer, employee, incorporator or
stockholder of the Company. By accepting a Security, each Holder waives and
releases all such liability (but only such liability) as part of the
consideration for issuance of such Security to such Holder.
17. Governing Law.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE.
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179
The Company will furnish to any Holder of Securities upon
written request and without charge to the Holder a copy of the Indenture which
has in it the text of this Security. Requests may be made to:
Buckeye Technologies Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx Xxxxxx Xxxxxxxxxx
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180
ASSIGNMENT
(To be executed by the registered Holder
if such Holder desires to transfer this Security)
FOR VALUE RECEIVED _____________________________ hereby sells, assigns
and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER TAX IDENTIFYING NUMBER OF
TRANSFEREE
----------------------------
-------------------------------------------------------------------
(Please print name and address of transferee)
-------------------------------------------------------------------
this Security, together with all right, title and interest herein, and
does hereby irrevocably constitute and appoint ______________________
Attorney to transfer this Security on the Security Register, with full
power of substitution.
--------------------------------------------------------------------
Dated:
--------------------
------------------------------- -----------------------------
Signature of Holder Signature Guaranteed:
Commercial Bank or Trust Company
Or Member Firm of the New York
Stock Exchange, Inc.
NOTICE: The signature to the foregoing Assignment must correspond to
the Name as written upon the face of this Security in every particular,
without alteration or any change whatsoever.
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OPTION OF HOLDER TO ELECT PURCHASE
(Check as appropriate)
[ ] In connection with the Change of Control Offer made pursuant to Section
_____ of the Indenture, the undersigned hereby elects to have
[ ] $__________($1,000 in principal amount or an integral multiple
thereof) of this Security
repurchased by the Company. The undersigned hereby directs the
Trustee or Paying Agent to pay it or ___________ an amount in cash
equal to 101% with respect to the principal amount indicated in the
preceding sentence or the principal amount indicated in the preceding
sentences, as the case may be, plus accrued and unpaid interest
thereon, if any, to the Change of Control Payment Date.
[ ] In connection with the Asset Sale Offer made pursuant to Section ______
of the Indenture, the undersigned hereby elects to have
[ ] $_________($1,000 in principal amount or an integral multiple
thereof) of this Security
repurchased by the Company. The undersigned hereby directs
the Trustee or Paying Agent to pay it or ______________ an amount
in cash equal to 100% with respect to the principal amount
indicated in the preceding sentence, plus accrued and unpaid
interest thereon, if any, to the Asset Sale Payment Date.
Dated:
--------------------
------------------------------------ ---------------------------------
Signature of Holder Signature Guaranteed:
Commercial Bank or Trust Company
Or Member Firm of the New York
Stock Exchange, Inc.
NOTICE: The signature to the foregoing Assignment must correspond to the Name as
written upon the face of this Security in every particular, without alteration
or any change whatsoever.
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